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 CITY COUNCIL AGENDA ITEM NO. 38

Meeting Date: December 11, 2007

Subject/Title: An Ordinance to amend Chapter 9.50 of the Brentwood Municipal Code to Permanently Prohibit Medical Marijuana Dispensaries.

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

Submitted by: Mark Evenson, Police Chief
Howard Sword, Community Development Director

RECOMMENDATION
Introduce and waive the first reading of an ordinance amending Chapter 9.50 of the Brentwood Municipal Code to permanently prohibit medical marijuana dispensaries.

PREVIOUS ACTION
At the September 26, 2006 City Council meeting, the Council unanimously voted to 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 dispensaries.

BACKGROUND
In the past, Brentwood’s Planning staff had been approached by individuals inquiring about establishing a medical marijuana dispensary within City limits. The City’s Zoning Code did not specifically address dispensaries as a use and it could be argued that they were therefore prohibited. However, it could also have been argued that these dispensaries were a type of medical office or clinic and therefore allowed, either as a permitted or conditionally-permitted use, in certain zoning districts. Towards the latter part of 2006, it was 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 were available to the City included 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.

In order to properly address these concerns regarding the establishment of medical marijuana dispensaries, it was 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, posed a threat to the public health, safety and welfare.

At the September 26, 2006 City Council meeting, the Council unanimously voted to 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 dispensaries. 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.

When the Ordinance was adopted at the September 26, 2006 City Council meeting, staff indicated that it would continue to study potential impacts as new studies became available over the next year before returning to the City Council either with its recommendation to maintain the prohibition of dispensaries, or make changes to the adopted ordinance. Over the past year, staff has reviewed additional studies on the impacts that medical marijuana dispensaries pose on communities. In several 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 and other social ills, including armed robberies, violence, illegal sales of marijuana to, and use of marijuana by, minors and other persons without medical need, as well as traffic congestion and parking problems in the areas immediately surrounding such medical marijuana dispensaries. The City of Brentwood reasonably could anticipate experiencing similar adverse impacts and effects. Materials have been gathered since the September 26, 2006 City Council meeting and are attached as Exhibit “2” to this staff report. These materials further support and expand upon these adverse impacts.

Now that further studies have been completed to study the potential impacts such facilities may have on the City’s health, safety and welfare, staff recommends that the City Council adopt the attached ordinance to add Chapter 9.50 to the Brentwood Municipal Code prohibiting medical marijuana dispensaries.

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

Attachments:
1. Ordinance
2. Exhibit 1: September 12, 2006 City Council staff report
3. Exhibit 2: Informal materials related to secondary impacts of medical marijuana dispensaries.


CITY COUNCIL ORDINANCE NO.

AN ORDINANCE OF THE CITY OF BRENTWOOD AMENDING CHAPTER 9.50 OF THE BRENTWOOD MUNICIPAL CODE TO PERMANENTLY PROHIBIT MEDICAL MARIJUANA DISPENSARIES.

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

SECTION 1. Section 9.50.010 of the Brentwood Municipal Code is hereby amended in its entirety to read as follows:

“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, and amendments thereto, 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. 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.

B. The purpose of this chapter is to prohibit the operation and location of medical marijuana dispensaries in the City of Brentwood given the negative and detrimental effects and impacts on communities of medical marijuana dispensaries.”


SECTION 2. Section 9.50.030 of the Brentwood Municipal Code is hereby amended in its entirety to read as follows:

“9.50.030. Medical marijuana dispensaries prohibited.

A. Medical marijuana dispensaries are prohibited in the City of Brentwood and no medical marijuana dispensary shall operate, locate or otherwise be permitted within the City of Brentwood.

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.”

SECTION 3. 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 4. 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 5. 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 ___________ 2007, by the following vote:




 
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