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HomeMy WebLinkAbout2005-06-27 e-packet SPECIAL MEETING CITY COUNCIL OF THE CITY OF SOUTH SAN FRANCISCO P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, California 94083 CITY HALL CONFERENCE ROOM 400 GRAND AVENUE MONDAY, JUNE 27, 2005 6:15 P.M. NOTICE IS HEREBY GIVEN, pursuant to Section 54956 of the Government Code ofthe State of California, the City Council ofthe City of South San Francisco will hold a Special Meeting on Monday, the 27th day of 2005, at 6: 15 p.m., in the City Hall Conference Room, 400 Grand Avenue, South San Francisco, California. Purpose of the meeting: 1. Call to Order 2. Roll Call 3. Public Conunents - comments are limited to items on the Special Meeting Agenda 4. Public Hearing: Consideration of extending Urgency Ordinance No. 1351-2005, Moratorium on the Establishment and Operation of Medical Marijuana Dispensaries, for a period of 10 months, 15 days 5. Adjournment - 0 /n.! - ~'t1l S:1N ~ ~ . ~\.J,.\ <::> C"l f:.-. ~I \~ ~ v c ~l~~~~ Staff Re120rt SP. AGENDA ITEM #4 DATE: June 27,2005 TO: The Honorable Mayor and City Council FROM: Thomas C. Sparks, Chief Planner SUBJECT: Medical Marijuana Dispensaries: Urgency Ordinance (Moratorium) RECOMMENDATION: It is recommended that the City Council waive reading, introduce and adopt an urgency ordinance extending a temporary moratorium on the establishment and operation of medical marijuana dispensaries. BACKGROUND/DISCUSSION: The City Council adopted an urgency ordinance on May 11, 2005, which placed a temporary moratorium on the establishment and operation of medical marijuana dispensaries within the City. Given the complexity ofthe issue and the recent U.S Supreme Court decision regarding enforcement of marijuana laws, staff needs more time to prepare an ordinance to regulate marijuana distribution for Council consideration. The attached ordinance, if adopted, extends the moratorium an additional 10 months, which will give staff time to prepare an appropriate regulatory ordinance. URGENCY ORDINANCE As the Council is aware, the operation and location of medical marijuana dispensaries is a complicated issue. State and federal law are not in agreement on whether such facilities are legal, and the U.S. Supreme Court recently rendered an opinion which provides little guidance of value to local communities struggling with the complexities of conflicting statutes. As noted in the May 11, 2005 staff report on this issue, other California communities where dispensaries have opened have reported the occurrence of such negative secondary impacts as: o Increased crime in the vicinity of the dispensaries; o Robbery of patients as they go in or leave the dispensaries; o A burglary attempt on a dispensary; o Increased Dills in the vicinity ofthe dispensaries; o Increased street dealing in the vicinity of the dispensaries; o Individuals smoking marijuana in the vicinity of the dispensaries; and o Reports of impacts on neighboring businesses due to the criminal element being drawn to dispensaries. Based upon these reports, it is clear that allowing medical marijuana dispensaries within the City may pose a risk to the public safety, health and welfare In order to insure that any zoning provisions adopted by the City regarding the location of dispensaries in the City are adequate to protect the public, it is recommended that the City Council adopt the extension to the moratorium and direct staffto continue study of the potential impacts and the possible amendment of the City's Zoning Code, and to report back to the City Council as soon a practical with a report on the issue and a regulatory ordinance as appropriate. Thomas C. Sparks, -...........---"'"....." Enclosures: Ordinance June 14,2005 Memo re: Medical Marijuana Cultivation . , CITY OF SOUTH SAN FRANCISCO POLICE DEPARTMENT Mel110 To: City Manager and City Council From: Sgt. Normandy, Planning Liaison cc: Chief of Police Date: June 14, 2005 Re: 4 Wilms Avenue: Medical Marijuana Cultivation On May 24, 2005, several members of the South San Francisco Police Department responded to 4 Wilms Avenue on the report of possible marijuana cultivation. The resident was reportedly cultivating marijuana in the garage of the residence. Subsequent investigation revealed that this activity is currently legal in the State of California. On that date, SSFPD Officers and Detectives contacted the resident, who was a qualified patient with a Medical Marijuana Identification card. Also, the resident was listed as a primary caregiver for four other qualified patients with identification cards. The resident possessed copies of medical records to confirm the other patients had a physician's written or oral recommendation to use medical marijuana. The resident admitted that he cultivated medical marijuana for himself and the other four qualified patients. The resident admitted they were growing marijuana collectively. The cultivation was occurring in the residence garage and backyard. The investigation revealed that the resident was in collective possession of the following: . 1-1/2 ounces of usable dried, cleaned female marijuana buds . 70 immature marijuana plants (located in the garage area) . One mature marijuana plant approximately 2-1/2 feet tall (located in the backyard) . Page 1 The Compassionate Use Act of 1996, which legalized medical marijuana in the State of California, was codified as Section 11362 of the Health & Safety Code. Section 11362 HS permits patients and caregivers to possess and cultivate marijuana for medical use, and also allows them to cultivate collectively. Section 11362.77(a) ALLOWS qualified patients or a primary caregiver to possess the following amounts of medical marijuana, per qualified patient: . Eight (8) ounces of dried, cleaned female marijuana buds . Six (6) mature marijuana plants . 12 immature marijuana plants Further, Section 11362.77 HS also allows possession of greater quantities, as follows: . If a qualified patient or primary caregiver has a doctor's recommendation that the amounts are insufficient for his/her medical needs, the qualified patient and/or primary caregiver may possess a areater amount of marijuana consistent with those needs. . Additionally, counties and cities may enact guidelines, which would allow qualified patients (with or without identification cards) and/or primary caregivers to exceed the state limits. Accordingly, the resident was not in violation of any California statutes, although cultivation and possession of marijuana remain violations of Federal law (pursuant to Gonzales v. Raich, which was rendered just last week). This enforcement interpretation was formed via collaboration with the San Mateo County Narcotics Task Force at the time of the investigation, and subsequently confirmed via memos from the San Mateo County District Attorney, and California Attorney General. South San Francisco Police Report #05-2100 was taken for information only. Copies of the report and other supporting documents are available to the City Manager and City Council upon request. Further municipal regulation is likely necessary to mitigate security issues and attractive nuisance concerns as to marijuana cultivation on private property. I am available to answer more questions as to this incident, as well the regulations surrounding the Compassionate Use Act of 1996 and Section 11362 HS, et al and their impact on law enforcement and our community. . Page 2 ORDINANCE NO. AN INTERIM ORDINANCE OF THE CITY OF SOlJTH SAN FRANCISCO MAKING FINDINGS AND EXTENDING A TEMPORARY MORATORIUM ON THE ESTABLISHMENT AND OPERATION OF MEDICAL MARIjlJANA DISPENSARIES, TO BECOME EFFECTIVE IMMEDIATELY WHEREAS, at its regular meeting on May 11, 2005, the City Council held a duly-noticed public hearing to consider the adoption of an interim ordinance imposing a temporary moratorium on the establishment and operation of medical marijuana dispensaries; and WHEREAS, following discussion of the item, the City Council voted unanimously to adopt the interim measure, which became effective immediately, imposing a 45-day moratorium on the establishment and operation of medical marijuana dispensaries within the City of South San Francisco; and WHEREAS, the 45-day moratorium expired on June 25, 2005; and WHEREAS, California Government Code section 65858(c) provides that after proper notice pursuant to California Government Code section 65090 and public hearing, a City Council may extend any interim ordinance adopted under section 65858 for a period of up to 22 months and fifteen days; and WHEREAS, the City Council wishes to extend the initial period to allow staff additional time to study the potential impacts of allowing medical marijuana dispensaries in the City, to consult with other jurisdictions to collect data and information related to other Cities' experience regulating such dispensaries, and to prepare possible amendments to the City's zoning code. NOW THEREFORE, the City Council of the City of South San Francisco does ordain as follows: Section 1. Findings A. In 1996 the voters of the state of California approved Proposition 215 (codified as Health and Safety Code Section 11362.5 et. ~ and entitled "The Compassionate Use Act of 1996"). B. The intent of Proposition 215 was to enable persons who are in need of medical marijuana for specified medical purposes to obtain and use it under limited, specified circumstances. C. On January 1,2004, SB 420 went into effect. SB 420 was enacted by the State to clarify the scope of the Compassionate Use Act of 1996 and to allow cities and other governing bodies to adopt and enforce rules and regulations consistent with SB 420. D. The South San Francisco Municipal Code and Zoning Code are silent with regard to the regulation and location of medical marijuana dispensaries. E. The City of South San Francisco has recently received inquiries regarding the permitting and establishment of medical marijuana dispensaries within the city. F. In order to address both community and statewide concerns regarding the establishment of medical marijuana dispensaries, it is necessary for the City of South San Francisco to study the potential impact such facilities may have on the public health, safety and welfare. G. Other California cities which have permitted the establishment of medical marijuana dispensaries have recognized an increase in crime, such as burglary, robbery and sale of illegal drugs in the areas immediately surrounding such medical marijuana dispensaries. H. The City Council finds that it is necessary to study the possible adoption of amendments to the City's Zoning Code in order to adopt legislation, which conforms with recently enacted SB 420 as well as recent state and federal case law. I. Based on the foregoing, the City Council finds that issuing permits, business licenses or other applicable entitlements providing for the establishment and/or operation of medical marijuana dispensaries, prior to the completion of the City's study of the potential impact of such facilities, poses a current and immediate threat to the public health, safety, and welfare, and that therefore a temporary moratorium on the issuance of such permits, licenses and entitlements is necessary. J. The Chief Planner, in conjunction with the City Manager and the City Attorney, has commenced a study of the potential impacts of medical marijuana dispensaries and possible amendments to the City's Zoning Code related to medical marijuana dispensaries. The Chief Planner and City Attorney shall continue to research and study possible regulation of medical marijuana dispensaries and propose appropriate regulation by way of Zoning Code amendments. Section 2. Imposition of Moratorium A. In accordance with the authority granted the City of South San Francisco under Government Code Section 65858 (b), from and after the date of this ordinance, no use permit, variance, building permit, or any other applicable entitlement for use, including but not limited to the issuance of a business license, shall be approved or issued for the establishment or operation of a medical marijuana dispensary for a period of ten months and fifteen days. B. For purposes of this ordinance, "medical marijuana dispensary" means any facility or location where a primary caregiver intends to make available, sell, transmit, give, or otherwise provide medical marijuana to two or more ofthe following: a qualified patient or a person with an identification card, or a primary caregiver in strict accordance with Health and Safety Code Section 11362.5 et seq., including but not limited to Health & Safety Code Section 11362.7 (d) (2) and (3). The terms "primary caregiver", "qualified patient", and "person with an identification card" shall be as defined in Health and Safety Code Section 11362.5 et seq. C. F or purposes of this ordinance, a "medical marijuana dispensary" shall not include the following uses, as long as the location of such uses are otherwise regulated by applicable law: a clinic licensed pursuant to Chapter 1 of Division 2 of the Health & Safety Code, a health care facility licensed pursuant to Chapter 2 of Division 2 of the Health & 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 & Safety Code, a residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 ofthe Health & Safety Code, a residential hospice, or a home health agency licensed pursuant to Chapter 8 of the Health & Safety Code, as long as any such use complies strictly with applicable law including, but not limited to, Health & Safety Code Section 11362.5 et seq. D. This ordinance is an interim ordinance adopted pursuant to the authority granted the City of South San Francisco under Government Code Section 65858 (b) and is for the immediate preservation of the public safety, health and welfare. The facts constituting the urgency are: California cities which have permitted the establishment of medical marijuana dispensaries have recognized that doing so has resulted in the creation of negative secondary effects such as an increase in crime, including burglary, robbery and the sale of illegal drugs, in the areas immediately surrounding medical marijuana dispensaries. The City of South San Francisco has recently received inquiries regarding the permitting and establishment of medical marijuana dispensaries within the City. The City of South San Francisco does not currently have standards in the South San Francisco Zoning Code related to the location, operation and concentration of medical marijuana dispensaries within the City. Absent the extension of this interim ordinance, the establishment and operation of medical marijuana dispensaries in the City would result in the harmful secondary effects identified above. As a result of the harmful secondary effects associated with medical marijuana dispensaries and the current and immediate threat such secondary effects pose to the public health, safety and welfare, it is necessary to, in accordance with Government Code Section 65858 (b), extend the interim moratorium on the establishment and operation of new medical marijuana dispensaries in the City for a period often months and fifteen days pending the completion of the City's study of the potential impacts of medical marijuana dispensaries and possible amendments to the City's Zoning Code. Section 3. Compliance with California Environmental Ouality Act The City Council finds that this ordinance is not subject to the California Environmental Quality Act ("CEQA") pursuant to 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) ofthe CEQA Guidelines (Title 14, Chapter 3 ofthe California Code of Regulations) because it has no potential for resulting in physical change to the environment, directly or indirectly; it prevents changes in the environment pending the completion of the contemplated Zoning Code review. Section 4. Severability If any provision of this ordinance or the application thereof to any person or circumstance is held invalid, the remainder of the ordinance, including the application of such part or provision to other persons or circumstances shall not be affected thereby and shall continue in full force and effect. To this end, provisions of this ordinance are severable. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof irrespective of the fact that anyone or more sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases be held unconstitutional, invalid, or unenforceable. Section 5. Effective Date This ordinance shall become effective immediately upon adoption if adopted by at least four-fifths vote of the City Council and shall be in effect for ten months and fifteen days from the date of adoption. * * * * * Introduced and adopted as an Ordinance of the City of South San Francisco at a special meeting of the City Council held the 27th day ofJune 2005, by the following vote: AYES: NOES: ABSTAIN: ABSENT: ATTEST: City Clerk As Mayor of the City of South San Francisco, I do hereby approve the foregoing Ordinance this 27th day of June, 2005. Mayor