CITY COUNCIL AGENDA ITEM
Meeting Date: September 26, 2006
Subject/Title: Second Reading and Adoption of Ordinance No. 838 to add
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
Waive second reading and adopt Ordinance 838 to add Chapter 9.50 to the
Brentwood Municipal Code prohibiting medical marijuana dispensaries pending
the completion of studies related to the impacts associated with such
On September 12, 2006, the City Council introduced Ordinance No. 838 which
would add Chapter 9.50 to the Brentwood Municipal Code prohibiting medical
marijuana dispensaries pending the completion of studies of the impacts
associated with such dispensaries.
There is no fiscal impact associated with the adoption of this ordinance.
CITY COUNCIL ORDINANCE NO. 838
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
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.
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
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.
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
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
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
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
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 12th day of September,
2006, by the following vote: