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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: February 14, 2008 MORATORIUM ON THE ESTABLISHMENT
AND OPERATION OF MEDICAL
MARIJUANA DISPENSARIES AND OTHER
SIMILAR USES,DECLARING THE URGENCY
THEREOF, AND TAKING EFFECT
IMMEDIATELY.
MCC Date: February 19, 2008
Synopsis of Previous Council Action:
March 19, 2007 - Mayor and Council adopted Ordinance No. MC-1243, an Urgency Interim Ordinance
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.
April 16, 2007 - Mayor and Council adopted Ordinance No. MC-1244, an Urgency Interim Ordinance
extending a temporary moratorium on the establishment and operation of Medical Marijuana Dispensaries
and other similar uses.
Recommended motion:
Close the public hearing and adopt the Ordinance. pp
es F.Penman, City Attorney
Contact person: Henry Empeno,Jr., Sr. Deputy Cily Attorney Phone: 5355
Supporting data attached: Staff Report Ward: ALL
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes:
Agenda Item No.
C�- ` 1/4 s)
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STAFF REPORT
Council Meeting Date: February 19, 2008
TO: Mayor and Common Council
FROM: James F. Penman, City Attorney
DATE: February 14,2008
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. On April 16, 2007, the Mayor and Council unanimously
adopted Ordinance No. MC-1244, which extended this same temporary moratorium
for 10 months and 15 days. Ordinance MC-1244 will expire on March 3, 2008.
Government Code Section 65858(a) authorizes the Mayor and Council to extend the
interim ordinance for an additional twelve months after notice pursuant to
Government Code Section 65090 and a public hearing. The state of the law remains
the same today as when the Mayor and Council adopted Ordinance No. MC-1244.
The conflict between federal and state law as to the legality of medical marijuana still
exists. On July 17, 2007, the Federal Drug Enforcement Administration announced
the indictment of the owners of nearly a dozen medical marijuana dispensaries. No
reported appellate court decision has ruled on the validity of a city's ordinances
prohibiting medical marijuana dispensaries. In Qualified Patients Association v. City
of Anaheim, Orange County Superior Court Case No. 07CC09524, the trial court on
September 28, 2007, denied plaintiff's motion for a preliminary injunction and on
February 8, 2008, sustained Anaheim's demurrer without leave to amend, ruling that
Anaheim's ordinance prohibiting medical marijuana dispensaries does not violate
state law.
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i
Legal notice of the February 19, 2008 public hearing before the Mayor and
Council to consider this extension of the ordinance was published in The Sun
newspaper on February 9, 2008.
The following report is repeated from the April 16, 2007 Staff Report, in
support of the extension of this interim ordinance.
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
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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
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, 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.
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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,
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 the 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 twelve
months from its date of adoption. The Urgency Interim Ordinance also 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.
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n
1 ORDINANCE NO.
2
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
7 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
to 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.
12
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
19 marijuana for medicinal purposes to obtain and use it under limited specified circumstances; and
WHEREAS, on May 14, 2001, in U.S. v. Oakland Cannabis Buyers' Cooperative (200 1)
20 532 U.S. 483,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
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. 1, 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
27
28
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NOW
i
1 WHEREAS,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
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,these collective case decisions reveal a conflict between federal and state law
4 as to the legality of the CUA, the MMP, and consequently, medical marijuana dispensaries; and
s 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 U.S.C. §§ 812 and 841, part of the Controlled Substances Act;
9
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 CUA.
14
d. Beyond the legality issue, several California cities that have permitted the
1s 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
21
f. For 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 Urgency 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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1 NOW THEREFORE,THE MAYOR AND COMMON COUNCIL OF THE CITY 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
s (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 Consistency Review"), shall be
7 issued or granted for the establishment or operation of a medical marijuana
dispensary or similar use.
s
(B) As used in this section, the following definitions apply:
9
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,
11 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
2o 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-1244 and shall take
23 effect immediately and be of no further force and effect twelve months from its date of adoption.
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
28 foreseeable indirect physical change in the environment)and 15060(c)(3)(the activity is not a project
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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. If any 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
s declares that it would have adopted each section irrespective of the fact that any one or more
subsections, subdivisions, sentences, clauses, or phrases be declared unconstitutional, invalid, or
6 ineffective.
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Y',EMPEWOrdinances\Urgency Ordinance re temporary moritorium 2-19.08-medical marijuana.wpd
1 AN URGENCY INTERIM ORDINANCE OF THE CITY OF SAN BERNARDINO
ADDING SAN BERNARDINO MUNICIPAL 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
5 I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and
Common Council of the-City of San Bernardino at a meeting thereof, held
6
on the day of , 2008, by the following vote, to wit:
7
8
COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
9
ESTRADA
10
BAXTER
11
BRINKER
12
DERRY
13
KELLEY
14
JOHNSON
15
MC CAMMACK
16
17
18 Rachel Clark, City Clerk
19
20 The foregoing Ordinance is hereby approved this day of 2008.
21
22 PATRICK J. MORRIS
23 Approved as to form: Mayor City of San Bernardino
24 JAMES F. PENMAN
City Attorney
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