Loading...
HomeMy WebLinkAbout102-Ordinance.pdf1 ORDINANCE _______ AN ORDINANCE OF THE CITY OF SARATOGA AMENDING SARATOGA CITY CODE CHAPTER 15 CONCERNING ZONING REGULATIONS PROHIBITING MEDICAL MARIJUANA DISPENSARIES Findings A. In 1996, the voters of the State of California approved Proposition 215 entitled “The Compassionate Use Act of 1996” (“CUA”) (Health & Safety Code § 11362.5 et seq.); and B. The CUA creates limited exceptions from criminal liability for seriously ill persons who are in need of medical marijuana as well as for their primary caregivers; and C. The California Legislature enacted the Medical Marijuana Program Act (“MMPA”) to clarify the implementation of the CUA (Health & Safety Code § 11362.7 et seq.); and D. The CUA expressly anticipates local regulation of medical marijuana, providing “[n]othing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes,” (Health & Safety Code § 11362.5(b)(2)); and E. The MMPA also expressly anticipates local regulation of medical marijuana, providing “[n]othing in this article shall prevent a city or other local governing body from adopting and enforcing laws consistent with this article,” (Health & Safety Code § 11362.83); and F. The Legislature recently amended the MMPA to prohibit the establishment of medical marijuana dispensaries within 600 feet of a school, and in so doing, expressly anticipated local regulations banning medical marijuana dispensaries by providing “[n]othing in this section shall prohibit a city, county, or city and county from adopting ordinances or policies that further restrict the location or establishment of a medical marijuana cooperative, collective, dispensary, operator, establishment, or provider,” (Health & Safety Code § 11362.768(f)); and G. While experiences have varied from city to city, a number of California cities with medical marijuana dispensaries have experienced an increase in crime associated with these dispensaries, such as burglary, robbery—including targeted robbery of people frequenting the dispensaries—homicide, attempted homicide, aggravated assault, illegal weapons possession, driving under the influence, and the sale of illegal drugs—including the illegal resale of marijuana from dispensaries; and H. Juveniles in other jurisdictions have obtained marijuana from medical marijuana dispensaries by using false medical marijuana identification cards or through others who obtained medical marijuana legally at a dispensary; and I. The City of Saratoga wishes to reduce the risk of crime and the improper diversion of medical marijuana, including to the City’s youth; and 2 J. Businesses and residents neighboring medical marijuana dispensaries have experienced odors, loitering, public marijuana smoking and sales, an increase in vehicular traffic, noise, fires, and automobile accidents in the vicinity of dispensaries that would negatively impact neighboring land uses and the quality of life of Saratoga residents; and K. Prohibiting medical marijuana dispensaries within the City of Saratoga is consistent with the Saratoga General Plan land use goals to “[m]aintain the predominantly small-town residential character of Saratoga which includes semi-rural and open space areas” (Goal LU 1) and to “[e]ncourage the economic viability of Saratoga’s existing commercial and office areas and their accessibility by residents, taking into account the impact on surrounding residential areas,” (Goal LU 2); and L. The sale of medical marijuana is prohibited by Article 4-05 of the Saratoga City Code regarding Business Licenses because no business license may be issued for an unlawful business, and the distribution of medical marijuana is unlawful under federal law, United States v. Oakland Cannabis Buyers’ Cooperative (2001) 532 U.S. 483, 494; and M. Because San Jose and Santa Clara County permit the establishment and operation of medical marijuana dispensaries, because there are dispensaries operating in other jurisdictions that provide delivery services to qualified patients in the City of Saratoga, because legally operating collectives or cooperatives may provide medical marijuana to 2 or fewer members from a single location, and because qualified patients and their primary caregivers may cultivate their own medical marijuana under the CUA and the MMPA, seriously ill patients in the City of Saratoga have reasonable access to medical marijuana; and N. An ordinance prohibiting the establishment of medical marijuana dispensaries in the City of Saratoga is necessary and appropriate to maintain and protect the public health, safety, and welfare of the citizens of Saratoga; and O. On June 8, 2011, the Planning Commission of the City of Saratoga held a duly noticed public hearing and recommended approval of this ordinance; and P. On June 15, 2011 the City Council of the City of Saratoga held a public hearing to consider this ordinance and concluded that this ordinance is in the public interest. Therefore, the City Council hereby ordains as follows: Section 1. Adoption. Article 15-80 of the Saratoga City Code is hereby amended to add the following section. 15-80.140 - Medical Marijuana Dispensaries prohibited in all districts. (a) Definition. For purposes of this Section, “Medical Marijuana Dispensary” means any facility, building, structure, or establishment, where a primary caregiver or a collective or cooperative group of qualified patients, persons with identification cards and/or primary caregivers makes available, sells, transmits, gives, allocates, administers, delivers, processes, or otherwise provides marijuana to or cultivates marijuana for more 3 than two (2) qualified patients, persons with identification cards, or primary caregivers. The terms primary caregivers, persons with identification cards, qualified patients, and collective or cooperative group are defined in California Health and Safety Code section 11362.5 et seq. and the State of California Department of Justice Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use (Aug. 2008) and any amendments thereto. Medical Marijuana Dispensary does not mean a state licensed facility listed in Health and Safety Code section 11362.7(d)(1). A Medical Marijuana Dispensary shall not fall within the definition of accessory use or any other use defined in this Code. (b) Prohibition of Use. A Medical Marijuana Dispensary shall not be permitted in any zoning district. (c) Enforcement. (1) Violations of this Section are hereby declared to be public nuisances and determined to be an immediate hazard to the public health, safety or welfare for purposes of Article 3-20 (Emergency Nuisance Abatement Procedure) of this Code. (2) In addition to other remedies provided by this Code or by other law, any violation may be remedied by a civil action brought by the City Attorney, including, but not limited to, administrative or judicial nuisance abatement proceedings, civil code enforcement proceedings, unfair business practice proceedings under Business & Professions Code Section 17200 et seq., and suits for injunctive relief. The remedies provided by this Section are cumulative and in addition to any other remedies available at law or in equity. (3) Notwithstanding any other provision of this Code, including Article 3-05 (Criminal Enforcement) and Article 15-95-030 (regarding misdemeanors and infractions), a qualified patient, person with a valid identification card, or primary caregiver, as those terms are defined in the Compassionate Use Act and the Medical Marijuana Program Act, California Health and Safety Code sections 1111362.5 and 11362.7 et seq., shall not be subject to criminal liability under California Health and Safety Code section 11570 or any criminal abatement actions or complaints for operating or owning a Medical Marijuana Dispensary as that term is defined in this Section. Any qualified patient, person with a valid identification card, or primary caregiver owning or operating a Medical Marijuana Dispensary in violation of this Section shall be subject to all other compliance actions set forth in subsection (c)(3) of this Section, code enforcement actions set forth in Chapter 3, and legal proceedings authorized in Section 15-95.020 of this Code. Nothing in this Section shall prevent the criminal enforcement of other violations of this Code or state law. Section 2. California Environmental Quality Act. The City Council finds that this ordinance is not subject to the California Environmental Quality Act (“CEQA”) pursuant to Title 14, of the California Code of Regulations (“CEQA Guidelines”) sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect 4 physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) because it has no potential for resulting in physical change to the environment, directly or indirectly; it prevents changes in the environment. Further, this action is exempt from CEQA under CEQA Guidelines section 15061(b)(3) (the amendments are exempt because it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment). Section 3. Severance Clause. The City Council declares that each section, sub-section, paragraph, sub-paragraph, sentence, clause and phrase of this ordinance is severable and independent of every other section, sub- section, paragraph, sub-paragraph, sentence, clause and phrase of this ordinance. If any section, sub-section, paragraph, sub-paragraph, sentence, clause or phrase of this ordinance is held invalid, the City Council declares that it would have adopted the remaining provisions of this ordinance irrespective of the portion held invalid, and further declares its express intent that the remaining portions of this ordinance should remain in effect after the invalid portion has been eliminated. Section 4. Publication. 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. The foregoing ordinance was introduced and first reading waived at the regular meeting of the City Council of the City of Saratoga held on June 15, 2011, and was adopted by the following vote following a second reading on July 6, 2011: COUNCIL MEMBERS: AYES: NAYS: ABSENT: ABSTAIN: SIGNED: ATTEST: _________________________________ _____________________________ Howard Miller, Ann Sullivan, MAYOR OF THE CITY OF SARATOGA CLERK OF THE CITY OF SARATOGA APPROVED AS TO FORM: __________________________________ Richard Taylor, CITY ATTORNEY