10 Staff Report - Medical Marijuana Dispensaries~r4 N p c
tos GA~os COUNCIL AGENDA REPORT
DATE: October 26, 2009
MEETING DATE: 11/2/09
ITEM NO:
TO: MAYOR AND TOWN COUNCIL
FROM: GREG LARSON, TOWN MANAGER A17,1~
SUBJECT: MEDICAL MARIJUANA DISPENSARIES
A. ADOPT URGENCY ORDINANCE EXTENDING THE INTERIM
ORDINANCE IMPOSING A MORATORIUM ON THE APPROVAL,
COMMENCEMENT, ESTABLISHMENT OR OPERATION OF MEDICAL
MARIJUANA DISPENSARIES
B. ACCEPT WRITTEN REPORT PURSUANT TO GOVERNMENT CODE
SECTION 65858 ON THE MEASURES TAKEN TO DATE TO
ALLEVIATE THE CONDITIONS THAT LED TO THE ADOPTION OF
AN URGENCY INTERIM ORDINANCE IMPOSING A MORATORIUM
ON THE APPROVAL, COMMENCEMENT, ESTABLISHMENT OR
OPERATION OF MEDICAL MARIJUANA DISPENSARIES
RECOMMENDATION:
1. Open public hearing
2. Close public hearing
3. Direct Clerk Administrator to read title of urgency ordinance (no motion required)
4. Waive reading of urgency ordinance (requires motion approved by a 4/5 vote)
5. Adopt urgency ordinance (requires motion approved by a 4/5 vote)
6. Accept written report pursuant to Government Code section 65858 (requires motion
approve by a majority of quorum)
BACKGROUND:
On October 5, 2009, the Town Council adopted an interim ordinance imposing as an urgency
measure a moratorium on the approval, commencement, establishment or operation of medical
marijuana dispensaries within the Town ("Moratorium").
PREPARED BY: ORRY P. KO C WENDIE ROONEY
Town Attorney k~` Director Community Development
OPK:WR:pg
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Reviewed by: r Assistant Town Manager Clerk Administrator Finance
Community Development
PAGE 3
MAYOR AND TOWN COUNCIL
SUBJECT: MEDICAL MARIJUANA DISPENSARIES
OCTOBER 23, 2009
FISCAL ANALYSIS:
Continuing a study of medical marijuana dispensaries will require a significant commitment of
staff time. While funding this staff time does not require an additional appropriation, it will
require staff to adjust its priorities in working on other issues. Failure to extend the Moratorium
could require the commitment of additional police resources to deal with any criminal issues
associated with medical marijuana dispensaries. Subsequent adoption of a licensing requirement
could increase staffmg costs which could be offset by license fees.
Attachment.-
1. Urgency Ordinance Extending Moratorium.
2. Report Pursuant to Government Code Section 65858
ORDINANCE
AN INTERIM ORDINANCE OF THE TOWN OF LOS GATOS EXTENDING
THE IMTERIM ORDINANCE IMPOSING A MORATORIUM ON THE
APPROVAL, COMMENCEMENT, 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 law. [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 conflicts with California law.
WHEREAS, the Town Community Development Department staff recently received
several inquiries from prospective medical marijuana dispensary operators, and at least one of
these individuals attempted to obtain a business license from the Town Finance Department to
operate a medical marijuana dispensary whether or not the Town permits such use.
WHEREAS, the Los Gatos Town Code does not specifically address the regulation or
location of medical marijuana dispensaries or list medical marijuana dispensaries as a permitted
or conditionally permitted use in any zoning district.
WHEREAS, California law established a limited affirmative defense to criminal
prosecution for qualifying individuals that collectively gather to cultivate medical marijuana, as
well as for 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] No provision of California law authorizes or protects the establishment of a medical
marijuana dispensary or other storefront distribution operation.
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ATTACHMENT 1
with the accompanying adverse impacts identified herein, without adequate regulations in place.
Therefore, there is a current and immediate threat to the public health, safety, or welfare, and the
approval of a use permit, variance, building permit, business license, or any other permit or
entitlement for use of property within the Town as a medical marijuana dispensary would result
in that threat to the public health, safety, or welfare.
. WHEREAS, in order to protect the public health, safety, or welfare, it is necessary for
the Town Council to extend the interim ordinance on an urgency basis to temporarily prohibit
any uses and/or activities as hereinafter provided, which may be in conflict with the possible
regulations to be studied.
WHEREAS, the extension of the interim ordinance is adopted in accordance with the
requirements of Government Code Section 65858.
THE TOWN COUNCIL OF THE TOWN OF LOS GATOS DOES ORDAIN AS
FOLLOWS:
SECTION I
PURPOSE AND FINDINGS
A. The above recitals are incorporated herein and are each relied upon independently by the
Town Council for its adoption of this urgency interim ordinance.
B. The Town of Los Gatos General Plan does not presently contain a goal or policy or
textual discussion of the issue of a prospective use of medical marijuana dispensaries.
C. The Los Gatos Town Code does not address or regulate the existence or location of
medical marijuana dispensaries, operator licensing, or cultivation of marijuana plants.
D. The Town Community Development Department staff recently received several inquiries
from prospective medical marijuana dispensary operators as to whether a medical
marijuana dispensary is currently permitted or conditionally permitted in any of the
Town's zoning districts. At least one of these individuals attempted to obtain a business
license from the Town Finance Department to open a medical marijuana dispensary in
the Town of Los Gatos, whether or not the Town permits such use.
E. In cities that have permitted 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. Cities have reported increases in
loitering, illegal drug activity, burglaries, robberies, and other criminal activity within
and around the dispensaries, as well as increased pedestrian and vehicular traffic, noise
and parking violations. Medical marijuana dispensaries have also caused increased
demands for police response, and required additional maintenance of public streets and
sidewalks.
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L. More time is needed for Town staff to study the issues surrounding medical marijuana
dispensaries and to consult with the Town Attorney.
M. . If the Town of Los Gatos does not extend the interim ordinance, then the potential exists
for the approval, commencement, establishment or operation of medical marijuana
dispensaries within the Town, with the accompanying adverse impacts identified herein,
without adequate regulations in place. There is a current an immediate threat to the
public health, safety, or welfare, and the approval of a use permit, variance, building
permit, business license, or any other permit or entitlement for use of property within the
Town as a medical marijuana dispensary would result in that threat to the public health,
safety, or welfare.
N. The extension of the interim ordinance establishing a moratorium on medical marijuana
dispensaries pursuant to Government Code section 65858 is necessary to avoid the
previously identified current and immediate threat to the public health, safety, or welfare.
SECTION II
EXTENSION OF INTERIM MORATORIUM
A. For an additional period of 10 months and 15 days, to and including October 4, 2010,
unless this period is subsequently extended by the Town Council for up to an additional one year
in accordance with Government Code section 65858, no zoning ordinance interpretation or
amendment, amendment to the General Plan, use permit, variance, building permit, business
license, or any other permit or entitlement for use shall be approved or issued for the approval,
commencement, establishment or operation of, and no person or entity shall own, manage,
conduct, or operate any "medical marijuana dispensary," as that phrase is hereinafter defined, or
participate as an employee, contractor, agent, volunteer, or in any other manner or capacity, in
any medical marijuana dispensary, upon any property in any zoning district within the Town of
Los Gatos during the period this urgency interim ordinance is in effect.
B. For the purposes of this urgency interim ordinance, the phrase "medical marijuana
dispensary" includes any site, facility, location, use, cooperative, center, or business that
distributes, dispenses, stores, sells., exchanges, processes, delivers, gives away, or cultivates
marijuana for medical purposes to qualified patients, healthcare providers, patients' primary
caregivers or physicians, pursuant to Proposition 215, Senate Bill 420, or any California
regulations adopted in furtherance thereof. As used herein, the term "marijuana" shall mean
cannabis and all parts of that plant.
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A. This interim ordinance 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 interim 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.
B. This interim ordinance is categorically exempt from CEQA under Section 15308
of the State CEQA Guidelines. This interim ordinance is a regulatory action
taken by the Town in accordance with Government Code section 65858, to assure
maintenance and protection of the environment pending the completion of
contemplated zoning ordinance revisions.
C. This interim 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 subparagraphs (A) and (B) of 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, this interim ordinance is not
subject to CEQA.
SECTION VI
SEVERABILITY
If any section, subsection, phrase, or clause of this interim ordinance is for any reason
held to be unconstitutional, such decision shall not affect the validity of the remaining portions of
this urgency interim ordinance. The Town Council hereby declares that it would have passed
this urgency interim 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.
SECTION VII
PUBLICATION
This interim ordinance shall be published in accordance with the provisions of
Government Code section 36933.
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WRITTEN REPORT PURSUANT TO GOVERNMENT CODE SECTION 65858
REGARDING MEASURES TAKEN TO ALLEVIATE CONDITIONS RESULTING
IN THE ADOPTION OF AN URGENCY INTERIM ORDINANCE IMPOSING
A MORATORIUM ON THE APPROVAL, COMMENCEMENT, ESTABLISHMENT
OR OPERATION OF MEDICAL MARIJUANA DISPENSARIES
On October 5, 2009, the Town Council adopted an interim ordinance imposing as an urgency measure a
moratorium on the approval, commencement, establishment or operation of medical marijuana dispensaries
within the Town. The interim ordinance was necessary to promote the public health, safety, or welfare during
the time that Town staff analyzes and prepares a study on medical marijuana dispensaries, including providing
the Town council with options and recommendations on whether to adopt a regulatory ordinance permitting the
operation of such establishments, or whether to adopt an outright ban on such dispensaries.
Since that time, Town staff commenced the following measures to alleviate the conditions that led to the
adoption of the interim ordinance, which measures are ongoing:
• conduct legal research into the relevant state and federal case law on medical marijuana dispensaries;
• determine based on recent case law and pending cases whether the Town may legally prohibit medical
marijuana dispensaries;
• review secondary sources on medical marijuana dispensaries, including, but not limited to, the
California Attorney General's August 2008 "Guidelines for the Security and Non-Diversion of
Marijuana Grown for Medical Use;" and
• collect and review medical marijuana dispensary ordinances from other California municipalities.
Town staff anticipates adding the following measures during the remaining period of the moratorium:
• research laws and enactments in other states regarding medical marijuana;
• research operation of existing medical marijuana dispensaries in other municipalities and counties;
• research option of adopting a regulatory ordinance permitting the operation of medical marijuana
dispensaries; and
• prepare recommendations and related ordinances, staff reports and other documentation, as necessary,
for consideration by the Town Council.
It is anticipated that the above measures may take the full amount of the 10 month and 15 day ordinance
extension, and possibly longer, depending, in part, on related litigation pending in the courts including, but not
limited to, Qualified Patients Assn. v. City of Anaheim.
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ATTACHMENT 2