HomeMy WebLinkAboutORD 08(2016)ORDINANCE NO. 08(2016)
AN URGENCY ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DIAMOND BAR PROHIBITING THE
ESTABLISHMENT OF MARIJUANA DISPENSARIES
AND REGULATING NONMEDICAL USE OF
MARIJUANA.
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, 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, 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 CalAt" 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, cities that have 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 life impacts
1
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
WHEREAS, Chapter 8.26 of the Diamond Bar Municipal Code prohibits, among
other things, the establishment of a medical marijuana dispensary anywhere in the City;
and
WHEREAS, Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana
Act ("AUMA") is on the November 8, 2016, ballot and would decriminalize under State
law specified nonmedical use of marijuana; and
WHEREAS, the AUMA permits the City to ban specified aspects of the AUMA and
to regulate other aspects; 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, this Ordinance will maintain the existing environment in the City
and maintain the status quo with respect to the prohibition of commercial sale and
use of marijuana; 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, the following shall
apply:
A. A marijuana dispensary shall be 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 marijuana dispensary.
F)
B. No person shall plant, cultivate, harvest, dry or otherwise process, in any
manner, marijuana or marijuana products outdoors.
C. No person shall possess, ingest or smoke marijuana in any building or upon
any property owned, leased or occupied by the City.
SECTION II:
For purposes of this Ordinance the following definitions shall apply:
"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, marijuana products or marijuana accessories.
"Marijuana", "marijuana products" and "marijuana accessories", respectively,
shall have the same meaning as provided in the text of Proposition 64 as proposed
for Health and Safety Code §§ 11018, 11018.1 and 11018.2.
"Smoke" shall have the same meaning as provided in the text of Proposition
64 as proposed for Health and Safety Code § 11362.3(c)
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 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. It shall remain effective for 45 days from the date of
adoption, unless otherwise extended pursuant to Section 65858.
SECTION VI:
The adoption of this Ordinance is not a project within the meaning of the California
Environmental Quality Act ("CEQA") in that it will not cause either a direct physical
change in the environment, or a reasonably foreseeable indirect physical change in the
1196467.1
environment, in that there are no marijuana dispensaries currently existing or permitted
under the City's current municipal code and it maintains the existing environment in the
City. This Ordinance is not a project under CEQA pursuant to Public Resources Code
Section 21065 which provides that CEQA only applies to an activity which has the
potential to cause either a direct physical change in the environment, or a reasonably
foreseeable indirect physical change in the environment
Further, the Ordinance is exempt from CEQA under the following provisions of Title 14
of the California Code of Regulations: Sections 15060(c)(2), 15060(c)(3) and
15061(b)(3), as the Ordinance is covered by the general rule that CEQA only applies to
projects which have the potential for causing a significant effect on the environment and
it can be seen with certainty that there is no possibility that the Ordinance will have a
significant effect on the environment and Section 15304, as the Ordinance is a minor
alteration in land use limitations.
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 unconstitutional.
SECTION VIII:
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.
ADOPTED this j_8±Aay of nrtnhar, 2016.
4
1196467.1
LN/ancy A. L o,y6, Mayor
ATTEST:
TommyEUCribbins, City Clerk
I, Tommye Cribbins, City Clerk of the City of Diamond Bar, California, do hereby
certify that the foregoing Ordinance was introduced at the regular meeting of the City
Council held on thel8th day of October 2016, and was duly passed and adopted
the same day, by the following vote:
AYES: COUNCIL MEMBERS: Herrera, Low, Tye, MPT/Lin, M/Lyons
NOES: COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS: None
ABSTAINED: COUNCIL MEMBERS: None
1l
F/
Tommy ' 0ribbins, City Clerk
5
1196467.1