HomeMy WebLinkAboutMC-1243U
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Adopted: March 19, 2007
Effective: March 19, 2007
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ORDINANCE NO. lIC-1243
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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) AND ESTABLISHING A TEMPORARY MORATORIUM ON THE
ESTABLISHMENT AND OPERATION OF MEDICAL MARIJUANA DISPENSARIES
5 AND OTHER SIMILAR USES, DECLARING THE URGENCY THEREOF, AND TAKING
EFFECT IMMEDIA TEL Y.
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The Mayor and Common Council of the City of San Bernardino do ordain as follows:
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WHEREAS, in 1996, the voters of the State of California approved Proposition 215, which
8 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
1 0 marijuana for medicinal purposes to obtain and use it under limited specified circumstances; and
11 WHEREAS, on May 14, 2001, in US. v. Oakland Cannabis Buyers' Cooperative (2001)
532 U.S. 483, the United States Supreme Court held that there was no medical necessity exception to
12 the Controlled Substance Act's prohibition on manufacturing and distributing marijuana; and
13 WHEREAS, on January I, 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
14 of the CUA and to allow California cities and counties to adopt and enforce rules and regulations
consistent with SB 420 and the CUA. These new regulations and rules became known as the Medical
15 Marijuana Program ("MMP"), which, among other things, enhanced the access of patients and
caregivers to medical marijuana through collective, cooperative cultivation projects; and
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WHEREAS, on June 6, 2005, in Gonzales v. Raich (2005) 545 U.S. 1, the United States
17 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
18 advice of a physician; and
19 WHEREAS, on December 6, 2006, in the unpublished case of County of San Diego v. San
Diego NORML (2006) Case No. arc 860665, the California Superior Court for the County of San
20 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
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WHEREAS, the County of San Diego has indicated that it intends to appeal the trial court
decision; and
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
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
permitted, regulated or prohibited; and
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MC-1243
1 WHEREAS, the Mayor and Common Council hereby specifically finds as follows:
2 a. The sale, possession, cultivation, and distribution of cannabis is prohibited by federal
law, specifically 21 U.S.C. ~~ 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
4 Substance Act for which there is no legally accepted medical use;
5 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
6 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
7 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
9 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,
10 crime, and noise.
11 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
12 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,
13 dispensary staff selling marijuana to customers with obviously counterfeit patient identification cards,
street dealers attempting to sell marijuana to dispensary customers, dispensary customers using
14 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. For these reasons and those provided during the hearing on this Ordinance, 'the
16 Mayor and Common Council finds that the adoption of the Urgency Interim Ordinance establishing
a temporary moratorium on the establishment and operation of medical marijuana dispensaries and
17 other similar uses is necessary to both protect the public health, safety and welfare and to comply with
federal law.
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NOW THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY OF
19 SAN BERNARDINO DO ORDAIN AS FOLLOWS:
20 Section 1. San Bernardino Municipal Code Section 19.06.026 (Development Code)
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 Vse
Permit, Development Permit, Building Permit, Certificate of Occupancy or Zoning
Verification Review (also referred to as "Zoning Consisting Review"), shall be
issued or granted for the establishment or operation of a medical marijuana
dispensary or similar use.
As used in this section, the following definitions apply:
I. "Marijuana" means all parts of the plant Cannabis,
whether growing or not; the seeds thereof; the resin extracted
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(B)
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KC-1243
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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,
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 is based upon the recitals and [mdings set forth above, and the
10 accompanying Staff Report and its attachments to this Ordinance, and is adopted pursuant to the
authority granted to the City of San Bernardino in Article 11, Section 7 of the California Constitution,
11 Article III, Section 31 of the Charter ofthe City of San Bernardino, and California Government Code
Section 65858.
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Section 3: This Ordinance shall take effect immediately and be of no further force and
13 effect 45 days from its date of adoption unless extended by action ofthe Mayor and Common Council.
14 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
15 ordinance prohibiting the establishment and operation of medical marijuana dispensaries and other
similar uses in the City of San Bernardino.
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Section 5: Compliance with the California Environmental Quality Act. The Mayor
17 and Common Council finds that this ordinance is not subject to the California Environmental Quality
Act (CEQA) pursuant to Sections 15061(b)(3) (the activity will not result in a direct or reasonably
18 foreseeable indirect physical change in the environment) and 15060( c)(3) (the activity is not a project
as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14,
19 Chapter 3, because it has no potential for resulting in physical change to the environment, directly or
indirectly.
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Section 6: Severability. If any section, subsection, subdivision, sentence, clause or phrase
21 in this ordinance or any part thereof is for any reason held to be unconstitutional or invalid, ineffective
by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of
22 the remaining portions of this ordinance or any part thereof. The Mayor and Common Council hereby
declares that it would have been adopted each section irrespective of the fact that anyone or more
23 subsections, subdivisions, sentences, clauses, or phrases be declared unconstitutional, invalid, or
ineffective.
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F:\EMPENO\Ordinances\Urgency Ordinance re temporary moritoriwn. medical marijuana.wpd
MC-1243
1 AN URGENCY INTERIM ORDINANCE OF THE CITY OF SAN BERNARDINO
ADDING SAN BERNARDINO MUNICIPAL CODE SECTION 19.06.026 (DEVELOPMENT
2 CODE) AND ESTABLISHING A TEMPORARY MORATORIUM ON THE
ESTABLISHMENT AND OPERATION OF MEDICAL MARIJUANA DISPENSARIES AND
3 OTHER SIMILAR USES, DECLARING THE URGENCY THEREOF, AND TAKING
EFFECT IMMEDIATELY.
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5 I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and
6 Common Council of the City of San Bernardino at ajti r~gM1neeting thereof, held on the19t~ay
7 of
March
, 2007, by the following vote, to wit:
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9 COUNCIL MEMBERS: AYES
10 ESTRADA X
11 BAXTER ---1L-
12 BRINKER -1L-
13 DERRY ---1L-
14 KELLEY -----L-
15 JOHNSON -----L-
16 MC CAMMACK -----L-
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NAYS
ABSTAIN ABSENT
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ca~C~'Cl~
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The foregoing Ordinance is hereby approved thiscJQ. day of March ,2007.
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Approved as to form:
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JAMES F. PENMAN
City Attorney
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