HomeMy WebLinkAbout101-Staff Report.pdf1
SARATOGA CITY COUNCIL
MEETING DATE: July 6, 2011 AGENDA ITEM:
DEPARTMENT: Community Development CITY MANAGER: Dave Anderson
PREPARED BY: Christopher Riordan, AICP DIRECTOR: Christopher Riordan, AICP
______________________________________________________________________________
SUBJECT: Zoning Ordinance Amendment to Prohibit Medical Marijuana Dispensaries
______________________________________________________________________________
RECOMMENDED ACTION:
Waive the second reading and adopt the proposed ordinance.
BACKGROUND:
On June 15, 2011, the City Council opened and conducted a public hearing, introduced the
ordinance, and voted to place the ordinance for a second reading and adoption on consent.
DISCUSSION:
In 2009, the City of Saratoga received several inquiries from prospective medical marijuana
dispensary operators. The Saratoga Municipal 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. On November 18, 2009, the City Council
adopted by a unanimous vote an interim ordinance imposing as an urgency measure a moratorium on
granting approvals and entitlements for use for medical marijuana dispensaries. The City Council
twice extended the moratorium, which will now expire on November 17, 2011. The moratorium
may not be extended further.
The moratorium was extended to provide staff additional time to research medical marijuana
dispensaries and to allow for additional clarification from the courts regarding local regulation of
medical marijuana. The City Attorney had been anticipating a court of appeal decision in Qualified
Patients v. City of Anaheim regarding the legality of Anaheim’s ordinance banning medical
marijuana dispensaries. Unfortunately, the court’s decision did not reach this issue. Nonetheless,
other courts of appeal have upheld local zoning regulations that effectively ban medical marijuana
dispensaries.1 In addition, recently enacted legislation authorizes localities to restrict the
establishment of medical marijuana dispensaries.2
The Santa Clara County Sheriff’s Office has concluded that “the establishment of any medical
marijuana dispensaries within the jurisdictional boundaries of the City of Saratoga would present
potential health and safety issues to the community as well as invite a criminal element to the City.”
1 City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153, (upholding an MMD moratorium);
City of Corona v. Naulls (2008) 166 Cal.App.4th 418 (upholding permissive zoning regulations
that did not list medical marijuana dispensaries).
2 Health & Safety Code § 11362.768(f).
2
The proposed ordinance would ban medical marijuana dispensaries in all zoning districts. The
ordinance begins with findings, which describe Saratoga’s basis for banning medical marijuana
dispensaries and its authority to do so. The proposed zoning code amendment has three main
components: 1) it establishes that medical marijuana dispensaries shall not be permitted in any
zoning district within the City, 2) it defines medical marijuana dispensaries, and 3) to ensure
compliance with state law, it prohibits qualified medical marijuana users from being subject to
criminal sanctions for violating the ordinance, while clarifying that all other civil and administrative
enforcement actions still apply.
Prohibition of Use
Given that medical marijuana dispensaries have been associated with an increase in crime and other
negative land use impacts, the Sheriff’s department recommended banning medical marijuana
dispensaries within the City. Definition of Medical Marijuana Dispensaries
State law does not define medical marijuana dispensaries. Instead, it authorizes patients with a
doctor’s recommendation for medical marijuana and their primary caregivers (“qualified
individuals”) to collectively or cooperatively cultivate medical marijuana.3 In addition, a primary
caregiver may cultivate and provide medical marijuana to qualified patients.4 The ordinance defines
Medical Marijuana Dispensaries as any location where a primary caregiver or a collective or
cooperative provides marijuana to more than two qualified individuals. The definition excludes state
licensed care facilities that are authorized under state law to provide medical marijuana to qualified
patients.5
Note that the sale of medical marijuana by a primary caregiver or a collective or cooperative is
prohibited under the Saratoga Municipal Code. Article 4-05 regarding Business Licenses provides
that no business license may be issued for an unlawful business and the distribution of Medical
Marijuana is unlawful under federal law.6
Policy Issue
Whether medical marijuana dispensary should be defined to allow for distributions to fewer than two
or more than two qualified individuals. The ordinance has been structured to allow households with
two members who are qualified patients to cultivate and consume medical marijuana within their
household. The ordinance would also allow a household with a primary caregiver to cultivate
medical marijuana for distribution to two qualified patients (one of which might be the caregiver).
Within Santa Clara County, the cities of Milpitas, Morgan Hill, Palo Alto, and Sunnyvale allow
distribution to only one qualified individual. The cities of Campbell, Gilroy, Los Altos, and
Mountain View do not allow distribution at all. San Jose allows collectives of three or more
qualified individuals and limits the number of collectives that distribute to four or more qualified
individuals. The County of Santa Clara allows medical marijuana dispensaries serving any number
of qualified individuals provided they operate in accordance with specified regulations. Several
3 Id. § 11362.775.
4 Id. §§ 11362.5, 11362.765.
5 Id. § 11362.7(d)(1).
6 United States v. Oakland Cannabis Buyers’ Cooperative (2001) 532 U.S. 483, 494.
3
dispensaries located in surrounding jurisdictions are reported to offer delivery services to qualified
patients within the City of Saratoga.
Enforcement
The ordinance declares that any violation would constitute a public nuisance and an immediate
hazard such that violations could be abated through the City’s Emergency Nuisance Abatement
Procedure. Violations could also be enforced through judicial nuisance abatement proceedings, civil
code enforcement proceedings, unfair business practice proceedings, suits for injunctive relief, and
administrative fines. The ordinance provides that violators that are qualified patients or primary
caregivers under the state’s medical marijuana laws would not be subject to criminal enforcement
proceedings. The state’s medical marijuana laws exempt qualified individuals from certain specified
criminal liability and the City Attorney recommends this provision to avoid a potential conflict with
state law.
ALTERNATIVE ACTION:
1. Deny the proposed ordinance prohibiting medical marijuana dispensaries.
2. Modify the proposed ordinance.
FOLLOW UP ACTION: This ordinance or a comprehensive summary thereof shall be published in a newspaper of general
circulation of the City of Saratoga within fifteen days after its adoption.
ATTACHMENT:
Ordinance