HomeMy WebLinkAboutORD 03(2014)ORDINANCE NO.03 ( 20'14 )
AN URGENCY ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF DIAMOND BAR EXTENDING URGENCY
ORDINANCE (02)2014 -SUSPENDING CHAPTER 8.26 OF
THE DIAMOND BAR MUNICIPAL CODE AND PROHIBITING
THE OPERATION AND ESTABLISHMENT OF MEDICAL
MARIJUANA DISPENSARIES.
. WHEREAS, California Government Code section 65858(a) authorizes the City Council to
adopt, as an urgency measure, an interim ordinance prohibiting any uses which may be in
conflict with a contemplated zoning proposal which the City Council, planning commission or
planning department is studying to protect the public health, safety and welfare; and
WHEREAS, on January 21, 2014, the City Council adopted such an urgency ordinance
prohibiting the establishment of medical marijuana dispensaries, which is effective for 45 days
or until March 7, 2014; and
WHEREAS, Government Code section 65858(a) authorizes the City Council to extend
the urgency ordinance for 10 months and 15 days after publishing notice of a hearing on the
extension pursuant to Government Code section 65090; and
WHEREAS, in 1996 California voters approved Proposition 215, commonly referred to as
the Compassionate Use Act ("Act"), which enabled seriously ill patients to legally possess, use
and cultivate marijuana for medicinal purposes under state law; and
WHEREAS, in January 2004, SB 420 was enacted by the state legislature to clarify the scope
of the Act and to allow local jurisdictions to adopt and enforce rules and regulations consistent with
the Act; and
WHEREAS, in 2008, the California Attorney General published guidelines for the Security
and Non -Diversion of Marijuana Grown for Medical Use which, among other things, suggested
standards for the lawful operation of medical marijuana cooperatives and collectives; and
WHEREAS, neither the Act, nor subsequent legislative or Attorney General Guidelines,
permit medical marijuana dispensaries to operate in the retail establishment manner customarily
seen in California cities; and
WHEREAS, notwithstanding California's efforts to decriminalize the provision of marijuana
for specified medicinal purposes, the Federal Controlled Substances Act classifies marijuana as
a Schedule I narcotic and Congress has concluded that marijuana does not have any acceptable
medical uses and under federal law the manufacture, distribution, or possession of marijuana is
a criminal offense (21 United States Code sections 812, 841 and 844); and
WHEREAS, in the United States Supreme Court decision .of Gonzales v. Ranch, 125 S. Ct.
2195, the Court held that there is no medical necessity exception under federal law to the prohibition
against the manufacture, distribution and possession of marijuana and that notwithstanding the fact
that it does not violate California law in some instances to manufacture, distribute and possess
marijuana for specified medicinal purposes, it still violates federal law and federal law prevails over
state law in the regulation of Schedule I narcotics; and
WHEREAS, in City of Riverside v. Inland Empire Patients Health and Wellness Center (2013)
56 Cal.4th 729, the California Supreme Court held that State law did not preempt a city's_ land use
regulatory authority and in particular, the authority to prohibit marijuana dispensaries; and
WHEREAS, a conflict exists between California law, -which provides that the manufacture,
distribution and possession of marijuana under certain circumstances for medicinal purposes does
not violate state law, and federal law, which prohibits the manufacture, distribution and possession
of marijuana under any circumstances; and
WHEREAS, in 2006 the City adopted Ordinance 4-06, adding Chapter 8.26 which regulated
the operation and number of marijuana dispensaries that could be located within the City; and
WHEREAS, in Pack v. City of Long Beach (2011) 199 Cal. App. 4t" 1070, which has been
granted Supreme Court review, a California appellate court held that to the extent that city regulations
provide for the issuance of any permit for marijuana dispensaries they are preempted by federal law;
and
WHEREAS, cities that have medical marijuana dispensaries have witnessed a. number of
significant adverse secondary effects from their operation as chronicled in detail by a report
prepared by the California Police Chiefs Association, dated April 22, 2009. In these reports
increases in crime, such as burglary, drug dealing, armed `robbery, and murder, connected tc
marijuana dispensaries occurred as well as quality of life impacts such as adverse traffic anc
noise; and
WHEREAS, based on this experience it is reasonable to conclude if permitted marijuana
dispensaries could have similar negative effects on the public health, safety and welfare to the
residents and businesses in the City; and
WHEREAS, the City Council determines, by a four-fifths vote, that this urgency ordinance is a
matter of City-wide importance and necessary for the immediate preservation and protection of the
public health, safety or welfare of the community.
NOW THEREFORE, the City Council of the City of Diamond' Bar hereby ordains as
follows:
SECTION I:
For the period of this Ordinance, or any extension thereof, a medical marijuana dispensary
shall be considered a prohibited use in any zoning district of the City, even if located within an
otherwise permitted use, and neither the City Council nor City Staff shall approve any use,
interpretation, permit, license, certificate of occupancy, zoning code or general plan amendment
allowing the operation and/or establishment of a medical marijuana dispensary.
SECTION 11:
For purposes of this Ordinance the following definitions shall apply:
"Medical marijuana dispensary" means any association, business, facility, use,
establishment, location, delivery service, cooperative, collective, or provider, whether fixed or
mobile, that possesses, cultivates, distributes, makes available or otherwise facilitates the
distribution of marijuana to or for more than three persons or to or for any person who is not a
qualified patient or primary caregiver.
"Qualified patient" is a person who is entitled to the protections of the California Health and
Safety Code section 11362.5, inclusive of a person with an identification card as that termed is
defined in California Health and Safety Code section 11362.7.
"Primary caregiver" is an individual, designated by a qualified patient or by a person with an
identification card, who has consistently assumed responsibility for the housing, health or safety of
that patient or person as is further defined in California Health and Safety Code section 11362.7.
SECTION III:
Public Nuisance Any violation of this Ordinance shall constitute a public nuisance and may
be abated in accordance with Section 1.04.010(e) of the Diamond Bar Municipal Code.
SECTION IV:
Penalty=Any person who violates this Ordinance shall be guilty of a misdemeanor and be
punished as provided for in Section 1.04.010(a) of the Diamond Bar Municipal Code.
SECTION V:
Based on the facts recited above, the City Council finds that the operation and/or
establishment of medical marijuana dispensaries under current zoning laws are a threat to the public
health, safety and welfare. This Ordinance is introduced, passed and adopted at one meeting and
shall become effective immediately in accordance with Section 65858 of the California Government
Code. This urgency ordinance shall be effective for an additional 10 months and 15 days and shall
expire on January 20, 2015, unless the City Council otherwise directs that it shall expire at an earlier
time.
SECTION VI:
The adoption of this Ordinance is not a project within the meaning of the California
Environmental Quality Act in that it will not cause either a direct physical change in the environment,
or a reasonably foreseeable indirect physical change in the environment, in that under the City's
current municipal code only one medical marijuana dispensary is permitted and there are not medical
marijuana dispensaries currently open in the City.
SECTION VII:
If any section, subdivision, paragraph, sentence, clause or phrase of this Ordinance is for any
reason held to be invalid or unconstitutional, such decision shall not affect the validity of the
remaining portions of this Ordinance. The City Council hereby declares that it would have passed
this Ordinance, and each section, subdivision, paragraph, sentence, clause and phrase thereof,
irrespective of the fact that any one (or more) section, subdivision, paragraph, sentence, clause or
phrase had been declared invalid or unconatitutional.
SECTION Vill:
The City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the
same or a summary thereof to be published once within fifteen (15) days after this Ordinance is
passed and adopted, in a newspaper of general circulation, published and circulated in the City of
Diamond Bar and shall post a certified copy of this Ordinance, together with the vote for and against
the same, in the Office of the City Clerk.
PASSED, APPROVED AND ADOPTED this 181h day of February, 2014.
Carol Herrera, Mayor
I; Tommye Cribbins, Q.jty- Clerk of the City of Diamond Bar, California, do hereby certify that
the foregoing Urgency Ordinance was introduced at the regular meeting of the City Council held on
the 18tjday of February, 2014, and was duly passed, approved and adopted by the following vote:
AYES: COUNCILMEMBERS: Chang, Lyons, Tanaka,
MPT/Tye, M/Herrera
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
ABSTAIN: COUNCILMEMBERS: - None F
y`�" ._ ity Clerk
�`I-omen e A. Cribbins,