Adopting and imposing a moratorium on the establishment of new medical marijuana dispensaries

April 5, 2005


ORDINANCE NO. 3717

URGENCY ORDINANCE OF THE COUNCIL OF THE CITY OF SANTA ROSA ADOPTING AND IMPOSING A MORATORIUM ON THE ESTABLISHMENT OF NEW MEDICAL MARIJUANA DISPENSARIES

THE PEOPLE OF THE CITY OF SANTA ROSA DO ENACT AS FOLLOWS:

Section 1Purpose and Findings.  The purpose of this ordinance is to prohibit the establishment of new medical marijuana dispensaries within the City of Santa Rosa and to place conditions and requirements on existing dispensaries.

The Council based on the materials and testimony presented finds and determines as follows: Medical marijuana dispensaries have been established at a number of locations in the City and, as a consequence, some local agencies have reported increases in illegal drug activity, illegal drug sales, robbery of persons leaving dispensaries, loitering around dispensaries, and other increases in criminal activity.

Each of the three known medical marijuana dispensaries in the City has been involved in a serious crime.  In September 2004, the father of the owner of one dispensary was robbed at gunpoint after he left the establishment and was followed home.  The suspects thought he carried cash or marijuana.  The other two dispensaries were broken into by burglars who stole marijuana and smoking paraphernalia, among other things.

One of the existing dispensaries is located a block away from an elementary school and is in a "drug free zone."  It is also next to a City park.  Residents and nearby businesses have reported loitering, excessive traffic, unpermitted use and blockage of their off-street private parking facilities, public urination, smoking marijuana in public, excessive litter, and vandalism in the area.  The United States Department of Justice's California Medical Marijuana Information Report has advised that large-scale drug traffickers have been posing as primary caregivers to obtain and sell marijuana.  In addition, the State of California and the County of Sonoma have not yet implemented a statewide identification card program for qualified patients and their primary caregivers. 

The three dispensaries known to be operating within the City are operating without having obtained any City discretionary or regulatory review or approvals or permits and the City has not adopted conditions or regulations governing such operations.  To protect residents and businesses from the harmful effects of medical marijuana dispensaries, the City needs time to study and adopt a permit or licensing procedure and background check procedures, determine the appropriate zoning districts for such uses, and adopt regulatory standards and conditions to be imposed on such operations.

A comprehensive set of procedures, restrictions and regulations cannot be enacted without due deliberation, and it will take an indeterminate length of time to work out the substance and details of such requirements.  It would be destructive of any proposed restrictions and regulations if, during the period they are being studied and considered for adoption, parties seeking to avoid their operation and effect are permitted to operate in a manner that might progress so far as to defeat in whole, or in part, the objectives of the requirements and regulations.  As a result, it is necessary to establish a moratorium and prohibition on the establishment and operation of any new medical marijuana dispensaries and locations in the City pending the completion of the City's further review of their impacts and possible adoption of permit and location requirements and operating regulations and conditions.

Section 2Moratorium on Medical Marijuana Dispensaries.
During the period this ordinance remains in effect, no person, business or entity shall open, or commence doing business as a "Medical Marijuana Dispensary" within the City, and no City permit or entitlement for use shall be issued or processed for a medical marijuana dispensary.

"Medical Marijuana Dispensary" or "Dispensary" as used in this ordinance means any facility or location where medical marijuana is made available to and/or distributed by, a total of three or more of any 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 sections 11362.5, et seq. A "medical marijuana dispensary" shall not include the following uses, as long as the location of such uses are otherwise regulated by the Santa Rosa City Code or applicable state 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 any such use complies strictly with applicable law including, but not limited to, Health and Safety Code Section 11362.5, et seq.

Section 3. 
A. The Council imposes the following conditions and requirements on all existing medical marijuana dispensaries operating within the City as conditions of their continued operation:

1.  The days and hours of operation of each dispensary are limited to:  Mondays through Fridays, 9:00 a.m. to 3:00 p.m.; Saturdays, 10:00 a.m. to 2:00 p.m.; Sundays, closed.
2.  Consumption or use of marijuana in any form is prohibited:  (a) on a dispensary's premises; or (b) within 150 feet of a dispensary's premises.
3.  No loitering by customers of a dispensary within 150 feet of the dispensary is permitted.
4.  No harassment by employees or customers of a dispensary of neighbors of a dispensary.
 5.  A dispensary shall comply with all provisions of Health and Safety Code sections 11362.5, et seq.

B. If any existing medical marijuana dispensary fails to comply within these requirements and conditions, within three days of the date of the adoption of this ordinance, it shall cease doing business within the City and its continued operation shall be unlawful and constitute a separate misdemeanor for each day of its continued operation.

Section 4.  Immediate Threat to Health, Safety and Welfare.  Based on the findings and conditions set forth and described in Section 1 of this ordinance, the Council of the City of Santa Rosa, pursuant to City Charter Section 8, declares this ordinance is necessary as an urgency measure to preserve, and address existing and immediate threats to, the public health, safety and welfare all as described in Section 1.  The Council determines that the establishment of additional medical marijuana dispensaries would result in additional threats to the public health, safety and welfare.

Section 5.  It is the City Council's intention that nothing in this ordinance shall be deemed to conflict with federal law as contained in the Controlled Substances Act, 21 U.S.C. Section 841, so as to allow any activity under this ordinance that is validly and constitutionally prohibited under that Act.

Section 6.  The City Council declares that nothing in this ordinance shall be construed to (1) allow persons to engage in conduct that endangers others or causes a public nuisance, (2) allow the use of marijuana for non-medical purposes, or (3) allow any activity relating to the cultivation, distribution, or consumption of marijuana that is otherwise illegal.

Section 7.   Conflicting Laws.   During the continuation of the effectiveness of this ordinance, the provisions of this ordinance shall govern.  If there is any conflict between the provisions of this ordinance and any provision of the Santa Rosa City Code, or any City ordinance, resolution or policy, the provisions of this ordinance shall control.

Section 8Severability.  If any section, subsection, sentence, clause, phrase or word of this ordinance is for any reason held to be invalid and/or unconstitutional by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance.

Section 9Effective Date.  This ordinance is declared to be an urgency measure and if adopted by the affirmative date of at least five Councilmembers, shall become effective upon its adoption.

IN COUNCIL DULY PASSED AND ADOPTED this 5th day of April, 2005.

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