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Home My WebLink AboutORD 09 (2016)ORDINANCE NO. 09(2016) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DIAMOND BAR AMENDING CHAPTER 8.26 OF THE DIAMOND BAR MUNICIPAL CODE TO PROHIBIT THE OPERATION AND ESTABLISHMENT OF MARIJUANA DISPENSARIES AND REGULATING THE USE OF MARIJUANA. 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, 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.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, 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 regulations provide for the issuance of any permit for marijuana dispensaries they are preempted by federal law; and 1 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 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 cultivation and use of marijuana; and WHEREAS, under the AUMA the City is permitted to prohibit and regulate specified aspects of nonmedical cultivation and use of marijuana; 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, 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. NOW THEREFORE, the City Council of the City of Diamond Bar hereby ordains as follows: SECTION I: Chapter 8.26 shall be amended as follows: The title to Chapter 8.26 shall be amend to read: "CHAPTER 8.26. — MARIJUANA BUSINESSES" New sections 8.26.050 — 8.26.070 shall be added to read as follows: 2 Sec. 8.26.050 Marijuana Businesses — Prohibited 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. B. No person shall plant, cultivate, harvest, dry or otherwise process, in any manner, marijuana or marijuana products outdoors. Sec. 8.26.060 Definitions. For purposes of Section 8.26.050, the following definitions shall apply: (a) "Marijuana dispensary" means any association, business, facility, use, establishment, location, delivery service, cooperative, collective, or provider, whether fixed or mobile, that possesses, transports, cultivates, distributes, makes available or otherwise facilitates the distribution of marijuana, marijuana products or marijuana accessories. (b) "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. (c) "Smoke" shall have the same meaning as provided in the text of Proposition 64 as proposed for Health and Safety Code § 11362.3(c) Sec. 8.26.070. Additional Prohibitions No person shall possess, ingest or smoke marijuana in any building or any property owned, leased or occupied by the City. SECTION II: 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 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 111: 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 1st day of November 2016. ATTEST: L ®r Tommy Cribbins, City Clerk Na6cyA. Lyon&,ayor I, Tommye Cribbins, City Clerk of the City of Diamond Bar, do hereby certify that the foregoing Ordinance was duly introduced at the regular meeting of the City Council of the City of Diamond Bard held on the 18th day of October, 2016, and was finally passed and adopted by the City Council of the City of Diamond Bar, at a regular meeting of the City Council held on the 1st day of November 2016, 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 - L (- �" TommyeVCribbins City Clerk