HomeMy WebLinkAboutORD 04(2014)ORDINANCE NO. 04(2014)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
DIAMOND BAR REPEALING AND REPLACING CHAPTER
8.26 OF THE DIAMOND BAR MUNICIPAL CODE
PROHIBITING THE OPERATION AND ESTABLISHMENT OF
MEDICAL MARIJUANA DISPENSARIES.
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. Raich, 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.41h 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. 4th 1070, which has been
granted Supreme Court review, a California appellate court held that to the extent that city regulation:
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 to
marijuana dispensaries occurred as well as quality of I.ife impacts such as adverse traffic and
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
NOW THEREFORE, the City Council of the City of Diamond Bar hereby ordains as
follows:
SFr-T1()W I -
"Chapter 8.26 MEDICAL MARIJUANA BUSINESSES
Sec. 8.26.010 Medical Marijuana Businesses — Prohibited
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.
Sec. 8.26.020 Definitions.
For purposes of this Chapter the following definitions shall apply:
(a) "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.
(b) "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.
(c) "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
1'1362.7.
(d) The term "marijuana transport business" when used in this Chapter shall be any person
or entity that transports or offers to transport marijuana in any vehicle or by any other means. A
person who is transporting marijuana to a qualified patient for whom he or she is the primary
caregiver shall not be a "marijuana transport business".
Sec. 8.26.030. Additional Prohibitions
No person shall own, operate, or manage a medical marijuana dispensary or marijuana
transport business. No person shall lease or offer to lease any facility or any location as a medical
marijuana dispensary or for a marijuana transport business. No person shall employ any persons or
be employed at a medical marijuana dispensary or in a marijuana transport business.
Sec. 8.26.040. Penalties.
(a) Public Nuisance—Any violation of this Chapter shall constitute a public nuisance and
may be abated in accordance with Section 1.04.010(e) of the Diamond Bar Municipal Code.
(b) Any person who violates this Chapter 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 ll:
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 III:
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 unconstitutional.
SECTION IV:
The City Clerk shall certify to the passage and adoption of this Ordinance and shall cause a
certified copy of this Ordinance to be posted within fifteen (15) days after this Ordinance is passed
and adopted, in the Office of the City Clerk and two additional public places, together with the vote
for and against the same.
ADOPTED this 18th day of March , 2014.
&Aj,� ' J -A -
Carol Herrera, Mayor
ATTEST:
Tomm e Cribbins, City (.'lerk
APPROVED AS TO FORM:
r
Omar Sandoval, Asst. City Attorney
I, Tommye Cribbins, the City Clerk of the City of Diamond Bar, do hereby certify that the foregoing
Ordinance was introduced at a regular meeting of the City Council of the City of Diamond Bar,
California, held on the 18th day of February, 2014, and was finally passed at a regular meeting of the
City Council of the City of Diamond Bar, held on the 18th day of March , 2014, by the
following vote:
AYES: COUNCIL MEMBERS: Chang, Lyons, Tanaka, MPT/Tye,
M/Herrera
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
None
None
ABSTAINED:COUNCIL MEMBERS: None
f S' ✓
Tommie Cribbins, City Clerk
City of Diamond' Bar