ORDINANCE NO. 1746 AN ORDINANCE OF THE CITY OF LA HABRA, CALIFORNIA REPEALING AND REPLACING SECTIONS 18.08.110 AND 18.08.040 OF CHAPTER 18.08 (GENERAL REGULATIONS) OF ARTICLE I (GENERAL), AND ADDING CHAPTER 18.54 (MEDICAL MARIJUANA DISPENSARIES) OF ARTICLE III (SPECIAL ZONES), OF TITLE 18 (ZONING) OF THE LA HABRA MUNICIPAL CODE, RELATING TO MEDICAL MARIJUANA DISPENSARIES. WHEREAS, the City of La Habra, pursuant to its police power, may adopt regulations to protect the health, safety and welfare of the public, Cal. Const. art. XI, 7, Cal. Govt. Code 37100, and thereby is authorized to declare what use or condition constitutes a public nuisance; and WHEREAS, in 1970, Congress enacted the Controlled Substances Act (21 U.S.C. Section 801 et seq.) which, among other things, makes it illegal to import, manufacture, distribute, possess, or use marijuana for any purpose in the United States and further provides criminal penalties for marijuana possession, cultivation and distribution; and WHEREAS, the People of the State of California have enacted Proposition 215, the Compassionate Use Act of 1996 (codified at Health and Safety Code Section 11362.5 et seq.) (the CUA ), which exempts qualified patients and their primary caregivers from criminal prosecution under enumerated Health and Safety Code sections for use of marijuana for medical purposes; and WHEREAS, the California Legislature enacted Senate Bill 420 in 2003, the Medical Marijuana Program Act (codified at Health and Safety Code Section 11362.7 et seq.) (the MMPA ), which created a state-wide identification card scheme for qualified patients and primary caregivers; and WHEREAS, notwithstanding the CUA and the MMPA, marijuana remains a schedule I substance pursuant to Cal. Health & Saf. Code 11054 (d)(13); and WHEREAS, marijuana also remains a schedule I substance pursuant to federal law, 21 U.S.C. 812, Schedule 1 (c)(10), and federal law does not provide for any medical use defense or exception (Gonzales v. Raich, 545 U.S. 1 (2005); United States v. Oakland Cannabis Buyers Coop., 532 U.S. 483 (2001)); and WHEREAS, the California Supreme Court has established that neither the CUA nor the MMPA preempt local regulation in the case of City of Riverside v. Inland Empire Patient s Health and Wellness Center, Inc., 56 Cal. 4th 729 (2013); and WHEREAS, the City of La Habra s permissive Zoning Code does not list medical AGENDA ITEM NO. VI.1 DATE: 10/21/13
marijuana dispensaries (including collectives, cooperatives or associations) as a permitted use in any zone in the City; and WHEREAS, the City Council of the City of La Habra finds that it is in the interest of the health, safety and welfare of the City to make explicit that medical marijuana dispensaries are prohibited anywhere in the City and are a public nuisance per se; and WHEREAS, the City Council finds that there is substantial evidence to show that medical marijuana dispensaries are commonly large money-making operations that sell marijuana to anyone who provides a doctor s recommendation for its medical use; and that these recommendations can be had by paying unscrupulous physicians a fee and claiming to have a condition, including anxiety and headaches, that might be alleviated by the consumption of marijuana; and that while dispensaries claim to receive only donations, no marijuana or marijuana products will change hands without an exchange for money; and that these operations have been tied to organized criminal gangs, foster large grow operations, and are often multi-million dollar profit centers; and WHEREAS, the City Council finds that because dispensaries are repositories of large amounts of valuable marijuana crops and large amounts of cash, a number of dispensary operators have been attacked and murdered by armed robbers, both at the storefronts and at their homes, and such places have been regularly burglarized; and that common secondary effects of the operation of dispensaries are drug dealing, sales to minors, loitering, heavy vehicle and foot traffic in retail areas, increased noise, and robberies of customers outside the dispensaries; and WHEREAS, the City Council finds that medical marijuana dispensaries are sometimes linked to large grow operations or encourage home grows by buying marijuana for resale; and that just as destructive fires and unhealthful mold in residential neighborhoods are often the result of large indoor home grows designed to supply dispensaries, money laundering also naturally results from dispensaries likely unlawful operations; and WHEREAS, the City Council also would like to make explicit its desire to prohibit all businesses and uses, generally, that are in violation of any local, state and federal law or regulation, in order to permit and allow only those businesses and uses that are in compliance with all the laws and regulations in furtherance of the health, safety and welfare of the citizens, residents and visitors to the City of La Habra; and WHEREAS, the City has not enforced its Zoning Code prohibition against medical marijuana dispensaries against individuals or very small groups of individuals for the possession, cultivation, transportation, distribution, sales, etc. of medical marijuana, even though such activities presently remain a violation of federal law; and WHEREAS, the City Council intends to circumscribe its Zoning Code prohibitions to apply them to groups of five or more individuals possessing, cultivating, transporting, distributing, selling, etc. medical marijuana so as not to interfere with the CUA s stated 2
intent to ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes, Cal. Health & Saf. Code 11362.5(b)(1)(A); and WHEREAS, the City Council finds that small groups of up to five individuals who cultivate, possess, consume, etc. marijuana for medical purposes, and who only cultivate sufficient amounts for the individuals in that particular group and no one else, will provide adequate support for the collective or cooperative cultivation of marijuana for medical purposes pursuant to the MMPA; and WHEREAS, the City Council finds that the limitations as to the applicability of the City s prohibition on medical marijuana dispensaries are necessary due to the urban and highly suburban nature of the City of La Habra, and in order to fully preserve the health, safety, welfare and general well-being of the residents, businesses and visitors to the City of La Habra; and WHEREAS, the City of La Habra, California, pursuant to the provisions of the California Environmental Quality Act (hereinafter CEQA ) (California Public Resources Code Sections 21000 et seq.) and State CEQA guidelines (Sections 15000 et seq.) has determined that the Ordinance is exempt pursuant to Section 15061(b)(3) of Title 14 of the California Code of Regulations; and WHEREAS, this Ordinance will not adversely affect property values and will not be detrimental to the City; and WHEREAS, on September 23, 2013, following proper notice and public hearing, the City s Planning Commission adopted Resolution No. 13-24 recommending to the City Council the adoption of an Ordinance amending Title 18 of the La Habra Municipal Code, relating to medical marijuana dispensaries; and WHEREAS, the City Council has considered evidence presented by the Planning Commission and City Staff at a duly noticed public hearing held on September 23, 2013. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF LA HABRA DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1: Section 18.08.110 of Chapter 18.08 (General Regulations) of Article I (General) of Title 18 (Zoning) is hereby repealed and replaced with the following: Section 18.08.110 Prohibiting land uses that contravene State or Federal law. No land, building, structure or premises shall be used, designed, moved, altered, added to, enlarged, or intended to be used for any purpose or in any manner other than a use listed in this Title, or amendments thereto, as permitted in the district in which such land, building, structure or premises is located; and no land, building, structure, or premises shall be permitted to be used for any purpose prohibited by federal, state, or local law or 3
that would be in conflict with the Constitution and laws of California or the United States. SECTION 2: Section 18.08.040 of Chapter 18.08 (General Regulations) of Article I (General) of Title 18 (Zoning) is hereby repealed and replaced with the following: 18.08.040 Only enumerated uses permitted. A. The express enumeration and authorization in this title of a particular class of building, structure, premises or use in a designated zone shall be deemed a prohibition of such building, structure, premises or use in all zones of more or less restrictive classification, except as otherwise specified. B. Only uses that are enumerated in the Zoning Code are permitted, as well as uses determined by the Planning Commission and City Council by resolution to be consistent with permitted uses in the Zoning Code pursuant to Section 18.08.050. The La Habra Zoning Code is a permissive zoning code, and the express prohibition of certain uses shall not be interpreted to mean that other, nonenumerated uses are permitted. SECTION 3. Chapter 18.54 (Medical Marijuana Dispensaries) of Article III (Special Zones) of Title 18 (Zoning) is hereby added to read as follows: 18.54.010 Purpose and Findings The City Council of the City of La Habra hereby finds and determines that it is the purpose and intent of this article to prohibit medical marijuana dispensaries, including mobile and delivery services, in order to promote the health, safety, morals and general welfare of the residents and the businesses within the City. 18.54.020 Definitions A. Medical marijuana dispensary means a facility or location where medical marijuana is cultivated or by any other means made available to and/or distributed by or to five (5) or more of the following: primary caregivers, qualified patients, persons with an identification card in strict accordance with State Health and Safety Code Sections 11362.5 et seq. and 11362.7 et seq., or any other person. Medical marijuana dispensary shall include a mobile marijuana dispensary. A medical marijuana dispensary shall not include the following uses, as long as the location of such uses is otherwise regulated by applicable law and as long as such uses strictly comply with applicable law including, but not limited to, Health and Safety Code Section 11362.5 et seq.: (1) a clinic, licensed pursuant to Chapter 1 of Division 2 of the Health and Safety Code; (2) a health care facility, licensed pursuant to Chapter 2 of Division 2 of the Health and Safety Code; (3) a residential care facility for persons with chronic life-threatening illnesses, licensed pursuant to Chapter 3.01 of Division 2 of the Health and Safety Code; (4) a 4
residential care facility for the elderly, licensed pursuant to Chapter 3.2 of Division 2 of the Health and Safety Code; or (5) a residential hospice or home health agency, licensed pursuant to Chapter 8 of the Health and Safety Code. B. Marijuana shall have the same definition as that set forth in California Health & Safety Code Section 11018. C. "Mobile marijuana dispensary" means any clinic, cooperative, club, business or group that transports or delivers, or arranges the transportation or delivery, of medical marijuana to a person. D. "Person" means any person, firm, corporation, association, club, society, or other organization. The term person shall include any owner, manager, proprietor, employee, volunteer or salesperson. E. "Operation" means any effort to locate, operate, own, lease, supply, allow to be operated, or aid, abet or assist in the operation of a medical marijuana dispensary. 18.54.030 Medical marijuana Dispensaries prohibited Medical marijuana dispensaries are prohibited anywhere within the City of La Habra. No person shall operate, allow to be operated, or aide, abet or assist in the operation of any medical marijuana dispensary. 18.54.040 Declaration of public nuisance Any use, structure, or property that is altered, enlarged, erected, established, maintained, moved, or operated contrary to the provisions of this article, is hereby declared to be unlawful and a public nuisance and may be abated by the city through civil proceedings by means of a restraining order, preliminary or permanent injunction, or in any other manner provided by law for the abatement of such nuisances, including but not limited to, the remedies provided for in Section 18.54.050 of this Code. 18.54.050 Violations A. Violations of this Chapter shall be punishable pursuant to Chapters 1.08 and/or 1.20 of this Code. B. This Chapter is not the exclusive means for the abatement of medical marijuana dispensaries within the City of La Habra. The remedies set forth pursuant to this section shall be in addition to any other existing remedies for violations of the Zoning Code, including but not limited to, any action at law or equity. SECTION 4: Adoption and implementation of this ordinance is exempt from the 5
provisions of the California Environmental Quality Act, Cal. Pub. Res. Code Section 21000 et seq., pursuant to Section 15061(b)(3) of Title 14 of the California Code of Regulations, of the State CEQA Guidelines. SECTION 5: Any provisions of the La Habra Municipal Code or appendices thereto inconsistent with the provisions of this Ordinance are hereby repealed or modified to the extent necessary to effect the provisions of the Ordinance. SECTION 6: If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council of the City of La Habra hereby declares that it would have adopted this Ordinance and each section, subsection, sentence, clause, phrase or portion thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases or potions may be declared invalid or unconstitutional. SECTION 7: The City Council hereby incorporates by reference herein and adopts all of the findings and conclusions contained within Planning Commission Resolution No. 13-24 SECTION 8: This Ordinance shall take effect thirty (30) days after its final passage by the City Council. SECTION 9: The City Clerk shall certify to the passage of this Ordinance and shall cause the same to be published in the manner prescribed by law. PASSED, APPROVED AND ADOPTED by the City Council of the City of La Habra, at a regular meeting held on the 21 st day of October, 2013. ATTEST: Rose Espinoza, Mayor Tamara D. Mason, MMC, City Clerk 6
STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS. CITY OF LA HABRA ) I, Tamara D. Mason, City Clerk of the City of La Habra, do hereby certify that the above and foregoing is a true and correct copy of Ordinance No. 1746 introduced at a regular meeting of the City Council of the City of La Habra held on the 7th day of October, 2013, and was thereafter adopted at a regular meeting held on the 21st day of October, 2013, by the following vote: AYES: NOES: ABSENT: ABSTAIN: COUNCILMEMBERS: COUNCILMEMBERS: COUNCILMEMBERS: COUNCILMEMBERS: Said ordinance has been published or posted pursuant to law. Witness my hand and the official seal of the City of La Habra this 21st day of October, 2013. Tamara D. Mason, MMC, City Clerk 7
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