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Home My WebLink About2011-02ORDINANCE NO. 2011-02 ADDING A NEW SECTION 32 -94 TO THE DANVILLE MUNICIPAL CODE PROHIBITING THE OPERATION OF MEDICAL MARIJUANA DISPENSARIES IN THE TOWN OF DANVILLE The Danville Town Council does ordain as follows: SECTION 1. FINDINGS. In enacting this ordinance, the Town Council makes the following findings: 1. In 1970, Congress enacted the Controlled Substances Act (the "CSA ") which, among other things, makes it illegal to import, manufacture, distribute, possess or use marijuana in the United States. 2. In 1996 the voters of the State of California approved Proposition 215, the "Compassionate Use Act of 1996" (the "CUA "), codified at Health and Safety Code Section 11362.5. 3. The CUA creates a limited exception from criminal liability for seriously ill persons who are in need of medical marijuana for specified medical purposes and who obtain and use medical marijuana under limited, specified circumstances. 4. In 2003 the State of California adopted SB 420, the Medical Marijuana Program Act (the "MMP "), codified at Health and Safety Code Section 11362.7 et seq. The MMP attempted to clarify certain aspects of the CUA and allows cities to adopt and enforce rules and regulations consistent with the MMP. 5. The CUA expressly anticipated the enactment of additional local legislation, providing, in part: "Nothing in this section 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." California Health and Safety Code Section 11362.5. 6. Marijuana is still classified as a Schedule 1 drug under the CSA and as such it is illegal under federal law to distribute, dispense or possess marijuana, even for medical purposes. The United States Supreme Court has twice found that the Compassionate Use Act does not preempt or supersede federal drug laws. Gonzalez v. Raich(2005) 545 U.S. 1 (local use of medical marijuana not exempt from Commerce Clause regulation) and United States v. Oakland Cannabis Buyers Cooperative (2001) 532 U.S. 483 (no medical necessity defense against federal prosecution). 7. On July 8, 2011, the United States Drug Enforcement ruled that marijuana has no medically accepted use, is "widely abused" and continues to meet the criteria to remain classified as a Schedule 1 drug under the CSA. 8. On April 22, 2009, the California Police Chiefs Association published a "White Paper on Medical Marijuana Dispensaries." That report documents adverse secondary effects of dispensaries and ancillary crimes occurring in communities with operating dispensaries. 9. The Town Council also takes legislative notice of numerous news reports indicating that cities in California which have allowed the establishment of medical marijuana dispensaries have seen an increase in crime in areas surrounding such dispensaries, illegal cultivation of marijuana and illegal sales and/or use of marijuana by minors and those without serious medical conditions and that it is reasonable to assume that such secondary effects would occur in Danville should medical marijuana dispensaries be permitted. 10. The Town Council takes legislative notice that concerns about non - medical use of marijuana in connection with the CUA and the MMP have been recognized by state and federal courts. See, e.g., Bearman v. California Medical Board (2009) 176 Ca1.App.4th 1588; People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th 1383; Gonzalez v. Raich (2005) 545 U.S. 1. 11. The Town Council takes legislative notice that in City of Claremont v. Kruse (2009) 177 Ca1.App.4th 1153, the Court of Appeal held that neither the CUA nor the MMP preempted cities from using their land use and zoning powers to regulate medical marijuana dispensaries. 12. An ordinance prohibiting medical marijuana dispensaries within the Town of Danville is necessary and appropriate to maintain and protect the public health, safety and welfare of the residents of Danville. SECTION 2. ADDING A NEW SECTION 32 -94 TO THE DANVILLE MUNICIPAL CODE. A new Section 32 -94 is hereby added to the Danville Municipal Code to read as follows: SECTION 32 -94 MEDICAL MARIJUANA DISPENSARIES 32 -94.1 Definitions. For purposes of this section, the following definitions shall apply: (a) "Medical marijuana" shall have the meaning given by the Compassionate Use Act and the Medical Marijuana Program Act, codified at California Health and Safety Code Sections 11362.5- 11362.83. (b) "Medical marijuana dispensary" shall mean any facility or location, whether fixed or mobile where medical marijuana is provided, sold, made available or otherwise distributed to one or more of the following: a primary caregiver, a qualified patient, or a person with an identification card. PAGE 2 OF ORDINANCE NO. 2011-02 (c) "Medical marijuana dispensary" shall not include the following uses, so long as such uses comply with this code, California Health and Safety Code Sections 11362.5- 11362.83, as amended, and any other applicable laws: (1) A clinic licensed pursuant to Chapter 1 of Division 2 of the California Health and Safety Code, as amended; (2) A healthcare facility licensed pursuant to Chapter 2 of Division 2 of the California Health and Safety Code, as amended; (3) A residential care facility for persons with chronic life - threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the California Health and Safety Code, as amended; (4) A residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the California Health and Safety Code, as amended; (5) A residential hospice, or a home health agency, licensed pursuant to Chapter 8 of Division 2 of the California Health and Safety Code, as amended. (d) "Person with an identification card" shall have the meaning given that term by California Health and Safety Code Section 11362.7(c), as it may be amended. (e) "Primary caregiver" shall have the meaning given that term by California Health and Safety Code Section 11362.7(d), as it may be amended. (f) "Qualified patient" shall have the meaning given that term by California Health and Safety Code Section 11362.7(f), as it may be amended. 32 -94.2. Medical Marijuana Dispensary as a Prohibited Use. Medical marijuana dispensaries as defined in Section 32 -94.1 are prohibited in all zones in the Town of Danville. No conditional or land use permit, variance, license or other entitlement shall be issued for the establishment or operation of a medical marijuana dispensary. 32 -94.3. Violation - penalties. (a) Any person found to be in violation of this section shall be subject to civil, administrative and injunctive remedies as set forth in this code or as otherwise provided by law. No person found in violation of this section shall be subject to criminal enforcement remedies as otherwise provided for in this code. (b) Each violation of this section and each day of violation of this section shall be considered as a separate and distinct violation subject to imposition of the penalties set forth in subsection (a) above. PAGE 3 OF ORDINANCE NO. 2011 -02 SECTION 3. CODIFICATION. Section 2 of this ordinance shall be codified in the Danville Municipal Code. SECTION 4. CALIFORNIA ENVIRONMENTAL QUALITY ACT The Town Council finds that adoption of this ordinance is exempt from the California Environmental Quality Act ( "CEQA ") because the prohibition of medical marijuana dispensaries within the Town will not result in a direct or reasonably foreseeable indirect physical change in the environment (CEQA Guidelines Section 15060(c)(2)), it is not a project under CEQA (CEQA Guidelines 15060(c)(3)) and it can be seen with certainty that there is no possibility that the ordinance will have a significant impact on the environment (CEQA Guidelines Section 15061(b)(3)). SECTION 5. SEVERABILITY If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of the ordinance. The Danville Town Council hereby declares that they would have adopted the ordinance, and each section, subsection, sentence, clause, or phrase thereof, irrespective of the fact that one or more sections, subsections, sentences, clauses or phrases was declared invalid. SECTION 6. PUBLICATION AND EFFECTIVE DATE. The City Clerk shall have a summary of this ordinance published twice in a newspaper of general circulation, once within five (5) days before its adoption and once within 15 (fifteen) days after adoption. This ordinance shall become effective 30 days after adoption. The foregoing Ordinance was introduced on September 6, 2011 and approved and adopted by the Danville Town Council at a regular meeting held on September 20, 2011, by the following vote: AYES: NOES: ABSTAIN: ABSENT: Stepper, Andersen, Arnerich, Doyle, Storer None None None APPROVED AS TO FORM: CITY ATTORNEY MAYOR L/ CI r PAGE 4 OF ORDINANCE NO. 2011 -02 CLERK'S CERTIFICATE I, Marie Sunseri, City Clerk of the Town of Danville, hereby certify that the foregoing is a true and accurate copy of Ordinance No. 2011 -02 of said Town and that said ordinance was published according to law. Dated: City Clerk of Town of Danville PAGE 5 OF ORDINANCE NO. 2011 -02