Ord 2198 - Medical Marijuana Dispensaries ProhibitionORDINANCE 2198
AN ORDINANCE OF THE TOWN OF LOS GATOS ADDING ARTICLE XII
(MEDICAL MARIJUANA DISPENSARIES) TO CHAPTER 14 (LICENSES AND
MISCELLANEOUS BUSINESS REGULATIONS) OF THE CODE OF THE
TOWN OF LOS GATOS TO PROHIBIT THE ESTABLISHMENT OR
OPERATION OF MEDICAL MARIJUANA DISPENSARIES
WHEREAS, the possession, cultivation, possession for sale, transportation, distribution,
furnishing, and giving away of marijuana is generally unlawful under California state statutory
law. (California Health and Safety Code Sections 11357 - 11360.)
WHEREAS, in November of 1996 the voters of the State of California approved
Proposition 215 (codified as Health and Safety Code Section 11362.5 et seq. and entitled the
"Compassionate Use Act of 1996 "), which allows a person to use marijuana for medical
purposes with a doctor's recommendation, without violating state criminal law regarding the use,
possession, or cultivation of marijuana.
WHEREAS, in 2003, the State Legislature adopted Senate Bill 420 (codified as Health
and Safety Code Section 11362.7 et seq, and entitled the "Medical Marijuana Program Act "),
which clarified the scope of the Compassionate Use Act and allowed cities and other governing
bodies to adopt and enforce rules and regulations related to medical marijuana.
WHEREAS, federal law (codified as 21 USC Section 801 et seq. and entitled the
"Controlled Substances Act") makes it unlawful to manufacture, distribute, or possess any
controlled substances, including marijuana. This creates a significant law enforcement dilemma,
in that federal law now conflicts with California law.
WHEREAS, in May 2001 the United States Supreme Court issued its decision in United
States v. Oakland Buyers Cooperative and Jeffrey Jones determining that distribution of medical
marijuana is illegal under the Federal Controlled Substances Act (21 USC 841) and, there is no
medical necessity defense allowed under federal law.
WHEREAS, on June 6, 2005 the United States Supreme Court issued its ruling in
Gonzales v. Raich which decided that Congress, under the Commerce Clause of the United
States Constitution, has the authority and under the Federal Controlled Substances Act has the
power to prohibit cultivation and the use of marijuana even though it may be in compliance with
California law. California state law (Proposition 215) is in conflict with federal law which
makes it illegal to cultivate, possess, or consume marijuana, even for medical necessity.
WHEREAS, state law has created a limited affirmative defense to criminal prosecution
for qualifying individuals that collectively gather to cultivate medical marijuana, as well as for
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persons that qualify as a "patient," or a "primary caregiver," as those terms are defined within the
statutory scheme. (Health and Safety Code Sections 11362.765 and 11362.775.) There is no
provision that authorizes or protects the establishment of a medical marijuana dispensary, mobile
or fixed location, or other storefront distribution operation.
WHEREAS, some individuals have utilized the above - referenced state law provisions as
a basis for operating dispensaries that sell or otherwise provide medical marijuana. Presently, no
such establishments are operating in the Town; however, without restrictions in place, a medical
marijuana dispensary could attempt to open and operate without restrictions.
WHEREAS, the Town's Community Development Department and Business License
staff have received inquiries from prospective medical marijuana dispensary operators
expressing interest in opening a medical marijuana dispensary.
WHEREAS, the Town of Los Gatos' Town Code does not specifically address the
regulation or location of medical marijuana dispensaries but, medical marijuana dispensaries are
not a permitted use or conditionally permitted use in any zoning district.
WHEREAS, in California cities that have permitted the establishment of medical
marijuana dispensaries, issues and concerns have arisen related to the establishment of medical
marijuana dispensaries in close proximity to residential properties, schools, and daycare
facilities. Furthermore, those cities 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. Medical marijuana dispensaries
have also resulted in increased demands for police response, as well as maintenance of public
streets and sidewalks.
WHEREAS, there are several open state law questions regarding the regulation of
medical marijuana dispensaries.
WHEREAS, in view of the current conflicts between state and federal law and reported
secondary effects in jurisdictions that have medical marijuana dispensaries, it would be
inconsistent and contrary to the public health, safety and welfare to permit the establishment of
medical marijuana dispensaries as defined herein with the Town of Los Gatos.
THE TOWN COUNCIL OF THE TOWN OF LOS GATOS DOES ORDAIN AS
FOLLOWS:
SECTION I.
A new Article XII, Medical Marijuana Dispensaries, is hereby added to Chapter 14
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(Licenses and Miscellaneous Business Regulations) of the Code of the Town of Los Gatos to
prohibit the establishment and operation of medical marijuana dispensaries within the Town of
Los Gatos, as fully set forth on Exhibit A.
SECTION II
ENVIRONMENTAL ANALYSIS
With respect to compliance with the California Environmental Quality Act ( "CEQA "),
the Town Council finds as follows:
A. This ordinance is not subject to review under CEQA pursuant to sections
15060(c) (2) and 15060(c) (3) (the activity is not a "project' within the meaning
of Section 15378 of the State CEQA Guidelines), because it has no potential for
resulting in physical change in the environment, directly or ultimately. This
ordinance does not, in itself, allow the operation of medical marijuana
dispensaries; therefore there is no potential for resulting in physical change in the
environment, directly or ultimately.
A. This ordinance is covered by the general rule that CEQA applies only to projects
that have the potential for causing a significant effect on the environment. For the
reasons set forth in subparagraph (A) and this paragraph, it can be seen with
certainty that there is no possibility that this ordinance will have a significant
effect on the environment and, therefore, the ordinance is not subject to CEQA.
SECTION III
SEVERABILITY
If any section, subsection, phrase, or clause of this ordinance is for any reason held to be
unconstitutional, such decision shall not affect the validity of the remaining portions of
this ordinance. The Town Council hereby declares that it would have passed this
ordinance and each section, subsection, phrase or clause thereof irrespective of the fact
that any one or more sections, subsections, phrases, or clauses be declared
unconstitutional. In the event that any part of this ordinance is held to be invalid, the
invalid part or parts shall be severed from the remaining portions which shall remain in
full force and effect.
SECTION IV
PUBLICATION
This ordinance shall be published in accordance with the provisions of Government Code
Section 36933.
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SECTION VI
This ordinance was introduced at a regular meeting of the Town Council of the Town of
Los Gatos on July 25, 2011 and adopted by the following vote as an ordinance of the Town of
Los Gatos at a regular meeting of the Town Council of the Town of Los Gatos on August 15,
2011. This ordinance takes effect 30 days after it is adopted.
COUNCIL MEMBERS:
AYES: Steven Leonardis, Diane McNutt, Steve Rice, Barbara Spector and Mayor Joe Pirzysnki
NAYS:
ABSENT:
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ATTEST: ,/Z�
SIGNED: ev"--L�
MAYOR THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
CLERK ADMINISTRATOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
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EXHIBIT A
CHAPTER 14
ARTICLE XII. MEDICAL MARIJUANA DISPENSARIES
Sec. 14.120.010 —Purpose, findings and intent.
Sec. 14.120.015 - Definitions.
Sec. 14.120.020 - Prohibition of medical marijuana dispensaries.
See. 14.120.010 — Purpose, findings and intent.
A. In enacting this article, the town council finds as follows:
1. In 1970, Congress enacted the Controlled Substances Act (CSA) which, among other
things, makes it illegal to import, manufacture, distribute, possess or use marijuana in
the United States.
2. In 1996, the voters of the State of California approved Proposition 215 [the
Compassionate Use "Act" (codified as Health and Safety (H &S) Code Section
11362.5 et seq.)].
3. The Act creates a limited exception from criminal liability for seriously ill persons
who are in need of medical marijuana for specified medical purposes and who obtain
and use medical marijuana under limited, specified circumstances.
4. On January 1, 2004, the "Medical Marijuana Program" (MMP), codified as H &S
Code Sections 11362.7 to 11362.83, was enacted by the state Legislature to clarify
the scope of the Act and to allow cities and other governing bodies to adopt and
enforce rules and regulations consistent with the MMP.
5. The Act expressly anticipates the enactment of additional local legislation. It
provides: 'Nothing in this section shall be construed to supersede legislation
prohibiting persons from engaging in conduct that endangers others or to condone the
diversion of marijuana for nonmedical purposes." (H &S Code Section 11362.5.)
6. The town council takes legislative notice of the fact that several California cities and
counties which have permitted the establishment of medical marijuana dispensaries
have experienced serious adverse impacts associated with and resulting from such
dispensaries. According to these communities, according to news stories widely
reported and according to medical marijuana advocates, medical marijuana
dispensaries have resulted in and /or caused an increase in crime, including burglaries,
robberies, violence, illegal sales of marijuana to, and use of marijuana by, minors and
other persons without medical need in the areas immediately surrounding such
medical marijuana dispensaries. The town council reasonably anticipates that the
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Town of Los Gatos will experience similar adverse impacts and effects. A California
Police Chiefs Association compilation of police reports, news stories and statistical
research regarding such secondary impacts is contained in a copyrighted 2009 white
paper report entitled White Paper of Medical Marijuana Dispensaries by California
Police Chiefs Association Task Force.
7. The town council further takes legislative notice that as of June 2011, according to at
least one compilation, 103 cities and 15 counties have adopted moratoria or interim
ordinances prohibiting medical marijuana dispensaries. The town council further
takes legislative notice that 143 cities and 12 counties have adopted prohibitions
against medical marijuana dispensaries.
8. The town council further takes legislative notice that the California Attorney General
has adopted guidelines for the interpretation and implementation of the state's medical
marijuana laws, entitled "GUIDELINES FOR THE SECURITY AND NON -
DIVERSION OF MARIJUANA GROWN FOR MEDICAL USE (August 2008)."
(http: / /ag.ca.gov /cros_ attachments /press /pdfs /n1601 medicalmarijuanaguidelines.pdf.
) The Attorney General has stated in the guidelines that "[allthough medical
marijuana 'dispensaries' have been operating in California for years, dispensaries, as
such, are not recognized under the law."
9. The town council further takes legislative notice that concerns about nonmedical
marijuana use arising in connection with Proposition 215 and the MMP also have
been recognized by state and federal courts. (See, e.g., Bearman v. California Medical
Bd. (2009) 176 Cal.AppAth 1588; People ex rel. Lungren v. Peron (1997) 59
Cal.AppAth 1383, 1386 to 1387; Gonzales v. Raich (2005) 545 U.S. 1.)
10. The town council further takes legislative notice that the use, possession, distribution
and sale of marijuana remain illegal under the CSA ( Bearman v. California Medical
Bd. (2009) 176 Cal.AppAth 1588); that the federal courts have recognized that
despite California's Act and MMP, marijuana is deemed to have no accepted medical
use (Gonzales v. Raich, 545 U.S. 1; United States v. Oakland Cannabis Buyers'
Cooperative (2001) 532 U.S. 483); that medical necessity has been ruled not to be a
defense to prosecution under the CSA (United States v. Oakland Cannabis Buyers'
Cooperative, 532 U.S. 483); and that the federal government properly may enforce
the CSA despite the Act and MMP (Gonzales v. Raich, 545 U.S. 1).
11. The town council further takes legislative notice that the United States Attorney
General announced in 2008 its intention to maintain enforcement of federal laws as
applied to medical marijuana dispensaries which otherwise comply with state law.
There is no certainty how long this uncodified policy will remain in effect, and the
underlying conflict between federal and state statutes still remains.
12. The United States Department of Justice issued a memorandum dated June 29, 2011
that outlined the Department's intent to enforce the Controlled Substances Act (CSA)
in jurisdictions considering legislation that would sanction and regulate commercial
cultivation and distribution of marijuana for purportedly medical use.
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13. An ordinance prohibiting medical marijuana dispensaries, and prohibiting the
issuance of any permits, licenses and entitlements for medical marijuana dispensaries,
is necessary and appropriate to maintain and protect the public health, safety and
welfare of the citizens of Los Gatos.
B. The purpose of this article is to prohibit the establishment, operation, and location
(fixed or mobile) of medical marijuana dispensaries in the Town of Los Gatos.
See. 14.120.015 — Definitions and exceptions.
A. For the purposes of this article, "marijuana" shall have the same meaning as set forth
in California Health and Safety Code Section 11018 as of the effective date of this article and as
subsequently amended. Currently under Section 11018, "marijuana" means all parts of the plant
Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part
of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the
plant, its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the
stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt,
derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom),
fiber, oil or cake, or the sterilized seed of the plant which is incapable of germination.
"Marijuana" shall also include concentrated cannabis, the separated resin, whether crude or
purified, obtained from marijuana, and any foodstuffs infused with marijuana or concentrated
cannabis.
B. For the purposes of this article, "medical marijuana dispensary" means any facility or
location, whether fixed or mobile, where medical marijuana is provided, sold, made available or
otherwise distributed to one or more of the following: a primary caregiver, a qualified patient or
a person with an identification card.
C. For the purposes of this article, the terms "primary caregiver," "qualified patient" and
"person with an identification card" shall be as defined in California Health and Safety Code
Section 11362.7.
D. For purposes of this article, a "medical marijuana dispensary" shall not include
the following uses, provided that the location of such uses are otherwise regulated by applicable
law, and further provided any such use complies strictly with applicable law, including, but not
limited to, California Health and Safety Code Section 11362.5 et seq. and California Health and
Safety Code Section 11362.7 et seq.:
1. A clinic licensed pursuant to Chapter 1 of Division 2 of the California Health and
Safety Code.
2. A health -care facility licensed pursuant to Chapter 2 of Division 2 of the Health
and Safety Code.
3. A residential care facility for persons with chronic life - threatening illness licensed
pursuant to Chapter 3.01 of Division 2 of the Health and Safety Code.
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4. A residential care facility for the elderly, licensed pursuant to Chapter 3.2 of
Division 2 of the Health and Safety Code.
5. A residential hospice, or a home health agency, licensed pursuant to Chapter 8 of
Division 2 of the Health and Safety Code.
Sec. 14.120.020 - Prohibition of medical marijuana dispensaries.
A. Medical marijuana dispensaries are prohibited in the Town of Los Gatos. No
medical marijuana dispensary, fixed or mobile, shall establish, locate, operate, or otherwise be
permitted within the Town of Los Gatos.
B. The town shall not issue, approve or grant any permit, license or other entitlement
for the establishment or operation of a medical marijuana dispensary.
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