HomeMy WebLinkAbout2262ORDINANCE NO. 2262
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
ARCADIA, CALIFORNIA, AMENDING CERTAIN SECTIONS
OF ARTICLE VI (BUSINESSES, PROFESSIONS, TRADES
AND OCCUPATIONS) AND ARTICLE IX (DIVISION AND
USE OF LAND) OF THE ARCADIA MUNICIPAL CODE TO
PROHIBIT THE ESTABLISHMENT AND OPERATION OF
MEDICAL MARIJUANA DISPENSARIES AND OTHER
BUSINESSES AND USES PROHIBITED BY LOCAL, STATE
OR FEDERAL LAW
WHEREAS, on November 5, 1996 the voters of the state of California approved
Proposition 215, which enacted the Compassionate Use Act of 1996, codified at California
Health and Safety Code Section 11362.5. The Compassionate Use Act permits possession and
cultivation of marijuana for certain medical purposes under limited and specified circumstances;
and
WHEREAS, in 2003 the California Legislature enacted Senate Bill 420 ("SB 420"),
which added Article 2.5 ("Medical Marijuana Program") to Division 10, Chapter 3, of the
California Health and Safety Code, to clarify the scope of the Compassionate Use Act of 1996.
SB 420 created a state approved voluntary medical marijuana identification card program
established the quantity of marijuana that a qualified patient or primary caregiver may possess,
and provided for additional immunities from state criminal marijuana laws. SB 420 also allows
cities and other governing bodies to adopt and enforce rules and regulations consistent with SB
420; and
WHEREAS, the Medical Marijuana Program does not authorize medical marijuana
dispensaries and does not require local governments to authorize medical marijuana dispensaries;
and
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WHEREAS, nothing in either the Compassionate Use Act or the Medical Marijuana
Program contains an affirmative mandate that cities allow or permit medical marijuana
dispensaries within their city limits; and
WHEREAS, the Federal Controlled Substances Act (21 USC §§801, et seq.) classifies
marijuana as a "Schedule I Drug," which is defined as a drug or other substance that has a high
potential for abuse, that has no currently accepted medical use in treatment in the United States,
and that has not been accepted as safe for its use under medical supervision; and
WHEREAS, Section 841 the Controlled Substances Act (21 USC §841) makes it
unlawful for any person to cultivate, manufacture, distribute or dispense, or possess with intent
to manufacture, distribute or dispense marijuana. The Controlled Substances Act contains no
statutory exemption for the possession of marijuana for medical purposes; and
WHEREAS, the United States Supreme Court, in Gonzales v. Raich, 545 U.S. 1 (2005),
confirmed the validity of the Federal prohibition of marijuana cultivation, sale and distribution
and the application of Federal Law in California, notwithstanding the possible medicinal uses of
marijuana and the limited authorization for sale and distribution of marijuana created by
California state law, noting that California's system of limited decriminalization for medical
marijuana is susceptible to abuse, and confirmed that California's medical marijuana laws are
superseded by Federal Law to the extent that they conflict with Federal Law; and
WHEREAS, the United States Supreme Court, in United States v. Oakland Cannabis
Buyers' Cooperative, 532 U.S. 483 (2001), concluded that there is no exemption for medical
necessity from the Federal Law prohibition on the sale and distribution of marijuana; and
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WHEREAS, on September 16, 2008, the City Council of the City of Arcadia enacted
Ordinance No. 2248, a forty-five day interim moratorium on the establishment of medical
marijuana dispensaries in the City of Arcadia; and
WHEREAS, pursuant to Government Code Sections 65090 and 65858, on October 21,
2008, the City Council conducted a public hearing to consider extending the interim moratorium
on the establishment of medical marijuana dispensaries, received and considered oral and
documentary evidence on this issue, and adopted Ordinance No. 2249, extending the Moratorium
for an additional 10 months and 15 days; and
WHEREAS, the interim moratorium is set to expire on September 16, 2009; and
WHEREAS, following the adoption of the interim moratorium established by Ordinance
No. 2248, as extended by Ordinance No. 2249, the City Council, the City Attorney's Office, and
City Staff, with input from the City Police Department and other law enforcement professionals,
have studied the public health and safety issues relating to, and adverse secondary effects
associated with, the operation of medical marijuana dispensaries and the zoning, regulation or
control of medical marijuana dispensaries; and
WHEREAS, during the interim moratorium, City Planning staff, working in conjunction
with the City Attorney's office, also reviewed the ordinances and reported the regulatory
experiences of several California cities with a long and documented history of public health and
safety problems and adverse secondary effects associated with the operation of medical
marijuana dispensaries; and
WHEREAS, other cities with medical marijuana dispensaries have reported an increase
in pedestrian and vehicular traffic and noise, increased loitering around dispensary locations,
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increased incidents of burglary, and increased complaints from neighbors regarding operation of
the dispensaries; and
WHEREAS, other California cities that have permitted the establishment of medical
marijuana dispensaries have also experienced an increase in crime, such as burglary, robbery and
sale of illegal drugs in the areas immediately surrounding such dispensaries; and
WHEREAS, the California Police Chiefs Association has compiled an extensive report
detailing a number of the negative secondary effects associated with medical marijuana
dispensaries; and
WHEREAS, medical marijuana dispensaries negatively impact the health, safety and
welfare of the community because of the potential for increases in illegal drug use and sales,
robbery of dispensaries and dispensary operators, employees and clients; loitering, falsely
obtained identification cards, and other increases in criminal activity related to the operation of
medical marijuana dispensaries; and
WHEREAS, California Health and Safety Code Section 11362.5(b)(2) expressly provides
that nothing in the Compassionate Use 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, persons residing in City of Arcadia who are entitled to possess and use
medical marijuana under the Compassionate Use Act have adequate access to dispensaries within
other areas of Los Angeles County which provide medical marijuana to qualified patients; and
WHEREAS, after studying various alternatives for the regulation of medical marijuana
dispensaries, considering testimony from members of the public, and reviewing the legal status
of medical marijuana dispensaries under applicable law, the City Council finds that adoption of a
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ban on the establishment and operation of medical marijuana dispensaries is necessary to protect
the public health, safety, and welfare; and
WHEREAS, the City Council wishes to allow various and diverse uses of land,
operations and businesses within the City of Arcadia; and
WHEREAS, the City Council recognizes that certain uses of land, operations and
businesses may be prohibited under state law or Federal law; and
WHEREAS, the City Council wishes to ensure that all uses, operations and businesses
within the City are permitted under both state and federal law, in order to protect the health and
welfare of residents of and visitors to Arcadia; and
WHEREAS, existing City ordinances and regulations, other than the interim moratorium
established by Ordinance No. 2248 and extended by Ordinance No. 2249, do not expressly
address the zoning regulation or control of medical marijuana dispensaries; and
WHEREAS, there are currently no existing medical marijuana dispensaries in the City;
and
WHEREAS, on July 28, 2009, pursuant to Government Code Sections 65854 and 65855,
the Planning Commission of the City of Arcadia conducted a duly noticed public hearing and
recommended that the City Council amend the Arcadia Municipal Code by amending various
sections of Articles VI and IX to prohibit in all zones medical marijuana dispensaries and other
uses that are illegal under either state or federal law; and
WHEREAS, the Planning Commission based its recommendation to adopt the
amendment on the findings set forth above and a finding that adoption of the amendment is
exempt from compliance with the California Environmental Quality Act; and
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WHEREAS, on August 18, 2009, pursuant to Government Code Section 65866, the City
Council held a duly noticed public hearing at which all persons wishing to testify in connection
with the amendment were heard and the amendment was comprehensively reviewed.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA,
CALIFORNIA, DOES ORDAIN AS FOLLOWS:
SECTION 1. FINDINGS. The findings set forth in the recitals above are hereby
adopted by the City Council and are incorporated by reference into this Ordinance.
SECTION 2. Section 6153 of Article VI of the Arcadia Municipal Code (Business
Permit & License Review Board) is hereby amended to read as follows:
116153. STANDARDS.
The Board may refuse to approve the issuance of a permit whenever in its reasonable
judgment such issuance will be materially detrimental to the public health, morals, safety or
general welfare. A permit may be refused if it is determined that the applicant or applicant's
agents have, in the conduct of the same or any similar business, activity, or enterprise, been
guilty of fraud, misrepresentation or conduct detrimental to the public welfare which includes
operations or activities that do not comport with the peace, health, safety and convenience of the
public such as (a) operation of a business prohibited by local, federal or state law (b) allowance
of activities that are or become a public nuisance which includes the disruptive conduct of
business patrons whether on or immediately off the premises where such patrons disturb the
peace, obstruct traffic, damage property, engage in criminal conduct, violate the law and
otherwise impair the free enjoyment of life and property."
SECTION 3. Section 6212.1 of Article VI of the Arcadia Municipal Code (License
Issuance) is hereby amended to read as follows:
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"6212.1. SAME. VIOLATIONS NOT AUTHORIZED.
Neither the payment of a license fee required by the provisions of this Chapter, nor its
acceptance by the City and the issuance of the license to any person, shall entitle the holder
thereof to continue or carry on any business in or on any building or premises designated in such
license in the event that such building or premises are situated in a zone or locality in which the
conduct of such business is in violation of any law (whether federal, state or local) or provision
of this Code, nor shall the same authorize the conduct or continuance of any business which for
any reason is in violation of any law (whether federal, state or local) or provision of this Code,
nor affect or render valid any violation of any zoning regulation of the City, nor authorize the
erection of an advertising sign in a residential zone."
SECTION 4. Section 6216.6 of Article VI of the Arcadia Municipal Code (Licenses -
General Provisions) is hereby amended to read as follows:
"6216.6. DENIAL OF LICENSE.
Subject to appeal pursuant to Section 6216.8, the License Officer may refuse to issue a
license under this Article if it is determined that the applicant or applicant's agents have, in the
conduct of the same or any similar business, been guilty of fraud, misrepresentation or conduct
detrimental to the public welfare which includes operations or activities that do not comport with
the peace, health, safety and convenience of the public such as (a) operation of a business
prohibited by local, federal or state law (b) allowance of activities that are or become a public
nuisance which includes the disruptive conduct of business patrons whether on or immediately
off the premises where such patrons disturb the peace, obstruct traffic, damage property, engage
in criminal conduct, violate the law and otherwise impair the free enjoyment of life and
property."
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SECTION 5. Section 6312.2 of Article VI of the Arcadia Municipal Code (Issuance &
Denial - New Permits) is hereby amended to read as follows:
"6312.2. COUNCIL ACTION.
The Council may, after investigation of said application and of said proposed business,
grant or refuse to grant a permit therefor. The Council shall have the right to and shall refuse any
such permit if it shall find and determine that the granting of the same or the conducting of the
business for which a permit is requested will be injurious, detrimental or harmful to the public
peace, health, safety, morals or welfare of the City or the inhabitants thereof, or if the application
is found to contain false or misleading statements on behalf of or by the applicant. The Council
may refuse to issue a permit under this Article if it is determined that the applicant or applicant's
agents have, in the conduct of the same or any similar business been guilty of fraud,
misrepresentation of conduct detrimental to the public welfare which includes operations of
activities that do not comport with the peace, health, safety and convenience of the public such as
(a) operation of a business prohibited by local, federal or state law (b) allowance of activities that
are or become a public nuisance which includes the disruptive conduct of business patrons
whether on or immediately off the premises where such patrons disturb the peace, obstruct
traffic, damage property, engage in criminal conduct, violate the law and otherwise impair the
free enjoyment of life and property. The action of the Council in granting or refusing a permit
shall be final."
SECTION 6. Section 6314 of Article VI of the Arcadia Municipal Code (Permits -
Suspension & Revocation) is hereby amended to read as follows:
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"6314. GROUNDS.
The Council may revoke any permit issued by it under the provisions of this Chapter
upon any ground upon which such permit could or should have been denied in the first instance,
or whenever the Council is satisfied that the conduct of any such business does or will in any
manner endanger, threaten or jeopardize the public health, safety, morals, peace or welfare or
that the same has been conducted in an illegal, improper or disorderly manner or that such permit
was obtained upon false or misleading statements or representations of or on behalf of the
applicant. The Council may revoke if it is determined that the applicant or applicant's agents
have, in the conduct of the same or any similar business, been guilty of fraud, misrepresentation
or conduct detrimental to the public welfare which includes operations or activities that do not
comport with the peace, health, safety and convenience of the public such as (a) operation of a
business prohibited by local, federal or state law (b) allowance of activities that are or become a
public nuisance which includes the disruptive conduct of business patrons whether on or
immediately off the premises where such patrons disturb the peace, obstruct traffic, damage
property, engage in criminal conduct, violate the law and otherwise impair the free enjoyment of
life and property."
SECTION 7. Section 9213 of Article IX of the Arcadia Municipal Code (Zoning -
Omission or Ambiguity) is hereby amended to read as follows:
"9213. OMISSION OR AMBIGUITY.
If any "use" is for any reason omitted from the lists of those specified as permissible in
each of the various zones herein designated, or if ambiguity arises concerning the appropriate
classification of a particular use within the meaning and intent of this Chapter, or if ambiguity
exists with reference to matters of height, yard requirements or area requirements as set forth
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herein and as they may pertain to unforeseen circumstances, it shall be the duty of the Planning
Commission to ascertain all pertinent facts concerning said use and by resolution of record set
forth its findings and the reasons therefor. Such findings and resolutions shall be referred to the
Council and, if approved by the Council, thereafter such interpretation shall govern.
Notwithstanding the above, Medical Marijuana Dispensaries that are unlawful under
Federal or state law shall not be treated as permitted or conditionally permitted uses in any zone
of the City of Arcadia, and shall not be determined to be an "omitted" or "ambiguous" use
pursuant to this Section."
SECTION 8. Section 9220.45.1.1 is hereby added to Article IX of the Arcadia Municipal
Code (Zoning - Definitions) and shall read as follows:
"9220.45.1.1 MEDICAL MARIJUANA DISPENSARY.
Any facility or location where medical marijuana is made available and/or distributed by
or to one or more of the following: a primary caregiver, a qualified patient or a person with an
identification card in strict accordance with California Health and Safety Code Section 11362.5
et seq. A "medical marijuana dispensary" shall not include the following uses, as long as the
locations of such uses are otherwise regulated by this Code or applicable law: a clinic licensed
pursuant to Chapter 1 of Division 2 of the Health and Safety Code, a health care facility licensed
pursuant to Chapter 2 of Division 2 of the Health and Safety Code, a residential care facility for
persons with chronic life-threatening illness licensed pursuant to Chapter 3.01 of Division 2 of
the Health and Safety Code, a residential care facility for the elderly licensed pursuant to Chapter
3.2 of Division 2 of the Health and Safety Code, a residential hospice or a home health agency
licensed pursuant to Chapter 8 of Division 2 of the Health and Safety Code, as long as such use
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complies strictly with applicable law including, but not limited to, Health and Safety Code
Section 11362.5 et seq."
SECTION 9. Paragraph (13) of Section 9260.1.3 of Article IX of the Arcadia Municipal
Code (Zoning - Uses permitted in CPD-1 zone) is hereby amended to read as follows:
"9260.1.3. PROFESSIONAL OFFICES.
Professional offices for the following uses:
(13) Pharmacies (not including Medical Marijuana Dispensaries)."
SECTION 10. Paragraph (17) of Section 9261.1.2 of Article IX of the Arcadia
Municipal Code (Zoning - Uses permitted in C-O zone) is hereby amended to read as follows:
"9261.1.2. PROFESSIONAL OFFICES.
Professional offices for the following uses:
(17) Pharmacies for only the filling of prescriptions and the sale of sick room supplies
(not including Medical Marijuana Dispensaries)."
SECTION 11. Section 9262.1.13 of Article IX of the Arcadia Municipal Code (Zoning -
Uses permitted in C-1 zone) is hereby amended to read as follows:
"9262.1.13. SAME.
Drugstores (not including Medical Marijuana Dispensaries)."
SECTION 12. Paragraph (13) of Section 9264.2.6 of Article IX of the Arcadia
Municipal Code (Zoning - Uses permitted in CBD zone) is hereby amended to read as follows:
"9264.2.6. RETAIL USES.
13. Drug stores (not including Medical Marijuana Dispensaries);"
SECTION 13. Section 9285.6.2.8 of Article IX of the Arcadia Municipal Code (Zoning
- Permitted Home Occupations) is hereby amended to read as follows:
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"9285.6.2.8. SAME. SAME. POTTED PLANTS.
R-O, R-M, R-1, R-2, R-3.
However, this shall not permit Medical Marijuana Dispensaries as a Home Occupation."
SECTION 14. ENVIRONMENTAL DETERMINATION.
A. Pursuant to the California Environmental Quality Act ("CEQA") and the State
CEQA Guidelines (Chapter 3 of Title 14 of the California Code of Regulations), the City staff
determined that there is no possibility that the adoption of this ordinance will have a significant
effect on the environment. The City staff bases its determination on the fact that this amendment
to the City's Code will impose greater limitations on development in the City, and will thereby
serve to reduce potentially significant adverse environmental impacts. It is therefore exempt
from California Environmental Quality Act review pursuant to Title 14, Section 15061(b)(3) of
the California Code of Regulations.
B. The City Council has reviewed City staff's determination and, based on the whole
record before it, finds that there is no substantial evidence that the project will have a significant
effect on the environment. The City Council further finds that this determination of exemption
reflects the independent judgment and analysis of the City Council. City staff is hereby directed
to file with the County Clerk a notice of exemption within five (5) working days of the adoption
of this Ordinance.
SECTION 15. SEVERABILITY. If any section, subsection, subdivision, paragraph,
sentence, clause or phrase of this ordinance, or any part thereof is for any reason held to be
unconstitutional, such decision shall not affect the validity of the remaining portion of this
ordinance or any part thereof. The City Council hereby declares that it would have passed each
section, subsection, subdivision, paragraph, sentence, clause or phrase thereof, irrespective of the
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fact that any one or more section, subsection, subdivision, paragraph, sentence, clause or phrase
be declared unconstitutional.
SECTION 16. The City Clerk shall certify the adoption of this Ordinance and shall
cause a copy of the same to be published in the official newspaper of the City of Arcadia within
fifteen (15) days after its adoption. This Ordinance shall take effect on the thirty-first (31s`) day
following its adoption.
Passed, approved and adopted this 1st day of September , 2009.
ATTEST:
City Clerk
APPROVED AS TO FORM:
1".
Stephen P. Deitsch
City Attorney
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STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES) SS:
CITY OF ARCADIA )
I, JAMES H. BARROWS, City Clerk of the City of Arcadia, hereby certifies
that the foregoing Ordinance No. 2262 was passed and adopted by the City Council of
the City of Arcadia, signed by the Mayor and attested to by the City Clerk at a regular
meeting of said Council held on the 1st day of September, 2009 and that said
Ordinance was adopted by the following vote, to wit:
AYES: Council Member Amundson, Chandler, Harbicht, Kovacic and Wuo
NOES: None
ABSENT: None
l
ity Clerk of the City of Arcadia
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