HomeMy WebLinkAboutMC-1265U
Adopted: February 19, 2008
Effective: February 19, 2008
ORDINANCE NO. MC-1265
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
IMMEDIATEL Y.
The Mayor and Common Council of the City of San Bernardino do ordain as follows:
8 WHEREAS, 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
9 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
10 the urgency thereof, and taking effect immediately.
11 WHEREAS, on April 16, 2007, the Mayor and Council unanimously adopted Ordinance
No. MC-1244, which extended this same moratorium for 10 months and 15 days.
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WHEREAS, pursuantto Government Code Section 65858, Ordinance No. MC-1244 expires
13 on March 3, 2008, unless extended by action of the Mayor and Council; and
14 WHEREAS, legal notice of the February 19,2008 public hearing before the Mayor and
Council to consider this extension of the interim ordinance was published in The Sun newspaper on
15 February 9, 2008; and
16 WHEREAS, in 1996, the voters of the State of California approved Proposition 215, which
was codified as Health and Safety Code Section 11362.5, et seq. and entitled the Compassionate Use
17 Act of 1996 ("CUA"); and
18 WHEREAS, 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; and
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WHEREAS, on May 14,2001, in U.S. v. Oakland Cannabis Buyers' Cooperative (2001)
20 532 U.S. 483, the United States Supreme Court held that there was no medical necessity exception to
the Controlled Substance Act's prohibition on manufacturing and distributing marijuana; and
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WHEREAS, on January 1,2004, California Senate Bill ("SB") 420 went into effect (Health
22 and Safety Code Section 11362.7, et seq.). SB 420 was enacted by the Legislature to clarify the scope
of the CUA and to allow California cities and counties to adopt and enforce rules and regulations
23 consistent with SB 420 and the CUA. These new regulations and rules became known as the Medical
Marijuana Program ("MMP"), which, among other things, enhanced the access of patients and
24 caregivers to medical marijuana through collective, cooperative cultivation projects; and
25 WHEREAS, on June 6, 2005, in Gonzales v. Raich (2005) 545 U.S. I, the United States
Supreme Court ruled that the federal Controlled Substances Act is valid even as applied to the
26 intrastate, noncommercial cultivation, possession and use of cannabis for personal medical use on the
advice of a physician; and
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KC-1265
1 WHEREAS, on December 6, 2006, in the unpublished case of County of San Diego v. San
Diego NORML (2006) Case No. GlC 860665, the California Superior Court for the County of San
2 Diego issued an order that upheld the validity of the CVA and the State's MMP, notwithstanding the
claim that the CVA and MMP were pre-empted by federal law; and
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WHEREAS, these collective case decisions reveal a conflict between federal and state law
4 as to the legality ofthe CVA, the MMP, and consequently, medical marijuana dispensaries; and
5 WHEREAS, the City must now, in the face of continuing conflict between state and federal
law, decide for itself whether, as a land use matter, medical marijuana dispensaries should be
6 permitted, regulated or prohibited; and
7 WHEREAS, the Mayor and Common Council hereby specifically finds as follows:
8 a. The sale, possession, cultivation, and distribution of cannabis is prohibited by federal
law, specifically 21 V.S.C. SS 812 and 841, part of the Controlled Substances Act;
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b. Marijuana continues to be a prohibited Schedule I drug under the Controlled
10 Substance Act for which there is no legally accepted medical use under federal law;
11 c. Cities in California continue to receive mixed messages from the state and federal
governments regarding the legality of marijuana for medicinal purposes and the establishment and
12 operation of medical marijuana dispensaries. This confusion has increasingly led to wasted taxpayer
dollars as cities have been caught in the middle. Recently, the Federal Drug Enforcement
13 Administration raided several medical marijuana dispensaries in various California cities, despite the
state's passage of the CVA.
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d. Beyond the legality issue, several California cities that have permitted the
15 establishment of medical marijuana dispensaries have found that such medical marijuana dispensaries
have resulted in negative and harmful secondary effects, including significant increases in traffic,
16 crime, and noise.
17 e. These harmful secondary effects have involved a wide range of activity including
burglaries, takeover robberies of dispensaries, robberies of customers leaving dispensaries, an increase
18 in theft and robberies in the vicinity of dispensaries, illegal re-selling of marijuana obtained from
dispensaries, physicians issuing apparently fraudulent recommendations for the use of marijuana,
19 dispensary staff selling marijuana to customers with obviously counterfeit patient identification cards,
street dealers attempting to sell marijuana to dispensary customers, dispensary customers using
20 marijuana and then driving under its influence, the sale of other illegal narcotics other than marijuana
in the dispensaries, sales of marijuana to minors; and
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f. F or these reasons and those provided during the hearing on this Ordinance, the
22 Mayor and Common Council finds that there is a current and immediate threat to the public health,
safety, or welfare, and that the approval of any entitlements for the establishment or operation of a
23 medical marijuana dispensary or other similar uses would result in that threat to public health, safety
or welfare. The Mayor and Common Council further finds that the adoption of the Vrgency Interim
24 Ordinance extending a temporary moratorium on the establishment or operation of medical marijuana
dispensaries and other similar uses is necessary to both protect the public health, safety and welfare
25 and to comply with federal law.
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KC-1265
1 NOW THEREFORE, THE MA YORAND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO DO ORDAIN AS FOLLOWS:
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Section 1. San Bernardino Municipal Code Section 19.06.026 (Development Code)
3 is hereby added to read as follows:
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19.06.026
Other Prohibited Uses
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(A)
Notwithstanding any conflicting provision(s) in any other section of the San
Bernardino Municipal Code, including the Development Code, no Conditional Use
Permit, Development Permit, Building Permit, Certificate of Occupancy or Zoning
Verification Review (also referred to as "Zoning Consistency Review"), shall be
issued or granted for the establishment or operation of a medical marijuana
dispensary or similar use.
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(B) As used in this section, the following definitions apply:
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I. "Marijuana" means all parts of the plant Cannabis,
whether growing or not; the seeds thereof; the resin extracted
from any part of the plant; and every compound manufacture,
salt, derivative, mixture, or preparation of the plant, its seeds or
resin. It includes marijuana infused in foodstuff. It does not
include the mature stalks of the plant, fiber produced from the
stalks, oil or cake made from the seeds of the plant, any other
compound, manufacture, salt, derivative, mixture, or preparation
of the mature stalks (except resin extracted therefrom), fiber, oil,
or cake, or the sterilized seeds of the plant incapable of
germination.
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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 II, 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-1244 and shall take
effect immediately and be of no further force and effect twelve months from its date of adoption.
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Section 4: During the effective time period of this Ordinance, the Development Services
24 Department and the Planning Commission are hereby directed to consider and process a permanent
ordinance prohibiting the establishment or operation of medical marijuana dispensaries and other
25 similar uses in the City of San Bernardino.
26 Section 5: Compliance with the California Environmental Quality Act. The Mayor
and Common Council finds that this ordinance is not subject to the California Environmental Quality
27 Act (CEQA) pursuant to Sections 15061(b)(3) (the activity will not result in a direct or reasonably
foreseeable indirect physical change in the environment) and l5060(c)(3) (the activity is not a project
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MC-1265
1 as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14,
Chapter 3, because it has no potential for resulting in physical change to the environment, directly or
2 indirectly.
3 Section 6: Severability. Ifany section, subsection, subdivision, sentence, clause or phrase
in this ordinance or any part thereof is for any reason held to be unconstitutional, invalid or ineffective
4 by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of
the remaining portions of this ordinance or any part thereof. The Mayor and Common Council hereby
5 declares that it would have adopted each section irrespective of the fact that anyone or more
subsections, subdivisions, sentences, clauses, or phrases be declared unconstitutional, invalid, or
6 ineffective.
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MC-1265
1 AN URGENCY INTERIM ORDINANCE OF THE CITY OF SAN BERNARDINO
ADDING SAN BERNARDINO MUNICIPAL CODE SECTION 19.06.026 (DEVELOPM~NT
2 CODE) AND EXTENDING A TEMPORARY MORATORIUM ON THE ESTABLISHMENT
AND OPERA nON OF MEDICAL MARIJUANA DISPENSARIES AND OTHER SIMILAR
3 USES, DECLARING THE URGENCY THEREOF, AND TAKING EFFECTIMMEDIA TEL Y.
4
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I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and
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Common Council of the City of San Bernardino at a joint regular
meeting thereof, held
on the 19th day of February
, 2008, by the following vote, to wit:
7
NAYS
ABSTAIN ABSENT
18
g~ 11 .~
Rac el Clark, City Clerk
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The foregoing Ordinance is hereby approved this 1-~ day of February
,2008.
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22 .MO
City of San Bernardino
23 Approved as to form:
24 JAMES F. PENMAN
City Attorney
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