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HomeMy WebLinkAbout793 - OrdinancesORDINANCE NO. 793 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA ADDING CHAPTER 77.44 TO TITLE 17 (THE DEVELOPMENT CODE) OF THE RANCHO CUCAMONGA MUNICIPAL CODE, PROHIBITING THE ESTABLISHMENT AND OPERATION OF MEDICAL MARIJUANA DISPENSARIES IN ALL ZONES, AND MAKING FINDINGS IN SUPPORT THEREOF A. RECITALS. (i) The People of the State of California approved Proposition 215, which was codified as California Health and Safety Code § 11362.5 and entitled the Compassionate Use Act of 1996 ("the Act"). (ii) The Act prohibits the provisions of law making unlawful the possession or cultivation of marijuana, from applying to a qualified patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical use of the patient upon the recommendation of a physician, and also prohibits the criminal prosecution or punishment of a physician for having recommended marijuana to a patient for medical purposes. (iii) Thereafter, the State Legislature enacted Senate Bill 420 (the "Medical Marijuana Program"), codified as California Health and Safety Code § 11362.7, et seq., which requires the State Department of Health Services to establish and maintain a voluntary program for the issuance of identification cards to qualified patients and primary caregivers, and prohibits the arrest of a qualified patient or a primary caregiver with a valid identification card for the possession, transportation, delivery, or cultivation of medical marijuana. (iv) One purpose of the Act and the Medical Marijuana Program is "[t]o encourage the Federal and State governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana...." (v) Neither the Federal nor the State government has implemented a specific plan "to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana," leaving cities with a lack of direction about how the Act is intended to be implemented, particularly in regard to distribution of medical marijuana through dispensaries. (vi) The Medical Marijuana Program provides additional statutory guidance for medical marijuana use and cultivation, but it does not explicitly address the role of dispensaries, nor does it require that cities provide for or allow the establishment and/or operation of medical marijuana dispensaries. a. Ordinance No 793 Page 2 of 6 (vii) Notwithstanding the passage of the Act and the Medical Marquana Program, the possession for sale and distribution of marquana is prohibited by the Controlled Substances Act, 21 U S C § 841, and California Health and Safety Code §11359 (viii) California law does not provide for the sale or distribution of marquana by medical marquana dispensaries to a primary care giver, a qualified patient or a person with an identification card, as those terms are defined in California Health and Safety Code §11362 7 (ix) The Rancho Cucamonga Municipal Code currently does not restrict the existence or operation of medical marquana dispensaries in the City of Rancho Cucamonga (x) Medical marquana dispensaries have been established in numerous locations in California, and as a consequence, local agencies have reported negative secondary effects on the community, which effects include, illegal drug activity and drug sales in the vicinity of dispensaries, robbery of persons leaving dispensaries, driving under the influence of a controlled substance by persons who have obtained marquana from a dispensary, persons acquiring marquana from a dispensary and then selling it to anon-qualified person, burglaries and robberies, and an increase in vacancies in the commercial areas in the vicinity of such businesses (xi) The California Police Chiefs Association has compiled an extensive report detailing the negative secondary effects associated with medical marquana dispensaries The City Council hereby finds that the report, a complete copy of which is on file in the City Clerk's Office, contains persuasive anecdotal and documented evidence that medical marquana dispensaries pose a threat to public health, safety and welfare (xu) California Health and Safety Code §11362 5(b)(2) expressly provides that nothing in the Act shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marquana for non-medical purposes (xm) The City Council hereby finds that, because of the inconsistency between State and Federal law relating to the possession, sale and distribution of marquana, and because of the documented threat to public health, safety and welfare, it is in the best interests of the citizens of the City of Rancho Cucamonga that the City prohibit the establishment and operation of medical marquana dispensaries within any and all zones of the City of Rancho Cucamonga (xiv) This Ordinance is enacted pursuant to California Health and Safety Code §§ 11362 5(b)(2) and 11362 83, and the City's police power as granted broadly under Article XI, Section 7 of the California Constitution, in order to promote the health, safety and welfare of the residents of the City of Rancho Cucamonga Ordinance No 793 Page 3 of 6 B. Ordinance NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA DOES HEREBY ORDAIN AS FOLLOWS Section 1. Anew Chapter 17 44 is hereby added to Title 17 of the Rancho Cucamonga Municipal Code, to read as follows "Chapter 17.44 MEDICAL MARIJUANA DISPENSARIES Section 17.44.010 Purpose and Findings. The City Council finds that Federal and State laws prohibiting the possession, sale and distribution of marguana would preclude the lawful opening and operation of Medical Marguana Dispensaries sanctioned by the City of Rancho Cucamonga, and in order to serve public health, safety, and welfare of the residents and businesses within the City, the declared purpose of this chapter is to prohibit the operation or establishment of Medical Marguana Dispensaries within the City, as provided in this chapter Section 17.44.020 Definitions The following terms and phrases, whenever used in this chapter, shall be construed as defined in this section A Identification Card is a document issued by the State Department of Health Services which identifies a person authorized to engage in the medical use of marijuana and the person's designated primary caregiver, if any B Medical Marnuana is marguana used for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marguana in the treatment of cancer, anorexia, AIDS, chronic paid, spasticity, glaucoma, arthritis, migraine, or any other serious medical condition for which marguana is deemed to provide relief as defined in California Health and Safety Code § 11362 7(h) C Medical Marijuana Dispensary or Dispensary is any facility or location where medical marguana is made available to and/or distributed by or to three or more of the following a qualified patient, a person with an identification card, or a primary caregiver Each of these terms is defined herein and shall be interpreted in strict accordance with California Health and Safety Code §§11362 5 and 11362 7, et seq as such sections may be amended from time to time D Primary Care Giver is the individual, designated by a qualified patient or by a person with an identification card, who has consistently assumed responsibility for the housing, health, or safety of that patient or person Ordinance No 793 Page 4 of 6 E Physician is an individual who possesses a license in good standing to practice medicine or osteopathy issued by the Medical Board of California or the Osteopathic Medical Board of California and who has taken responsibility for an aspect of the medical care, treatment, diagnosis, counseling, or referral of a patient and who has conducted a medical examination of that patient before recording in the patient's medical record the physician's assessment of whether the patient has a serious medical condition and whether the medical use of marquana is appropriate F Qualified Patient is a person who is entitled to the protections of California Health and Safety Code §11362 5, but who does not have an identification card issued by the State Department of Health Services Section 17.44 030 Medical Marifuana Dispensaries Prohibited. It shall be unlawful for any person or entity to own, manage, establish, conduct, or operate any Medical Marituana Dispensary, or to participate as an employee, contractor, agent or volunteer, or in any other manner or capacity, in any Medical Marguana Dispensary, in the City of Rancho Cucamonga Section 17.44.040 Use or Activity Prohibited by State or Federal Law. Nothing contained in this chapter shall be deemed to permit or authorize any use or activity which is otherwise prohibited by any State or Federal law Section 2. Existing Nonconforming Uses Any Medical Marituana Dispensary existing within the City of Rancho Cucamonga on the effective date of this ordinance shall cease operations forthwith Section 3 Severability The City Council declares that, should any provision, section, paragraph, sentence, or word of this Ordinance be rendered or declared invalid by any final court action in a court of competent iurisdiction, or by reason of any preemptive legislation, the remaining provisions, sections, paragraphs, sentences and words of this Ordinance shall remain in full force and effect Section 4 Savings Clause. Neither the adoption of this Ordinance, nor the repeal of any other ordinance of this City shall in any manner affect the prosecution of any violation of any City ordinance or provision of the Rancho Cucamonga Municipal Code, committed prior to the effective date hereof, nor be construed as a waiver of any license or penalty or the penal provisions applicable to any violation thereof Ordinance No 793 Page 5 of 6 Section 5. Penalty. It shall be unlawful for any person, firm, partnership, or corporation to violate any provision or fail to comply with any of the requirements of this Ordinance Any person, firm, partnership, or corporation violating any provisions of this Ordinance or failing to comply with any of its requirements shall be deemed gwity of a misdemeanor and upon conviction thereof shall be punished by fine not exceeding one thousand dollars ($1,000 00), or by imprisonment not exceeding six (6) months, or by both such fine and imprisonment Each and every person, firm, partnership, or corporation shall be deemed gwlty of a separate offense for each and every day or any portion thereof during which any violation of any of the provisions of this Ordinance is committed, continued or permitted by such person, firm, partnership or corporation, and shall be deemed punishable therefore as provided in this Ordinance Section 6. The City Clerk shall certify to the pass of this Ordinance Please see fhe lol/owing page for formal adoption, certiflcatlon and signatures Ordinance No. 793 PASSED, APPROVED, AND ADOPTED this 18'h day of June 2008. AYES: Gutierrez, Michael, Williams NOES: None ABSENT: Kurth, Spagnolo ABSTAINED: None ATTEST: .~~~~- Kathryn'L. Sc tt, CMC, Assistant City Clerk I, KATHRYN L. SCOTT, ASSISTANT CITY CLERK, of the City of Rancho Cucamonga, California, do hereby certify that the foregoing Ordinance was introduced at a Regular Meeting of the Council of the City of Rancho Cucamonga held on the 4'" day of June 2008, and was passed at a Regular Meeting of the City Council of the City of Rancho Cucamonga held on the 18'h day June 2008. Executed this 19`" day of June 2008, at Rancho Cucamonga, California. KatKat ry~ott, CMC, Assistant City Clerk