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6204ORDINANCE NO. 6204 AN URGENCY ORDINANCE OF THE CITY OF ANAHEIM EXTENDING ORDINANNCE NO. 6202 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, on January 18, 2011 the City Council of the City of Anaheim Council adopted interim Ordinance No. 6202 imposing a temporary moratorium on the establishment of medical marijuana dispensaries; and WHEREAS, the purpose of this interim urgency ordinance is to extend the moratorium on the establishment and operation of medical marijuana dispensaries for an additional ten (10) months and fifteen (15) days to permit staff to study (i) apparent conflicts in state and federal laws concerning the use of marijuana for medical purposes; (ii) community and statewide concerns regarding the establishment of medical marijuana dispensaries; (iii) the nature and extent of the negative secondary effects and adverse impacts caused by medical marijuana dispensaries; and (iv) what regulations would be necessary to protect the public health, safety, and welfare if such facilities are permitted; and WHEREAS, Section 400 of the City Charter vests the City Council with the authority to make and enforce all laws and regulations with respect to municipal affairs subject only to such restrictions and limitations as may be provided in the Charter or in the Constitution of the State of California, and the power to exercise, or act pursuant to any and all rights, powers, and privileges, or procedures granted or prescribed by any law of the State of California; and WHEREAS, Government Code Section 65858(a) provides that after notice pursuant to Government Code Section 65090 and public hearing, the City Council may extend an interim ordinance adopted pursuant to Govermnent Code Section 65858 by a vote of four -fifths (4/5) majority of the members of the City Council; and WHEREAS, Section 511 of the City Charter provides for the adoption, as an emergency measure, of an interim ordinance to preserve the public peace, health or safety if passed by an affinnative vote of at least four (4) members of the City Council; and WHEREAS, the City regulates land uses within the City limits pursuant to the provisions of Title 18 of the Anaheim Municipal Code (the "Zoning Code "); and WHEREAS, under the 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, 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 extending the temporary moratorium on the issuance of such permits, licenses, and entitlements is thus necessary; and WHEREAS, the City is engaged and will be engaged in a study of the possible risks to public health, safety, and welfare arising from the establishment and operation of medical marijuana dispensaries, if allowed, and of the most effective means of mitigating and eliminating any negative and harmful secondary effects on the public health, safety, and welfare arising from such facilities; and WHEREAS, the City Council desires to extend Ordinance No. 6202 for an additional ten (10) months and fifteen (15) days 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. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ANAHEIM DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1 Urgency Ordinance No. 6202 imposing a temporary moratorium on the establishment of medical marijuana dispensaries, is hereby extended for an additional ten (10) months and fifteen (15) days, such that Ordinance No. 6202 will now expire on January 19, 2012. 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 Ordinance No. 6202 is in effect. -2- 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 Ordinance No. 6202 is in effect, is declared to be a public nuisance. Violations of Ordinance No. 6202 shall be and is 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 Ordinance No. 6202 may be subject to the City's applicable administrative remedies. SECTION 4 For the purposes of Ordinance No. 6202 and 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: 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. WHEREAS, the City regulates land uses within the City limits pursuant to the provisions of Title 18 of the Anaheim Municipal Code (the "Zoning Code "); and -3- 5. Under the 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 6. 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 7. 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 8. 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: "Medical Marijuana and Associated Issues" presented to the California Chiefs of Police Association, January to March 2010; "Medical Marijuana and Associated Issues" presented to the California Chiefs of Police Association, April to June 2010; Marijuana Dispensaries and the Federal Government: Recommendation to the Obama Administration 2009; "Marijuana Let's Talk Insanity" by Roger Morgan; "California Police Chief's 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 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; "Summit on Impact of California's Medical Marijuana Laws: Dispensary Related Crime," April 23, 2008, Michael Regan; "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 -4- 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 "; Memorandum prepared by the El Cerrito Police Department "Recent Information Regarding Marijuana and Dispensaries ", January 12, 2007; and Anaheim Police Department Memorandum, October 25, 2006, Medical Marijuana Dispensaries (MMD) Ban Ordinance. 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 9. Absent the adoption of this ordinance extending Ordinance No. 6202, 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 10. 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 extend Ordinance No. 6202, imposing a moratorium on the establishment and operation of new medical marijuana dispensaries in the City, for an additional ten (10) months and fifteen (15) days 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 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. -5- SECTION 8 . EFFECTIVE DATE OF ORDINANCE. This ordinance shall take effect immediately as an urgency measure and shall extend Ordinance No. 6202 for an additional ten (10) months and fifteen (15) days, such that Ordinance No. 6202 will now expire on January 19, 2012, 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 as an urgency measure at a regular meeting of the City Council of the City of Anaheim held on thel5th day of February, 2011, by the following roll call vote: AYES: Mayor Tait, Council Members sidhu, Eastman, Galloway, Murray NOES: NONE ABSENT: NONE ABSTAIN: NoNE CITY OF AN IM By: MAYOR OF THE CITY OF ANAHEIM ATTEST: CITY CLERK OF THE elT Y OF A4AHEIM 81519M W