HomeMy WebLinkAboutOrdinance 2269 N.C.S. 05/21/2007 ~ EFFECTIVE DATE ORDINANCE NO. 2269 N.C.S.
OF ORDINANCE
June 21, 2007
1 Introduced by Seconded by
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4 Mike O'Brien Mike Harris
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8 AN ORDINANCE OF THE CITY OF PETALUMA ADDING CHAPTER 10.15 TO PART III OF TITLE
9 10 OF THE PETALUMA MUNICIPAL CODE, PROHIBITING THE ESTABLISHMENT AND
1.0 OPERATION OF MEDICAL MARIJUANA DISPENSARIES WITHIN THE CITY OF PETALUMA
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13 A. In 1996 the voters of the state of California apK~roved Proposition 215 (codified as
14 Health and Safety Code Section 11362.5 et. seq. and entitled "The Compassionate Use Act of
1.5 1996."
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17 B. Proposition 215 was intended to enable persons who are in need of medical
18 marijuana for specified medical purposes to obtain and use it under limited, specified
19 circumstances.
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21 C. On January 1, 2004, SB 420 went into effect, adding Article 2.5, "Medical
22 Marijuana Program" to Division 10 of the California Health ah:~ Safety Code at Sections 1 1362.7
23 et seq. SB 420 was enacted by the State to clarify the scope of the Compassionate Use Act of
24 1996 and to allow cities and other governing bodies to adopt and enforce rules and regulations
25 consistent with SB 420.
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27 D. One purpose of the Compassionate Use Act and the Medical Marijuana Program
28 is "[t]o encourage the federal and state governments to implement a plan to provide for the
29 safe and affordable distribution of marijuana to all patients in medical need of marijuana."
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31 E. Neither the federal nor the state government has implemented a specific plan
32 "to provide for the safe and affordable distribution of marijuana to all patients in medical need
33 of marijuana," leaving cities with a lack of direction about How ti-7e Compassionate Use Act is
34 intended to be implemented, particularly in regard to distribution of medical marijuana through
35 dis~Phsaries.
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37 F. The Medical Marijuana Program provides additional statutory guidance for
38 medical marijuana use and cultivation, but it does not explicitly address the role of dispensaries,
39 nor does it require that cities provide for or allow the establishment and/or operation of medical
40 marijuana dispensaries.
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42 G. Federal law considers marijuana to be a "Schedule I Urug," (defined as a drug or
43 other substance that has a high potential for abuse and no accepted medical use), and
Ordinance No. X269 N.C.S. Page i
1 prohibits manufacture and distribution of marijuana under the Controlled Substance Act
2 ("CSA") .
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4 H. The United States Supreme Court recently clarified in Gonzales v. Raich, 545 U.S. 1
5 (2005), that the provisions of the federal Controlled Substances Act apply to prohibit all personal
6 use of marijuana, including medical use, in California.
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8 I. Court decisions as recently as March, 2007 have failed to reconcile the
9 differences between state and federal law on the subject of medical marijuana sufficiently to
10 enable City public safety employees to regulate medical marijuana distribution and use without
11 raising issues of illegality under the CSA, and no court to date has determined whether the
12 Compassionate Use. Act is pre-empted by the CSA.
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14 J. Pursuant to California Government Code Section 65858, on June 20, 2005, the
15 City Council of the City of Petaluma adopted Ordinance 2214 N.C.S., an urgency ordinance
16 imposing a moratorium on the issuance of any City permits or approvals for a medical marijuana
17 dispensary, for a period of 45 days, to preserve the status quo to permit the City to study
18 community and statewide concerns regarding the establishment of medical marijuana
19 dispensaries under the Compassionate Use Act.
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21 K. Pursuant to Government Code Section 65858, on August 1, 2005, the City Council
22 of the City of Petaluma adopted Ordinance 2220 N.C.S., extending the interim moratorium for a
23 period of ten months and fifteen days, to allow continued st~~dy of community and statewide
24 concerns regarding the establishment of medical marijuana dispensaries under the
25 Compassionate Use Act.
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2% L. Pursuant to Government Code Section 65858, on June 5, 2006, the City Council of
28 the Cty of Petaluma adopted Ordinance 2245, extending the interim moratorium for a period of
29 one ,near, to and including June 5, 2007 to allow continued study of community and statewide
30 concerns regarding the establishment of medical marijuana dispensaries under the
31 Compassionate Use Act and the impacts of still-developing federal and state law interpreting
32 the Act and its relationship to the federal Controlled Substances Act ("CSA"). No further
33 extensions of the interim moratorium are permitted under state law.
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35 N1. Existing City ordinances and regulations do not expressly provide for regulation or
36 control of medical marijuana dispensaries.
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38 N. There are no existing medical marijuana dispensaries in the City and the City has
39 not received any applications to establish and/or maintain a medical marijuana dispensary in
40 City..
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42 O. Other California cities that have permitted the establishment of medical
43 marijuana dispensaries have an experienced an increase in crime, such as burglary, robbery
44 and sale of illegal drugs in the areas immediately surrounding such medical marijuana
45 dispensaries.
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47 P. According to police statements, since the establishment of medical marijuana
48 dispensaries in Santa Rosa, there has been an armed robbery and two burglaries at a Santa
49 Rosa dispensary; and a robbery of the owner/operator of a Santa Rosa dispensary who was
50 followed home to Larkfield from the dispensary and robbed at gunpoint. In Windsor, recent
51 medical marijuana related incidents include a home invasion robbery with a shooting victim, a
52 shooting by a party defending his medical marijuana and a home invasion robbery with apistol-
Ordinance No. 2269 N.C.S. Page 2
1 whipping assault. Police statements dlso report "several" murders in relation to medical
2 marijuana in Lake and Mendocino Counties in the past two years.
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4 Q. Per pound prices for domestically produced high-grade marijuana sold illegally
5 within Northern California can reach $2,000 to $5,000 per pound (National Drug Intelligence
6 Center, California Northern and Eastern District Drug Threat Assessment, January, 2001),
7 suggesting a substantial economic motivation for theft and/or fraud at medical marijuana
8 dispensaries in Sonoma County.
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10 R. Medical marijuana dispensaries may negatively impact the health, safety and
11 welfare of the community because of the potential associated with medical marijuana
12 dispensaries for increases in illegal drug use and sales, robbery of dispensaries and dispensary
13 operators, employees and clients, loitering, falsely obtained identification cards and other
14 increases in criminal activity.
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16 S. Pursuant to the City's police powers pursuant Article XI, Section 5 of the California
17 Constitution, the Petaluma City Charter, and provisions of general law, including, but not limited
18 to California Government Code Section 38771, as well as the Petaluma Municipal Code and
19 other local regulations, the City has the power through its City Council to declare actions
20 constituting a public nuisance.
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22 T. Based on the public safety concerns described herein, the City Council finds
23 that the establishment, maintenance and/or operation of medical marijuana dispensaries within
24 the City limits constitutes a public nuisance.
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26 U. Medical marijuana dispensaries are currently authorized in the Cities of Santa
27 Rosg and Sebastopol. Persons residing in Petaluma and entitled to possess and use medical
28 marijuana under the Compassionate Use Act have access to dispensaries in these nearby
29 jurisdictions as well as to existing services within Sonoma County which provide- medical
30 marijuana, including delivery to qualified patients.
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32 V. Pursuant to Section 15001 of the California Environmental Quality Act
33 ("CEQA"), Public Resources Code Sections 21000 et seq., this ordinance is not a project within
34 the meaning of the Section 15378 of the CEQA Guidelines because it has no potential for
35 resulting in physical change in the environment, directly or indirectly.
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37 NOW THEREFORE, the City Council of the City of Petaluma does ordain as follows:
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39 Section 1. Recitals Made Findings. The above recitals are hereby declared to be
40 true and correct and findings of the City Council of the City of Petaluma.
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42 Section 2. Addition of Chapter 10.15 to the Petaluma Municipal Code. Chapter
43 10.15, Medical Marijuana, is hereby added to Part III, Offenses Against Public Health and Safety,
44 of Title 10, Peace, Safety and Morals, of the Petaluma Municipal Code, to read as follows;
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4~ CHAPTER 10.15
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49 MEDICAL MARIJUANA
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51 10.15.010. Purpose. The purpose of this ordinance is to promote the public health,
52 safety and welfare by:
Ordinance No. 2269 N.C.S. Page 3
1 a. Protecting citizens from the secondary impacts associated with medical
2 marijuana dispensaries, including, but not limited to, increased public consumption of marijuana
3 and the potential for increased marijuana DUIs, illegal resale of marijuana. obtained at low cost
4 from dispensaries, loitering, fraud in obtaining or use of medical marijuana identification cards,
5 robbery, assaults, and other crimes.
6 b. Preventing increased demands for police response resulting from activities at
7 medical
8 marijuana dispensaries, thereby avoiding reduction of the ability of the City's public safety
9 officers to respond to other calls for service.
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11 10.15.020. Definitions. "Medical Marijuana- Dispensary." Any facility or location.
12 where medical marijuana is made available to, and/or distributed by or distributed to two (2) or
13 more of the following: a qualified patient, a person with an identification card, or a primary
14 caregiver. Each of these terms is defined in California Health and Safety Code Section 1 1362.7
15 and shall be interpreted in strict accordance with California Health and Safety Code Sections
16 1 1362.5 and 1 1362.7 et seq. as such sectiohs may be amended-from time to time. A Medical
17 Marijuana Dispensary shall not include the following uses, so long as the location of such uses is
18 otherwise regulated by and strictly complies with the Petaluma Municipal Code or other
19 applicable law, including but not limited to, California Health and Safety Code Sections 1 1362.5
20 and 1 1362.7, et seq., as such sections may be amended from time to time.:
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22 A. A clinic licensed pursuant to Chapter l of Division 2 of the California Health and
23 Safety Code.
24 B. A health care facility licensed pursuant to Chapter 2 of Division 2 of the California
25 Health and Safety Code.
26 C. A residential care facility for persons with chronic life-threatening illness licensed
27 pursuant to Chapter 3.01 of Division 2 of the California Health and Safety Code.
28 D. A residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2
29 of the California Health and Safety Code.
30 E. A residential hospice or a home health agency, licensed pursuant to Chapter 8 of
31 Division 2 of the California Health and Safety Code.
32 F. The delivery, administration or provision of medical marijuana by a designated
33 primary caregiver to the qualified patient of the primary caregiver or to the person
34 with an identification card who has designated the individual as a primary caregiver
35 at the primary residence of the qualified patient or person with an identification card
36 who has designated the individual as a primary caregiver.
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38 10.15.030. Prohibition of medical marijuana dispensaries. No permit or any other
39 applicable license or entitlement for use, including but not limited to the issuance of a business
40 license, shall be approved or issued for the establishment or operation of a medical marijuana
41 dispensary within the city limits of the city of Petaluma.
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43 10.15.040 Establishment or maintenance of medical marijuana dispensaries
44 declared public nuisance. The establishment, maintenance or operation of a medical
45 marijuana dispensary as defined in this chapter within the city limits of the City of Petaluma is
46 declared to be a public nuisance. Violations of this chapter may be enforced by any
47 applicable laws or ordinances, including, but not limited to, Chapter 1.10 of this code.
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49 Section 3. Severability.
50 If any provision of this ordinance or the application thereof to any person or circumstance is held
51 invalid, the remainder of the ordinance, including the application of such part or provision to
52 other persons or circumstances shall not be affected thereby and shall continue in full force and
Ordinance No. 2269 N.C.S. Page 4
1 effect. To this end, provisions of this ordinance are severable. The City Council hereby declares
2 that it would have passed each section, subsection, subdivision; paragraph, sentence, clause,
3 or phrase hereof irrespective of the fact that any one or more sections, subsections, subdivisions,
4 paragraphs, sentences, clauses, or phrases be held unconstitutional, invalid, or unenforceable.
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6 Section 4. Effective Date.
7 This ordinance shall become effective thirty (30) days after the date of its adoption by the
8 Petaluma City Council.
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10 Section 5. Publication.
11 The City Clerk is hereby directed to post. and/or publish this ordinance or a synopsis of it for the
12 period and in the manner required by the City Charter.
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14 INTRODUCED AND ORDERED POSTED/PUBLISHED THIS 7'h day of May, 2007.
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16 ADOPTED THIS 215} day of May, 2007, by the following vote:
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19 AYES: Harris, Vice Mayor Nau, O'Brien, Babbitt
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21 NOES: Barrett, Mayor Torliatt
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23 ABSENT: Freitas
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25 ABSTENTIONS: None
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32 Pamela Torliatt„Mayor
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35 ATTEST: APPROVED FORM:
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39 Claire Cooper, CMC, City Cler Eric W. Danl ,City Attorney
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