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CITY COUNCIL AGENDA ITEM NO. 37

Meeting Date: September 12, 2006

Subject/Title: Ordinance Adding Chapter 9.50 to the Brentwood Municipal Code Prohibiting Medical Marijuana Dispensaries Pending the Completion of Studies Related to the Impacts Associated with Such Dispensaries

Prepared by: Heidi Kline, Planning Manager
Brian Strock, Police Lieutenant

Submitted by: Mike Davies, Police Chief
Howard Sword, Director of Community Development

RECOMMENDATION
Adopt an ordinance adding Chapter 9.50 to the Brentwood Municipal Code prohibiting medical marijuana dispensaries pending the completion of studies related to the impacts associated with such dispensaries.

PREVIOUS ACTION
None.

BACKGROUND
In 1970, the United States Congress enacted the Controlled Substances Act (“CSA”) which, among other things, classified marijuana as a Schedule 1 controlled substance. The classification was based on a determination that marijuana had a high potential for abuse, had no accepted use for medical treatment and was not accepted as safe, even when used under medical supervision. The federal law makes it illegal to import, manufacture, distribute, possess or use marijuana in the United States.

In 1996, California voters adopted Proposition 215, (the “Compassionate Use Act”), which established a state law providing a limited defense against criminal prosecution for the use of marijuana for medical purposes. More specifically, the initiative was adopted to ensure that seriously ill individuals had the right to obtain and use marijuana for medical purposes without criminal liability when such use was recommended by a physician. The Act protects patients and their primary caregivers from prosecution under California law if they possess or cultivate marijuana to treat serious illnesses pursuant to a doctor’s recommendation.

In 2003, the State Legislature adopted SB 420 (“Medical Marijuana Program” or “MMP”), which attempted to provide direction as to how Proposition 215 should be interpreted and implemented. Among other things, it expanded the list of crimes for which a defense would be allowed for seriously ill patients. The enactment of the MMP also led medical marijuana advocates and others to begin attempting to establish cooperatives, clubs and dispensaries that provide marijuana to persons having a prescription for its use.

The Drug Enforcement Agency (“DEA”), the federal agency charged with enforcing the CSA, has expressed its view that state medical marijuana laws like Proposition 215 and the MMP impede its ability to enforce the CSA; have “caused conflict and confusion among the law enforcement community;” are “viewed as jeopardizing the historical cooperation between federal, state, and local drug enforcement officials;” and “undercut enforcement of the Controlled Substances Act.”

The conflict between federal and state law has created a dilemma for local governments and their law enforcement agencies, particularly with regard to medical marijuana dispensaries. The potential regulation of dispensaries is clouded by uncertainty as to their legal status. State law, as discussed above, authorizes dispensing and use of medical marijuana. Federal law does not.

Some communities have determined that medical marijuana dispensaries are illegal based on federal law. Others have concluded that establishing local regulations is necessary in response to state law. As of January, 2006, fifty-six cities and six counties in California have adopted moratoria or interim ordinances prohibiting medical marijuana dispensaries. A number of cities in Contra Costa County have adopted moratoria on medical marijuana dispensaries in order to allow an opportunity to review the implications and alternatives associated with the regulation of dispensaries, rather than respond on a case by case basis to individual applications. In April, Contra Costa County adopted a moratorium prohibiting the establishment of new dispensaries as it further studies the issue.

In many communities where dispensaries have been established, serious adverse impacts associated with and resulting from such dispensaries have been experienced. For example, according to these communities, news stories and 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 City of Brentwood reasonably could anticipate experiencing similar adverse impacts and effects. Materials are attached as Exhibit “A” to this staff report that support and further expand upon these adverse impacts.

In addition to the above, Chief Davies has prepared a memorandum related to the importance of considering the potential secondary impacts that marijuana dispensaries may have on public safety. A copy of this memo is attached as Exhibit “B.”

State and Federal courts have recognized concerns about non-medical marijuana use arising in connection with Proposition 215 and the MMP. (See, e.g., People ex rel. Lungren v. Peron, 59 Cal.App.4th 1383, 1386-1387 (1997); Gonzales v. Raich, 125 S.Ct. 2195, 2214 n.43 (2005). Moreover, federal courts have recognized that despite California’s Act and SB420, marijuana is deemed to have no accepted medical use (Gonzales v. Raich, 125 S. Ct. 2195; United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483 (2001)); 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, 125 S. Ct. 2195.). Copies of the above-referenced cases are attached hereto as Exhibit “C.”

Within the past twelve months, Brentwood Planning staff have been approached by individuals inquiring about establishing a medical marijuana dispensary within City limits. Currently, the City’s Zoning Code does not specifically address dispensaries as a use and it could be argued that they are therefore prohibited. However, it could also be argued that these dispensaries are a type of medical office or clinic and therefore allowed, either as a permitted or conditionally-permitted use, in certain zoning districts.

In order to properly address these concerns regarding the establishment of medical marijuana dispensaries, it is necessary for the City first to further study the potential impacts such facilities may have on the City’s health, safety and welfare. Allowing medical marijuana dispensaries, and issuing permits or other entitlements providing for the establishment and/or operation of medical marijuana dispensaries, prior to the completion of such further studies of the potential impact of such facilities, poses a threat to the public health, safety and welfare. An ordinance prohibiting medical marijuana dispensaries, and prohibiting the issuance of any permits and entitlements for medical marijuana dispensaries, is necessary and appropriate to maintain and protect the public health, safety and welfare of the citizens of Brentwood pending the completion of further studies.

Although the ordinance prohibits the establishment of medical marijuana dispensaries, the definition of such dispensaries does not include certain state licensed clinics, healthcare facilities, residential care facilities or hospice. In other words the ordinance responds to the negative impacts caused by medical marijuana dispensaries. It does not regulate the use of marijuana or the provision of medical marijuana to seriously ill patients by licensed caregivers.

It is staff’s view that an ordinance should be adopted to prohibit the establishment of medical marijuana dispensaries in order to allow an opportunity for a fully-considered approach to be studied and developed. Options that would be available to the City if this approach is taken include the following:

• Not adopting a specific ordinance regulating medical marijuana dispensaries.
• Prohibiting the dispensaries outright.
• Prohibiting dispensaries, but exempting from the definition of “dispensary” certain care facilities that are licensed and regulated by the State.
• Allowing the dispensaries, but regulating their location and use through a permit process, similar to that currently in place for adult businesses.
• Adopting regulations of medical marijuana dispensaries if/when the use of marijuana is legal under federal law.

If this ordinance is adopted, the review of the above options, and others, will be conducted by the Community Development Director, Police Chief and the City Attorney and recommendations presented to the City Council at a future meeting.

FISCAL IMPACT
There is no fiscal impact associated with the adoption of this ordinance.

Attachments:
Ordinance
Exhibit A: Informal materials related to secondary impacts of medical marijuana dispensaries.
Exhibit B: Memo, dated August 1, 2006, from Police Chief Davies to City Manager Landeros.
Exhibit C: Cases pertaining to medical marijuana issues.

CITY COUNCIL ORDINANCE NO.

AN ORDINANCE OF THE CITY OF BRENTWOOD ADDING CHAPTER 9.50 TO THE BRENTWOOD MUNICIPAL CODE PROHIBITING MEDICAL MARIJUANA DISPENSARIES PENDING THE COMPLETION OF STUDIES OF THE IMPACTS ASSOCIATED WITH SUCH DISPENSARIES.

BE IT ORDAINED by the City Council of the City of Brentwood:

SECTION 1. CHAPTER 9.50 ADDED TO THE BRENTWOOD MUNICIPAL CODE.

Chapter 9.50 is hereby added to the Brentwood Municipal Code to read as follows:

Chapter 9.50 Medical Marijuana Dispensaries

9.50.010. Findings and purpose.

A. In enacting this chapter, the City 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 “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, SB 420 went into effect. SB 420, known as the “Medical Marijuana Program” (codified as H&S Code sections 11362.7-11362.83) (“MMP”) 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 SB 420.

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, nor to condone the diversion of marijuana for non-medical purposes.” H&S Code § 11362.5.

6. The City Council takes legislative notice, based on the materials presented to the Council during the legislative process leading to the enactment of this chapter, 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 City of Brentwood reasonably could anticipate experiencing similar adverse impacts and effects.

7. The City Council further takes legislative notice that as of January 2006, at least 56 cities and six counties in California have adopted moratoria or interim ordinances prohibiting medical marijuana dispensaries.

8. The Drug Enforcement Agency (“DEA”), the federal agency charged with enforcing the CSA, has expressed its view that state medical marijuana laws like Proposition 215 and the MMP impede its ability to enforce the CSA; have “caused conflict and confusion among the law enforcement community;” are “viewed as jeopardizing the historical cooperation between federal, state, and local drug enforcement officials;” and “undercut enforcement of the Controlled Substances Act.” While the City Council in no manner intends or undertakes by the adoption of this chapter to enforce federal law, the City Council is concerned that the comments by the DEA reflect to some extent the adverse secondary impacts identified above. The City also is concerned about interfering with federal law enforcement efforts.

9. The City Council further takes legislative notice that concerns about non-medical marijuana use arising in connection with Proposition 215 and the MMP also have been recognized by state and federal courts. See, e.g., People ex rel. Lungren v. Peron, 59 Cal.App.4th 1383, 1386-1387 (1997); Gonzales v. Raich, 125 S.Ct. 2195, 2214 n.43 (2005).

10. The City Council further takes legislative notice that the use, possession, distribution and sale of marijuana remain illegal under the CSA; 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, 125 S. Ct. 2195; United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483 (2001)); 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, 125 S. Ct. 2195.)

11. In order to address these and other community concerns regarding the establishment of medical marijuana dispensaries, it is necessary for the City first to further study the potential impacts such facilities may have on the City’s health, safety and welfare.

12. Allowing medical marijuana dispensaries and issuing permits or other entitlements providing for the establishment and/or operation of medical marijuana dispensaries, prior to the completion of such further studies of the potential impact of such facilities, poses a threat to the public health, safety and welfare.

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 Brentwood pending the completion of further studies.

B. The purpose of this chapter is to prohibit the operation and location of medical marijuana dispensaries in the City of Brentwood pending the availability of additional information and the completion of additional studies concerning the effects and impacts on communities of medical marijuana dispensaries.

9.50.020. Definitions and exceptions.

A. For the purposes of this chapter, “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.

B. For the purposes of this chapter, the terms “primary caregiver”, “qualified patient”, and “person with an identification card” shall be as defined in H&S Code § 11362.7.

C. For purposes of this chapter, 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, H&S Code § 11362.5 et. seq.:

1. A clinic licensed pursuant to Chapter 1 of Division 2 of the H&S Code.

2. A healthcare facility licensed pursuant to Chapter 2 of Division 2 of the H&S Code.

3. A residential care facility for persons with chronic life-threatening illness licensed pursuant to Chapter 3.1 of Division 2 of the H&S Code.

4. A residential care facility for the elderly, licensed pursuant to Chapter 3.2 of Division 2 of the H&S Code.

5. A residential hospice, or a home health agency, licensed pursuant to Chapter 8 of Division 2 of the H&S Code.

9.50.030. Medical marijuana dispensaries prohibited pending additional studies.

A. Medical marijuana dispensaries are prohibited in the City of Brentwood until additional studies have been completed and presented to the City Council, and the Council determines on the basis of such studies to amend this chapter to permit a medical marijuana dispensary within the City. No medical marijuana dispensary shall operate, locate or otherwise be permitted within the City of Brentwood until such studies have been completed and presented to the City Council, and the Council determines on the basis of such studies to amend this chapter to permit a medical marijuana dispensary within the City.

B. The City shall not issue, approve or grant any permit, license or other entitlement for the establishment or operation of a medical marijuana dispensary until such studies have been completed and presented to the City Council, and the Council determines on the basis of such studies to amend this chapter to permit one or more medical marijuana dispensary within the City.

C. The City Council may by resolution authorize staff to obtain and/or undertake studies to assist the community in understanding the issues and impacts associated with medical marijuana dispensaries.

D. The City Manager shall report to the City Council periodically on issues associated with medical marijuana dispensaries, including without limitation any experiences learned from other communities, as well as the estimated effort and expense that would be required to undertake additional studies.

E. Nothing in this chapter shall be construed as imposing on the City any mandatory obligation to undertake, complete or fund any study.

SECTION 2. 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, the 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 thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases may be held unconstitutional, invalid or unenforceable.

SECTION 3. CEQA.

This ordinance is not subject to the California Environmental Quality Act (“CEQA”) pursuant to §§ 15060 (c)(2) (the activity will not result in a direct or reasonable foreseeable indirect physical change in the environment) and 15060 (c)(3) the activity is not a project as defined in § 15378 of the CEQA Guidelines (Title 14, Chapter 3 of the 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 studies.

SECTION 4. EFFECTIVE DATE AND PUBLICATION.

This Ordinance shall be in full force and effect thirty days from and after its passage. Within fifteen days after its adoption, this Ordinance shall be published once in a newspaper of general circulation printed and published in the County of Contra Costa and circulated in the City of Brentwood.

THE FOREGOING ORDINANCE was introduced with the first reading waived at a regular meeting of the Brentwood City Council on the ___ day of ___________ 2006, by the following vote:
 

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