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O 599ORDINANCE N0.599 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ARROYO GRANDE ADDING CHAPTER 9.26 TO TITLE 9 OF THE ARROYO GRANDE MUNICIPAL CODE PROHIBITING THE ESTABLISHMENT OF MEDICAL MARIJUANA DISPENSARIES WHEREAS, in 1996, the voters of the State of California ("State") approved Proposition 215, codified as Health and Safety Code sections 11362.5 et seq. and entitled "The Compassionate Use Act of 1996" (the "Compassionate Use Act"), which provides seriously ill Californians "the right to obtain and use marijuana for medical purposes" once a physician has deemed the use beneficial to the patient's health; and WHEREAS, in 2003, the State legislature enacted SB 420 to clarify the scope of the Compassionate Use Act and to allow cities to adopt and enforce rules and regulations consistent with the provisions of SB 420; and WHEREAS, the Federal Controlled Substance Act (the "Controlled Substance Act"), codified as 21 U.S.C. Section 801 et seq., makes it unlawful for any person to cultivate, manufacture, distribute or dispense or process with intent to manufacture, distribute or dispense marijuana; and WHEREAS, in 2001, the United States Supreme Court issued its decision in United States v. Oakland Cannabis Buyer's Cooperative, in which the Court held that there is no medical necessity defense or exemption for the possession of marijuana for medicinal purposes; and WHEREAS, in 2005, the United States Supreme Court issued its decision in Gonzales v. Raich, in which the Court held that Congress has the authority under the Commerce Clause to prohibit the manufacture, cultivation, distribution and possession of marijuana pursuant to the Controlled Substance Act, even as such prohibitions apply to marijuana manufactured, cultivated, distributed or possessed within the State of California under the auspices of the Compassionate Use Act; and WHEREAS, the City Council of the City of Arroyo Grande ("City") recognizes that, pursuant to Gonzales v. Raich, the Supremacy Clause (Article IV, Clause 2 of the United States Constitution) "unambiguously provides that if there is any conflict between Federal and State law, Federal law shall prevail [and that] [i]t is beyond peradventure that Federal power over commerce is superior to that of the States to provide for the welfare or necessities of their inhabitants, however legitimate or dire those necessities may be"; and WHEREAS, on November 23, 2004, the City Council adopted Ordinance No. 560 establishing an interim moratorium on medical marijuana dispensaries; and ORDINANCE N0.599 PAGE 2 WHEREAS, on December 14, 2004, the City Council adopted Ordinance No. 561 extending the moratorium on medical marijuana dispensaries for ten (10) months and fifteen (15) days to allow staff to study all aspects of this medical marijuana issue, including the analysis of the conflict between State and Federal legislation and the impacts that medical marijuana dispensaries have had on other local jurisdictions; and WHEREAS, based on said study and analysis, the City Council hereby finds that the cultivation and distribution of medical marijuana through medical marijuana dispensaries contributes directly to undesirable secondary impacts on the surrounding community, including, but not limited to: an increase in illegal drug activity, illegal drug sales, robbery of persons leaving dispensaries, burglary, theft, loitering around dispensaries, falsely obtaining identification cards to qualify for medical marijuana, trespass, display and discharge of firearms, vagrancy, on-site consumption of marijuana and marijuana enhanced products, driving under the influence of marijuana, excessive traffic, disturbance calls, and vehicular violations; and WHEREAS, the California Police Chiefs Association has compiled extensive reports and information detailing the negative secondary effects associated with medical marijuana dispensaries. The City Council hereby finds that the reports and information provided by the California Police Chiefs Association, which can be found at http://www.californiapolicechiefs.org/nav_files/medical_marijuana.html, contain further persuasive evidence that medical marijuana dispensaries pose a threat to the public health, safety and welfare; and WHEREAS, the City Council finds that under the Supremacy Clause, Article IV, Clause 2 of the United States Constitution, the conflict between the Federal Controlled Substance Act and the State Compassionate Use Act must be resolved in favor of the Federal Controlled Substance Act, and because of the documented threat and danger to the public health, safety and welfare from medical marijuana dispensaries, it is in the best interest of the citizens of the City of Arroyo Grande that the City Council prohibit the establishment and operation of medical marijuana dispensaries within the City of Arroyo Grande. NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Arroyo Grande, as follows: SECTION 1: The above recitals are true and correct and are incorporated herein by this reference. SECTION 2: Chapter 9.26 is hereby added to Title 9 of the Arroyo Grande Municipal Code to read in its entirety as follows: ORDINANCE N0.599 PAGE 3 Chapter 9.26 Medical Marijuana Dispensaries. 9.26.010 Definition. A "medical marijuana dispensary" is defined as any facility in a single fixed location where a primary caregiver makes available, sells, transmits, gives or otherwise provides medical marijuaha, or cannabis, for medical purposes to two or more qualified patients or persons with an identification card in accordance with Health and Safety Code Section 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 this Code or applicable law: a clinic licensed pursuant to Chapter 1 of Division 2 of the Healthy 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. 9.26.020 Medical Marijuana Dispensary; Prohibited. A medical marijuana dispensary shall not be permitted within the City. 9.26.030 Penalties. Violation of section 9.26.020 is a misdemeanor unless the city attorney authorizes issuance of an infraction citation or files a complaint charging the offense as an infraction; or the court, upon the prosecutorial recommendation of the city attorney, determines that the offense is an infraction. 9.26.040 Violation. Any person who violates section 9.26.020 shall be guilty of a separate offense for each and every day during any portion of which any such person commits, continues, permits, or causes a violation thereof, and shall be penalized accordingly. 9.26.050 Civil Injunction. The violation of section 6.26.020 shall be and is hereby declared to be a public nuisance and contrary to the public interest and shall, at the discretion of the City, create a cause of action for injunctive relief. SECTION 3: This Ordinance is consistent with protection of the public interest, health, safety and welfare of the City. This Ordinance is hereby found to be categorically exempt from environmental review pursuant to CEQA guidelines Section 15061(b)(3). ORDINANCE N0.599 PAGE 4 SECTION 4: A summary of this Ordinance shall be published in a newspaper published and circulated in the City of Arroyo Grande at least five (5) days prior to the City Council meeting at which the proposed Ordinance is to be adopted. A certified copy of the full text of the proposed Ordinance shall be posted in the office of the Director of Administrative Services/Deputy City Clerk. Within fifteen (15) days after passage of this Ordinance, it shall be published once, together with the names of the Council Members voting thereon, in a newspaper of general circulation within the City. SECTION 5: This Ordinance shall take effect and be in full force and effect thirty (30) days after its passage. SECTION 6: If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional. On motion of Council Member Guthrie, seconded by Council Member Arnold, and on the following roll call vote to wit: AYES: Council Members Guthrie, Arnold, Costello, Fellows, and Mayor Ferrara NOES: None ABSENT: None the foregoing Ordinance was adopted this 27~" day of May 2008. ORDINANCE N0.599 PAGE 5 TONY FER AYOR ATTEST: KELLY WE O ,CITY CLERK APPROVED AS TO CONTENT: ~/ ST~ N ADA ,CITY MANAGER APPROVED AS TO FORM: TIM HY J. C ,CITY ATTORNEY OFFICIAL CERTIFICATION I, KELLY WETMORE, City Clerk of the City of Arroyo Grande, County of San Luis Obispo, State of California, do hereby certify under penalty of pery'ury, that the attached is a true, full, and correct copy of Ordinance No. 599 which was introduced at a regular meeting of the City Council on May 13, 2008; was passed and adopted at a regular meeting of the City Council of the City of Arroyo Grande on the 27"' day of May 2008; and was duly published in accordance with State law (G.C. 40806). WITNESS my hand and the Seal of the City of Arroyo Grande affixed this 28`" day of May 2008. ~~- KELLY ET ORE, CITY CLERK