HomeMy WebLinkAboutOrdinance 286 prohibitng medical marijuana ORDINANCE 286
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 11362.7680)); 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
J. Businesses and residents neighboring medical marijuana dispensaries have
experienced odors, loitering, public marijuana smoking and sales, an increase in vehicular traffic,
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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
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
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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
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).
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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:
AYES: Councilmember Manny Cappello, Emily Lo, Jill Hunter,
Vice Mayor Chuck Page, Mayor Howard Miller
NAYS: None
ABSENT: None
ABSTAIN: None
ATTEST: SIGNED:
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Ann Sullivan, Howard A. fi11er,
CLERK OF THE CITY OF SARATOGA MAYOR OF THE CITY OF SARATOGA
APPROVED AS TO FORM:
Richard Taylor, CITY ATTORNEY
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