6202ORDINANCE NO. 6202
AN ORDINANCE OF THE CITY OF ANAHEIM ADOPTING
AN INTERIM MEASURE IMPOSING A MORATORIUM ON
THE ESTABLISHMENT OF MEDICAL MARIJUANA
DISPENSARIES AND DECLARING THAT THIS
ORDINANCE IS AN EMERGENCY MEASURE WHICH
SHALL TAKE EFFECT IMMEDIATELY.
WHEREAS, in 1996, California voters approved Proposition 215, The
Compassionate Use Act of 1996, which was codified as California Health and Safety Code §
11362.5 et seq. ( " the Act "); and
WHEREAS, 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;
and
WHEREAS, in 2003, the California Legislature enacted Senate Bill 420, the
Medical Marijuana Program Act (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 affords qualified patients, persons with identification cards and their primary
caregivers, an affirmative defense to certain enumerated criminal sanctions that would otherwise
apply to possessing, transporting, administering or distributing marijuana; and
WHEREAS, one purpose of the Act and the Medical Marijuana Program Act is to
encourage 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; however, to
date, 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 unanswered numerous questions as to how the Act and the Medical Marijuana Program
Act should be implemented, particularly in regard to the distribution of medical marijuana
through facilities commonly referred to as medical marijuana dispensaries; and
WHEREAS, the Medical Marijuana Program Act provides additional statutory
guidance for medical marijuana use and cultivation, but it does not explicitly address the role of
medical marijuana dispensaries, nor does it require that cities provide for or allow the
establishment and /or operation of medical marijuana dispensaries; and
WHEREAS, notwithstanding the passage of the Act and the Medical Marijuana
Program Act, the possession, sale and distribution of marijuana is prohibited by the Controlled
Substances Act, 21 U.S.C. § 841, and Section 11359 of the California Health and Safety Code;
and
WHEREAS, California state law does not provide for the sale or distribution of
marijuana by medical marijuana dispensaries to a primary care giver, a qualified patient or a
person with an identification card, as the terms are defined in California Health and Safety Code
Section 11362.7; and
WHEREAS, California Health and Safety Code Section 11362.5(c)(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 marijuana for
non - medical purposes; and
WHEREAS, on August 25, 2008, the California Attorney General adopted
"Guidelines for the Security and Non - Diversion of Marijuana Grown for Medical Use." The
stated purpose of the guidelines is to (i) ensure that marijuana grown for medical purposes
remains secure and does not find its way to non - patients or illicit markets, (ii) help law
enforcement agencies perform their duties effectively and in accordance with California law, and
(iii) help patients and primary caregivers understand how they may cultivate, transport, possess,
and use medical marijuana under California law; and
WHEREAS, pursuant to California Health and Safety Code Sections
11362.5(c)(2) and 11362.83 and the City's police power as granted broadly under Article XI,
Section 7 of the California Constitution, the City Council of the City of Anaheim has heretofore
adopted its Ordinance No. 6067, which added Chapter 4.20 to the Anaheim Municipal Code
prohibiting the establishment and operation of medical marijuana dispensaries in the City of
Anaheim; and
WHEREAS, on September 4, 2007, Qualified Patients Association and Lance
Mowdy (also referred to herein as "plaintiffs ") filed a complaint in Orange County Superior
Court styled Qualified Patients Association, et al. v. City of Anaheim, Case No.07CC09524,
seeking a declaration that Ordinance No. 6067, adding Chapter 4.20 to the Anaheim Municipal
Code, is unlawful and unconstitutional and /or in violation of California Civil Code Section 51;
and seeking a preliminary and permanent injunction enjoining the City of Anaheim from
enforcing Chapter 4.20 of the Anaheim Municipal Code; and
WHEREAS, on October 4, 2007, the City filed its demurrer to the civil complaint
filed by Qualified Patients Association and Lance Mowdy, which demurrer was sustained by the
court without leave to amend; the court also refused to grant plaintiffs request for an injunction;
and
WHEREAS, on March 13, 2008, following entry of judgment, Qualified Patients
Association and Lance Mowdy filed an appeal to the California Court of Appeal, Fourth
Appellate District, Case No. G040077; and
WHEREAS, on August 18, 2010, the California Court of Appeal rendered its
decision in the case of Qualified Patients Association, et al. v. City of Anaheim, 4th Civ. No.
G040077, which affirmed the trial court's order concluding plaintiffs failed to state an Unruh Act
civil rights cause of action, but reversed the judgment of dismissal and remanded the matter to
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allow plaintiffs to pursue their cause of action seeking declaratory judgment on whether the Act
or the Medical Marijuana Program Act preempted the City's ordinance; and
WHEREAS, notwithstanding the enactment of Chapter 4.20 of the Anaheim
Municipal Code, and subsequent to its passage, medical marijuana dispensaries have been
established and continue to operate within the City of Anaheim, including the recent
establishment and operation of such facilities immediately adjacent to existing residential uses;
and
WHEREAS, under Title 18 of the Anaheim Municipal Code, the Anaheim Zoning
Code, medical marijuana dispensaries are not an enumerated use and the Zoning Code does not
address or regulate in any manner the existence or location of medical marijuana dispensaries
within the City of Anaheim; and
WHEREAS, Government Code Section 65858 provides that for the purpose of
protecting the public safety, health and welfare, the City Council may adopt, without following
the procedures otherwise required prior to the adoption of a zoning ordinance, as an urgency
measure, an interim ordinance, by a vote of four -fifths (4/5) majority, prohibiting any uses that
may be in conflict with a contemplated general plan, specific plan, or zoning proposal that the
legislative body, planning commission or the planning department is considering or studying or
intends to study within a reasonable time; and
WHEREAS, the Court of Appeal, Second Appellate District, held in the case of
City of Claremont v. Kruse (2009) 177 Cal.AppAth 1153 that the Act and the Medical Marijuana
Program Act does not preempt the enactment of a moratorium or the enforcement of local zoning
and business licensing requirements by a local agency; and
WHEREAS, the City Council recognizes that medical marijuana dispensaries
raise complex issues of law and public policy, and that the regulation of such dispensaries
requires careful consideration and thorough study; and
WHEREAS, to address the apparent conflict in state and federal laws, as well as
the community and statewide concerns regarding the establishment of medical marijuana
dispensaries, it is necessary for the City of Anaheim to study the potential impacts such facilities
may have on the public health safety and welfare; and
WHEREAS, based on the foregoing, the City Council finds that issuing permits,
business licenses, or other applicable entitlements providing for the establishment and /or
operation of medical marijuana dispensaries, prior to City's completion of its study of the
legality, potential impact, and regulation of such facilities, and resolving any zoning conflicts
based on the fact that no zoning currently exists in the City for such dispensaries, would pose a
current and immediate threat to the public health, safety, and welfare, and that a temporary
moratorium on the issuance of such permits, licenses, and entitlements is thus necessary.
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NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ANAHEIM
DOES ORDAIN AS FOLLOWS:
SECTION 1
In accordance with the authority granted the City of Anaheim by Government
Code Section 65858 and Section 511 of the Anaheim City Charter, from and after the date of this
ordinance, no use permit, variance, building permit, business license or other applicable
entitlement for use shall be approved or issued for the establishment or operation of a medical
marijuana dispensary for a period of forty -five (45) days.
SECTION 2
No person, association, organization, collective, cooperative, or company or entity
of any kind shall commence or establish the operation of any Medical Marijuana Dispensary, as
defined in this ordinance, within the City limits of the City of Anaheim, during the period this
ordinance is in effect.
SECTION 3
The commencement or establishment of any Medical Marijuana Dispensary, as
defined in this ordinance, within the City limits of the City of Anaheim, during the period this
ordinance is in effect, is declared to be a public nuisance. Violations of this ordinance shall be
and is hereby declared to be contrary to the public interest and shall, at the discretion of the City,
create a cause of action for injunctive relief as well as any other available civil remedies.
Additionally, any person that violates this ordinance may be subject to the City's applicable
administrative remedies.
SECTION 4
For the purposes of this ordinance, "Medical Marijuana Dispensary" shall mean
any use, facility, structure, building, location or business, whether fixed or mobile, which makes
available, furnishes, distributes, sells or otherwise provides medical marijuana to a qualified
patient, a person with an identification card, or a primary caregiver. The terms "qualified
patient," "person with an identification card," or "primary care giver," shall have the same
meaning as that set forth in California Health and Safety Code Section 11362.7. "Medical
Marijuana Dispensary" shall also include medical marijuana collectives and cooperatives, as
those terms are described in the California Attorney General's "Guidelines for the Security and
Non - Diversion of Marijuana Grown for Medical Use ".
SECTION 5 . DECLARATION OF URGENCY.
The City Council declares that this ordinance is necessary as an emergency
measure for the immediate preservation of the public peace, health or safety pursuant to Section
65858(a) of the California Government Code and Section 511 of the Anaheim City Charter and
the reasons for its urgency are as follows:
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1. Pursuant to California Health and Safety Code Sections 11362.5(c)(2) and
11362.83 and the City's police power as granted broadly under Article XI, Section 7 of the
California Constitution, the City Council of the City of Anaheim has heretofore adopted its
Ordinance No. 6067, which added Chapter 4.20 to the Anaheim Municipal Code prohibiting the
establishment and operation of medical marijuana dispensaries in the City of Anaheim; and
2. No final decision has been rendered in the case of Qualified Patients Association,
et al. v. City of Anaheim, Case No. 07CC09524, as to whether Ordinance No. 6067, which added
Chapter 4.20 to the Anaheim Municipal Code, is unlawful and /or unconstitutional; and
3. Notwithstanding the enactment of Chapter 4.20 of the Anaheim Municipal Code,
and subsequent to its passage, medical marijuana dispensaries have been established and
continue to operate within the City of Anaheim, including the recent establishment and operation
of such facilities immediately adjacent to existing residential uses; and
4. Under Title 18 of the Anaheim Municipal Code, the Anaheim Zoning Code,
medical marijuana dispensaries are not an enumerated use and the Zoning Code does not address
or regulate in any manner the existence or location of medical marijuana dispensaries within the
City of Anaheim; and
5. There is substantial evidence that other California cities that have permitted the
establishment and operation of facilities for the purpose of dispensing medical marijuana have
experienced negative secondary effects and adverse impacts, including an increase in crimes of
marijuana and narcotics distribution and use; an increase in other criminal activities in the
vicinity of these facilities, such as robbery of patients as they go in or leave the dispensaries,
increase instances of DUIs and street dealings of illegal drugs; burglary of facilities dispensing
medical marijuana; increase in violent crimes, such as armed robberies and murders; loss of trade
for other commercial businesses located near these facilities; organized crime involvement in the
ownership and operation of marijuana dispensaries; money laundering and firearm violations;
physicians making recommendations for questionable or potentially questionable cases of
qualified use of medical marijuana; unjustified and fictitious physician recommendations; street
dealers in the vicinity of dispensaries offering marijuana at a lower price to arriving patrons;
smoking of marijuana in the public; increased noise and pedestrian traffic; and
6. The California Police Chiefs Association has compiled extensive information and
reports detailing the negative secondary effects associated with medical marijuana dispensaries,
which contains persuasive anecdotal and documented evidence that medical marijuana
dispensaries pose a threat to public health, safety and welfare; and
7. The City Council, in adopting this Ordinance, takes legislative notice of the
existence and content of the following reports concerning the negative secondary effects and
adverse impacts of facilities dispensing medical marijuana: September 2009, "California Police
Chiefs Association Position Paper on Decriminalizing Marijuana "; April 22, 2009, "White
Paper on Marijuana Dispensaries" issued by California Police Chiefs Association's Task Force
on Marijuana Dispensaries; "Medical Marijuana Dispensaries and Associated Issues" presented
to the California Chiefs of Police Association, July through September 2009; "Medical
Marijuana Dispensaries and Associated Issues" presented to the California Chiefs of Police
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Association, April to June 2009; "Medical Marijuana Dispensaries and Associated Issues"
presented to the California Chiefs of Police Association, January to March 2009; "Medical
Marijuana Dispensaries and Associated Issues" presented to the California Chiefs of Police
Association, October to December 2008; "Medical Marijuana Dispensaries and Associated
Issues" presented to the California Chiefs of Police Association, July to September 2008;
"Medical Marijuana Dispensaries and Associated Issues" presented to the California Chiefs of
Police Association, April to June 2008; "Medical Marijuana Dispensaries and Associated Issues"
presented to the California Chiefs of Police Association, January to March 2008; "Medical
Marijuana Dispensaries and Associated Issues" presented to the California Chiefs of Police
Association, October to December 2007; "Medical Marijuana Dispensaries and Associated
Issues" presented to the California Chiefs of Police Association, July to September 2007;
"Medical Marijuana Dispensaries and Associated Issues" presented to the California Chiefs of
Police Association; "White Paper Medical Marijuana: History and Current Complications ",
issued by Riverside County District Attorney's Office, September 2006; Memorandum prepared
by the El Cerrito Police Department "Marijuana Information January /March 2007 "; and
Memorandum prepared by the El Cerrito Police Department "Recent Information Regarding
Marijuana and Dispensaries ", January 12, 2007. Copies of these reports are on file in the Office
of the City Clerk of the City of Anaheim and are available for inspection during normal business
hours; and
8. Absent the adoption of this interim urgency ordinance, the establishment and
operation of medical marijuana dispensaries in the City of Anaheim would result in the negative
and harmful secondary effects other cities have experienced, as identified above; and
9. As a result of the conflict in state and federal laws on the matter, coupled with
negative and harmful secondary effects associated with medical marijuana dispensaries, the
current and immediate threat such secondary effects pose to the public health, safety, and
welfare, and the zoning conflicts that would be created by the continued establishment and
operation of medical marijuana dispensaries, it is necessary to establish a temporary, forty -five
(45) day moratorium on the establishment and operation of new medical marijuana dispensaries
in the City, pending completion of the City's study of the legality, potential impacts and
regulation of medical marijuana dispensaries, and possible amendments to the City's zoning
ordinances.
SECTION 6 . PLANNING STUDY.
The Planning Department with the assistance of the City Attorney's Office is
directed to analyze the appropriateness of such facilities within the City limits of the City of
Anaheim, including but not limited to, evaluating conflicts in state and federal law, the legality
of such facilities, the legal authority to establish such facilities, the desirability of such facilities,
and the extent of regulatory controls, should such facilities be deemed appropriate.
SECTION 7 . COMPLIANCE WITH CALIFORNIA ENVIRONMENTAL
QUAILITY ACT.
The City Council finds that this ordinance is not subject to the California
Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result
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in a direct or reasonably foreseeable indirect physical change in the environment) and
15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines,
California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in
physical change to the environment, directly or indirectly; and it prevents changes in the
environment pending the completion of the contemplated municipal code review.
SECTION 8 . EFFECTIVE DATE OF ORDINANCE.
This ordinance shall take effect immediately as an urgency measure and shall
remain in full force and effect for a period of forty -five (45) days after the date of adoption, or
until sooner repealed, unless extended by the adoption of a subsequent ordinance in accordance
with California Government Code Section 65858.
SECTION 9 . SEVERABILITY.
The City Council of the City of Anaheim hereby declares that should any section,
paragraph, sentence, phrase, term or word of this ordinance be declared for any reason to be
invalid, it is the intent of the City Council that it would have adopted all other portions of this
ordinance independent of the elimination herefrom of any such portion as may be declared
invalid.
THE FOREGOING ORDINANCE was passed and adopted at a regular meeting of said
City Council held on the 18 day of January, 2011, by the following roll call vote:
AYES: Mayor Tait, Council Members Sidhu, Eastman, Galloway, Murray
NOES: NONE
ABSENT: NONE
ABSTAIN: NONE
CITY OF r
M
By:
MA OR OF THE CITY OF ANAHEIM
ATTEST:
CITY CLERK OF THE CITY OF KNAHEIM
7
AFFIDAVIT OF PUBLICATION
STATE OF CALIFORNIA, ) proof of Publication of
) ss.
County of Orange )
I am a citizen of the United States and a resident
of the County aforesaid; I am over the age of
eighteen years, and not a party to or interested in
the above - entitled matter. I am the principal
clerk of the Anaheim Bulletin, a newspaper that
has been adjudged to be a newspaper of general
circulation by the Superior Court of the County
of Orange, State of California, on December 28,
1951, Case No. A -21021 in and for the City of
Anaheim, County of Orange, State of California;
that the notice, of which the annexed is a true
printed copy, has been published in each regular
and entire issue of said newspaper and not in any
supplement thereof on the following dates, to
wit:
January 27, 2011
"I certify (or declare) under the penalty of
perjury under the laws of the State of California
that the foregoing is true and correct":
SUMMARY PUBLICATION
CITY OF ANAHEIM
ORDINANCE NO. 6202
AN URGENCY ORDINANCE OF THE,CITY OF ANAHEIM TO ADOPT AN IN-
OF M ESL MARIJUANA DISPENSARIES AND DEC ORDI-
NANCE AS AN EMERGENCY MEASURE WHICH SHALL TAKE EFFECT IM-
MEDIATELY.
roco No. 8202 is an interim urgency °moratorium on
�t of medical marquena ordmarx a ^'�' dne authomY
d the Citv.cf Anaheim by W the data Govemm�Beca� Section 511 of the
dm City Charter, iron an im d OrWnernce 8202. no use pemtd, venues,
_ aooroved
or
of
City of Anaheim, ounng me pencM m e.NC.n-- - n.
fact immediately as an urgency measure and shall remain In iva form and effect for 6 peri-
od of forty fire (45) days after the dale of adoption or until sooner repealed, unless ex-
tended by the adoption of a subsequent ordhoKm k Aocordanhce with Califomia Govern-'
meM Coda Section 65858.
1, Linda N. Andal, CRY Clerk of the City of Anaheim, do hereby �ry that the forage is a
summary of Ordinance No. 6202, which is an interim urgen cy orclin y of January. 2011 by
duly cad
and adopted at a list meeting of said Council held on dne 18th day,oF
the following roll aaHH Grote of the members II.-f.
AYES: Mayor Tait, Council Members Siohu, Eastman, Galloway, Murray
NOES: NONE
ABSENT: NONE
ABSTAIN: NONE
The above summary is a brief dascr p ion of the subjaL•t�n co ntained d In the Charter 01 tl
d'enanoe No. 8202r -which has been "Prepared p[x nt Ion of e re f the rwh
City of Aj;W i* . Thb summary does not ude or desaax P
mane and should not be relied on as a vubetituts for tiara AM Ind a ordinance..
To obtabi a y of dro fuit text of the ordinance, please oonfr t the Office �e ��
Qrk, ('/14) ?=166, between 6:00 AM and 5:00 PM, Monday through Friday.
charge for the copy.
Executed at Santa Ana, Orange County,
California, on
Date: January 27, 2011
t�
Signature
Anaheim Bulletin
625 N. Grand Ave.
Santa Ana, CA 92701
(714) 796 -2209
PROOF OF PUBLICATION