HomeMy WebLinkAboutMC-1315U
Adopted: September 21, 2009
Effective: September 21, 2009
1 ORDINANCE NO. MC-1315
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3 AN URGENCY INTERIM ORDINANCE OF THE CITY OF SAN BERNARDINO
ADDING SAN BERNARDINO MUNICIPAL CODE SECTION 19.06.026 (DEVELOPMENT
4 CODE) PROHIBITING THE ESTABLISHMENT AND OPERATION OF MEDICAL
MARIJUANA DISPENSARIES AND OTHER SIMILAR USES, DECLARING THE
5 URGENCY THEREOF, AND TAKING EFFECT IMMEDIATELY.
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The Mayor and Common Council ofthe City of San Bernardino do ordain as follows:
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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.
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WHEREAS, on April 16, 2007, and February 19, 2008, the Mayor and Council
11 unanimously adopted Ordinance No. MC-1244 and MC-1265, which extended this moratorium until
February 19, 2009.
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WHEREAS, in 1996, the voters of the State of California approved Proposition 215, which
13 was codified as Health and Safety Code Section 11362.5, et seq. and entitled the Compassionate Use
Act of 1996 ("CUA"); and
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WHEREAS, the intent of Proposition 215 was to enable persons who are in need of medical
15 marijuana for medicinal purposes to obtain and use it under limited specified circumstances; and
16 WHEREAS, Federal law states that the sale, possession, cultivation, and distribution of
marijuana is prohibited (21 U.S.c. 99812 and 841, part of the Controlled Substances Act); and
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WHEREAS, on May 14, 2001, in u.s. v. Oakland Cannabis Buyers' Cooperative (2001)
18 532 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
20 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
21 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
2 2 caregivers to medical marijuana through collective, cooperative cultivation projects; and
23 WHEREAS, on June 6. 2005, in Gonzales v. Raich (2005) 545 U.S. 1, the United States
Supreme Court ruled that the Federal Controlled Substances Act is valid even as applied to the
24 intrastate, noncommercial cultivation, possession and use of cannabis for personal medical use on the
advice of a physician; and
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WHEREAS, in County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798,
26 review denied, cert. denied, the California Court of Appeals 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
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MC-1315
1 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
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WHEREAS, the City must now, in the face of continuing conflict between State and Federal
3 law, decide for itself whether, as a land use matter, medical marijuana dispensaries should be
permitted, regulated or prohibited; and
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WHEREAS, the Mayor and Common Council hereby specifically finds as follows:
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a. The sale, possession, cultivation, and distribution of cannabis is prohibited by
6 Federal law, specifically 21 U.S.c. 99 812 and 841, part of the Controlled Substances Act;
7 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;
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c. Cities in California continue to receive mixed messages from the State and Federal
9 governments regarding the legality of marijuana for medicinal purposes and the establishment and
operation of medical marijuana dispensaries. This confusion has increasingly led to wasted taxpayer
10 dollars as cities have been caught in the middle.
11 d. Beyond the legality issue, several California cities that have permitted the
establishment of medical marijuana dispensaries have found that such medical marijuana dispensaries
12 have resulted in negative and harmful secondary effects, including significant increases in traffic,
crime, and noise. See "White Paper on Marijuana Dispensaries" published on April 22, 2009, by the
13 California Police Chiefs Association's Task Force on Marijuana Dispensaries, attached to the Staff
Report and incorporated herein.
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e. These harmful secondary effects have involved a wide range of activity including
15 burglaries, takeoverrobberies 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
16 dispensaries, physicians issuing apparently fraudulent recommendations for the use of marijuana,
dispensary staff selling marijuana to customers with obviously counterfeit patient identification cards,
17 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
18 in the dispensaries, sales of marijuana to minors; and
19 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,
20 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
21 or welfare. The Mayor and Common Council further finds that the adoption of the Urgency
Ordinance prohibiting the establishment or operation of medical marijuana dispensaries and other
22 similar uses is necessary to both protect the public health, safety and welfare and to comply with
Federal law.
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MC-1315
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
Medical Marijuana Dispensaries, 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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1. "Marijuana" means all parts of the plant Cannabis Sativa
L., 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
ofthe mature stalks (except the resin extracted therefrom), fiber,
oil, or cake, or the sterilized seeds of the plant which is incapable
of germination; as the same is defined in California Health and
Safety Code Section 11018.
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2. "Medical marijuana dispensary" means any business,
association, cooperative, club, coop, delivery service, collective,
and any other similar use involved in the sale, possession,
cultivation, use, and/or distribution of marijuana for medicinal
purposes; sometimes commonly referred to as a "medical
marijuana clinic."
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Section 2: This Ordinance shall in no way limit qualified individuals' rights to possess, use
20 or cultivate marijuana for their own medicinal purposes as is presently authorized by the laws of the
State of California as set forth in the applicable provisions of California Health and Safety Code
21 Section 11362.5 et seq.
22 Section 3: 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
23 authority granted to the City of San Bernardino in Article 11, Section 7 of the California Constitution,
Article III and Section 121 of the Charter of the City of San Bernardino.
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Section 4: This Ordinance shall take effect immediately upon adoption by the Mayor and
25 Common Council.
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 l506l(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-1315
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.
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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 ofthis ordinance or any part thereof. The Mayor and Common Council hereby
declares that it would have adopted each section irrespective of the fact that anyone or more
6 subsections, subdivisions, sentences, clauses, or phrases be declared unconstitutional, invalid, or
ineffective.
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F:\EMPENO\Ordinances\Urgency Ordinance re medical marijuana.9-21-09.wpd
MC-1315
1 AN URGENCY INTERIM ORDINANCE OF THE CITY OF SAN BERNARDINO
ADDING SAN BERNARDINO MUNICIPAL CODE SECTION 19.06.026 (DEVELOPMENT
2 CODE) PROHIBITING THE ESTABLISHMENT AND OPERATION OF MEDICAL
MARIJUANA DISPENSARIES AND OTHER SIMILAR USES, DECLARING THE
3 URGENCY THEREOF, AND TAKING EFFECT IMMEDIATELY.
4
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 i oint regular
meeting thereof, held
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on the 21st day of September
, 2009, by the following vote, to wit:
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~Jl~
Ra el Clark, City Clerk
The foregoing Ordinance is hereby approved this ;;;)~ ~ay of September
,2009.
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23 Approved as to form:
24 JAMES F. PENMAN
City Attorney
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F:\EMPENO\Ordinances\Urgency Ordinance re medical marijuana.9-21-09.wpd