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Home My WebLink About101-Urgency Ord staff report.pdfPage 1 of 4 SARATOGA CITY COUNCIL MEETING DATE: November 18, 2009 AGENDA ITEM: DEPARTMENT: Community Development CITY MANAGER: Dave Anderson PREPARED BY: John F. Livingstone, AICP DIRECTOR: John F. Livingstone, AICP SUBJECT: Urgency Ordinance for Medical Marijuana Dispensaries RECOMMENDED ACTION: Adopt the proposed interim urgency ordinance placing a 45 day moratorium on the establishment of medical marijuana dispensaries in order to provide the City of Saratoga with time to determine whether to adopt an ordinance regulating the location or operation of medical marijuana dispensaries. BACKGROUND: The City of Saratoga has received several inquiries from prospective medical marijuana dispensary operators. The City of Saratoga’s Code does not specifically address the regulation or location of medical marijuana dispensaries or list medical marijuana dispensaries as a permitted use or conditionally permitted use in any zoning district. In California, some cities that have permitted the establishment of medical marijuana dispensaries have reported adverse impacts on public health, safety, and welfare, including an increase in crimes such as loitering, illegal drug activity, burglaries, robberies and other criminal activity within and around dispensaries, as well as increased pedestrian and vehicular traffic, noise and parking violations. Some local jurisdictions also report that medical marijuana dispensaries increase demands for police response, as well as maintenance of public streets and sidewalks. Therefore, staff is proposing the adoption of an interim urgency ordinance imposing a moratorium on the approval, commencement, establishment of medical marijuana dispensaries until such time staff is able to study the issue and present recommendations to the City Council. DISCUSSION: In November 1996, California voters enacted “The Compassionate Use Act of 1996,” also known as Proposition 215, codified at Health and Safety Code Section 11362.5 et seq. Proposition 215 allows a person to cultivate and possess marijuana for medical purposes with a doctor’s recommendation without violating certain state criminal laws regarding possession or cultivation of marijuana. Page 2 of 4 In October 2003, the State Legislature adopted Senate Bill 420, the Medical Marijuana Program Act, which, among other things, exempts from certain state criminal sanctions individuals engaged in collective and cooperative cultivation of medical marijuana. The Medical Marijuana Program Act went into effect on January 1, 2004. In 2008, the California Attorney General issued guidelines regarding lawful operation of cooperatives and collectives, including organizing under appropriate business forms, generating no profits and complying with state tax law and local business license requirements. The Attorney General advised that only dispensaries that comply with the recommendations in its guidelines would be protected from criminal liability under existing state law. The manufacture, distribution, or possession of marijuana is a federal criminal offense pursuant to the federal Controlled Substances Act, 21 U.S.C. § 801 et seq. The Controlled Substances Act may be enforced by federal authorities against persons possessing or using marijuana, regardless of the protections offered by the Compassionate Use Act and Medical Marijuana Program Act. However, earlier this year, the United States Attorney General announced his intention to ease enforcement of the Controlled Substances Act against medical marijuana dispensaries, and the United States Department of Justice recently issued a memorandum stating that federal resources should not be focused on prosecution of individuals whose actions are in clear and unambiguous compliance with existing state laws providing for medical use of marijuana. The Compassionate Use Act, the Medical Marijuana Program Act and the recent pronouncements from federal prosecutors, have fostered interest in the establishment of medical marijuana dispensaries, including within the City of Saratoga and surrounding cities. Medical marijuana dispensaries have been established throughout California and the Bay Area, including in San Francisco, Oakland, and Santa Cruz. As a result of the presence of medical marijuana dispensaries, some local agencies have reported increases in illegal drug activity, illegal drug sales, robberies of persons leaving the dispensaries, loitering around dispensaries, falsely obtained identification cards, and other criminal activity. Some local agencies also report increased demands for police response, as well as maintenance of public streets and sidewalks, in areas surrounding medical marijuana dispensaries. The City of Saratoga currently does not have regulations regarding licensing for persons seeking to establish a medical marijuana dispensary. Further, the City of Saratoga Municipal Code does not specifically address the regulation or location of medical marijuana dispensaries, and a medical marijuana dispensary is not a type of use which is specifically defined in the City of Saratoga’s zoning code regulations. Based upon the experiences of other local jurisdictions and the rapidly evolving law governing medical marijuana, staff recommends that the City adopt a moratorium on medical marijuana dispensaries until staff has the opportunity to further study the issue and advise the City Council regarding options for legally appropriate and effective regulation. The scope of the study resulting from the moratorium may include, but not limited to, the following: 1. Review processes used by other cities and counties when considering applications from persons seeking to open and operate a medical marijuana dispensary; 2. Determine whether to establish licensing and criminal background check processes for proposed operators and employees of a medical marijuana dispensary; Page 3 of 4 3. Decide if licensing needs to be regularly renewed; 4. Determine in which zoning districts, if any, medical marijuana dispensaries might be allowed to operate; 5. Decide whether to prohibit medical marijuana dispensaries from locating near schools or other sensitive uses; 6. Decide whether medical marijuana dispensaries should be located a minimum distance from other medical marijuana dispensaries; 7. Potential regulations regarding the operation, hours, security features, and other conditions for the operation of medical marijuana dispensaries; and 9. Other related issues. The adoption of a moratorium will give staff sufficient time to study this issue and prevent medical marijuana dispensaries from locating in the City of Saratoga until proper procedures and regulations are established. Government Code Section 65858 allows a jurisdiction to adopt a zoning ordinance that prohibits any uses that conflict with a contemplated zoning proposal that the City Council, Planning Commission, or Planning Division is considering or studying or intends to study within a reasonable time to protect the public safety, health, and welfare. The urgency ordinance requires a four-fifths vote of the City Council for adoption and shall be effective for no more than 45 days. The City Council may further extend the urgency ordinance for 10 months and 15 days after a noticed public hearing, and may subsequently extend the urgency ordinance for one additional year. Ten days prior to the expiration of the ordinance, the City must issue a written report describing the measures taken to alleviate the conditions which led to the adoption of the ordinance. Staff estimates that it will take 12 to 18 months to study issues related to medical marijuana dispensaries; therefore, it is likely that staff will return to the City Council with a request for a extension of the ordinance. ENVIRONMENTAL ASSESSMENT: The proposed moratorium ordinance is exempt from review under the California Environmental Quality Act (CEQA), pursuant to Sections 15060(c)(2), 15060(c)(3), and 15601(b)(3), because the proposal will not result in a direct or reasonably foreseeable indirect physical change in the environment, and only directs that a planning study be undertaken. FISCAL IMPACT: Instituting a study of medical marijuana dispensaries will require a significant commitment of staff time. While funding this staff time will not require an additional appropriation, it will require staff to adjust its priorities in working on other issues. Failure to adopt a moratorium could require the Page 4 of 4 commitment of additional staff and police resources to deal with any criminal issues associated with medical marijuana dispensaries. Subsequent adoption of a licensing requirement could increase staffing costs which could be offset by license fees. FOLLOW UP ACTION: As directed. ADVERTISING, NOTICING AND PUBLIC CONTACT: Notice of this meeting was properly posted. ATTACHMENTS: 1. Proposed Urgency Ordinance