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HomeMy WebLinkAbout11/16/2004, BUS 8 - MORATORIUM ON MEDICAL MARIJUANA DISPENSARIES council M°`m`D" + j ac,Enba Repoizt CITY OF SAN LUIS OBISPO FROM: Jonathan P. Lowell, City Attorney John Mandeville, Community Development Director Deborah Linden, Police Chief(g) SUBJECT: MORATORIUM ON MEDICAL MARIJUANA DISPENSARIES CAO RECOMMENDATION Approve Emergency Ordinance imposing a moratorium on medical marijuana dispensaries. DISCUSSION Back rg ound The voters of the State of California approved Proposition 215, codified as Health and Safety Code section 11362.5 et seq. and entitled "The Compassionate Use Act of 1996" (the "Compassionate Use Act"). Additionally, the State enacted SB 420 to clarify the scope of the Compassionate Use Act and to allow cities to adopt and enforce rules and regulations consistent with SB 420. This includes controlling sites where medical marijuana is dispensed to primary caregivers and patients. The existing City zoning regulations do not provide for the location and/or regulation of medical - marijuana dispensaries and such uses might be permissible in any zone that allows retail uses, drug stores, or medical uses. Since there are no current regulations specifically dealing with medical marijuana dispensaries, if medical marijuana dispensaries were allowed to be established without appropriate regulation, such uses might be established in areas that would conflict with the requirements of the General Plan, be inconsistent with surrounding uses, or be detrimental to the public health, safety and welfare; and if such uses were allowed to proceed as allowed under the current zoning, such uses could conflict with, and defeat the purpose of, the Council's direction to prepare for possible later adoption of new regulations regarding medical marijuana dispensaries. Further, the City has recently received a number of inquiries regarding City regulations and requirements for the establishment of medical marijuana dispensaries by parties who have indicated their intent to operate such facilities. Prior Council Direction On October 19, 2004, the Council directed staff to prepare an emergency ordinance imposing a moratorium on medical marijuana dispensaries since there are many unanswered questions regarding this use. This action will give staff and Council an opportunity to consider all aspects of this subject prior to imposing any regulations, if any are desired. In Ashcroft v. Raich the U.S. Supreme Court will decide if the federal Controlled.Substances Act can be applied to a qualified patient who possesses and cultivates marijuana for personal medical Moratorium on Medical Marijuana Dispensaries Page 2 use. Should the Court find the federal law does not apply in such an instance, then in light of the purposes set forth in S.B. 420 and the strong public sentiment expressed in Proposition 215, medical marijuana dispensaries and cooperative cultivation projects would appear to be allowed under California law. We will continue to monitor this case and report back to the City Council as soon as the U.S. Supreme Court issues its decisions in this matter. Emergency Legislation City Charter Section 605 entitled"Emergency Legislation" provides as follows: Any ordinance declared by the Council to be necessary as an emergency measure, for preserving the public peace, health or safety, and containing a statement of the reasons for its urgency, may be introduced and adopted at once at the same meeting if passed by at least four(4) affirmative votes. The emergency ordinance, if approved by Council, will take effect immediately on November 16, 2004, and continue thereafter unless terminated by further Council action. CONCURRENCES The City Attorney's office, the Police Department and the Community Development Department concur in the recommendation. FISCAL IMPACT None ALTERNATIVES The City Council may decline to adopt an emergency ordinance imposing a moratorium on medical marijuana dispensaries. ATTACHMENT 1. Emergency Ordinance G:\Agenda-Ordinances-Resol\Medical Marijuana Dispensaries-Agenda Rpt.DOC � I ATTACHMENT 1 ORDINANCE NO. - AN EMERGENCY ORDINANCE ESTABLISHING A MORATORIUM ON ANY AND ALL MEDICAL MARIJUANA DISPENSARIES TO TAKE EFFECT IMMEDIATELY ON NOVEMBER 16,2004. WHEREAS, the voters of the State of California approved Proposition 215, codified as Health and Safety Code sections 11362..5 et seq. and entitled "The Compassionate Use Act of 1996" (the "Compassionate Use Act"); and WHEREAS, the State enacted SB 420 to clarify the scope of the Compassionate Use Act and to allow cities to adopt and enforce rules and regulations consistent with SB 420; and WHEREAS, in adopting this moratorium, it is the Council's intention that nothing in this Ordinance be construed to allow persons to engage in conduct that endangers others or causes a public nuisance, permits or allows persons to use marijuana for non-medical purposes or allows any activity related to the cultivation, distribution or consumption of marijuana that is otherwise illegal; and WHEREAS, the existing City zoning regulations do not provide for the location and regulation of medical marijuana dispensaries and such uses might be permissible in any zone that allows retail uses, drug stores, or medical uses; and WHEREAS, during the pendency of this moratorium, the City Council has directed City staff to prepare the necessary ordinances and regulations to regulate the establishment of such dispensaries in the City by limiting the allowable zones and/or requiring conditional use permits; and WHEREAS, the City has recently received inquiries from parties seeking to open medical marijuana dispensaries in San Luis Obispo notwithstanding the fact that the City has not yet adopted regulations and requirements for the establishment of such facilities; and WHEREAS, while the use of marijuana is allowed for medicinal purposes under California law, marijuana is still a prohibited controlled substance under federal law, and pending before the U.S. Supreme Court is the case of Ashcroft v. Raich, and a decision on that matter is expected to resolve this conflict of laws; and WHEREAS, if medical marijuana dispensaries were allowed to be established without appropriate regulation, such uses might be established in areas that would conflict with the requirements of the General Plan, be inconsistent with surrounding uses, or be detrimental to the public health, safety and welfare; and if such uses were allowed to proceed as allowed under the current zoning, such uses could conflict with, and defeat the purpose of, the proposal to study and adopt new regulations regarding medical marijuana dispensaries; and �-3 Ordinance No. (2004 Series) ATTACHMENT 1 - Page 2 WHEREAS, this emergency ordinance is adopted pursuant to the requirements of City Charter Section 605; NOW, THEREFORE,THE CITY COUNCIL OF THE CITY OF SAN LUIS OBISPO DOES ORDAIN AS FOLLOWS: Section 1. Finding, Declaration of Emergency. The City Council of the City of San Luis Obispo hereby finds and declares that there is a need to enact an emergency ordinance establishing a moratorium on all new medical marijuana dispensaries, subject to the findings and conditions contained in this Ordinance. The City has recently received inquiries regarding the establishment of medical marijuana dispensaries in the City. If medical marijuana dispensaries are allowed to proceed without appropriate review of location and operational criteria and standards, the dispensaries could have potential adverse secondary effects on neighborhoods and the City that present a clear and immediate danger to the public health, safety and welfare. The City finds that if establishment or development of medical marijuana dispensaries were allowed to proceed while the City is studying zoning proposals and regulations for this use, it would defeat the purpose of studying and considering zoning proposals to regulate and/or prohibit this use. Failure to enact this moratorium during the stated period may result in significant irreversible change to neighborhood and community character. Based on the foregoing, the City Council does hereby declare this emergency ordinance is necessary to protect the public health, safety, and welfare while considering revisions to the zoning regulations related to medical marijuana dispensaries. Section 2. Moratorium. The City Council hereby declares a moratorium on any and all medical marijuana dispensaries and any and all modifications to existing uses to add a medical marijuana dispensary. Said moratorium shall remain in place until after the U.S. Supreme Court makes a decision in the case of Ashcroft v. Raich, and the City Council repeals this ordinance. Section 3. Definitions. As used herein the term "Medical Marijuana Dispensary" or "Dispensary" means any facility or location where medical marijuana is made available to and/or distributed by or to two or more persons in the following categories: a primary caregiver, a qualified patient, or a person with an identification card, in strict accordance with California Health and Safety Code Section 11362.5 et seq. A "medical marijuana dispensary" shall not include the following uses, as long as the location of such uses are otherwise regulated by this Code or applicable law: a clinic licensed pursuant to Chapter 1 of Division 2 of the Health and Safety Code, a health care facility licensed pursuant to Chapter 2 of Division 2 of the Health and Safety Code, a residential care facility for persons with chronic life-threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the Health and Safety Code, a residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the Health and Safety Code, a residential hospice, or a home health agency licensed pursuant to Chapter 8 of Division 2 of the Health and Safety Code, 84 Ordinance No. (2064 Series) ATTACHMENT 1 Page 3 as long as any such use complies strictly with applicable law including, but not limited to, Health and Safety Code Section 11362.5 et seq. and the City of San Luis Obispo Municipal Code, including but not limited to the City's Zoning Code. Section 4. Effective Date. This Emergency Ordinance shall become effective on November 16, 2004, and shall remain in force and effect thereafter, unless terminated by further action of the City Council. PASSED AND ADOPTED THIS 16th DAY OF NOVEMBER 2004, BY THE FOLLOWING VOTE: AYES: NOES: ABSENT: David F. Romero, Mayor ATTEST: Audrey Hooper, City Clerk APPROVED AS TO FORM: Jon . Lowell, City Attorney Diane le .olds- Medical Marijuana - Page 1 r k7 Q lv/o zl From: <ANCARTER@aol.com> To: <asettle@slocity.org>, <cmulholland@slocity.org>, <kschwartz@slocity.org>, <jewan@slocity.org>, <dromero@slocity.org>, <khampian@slocity.org>, <ahooper@slocity.org> Date: 11/26/04 10:47AM Subject: Medical Marijuana Thought you'd be interested in the attached AP article on the status of Ashcroft v. Raich, which gets its oral hearing at the Supreme Court on Monday. Andrew Carter ---------------- Supreme Court to Weigh Medical Marijuana Laws By David Kravets, AP OAKLAND, Calif. (Nov. 26) -Traditional drugs have done little to help 39-year-old Angel Raich. Beset by a list of ailments that includes tumors in her brain, seizures, spasms and nausea, she has found comfort only in the marijuana that is prescribed by her doctor. On Monday, the Supreme Court will hear arguments in a case that will determine whether Raich and similar patients in California and 10 other states can continue to use marijuana for medical purposes.. At issue is whether states have the right to adopt laws allowing the use of drugs the federal government has banned or whether federal drug agents can arrest individuals for abiding by those medical marijuana laws. California passed the nation's first so-called medical marijuana law in 1996, allowing patients to smoke and grow marijuana with a doctor's recommendation. The Bush administration maintains those laws violate federal drug rules and asserts that marijuana has no medical value. But the drug eases Raich's pain, allows her to rise out of a wheelchair and promotes an appetite that prevents her from wasting away. It "is the only drug of almost three dozen we have tried that works,"said her Berkeley physician, Frank Lucido. "I really hope and pray the justices allow me to live," said Raich as she crammed a blend of a marijuana variety known as "Haze V into a contraption that vaporized it inside large balloons. She said the outcome of the case will determine whether her"husband will have a wife," her"children a mother." The case will address questions left unresolved from the first time the high court considered the legality of medical marijuana. In 2001, the justices ruled against clubs that distributed medical marijuana, saying they cannot do so based on the "medical necessity" of the patient. The ruling forced Raich's Oakland supplier to close and other cannabis clubs to operate in the shadows. The decision did not address whether the government can block states from adopting their own medical marijuana laws. Nevertheless,the federal government took the offensive after the ruling, often over the objections of local officials. It began seizing individuals' medical marijuana and raiding their suppliers. Nowhere was that effort more conspicuous than in the San Francisco Bay area, where the nation's medical marijuana movement was founded. Raich and Diane Monson,the other plaintiff in the case, sued Attorney General John Ashcroft because they feared their supplies of medical marijuana might dry up. After a two-year legal battle,they won injunctions barring the U.S. Page 2 j Diane Rei olds._Medical Marijuana Justice Department from prosecuting them or their suppliers. "This has been a nightmare,"said Monson, a 47-year-old accountant from Oroville whose backyard crop of six marijuana plants was seized in 2002."I've never sued anyone in my life, never mind the attorney general of the United States of America. For crying out loud, here in California we've voted to allow medical marijuana." She regularly uses marijuana on a doctor's recommendation to alleviate back problems. She says it also helps cope with the recent death of her husband, who suffered from pancreatic cancer. Last December,the San Francisco-based 9th U.S. Circuit Court of Appeals ruled in Raich's and Monson's favor. It said federal laws criminalizing marijuana do not apply to patients whose doctors have recommended the drug. The appeals court said states were free to adopt medical marijuana laws as long as the marijuana was not sold, transported across state lines or used for non-medicinal purposes.The other states with such laws are Alaska,Arizona, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Vermont and Washington. The court ruled that marijuana for medicinal purposes is "different in kind from drug trafficking" and outside the scope of federal oversight. The same court last year said doctors were free to recommend marijuana to their patients. The government appealed, but the Supreme Court justices declined to hear the case. In June, however, the justices agreed to hear the Raich-Monson case. A ruling is expected to decide the states' rights issue the court left unanswered in 2001. Acting Solicitor General Paul Clement told the justices in briefs that the government, backed by the 1970 Controlled Substances Act, has the power to regulate the "manufacture, distribution and possession of any controlled substance," even if such activity takes place entirely within one state. Besides California, the states allowing marijuana to be used as medicine with a doctor's recommendation are Alaska, Arizona, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Vermont and Washington state. Even some states without medical marijuana laws have criticized the federal government's position. Louisiana,Alabama and Mississippi told the court they "support their neighbors' prerogative in our federalist system to serve as laboratories for experimentation." A number of medical groups, doctors and marijuana supporters also wrote the court, saying marijuana benefits sick patients. Raich, whose legal team includes her husband, Robert, said she hopes the chemotherapy Chief Justice William H. Rehnquist is undergoing for thyroid cancer 'Would soften his heart about the issue." "I think,"she said, "he would find that cannabis would help him a lot." The case is Ashcroft v. Raich, 03-1454. CC: <pmbmother@msn.com>