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HomeMy WebLinkAbout32-City Attorney ORIGINAL CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: JAMES F. PENMAN Subject:AN URGENCY INTERIM ORDINANCE City Attorney OF THE CITY OF SAN BERNARDINO ADDING SAN BERNARDINO MUNICIPAL Dept: CITY ATTORNEY CODE SECTION 19.06.026 (DEVELOPMENT CODE) AND EXTENDING A TEMPORARY Date: April 10, 2007 MORATORIUM ON THE ESTABLISHMENT AND OPERATION OF MEDICAL MARIJUANA DISPENSARIES AND OTHER SIMILAR USES,DECLARING THE URGENCY THEREOF, AND TAKING EFFECT IMMEDIATELY. MCC Date: April 16, 2007 Synopsis of Previous Council Action: March 19,2007 -Mayor and Council adopted Ordinance No.MC-1243,an Urgency Interim Ordinance of the City of San Bernardino adding San Bernardino Municipal Code Section 19.06.026(Development Code) and establishing a temporary moratorium on the establishment and operation of Medical Marijuana Dispensaries and other similar uses, declaring the urgency thereof, and taking effect immediately. Recommended motion: Close the public hearing and adopt the Ordinance. Q �• f J es F. Penman, City Attorney Contact person: Henry Empeno,Jr., Sr. Deputy City Attorney Phone: 5355 Supporting data attached: Staff Report Ward: ALL FUNDING REQUIREMENTS: Amount: Source: Finance: Council Notes: Agenda Item No. FA\EMPENO\Ordinances\Urgency Ordinance re medical marijuana 4-10-07-RCA.wpd STAFF REPORT Council Meeting Date: April 16, 2007 TO: Mayor and Common Council FROM: James F. Penman, City Attorney DATE: April 10, 2007 AGENDA ITEM: AN URGENCY INTERIM ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING SAN BERNARDINO MUNICIPAL CODE SECTION 19.06.026 (DEVELOPMENT CODE) AND EXTENDING A TEMPORARY MORATORIUM ON THE ESTABLISHMENT AND OPERATION OF MEDICAL MARIJUANA DISPENSARIES AND OTHER SIMILAR USES, DECLARING THE URGENCY THEREOF, AND TAKING EFFECT IMMEDIATELY. On March 19, 2007, the Mayor and Council unanimously adopted Ordinance No. MC-1243, An Urgency Interim Ordinance of the City of San Bernardino adding San Bernardino Municipal Code Section 19.06.026 (Development Code) and establishing a temporary moratorium on the establishment and operation of Medical Marijuana Dispensaries and other similar uses, declaring the urgency thereof, and taking effect immediately. Pursuant to Government Code Section 65858, Ordinance No. MC-1243 expires on May 3, 2007, forty-five (45) days from its date of adoption unless extended by action of the Mayor and Council. Government Code Section 65858(a) authorizes the Mayor and Council to extend the interim ordinance for 10 months and 15 days after notice pursuant to Government Code Section 65090 and a public hearing. The facts and the state of the law remain the same today as when the Mayor and Council adopted Ordinance No. MC-1243. The extension of the interim ordinance is needed to allow the Development Services Department to process a permanent ordinance and to schedule noticed public hearings before the Planning Commission and the Mayor and Council. Legal notice of the April 16,2007 public hearing before the Mayor and Council to consider this extension of the interim ordinance was published in The Sun newspaper on April 6, 2007. The following report is repeated from the March 19, 2007 Staff Report, in support of the extension of this interim ordinance. - 1 - FAEMPENO\Ordinances\Urgency Ordinance re medical marijuana 4-10-07-Staff Report.wpd I California cities are currently caught in a conflict between federal and state law as to the legality of medical marijuana. Under former state law, all persons were prohibited from obtaining, possessing, or cultivating marijuana for any purpose, including for medical treatment purposes. In 1996, the voters of the State of California approved Proposition 215, which was codified as Health and Safety Code Section 11362.5, and entitled the Compassionate Use Act of 1996 ("CUA"). The intent of Proposition 215 was to enable persons who are in need of medical marijuana for medicinal purposes to obtain and use it under limited, specified circumstances. To clarify the scope of the CUA, the California State Legislature enacted California Senate Bill ("SB") 420 (Health and Safety Code Section 11362.7 et seq.). Under SB 420, California cities and counties adopted and enforced new rules and regulations permitting the use and distribution of marijuana for medicinal purposes. These regulations and rules became known as the Medical Marijuana Program ("MMP") which, among other things enhanced the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects. Meanwhile, under federal law, marijuana remains classified as a Schedule I drug, which means that it has no recognized medical use. Federal law states that the sale, possession, cultivation, and distribution of marijuana is prohibited (21 U.S.C. §§812 and 841,part of the Controlled Substances Act). Nevertheless,California state courts and the California Attorney General have decided that the CUA and MMP collectively decriminalize the use of marijuana for medicinal purposes under state law. Case law remains divided on this issue. Federal courts continue to declare the use of marijuana a federal crime. On May 14, 2001, in U.S. v. Oakland Cannabis Buyers'Cooperative(2001) 532 U.S. 483, the United States Supreme Court held that there was no medical necessity exception to the Controlled Substances Act's prohibition on manufacturing and distributing marijuana. On June 6, 2005, in Gonzales v. Raich (2005) 545 U.S. 1, the United States Supreme Court reiterated the federal prohibition against marijuana when it ruled that the federal Controlled Substances Act is valid even as applied to the intrastate, noncommercial cultivation, possession and use of marijuana for personal medical use on the advice of a physician. Meanwhile, state courts continue to deny any federal preemption claim and - 2 - FAEMPENO\Ordinances\Urgency Ordinance re medical marijuana 4-10-07-Staff Report.wpd instead declare the CUA and MMP valid state law. On September 12, 2005, the California Court of Appeals in People v. Urziceanu(2005) 132 Cal.AppAth 747,held that the Legislature intended to allow the "formation and operation of medical marijuana cooperatives that would receive reimbursement for marijuana and the services provided in conjunction with the provision of that marijuana." The state court again took a conflicting position when on December 6,2006,in the unpublished case of County of San Diego v. San Diego NORML (2006) Case No. GIC 860665, the California Superior Court for the County of San Diego issued an order that upheld the validity of the CUA and the State's MMP, notwithstanding a claim that the CUA and MMP were pre-empted by federal law. The continuing conflict between federal and state law increasingly wastes taxpayer dollars. As a result, the City of San Bernardino must decide whether, as a land use matter, medical marijuana dispensaries should be permitted, regulated, or prohibited. Some California cities have chosen to regulate the use, but an increasing number have prohibited medical marijuana dispensaries due to its conflict with federal law,while others have prohibited medical marijuana dispensaries on grounds of harmful secondary impacts to the surrounding community. According to a survey conducted by the City of Ontario in September 2006 based on telephone inquiries and information from the League of California Cities (copy attached),28 California cities allowed medical marijuana dispensaries, while 113 California cities either permanently prohibited them or had imposed a temporary moratorium on them at that time. It is clear that the federal government's interpretation is that the possession and use of marijuana remains a violation of federal law regardless of California's CUA and MMP. As evidence of federal preemption, the Federal Drug Enforcement Administration recently raided several medical marijuana dispensaries in various California cities, despite the state's passage of the CUA. Other cities have researched the impact of medical marijuana dispensaries in California. Many of these cities have found that such medical marijuana dispensaries have resulted in negative and harmful secondary effects, including significant increases in traffic, crime and noise. These harmful secondary effects have involved a wide range of activity including burglaries, takeover robberies of dispensaries, robberies of customers leaving dispensaries, an increase in theft and robberies in the vicinity of dispensaries, illegal re-selling of marijuana obtained from dispensaries, - 3 - F:\EMPENO\Ordinances\Urgency Ordinance re medical marijuana 4-10-07-Staff Report.wpd physicians issuing apparently fraudulent recommendations for the use of marijuana, dispensary staff selling marijuana to customers with obviously counterfeit patient identification cards, street dealers attempting to sell marijuana to dispensary customers, dispensaries' customers using marijuana and then driving under its influence, the sale of other illegal narcotics other than marijuana in the dispensaries, and sales of marijuana to minors. Until a controlling Federal court rules otherwise, we believe that Federal law preempts California state law, and the establishment and operation of medical marijuana dispensaries violates the Federal Controlled Substances Act. Therefore, in order to protect public health, safety and welfare and to comply with federal law, we recommend that the Mayor and Common Council adopt the Urgency Interim Ordinance which extends a temporary moratorium on the establishment and operation of medical marijuana dispensaries and other similar uses. Pursuant to Government Code Section 65858,this Urgency Interim Ordinance requires a four-fifths vote of the Council for adoption and is of no further force and effect 10 months and 15 days from its date of adoption, but it may be extended once again for a total time period of two years. The Urgency Interim Ordinance directs the Development Services Department and the Planning Commission to consider and process a permanent ordinance prohibiting the establishment and operation of medical marijuana dispensaries in the City of San Bernardino. Recommended Motion: Close the public hearing and adopt the Ordinance. - 4 - FAEMPENO\Ordinances\Urgency Ordinance re medical marijuana 4-10-07-Staff Report.wpd I Medical Marijuana Dispensaries in California Cities City Moratoriums Prohibited Allowed Albany —j— expires May 2007 _ Angels Camp I x Antioch expires October 2006 Arroyo Grande x Atascadero I - - x _- Auburn _ _ x Berkeley x Buellton x to allow further study of Carpinteria issue - Ceres x Chula Vista x ---- ordinance-adopted that Citrus Heights regulates the use Clearlake j x ordinance a-dopted that Clovis I regulates the use Colma x Concord x Corona x Costa Mesa x - - Davis _ x Dixon x Dublin x El Cajon i x - El Cerrito x El Monte — I x - Elk Grove � x Fairfax x Fairfield x Folsom _ x t CUP in industrial zone; Fort Bragg I special regulations adopted Fremont x —� Fresno x Galt - --�- x -- ---- ---- -- Gardena x - Grover Beach x — Hawaiian Gardens x t — Hawthorne _ x - Hayward I x Healdburg x City Moratoriums Prohibited I Allowed Hercules -- x - - ---- Hermosa Beach x _- Hesperia � x Huntington Beach x Indian Wells x -- - -----_-- Industry x - -- Jackson - x - La Mirada _ x Lake Forest x --- - - Lawndale -- Lemoore --x -- Lincoln x - Livermore x Lompoc _ x -- -- Long Beach _ x ��--- Los Banos x Los Gatos ---�- —_ x Malibu x ---- Manteca x - - - Marin City - — x - Marina x Martinez x Merced _moratorium extended -- Mill Valley expires June 2007 - —_--v �n commercia zones- Millbrae (considered a "clinic" use) Milpitas x Mission Viejo x i -- -_ Modesto - x - -- - - -- -- Moorpark _ I_ x f allowed by right in C-1 zone, minor CUP in other -commercial zones; standards under review with zoning Morro Bay ordinance update n owe ic7 n con�unct�on with Mountain View pharmacy use Murrieta -_---� X Newark x Newman x Newport Beach x -- Oakland . x Oakley x Ontario x City Moratoriums Prohibited _ Allowed Oxnard x Pacifica X--- -- Palm Desert x Palm Springs x - Pasadena x Patterson _ � � x � - - ---- -- Pico Rivera x - �- -------_--- Pinole ----- x �-- � ----- - Pismo Beach -- x ---_- Placentia - x - - --- - Placerville x Pleasant Hill _ expires June 2007 _ Pleasanton x Plymouth x - --- ! 0r1 jto allow further study of Pomona issue Rancho Cordova x Redlands x Redondo Beach x Rid 9 crest -----�-_-_-- -- x --- - ------- -------- -- -}----- --- - - Ripon _ x _ Riverbank x Rocklin - x -�-_- - -- - ----- ----- Rohnert Park expires April 2007 Rosedale x � - ordinance adopte�t�iat -- Roseville regulates the use ---- ---------- - Sacramento x San Francisco x San Jacinto x San Jose i _ x San Leandro expires November 2006 San Luis Obispo x San Pablo expires December 2006 - San Rafael x Santa Ana expires September 2006 Santa Clarita x i Santa Cruz x Santa Maria expires March 2008 Santa Rosa x Sausalito j expires May 2006 Seaside x Sebastopol x ! Selma x City Moratoriums Prohibited Allowed Simi Valley _-_ expired February 2006 5olvang x - So San Francisco x Stockton _ indefinite moratorium—.--,-_ 5usanville x Sutter Creek x Temecula — x - Torrance x Truckee x Tulare x emergency ordinance - prohibiting facilities pending Turlock I further study -- — - -- mTerim-oriairiance ofiter dispensary opened under the guise of an herbal remedy Tustin_ _ _ store j or inances u opted to Ukiah regulate these uses Union City _ x ordinance adopted that-- Visalia _ _ _ regulates the us_e_ Walnut Creek _ — — ---- — x — West Hollywood— -- �--- x --- _ ------ •Whittier �------- - --- ---_- Willits i expires October 2006 Windsor _I x allow—ed in conjunction wit Yorba Linda ! _ _ pharmacy use Yreka _ x — Yuba City x -A - Totals - - -- - 73- - —�_- 40 28 Coil lif ornia League of Cities, Americans for Safe Access and Telephone Inquiries as of 9/2006 1 ORDINANCE N i i. 2 I 3 AN URGENCY INTERIM ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING SAN BERNARDINO MUNICIPAL CODE SECTION 19.06.026(DEVELOPMENT 4 CODE)AND EXTENDING A TEMPORARY MORATORIUM ON THE ESTABLISHMENT AND OPERATION OF MEDICAL MARIJUANA DISPENSARIES AND OTHER 5 SIMILAR USES, DECLARING THE URGENCY THEREOF, AND TAKING EFFECT IMMEDIATELY. 6 The Mayor and Common Council of the City of San Bernardino do ordain as follows: 7 WHEREAS, on March 19, 2007, the Mayor and Council unanimously adopted Ordinance 8 No. MC-1243, An Urgency Interim Ordinance of the City of San Bernardino adding San Bernardino Municipal Code Section 19.06.026(Development Code)and establishing a temporary moratorium on 9 the establishment and operation of Medical Marijuana Dispensaries and other similar uses, declaring the urgency thereof, and taking effect immediately. 10 WHEREAS,pursuant to Government Code Section 65858,Ordinance No.MC-1243 expires 11 on May 3, 2007, forty-five(45)days from its date of adoption unless extended by action of the Mayor and Council; and 12 WHEREAS, an extension of the interim ordinance is needed to allow the Development 13 Services Department to process a permanent ordinance and to schedule noticed public hearings before the Planning Commission and the Mayor and Council; and 14 WHEREAS,legal notice of the April 16,2007 public hearing before the Mayor and Council i 5 to consider this extension of the interim ordinance was published in The Sun newspaper on April 6, 2007; and 16 WHEREAS,in 1996,the voters of the State of California approved Proposition 215,which 17 was codified as Health and Safety Code Section 11362.5, et seq. and entitled the Compassionate Use Act of 1996 ("CUA"); and 18 WHEREAS,the intent of Proposition 215 was to enable persons who are in need of medical 19 marijuana for medicinal purposes to obtain and use it under limited specified circumstances; and 20 WHEREAS, on May 14, 2001, in U.S. v. Oakland Cannabis Buyers' Cooperative (2001) 532 U.S. 48?, the United States Supreme Court held that there was no medical necessity exception to 21 the Controlled Substance Act's prohibition on manufacturing and distributing marijuana; and 22 WHEREAS,on January 1,2004,California Senate Bill("SB")420 went into effect(Health and Safety Code Section 11362.7,et seq.). SB 420 was enacted by the Legislature to clarify the scope 23 of the CUA and to allow California cities and counties to adopt and enforce rules and regulations consistent with SB 420 and the CUA. Thcse new regulations and rules became known as the Medical 24 Marijuana Program ("MMP"), which, among other things, enhanced the access of patients and 25 caregivers to medical marijuana through collective, cooperative cultivation projects; and WHEREAS, on June 6, 2005, in Gon-7ales v. Raich (2005) 545 U.S. 1, the United States 26 Supreme Court ruled that the federal Controlled Substances Act is valid even as applied to the intrastate, noncommercial cultivation,possession and use of cannabis for personal medical use on the 27 advice of a physician; and 28 1 I EMPENO\Ordinances�ur,ency Ordinance re temporary montonum 4-10-07-medical manjuana wpd I I 1 WHEREAS, on December 6, 2006, in the unpublished case of County of San Diego v. San Diego NORML (2006) Case No. G1C 860665, the California Superior Court for the County of San 2 Diego issued an order that upheld the validity of the CUA and the State's MMP, notwithstanding the Claim that the CUA and MMP were pre-empted by federal law; and 3 WHEREAS, the County of San Diego has indicated that it intends to appeal the trial court 4 decision; and 5 WHEREAS, these collective case decisions reveal a conflict between federal and state law as to the legality of the CUA, the MMP, and consequently, medical marijuana dispensaries; and 0 WHEREAS, the City must now, in the face of continuing conflict between state and federal 7 law, decide for itself whether, as a land use matter, medical marijuana dispensaries should be permitted, regulated or prohibited; and 8 WHEREAS, the Mayor and Common Council hereby specifically finds as follows: a. The sale,possession,cultivation,and distribution of cannabis is prohibited by federal 10 law, specifically 21 U.S.C. §§ 812 and 841, part of the Controlled Substances Act; 11 b. Marijuana continues to be a prohibited Schedule I drug under the Controlled Substance Act for which there is no legally accepted medical use under federal law; 12 C. Cities in California continue to receive mixed messages from the state and federal 13 governments regarding the legality of marijuana for medicinal purposes and the establishment and 0 operation of medical marijuana dispensaries. This confusion has increasingly led to wasted taxpayer 14 dollars as cities have been caught in the middle. Recently, the Federal Drug Enforcement Administration raided several medical marijuana dispensaries in various California cities, despite the 15 state's passage of the CUA. 16 d. Beyond the legality issue, several California cities that have permitted the establishment of medical marijuana dispensaries have found that such medical marijuana dispensaries 17 have resulted in negative and harmful secondary effects, including significant increases in traffic, crime, and noise. 18 e. These harmful secondary effects have involved a wide range of activity including 19 burglaries,takeover robberies of dispensaries,robberies of customers leaving dispensaries,an increase in theft and robberies in the vicinity of dispensaries, illegal re-selling of marijuana obtained from 20 dispensaries, physicians issuing apparently fraudulent recommendations for the use of marijuana, dispensary staff selling marijuana to customers with obviously counterfeit patient identification cards, 21_ street dealers attempting to sell marijuana to dispensary customers, dispensary customers using marijuana and then driving under its influence, the sale of other illegal narcotics other than marijuana 22 in the dispensaries, sales of marijuana to minors; and 23 f. For these reasons and those provided during the hearing on this Ordinance, the Mayor and Common Council finds that there is a current and immediate threat to the public health, 24 safety, or welfare, and that the approval of any entitlements for the establishment or operation of a medical marijuana dispensary or other similar uses would result in that threat to public health, safety 25 or welfare. The Mayor and Common Council further finds that the adoption of the Urgency Interim Ordinance extending a temporary moratorium on the establishment or operation of medical marijuana 26 dispensaries and other similar uses is necessary to both protect the public health, safety and welfare and to comply with federal law. 27 28 2 f:\FMPFNO\Ordinances\Urgency Ordinance re temporary montonum 4-10-07-medical manjuana.wpd 1 NOW THEREFORE,THE MAYOR AND COMMON COUNCII.OF THE CITI'OF SAN BERNARDINO DO ORDAIN AS FOLLOWS: 2 Section 1. San Bernardino Municipal Code Section 19.06.026 (Development Code) 3 is hereby added to read as follows: 4 19.06.026 Other Prohibited Uses L (A) Notwithstanding any conflicting provision(s) in any other section of the San Bernardino Municipal Code, including the Development Code,no Conditional Use 6 Permit,Development Permit, Building Permit, Certificate of Occupancy or Zoning Verification Review (also referred to as "Zoning Consist:ncy Review"), shall be issued or granted for the establishment or operation of a medical marijuana dispensary or similar use. 8 (B) As used in this section, the following definitions apply: U 1. "Marijuana" means all parts of the plant Cannabis, 10 whether growing or not; the seeds thereof, the resin extracted from any part of the plant; and every compound manufacture, 1 salt, derivative, mixture, or preparation of the plant, its seeds or resin. It includes marijuana infused in foodstuff. It does not 12 include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other 13 compound,manufacture,salt,derivative,mixture,or preparation of the mature stalks(except resin extracted therefrom),fiber, oil, 14 or cake, or the sterilized seeds of the plant incapable of germination. 15 2. "Medical marijuana dispensary" means any business, 16 association,cooperative,club,coop,delivery service,collective, and any other similar use involved in the sale, possession, 17 cultivation, use, and/or distribution of marijuana for medicinal purposes; sometimes commonly referred to as a "medical 18 marijuana clinic." 19 Section 2: This Ordinance is based upon the recitals and findings set forth above, and the accompanying Staff Report and its attachments to this Ordinance, and is adopted pursuant to the 20 authority granted to the City of San Bernardino in Article 11, Section 7 of the California Constitution, Article III, Section 31 of the Charter of the City of San Bernardino, and California Government Code 21 Section 65858. 22 Section 3: This Ordinance supersedes and replaces Ordinance No.MC-1243 and shall take effect immediately and be of no further force and effect 10 months and 15 days from its date of 23 adoption unless extended by action of the Mayor and Common Council. 24 Section 4: During the effective time period of this Ordinance, the Development Services Department and the Planning Commission are hereby directed to consider and process a permanent 25 ordinance prohibiting the establishment or operation of medical marijuana dispensaries and other similar uses in the City of San Bernardino. 26 ® Section 5: Compliance with the California Environmental Quality Act. The Mayor 27 and Common Council finds that this ordinance is not subject to the California Environmental Quality 28 Act (CEQA) pursuant to Sections 15061(b)(3) (the activity will not result in a direct or reasonably 3 F\EMPENO\Ordinances\Urgency Ordinance re temporary moritonurn 4-10-07-medical marijuana wpd foreseeable indirect physical change in the environment) and l w60(e)(3) (the activity is not a project as defined in Section 1 5378) of the CEQA Guidelines, California Code of Regulations, Title 14, 2 Chapter 3,because it has no potential for resulting in physical change to the environment, directly or indirectly_ . 3 Section 6: Severability. If any section, subsection,subdivision,sentence,clause or phrase 4 in this ordinance or any part thereof is for any reason held to be unconstitutional,invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of 5 the remaining portions of this ordinance or any part thereof. The Mayor and Common Council hereby declares that it would have adopted each section irrespective of the fact that any one or more 6 subsections, subdivisions, sentences, clauses, or phrases be declared unconstitutional, invalid, or ineffective. 7 8 9 10 11 12 13 0 14 15 i 16 17 18 19 20 21 22 23 24 25 26 ® 27 28 4 F',FMPEN&Ordinances\Urgency Ordinance re temporary moratorium 4-10-07-medical ntanjuana.wpd . i AN URGENCY INTERIM ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING SAN BERNARDINO Mt?NICIPAL CODE SECTION 19.06.026(DEVELOPMENT 2 CODE)AND EXTENDING A TEMPORARY MORATORIUM ON THE ESTABLISHMENT AND OPERATION OF MEDICAL MARIJUANA DISPENSARIES AND OTHER SIMILAR 3 USES,DECLARING THE URGENCY THEREOF,AND TAKING EFFECT IMMEDIATELY. 4 I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor anal J Common Council of the City of San Bernardino at a meeting thereof, held 6 on the day of , 2007, by the following vote, to wit: 7 8 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT 9 ESTRADA 10 BAXTER 11 BRINKER 12 DERRY 13 QKELLEY JOHNSON 15 MC CAMMACK 16 17 18 Rachel Clark, City Clerk 19 The foregoing Ordinance is hereby approved this day of 2007. 20 21 22 PATRICK J. MORRIS Mayor City of San Bernardino 23 Approved as to form: 24 JAMES F. PENMAN City Attorney 25 f 26 27 28 5 F'EMPENO\Ordinances\Urgency Ordinance re temporary montorium 4-10-07-medical manjuana wpd