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HomeMy WebLinkAboutMC-1328 Adopted: June 21, 2010 Effective: July 22, 2010 1 ORDINANCE NO. MC-] 128 2 AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING SAN 3 BERNARDINO MUNICIPAL CODE SECTION 19.06.026 (DEVELOPMENT CODE) 4 PROHIBITING THE ESTABLISHMENT AND OPERATION OF MEDICAL MARIJUANA DISPENSARIES AND OTHER SIMILAR USES. 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 9 temporary moratorium on the establishment and operation of Medical Marijuana Dispensaries and other similar uses, declaring the urgency thereof, and taking effect immediately; and 10 11 WHEREAS, on April 16, 2007, and February 19, 2008, the Mayor and Council unanimously adopted Ordinance No. MC-1244 and MC-1265, which extended the moratorium 12 until February 19,2009; and WHEREAS, on September 21, 2009, the Mayor and Common Council unanimously adopted Ordinance No. MC-1315, An Urgency Interim Ordinance of the City of San Bernardino 14 adding San Bernardino Municipal Code Section 19.06.026 (Development Code) prohibiting the establishment and operation of medical marijuana dispensaries and other similar uses, declaring 15 the urgency thereof, and taking effect immediately, and referred the matter to the Planning 16 Commission for a recommendation on a Development Code Amendment; and 17 18 19 20 13 WHEREAS, on January 27, 2010, the City of San Bernardino Planning Commission held a noticed public hearing to consider an amendment to the San Bernardino Municipal (Development) Code to add Section 19.06.026 to prohibit the establishment and operation of medical marijuana dispensaries and other similar uses, and recommended that the Mayor and Common Council approve Development Code Amendment No. 10-01; and WHEREAS, in 1996, the voters of the State of California approved Proposition 215, hich was codified as Health and Safety Code Section 11362.5, et seq. and entitled the Compassionate Use Act of 1996 ("CUA"); and 22 23 24 21 WHEREAS, the intent of Proposition 215 was to enable persons who are in need of edical marijuana for medicinal purposes to obtain and use it under limited specified circumstances; and 25 26 27 28 WHEREAS, Federal law states that the sale, possession, cultivation, and distribution of arijuana is prohibited (21 U.S.C. 99812 and 841, part of the Controlled Substances Act); and KC-1328 1 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 the Controlled Substance Act's prohibition on manufacturing and distributing marijuana; and 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 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 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 Marijuana Program ("MMP"), which, among other things, enhanced the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects; and 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 intrastate, noncommercial cultivation, possession and use of cannabis for personal medical use on the advice of a physician; and WHEREAS, in County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798, 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 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 WHEREAS, the Mayor and Common Council hereby specifically finds as follows: 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; 21 22 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; 23 24 25 26 27 28 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 operation of medical marijuana dispensaries. This confusion has increasingly led to wasted taxpayer dollars as cities have been caught in the middle. d. Beyond the legality issue, several California cities that have permitted the establishment of medical marijuana dispensaries have found that such medical marijuana MC-1328 1 dispensaries have resulted in negative and harmful secondary effects, including significant increases in traffic, crime, and noise. See "White Paper on Marijuana Dispensaries" published on 2 April 22, 2009, by the California Police Chiefs Association's Task Force on Marijuana 3 Dispensaries, attached to the Staff Report and incorporated herein. e. These harmful secondary effects have involved a wide range of activity including burglaries, takeover robberies of dispensaries, robberies of customers leaving dispensaries, an 5 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 6 use of marijuana, dispensary staff selling marijuana to customers with obviously counterfeit 7 patient identification cards, 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 in the dispensaries, sales of marijuana to minors; and 4 8 9 10 11 12 13 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, 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 or welfare. The Mayor and Common Council further fmds that the adoption of the Ordinance prohibiting the establishment or operation of medical marijuana dispensaries and other similar uses is necessary to both protect the public health, safety and welfare and to comply with Federal law. 14 15 16 17 18 19 20 NOW THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO DO ORDAIN AS FOLLOWS: Section 1. San Bernardino Municipal Code Section 19.06.026 (Development Code) is hereby added to read as follows: 19.06.026 Medical Marijuana Dispensaries, Prohibited Uses (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 21 to as "Zoning Consistency Review"), shall be issued or granted for the establishment or peration of a medical marijuana dispensary or similar use. 22 23 B) 24 1. 25 26 27 28 As used in this section, the following definitions apply: "Marijuana" means all parts of the plant Cannabis Sativa 1., 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 MC-1328 1 2 3 2. 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. "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, andlor distribution of marijuana for medicinal purposes; sometimes commonly referred to as a "medical marijuana clinic." 4 5 6 Section 2: This Ordinance shall in no way limit qualified individuals' rights to possess, 7 use 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 8 Safety Code Section 11362.5 et seq. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 authority granted to the City of San Bernardino in Article II, Section 7 of the California Constitution, Article III and Section 121 of the Charter ofthe City of San Bernardino. Section 4: Compliance with the California Environmental Quality Act. The Mayor and Common Council finds that this ordinance is not subject to the California Environmental Quality 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 15060(c)(3) (the activity is not a project 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 indirectly). Section 5: 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 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 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 ineffective. /II MC-1328 1 AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING SAN 2 BERNARDINO MUNICIPAL CODE SECTION 19.06.026 (DEVELOPMENT CODE) PROHIBITING THE ESTABLISHMENT AND OPERATION OF MEDICAL 3 MARIJUANA DISPENSARIES AND OTHER SIMILAR USES. 4 I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and 5 Council of the City of San Bernardino at a ioint regular meeting thereof, held on the 6 21st day of June ,2010, by the following vote, to wit: 7 8 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT MARQUEZ x 9 DESJARDINS 10 BRINKER 11 12 13 14 15 16 x x SHORETT KELLEY x x JOHNSON x MC CAMMACK 28 x 17 18 19 20 21 22 a~p.~ Racnel Clark, City Clerk The foregoing Ordinance is hereby approved this ~ay of June ,2010. , ayor 23 Approved as to form: 24 JAMES F. PENMAN 25 Cit Attorney 26 27 1.