Ord 736 ORDINANCE NO. 736
AN ORDINANCE OF THE CITY OF POWAY, CALIFORNIA
AMENDING TITLE 17 OF THE POWAY MUNICIPAL CODE,
PROHIBITING MEDICAL MARIJUANA DISPENSARIES, COOPERATIVES,
AND COLLECTIVES IN ALL ZONES WITHIN THE CITY OF POWAY
WHEREAS, the City of Poway ( "City ") has adopted an Ordinance regulating land
within the City as codified in Title 17 of the Poway Municipal Code ( "PMC "); and
WHEREAS, in 1996, the voters of the State of California approved Proposition
215, known as the Compassionate Use Act (the "CUA ") (added to the California Health
and Safety Code at Section 11362.5); and
WHEREAS, 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; and
WHEREAS, on January 1, 2004, the "Medical Marijuana Program" ( "MMP "), added
to the California Health & Safety Code at Sections 11362.7 to 11362.83, was enacted by
the state Legislature purporting to clarify the scope of the CUA and to allow cities and
other governing bodies to adopt and enforce rules and regulations consistent with the
MMP; and
WHEREAS, the CUA expressly anticipates the enactment of additional local
legislation; and
WHEREAS, the PMC does not specifically identify medical marijuana dispensaries,
cooperatives or collectives, or such other businesses, whether operating for a profit or not,
as permitted or conditionally permitted uses in any land use zones in the City; and
WHEREAS, PMC 17.08.100 through 17.08.150 specifies the uses permitted and
conditionally permitted in residential zones in the City, and PMC 17.08.090 provides that a
use not listed in PMC 17.08.100 through 17.08.150 is not permitted; and
WHEREAS, by Interim Urgency Ordinance Nos. 727 and 729, the Poway City
Council temporarily prevented and prohibited the establishment of medical marijuana
dispensaries, cooperatives or collectives in any zones in the City until such reasonable time
as such detailed study by the Development Services Department could be completed; and
WHEREAS, the Poway City Council directed the Development Services Department
to study and assist with the City's determination of whether persons conducting businesses
to establish and provide medical marijuana dispensaries, cooperatives or collectives should
be allowed in any zone, or whether such uses should be prohibited in any or all zones; and
WHEREAS, the Development Services Department has completed its study in time
to allow for the City Council to conduct its necessary public hearing, and to adopt any
ordinance to amend the PMC, which study includes evidence of the following:
Ordinance No. 736
Page 2
(a) Several California cities and counties, which have permitted the
establishment of medical marijuana distribution facilities or "dispensaries," have
experienced serious adverse impacts associated with and resulting from such uses; that
according to those reports collected and reviewed, medical marijuana dispensaries have
resulted in and /or caused an increase in crime, including burglaries, robberies, violence,
illegal sales of marijuana to, and use of, marijuana by minors and other persons without
medical need in the areas immediately surrounding such medical marijuana distribution
facilities; and the City Council reasonably anticipates that the City of Poway will experience
similar adverse impacts and effects;
(b) Many cities and counties in California have adopted moratoria or interim
ordinances prohibiting medical marijuana dispensaries, and many cities and counties have
adopted prohibitions against medical marijuana dispensaries;
(c) In August, 2008, the California Attorney General adopted guidelines for the
interpretation and implementation of the state's medical marijuana laws, including the CUA
and the MMP, which acknowledge that medical marijuana dispensaries are not recognized
under the law;
(d) Many medical marijuana distribution facilities or "dispensaries" do not
operate as true cooperatives or collectives in compliance with the MMP and the Attorney
General Guidelines, and thus these businesses are engaged in cultivation, distribution
and sale of marijuana in a manner that remains illegal under both California and federal
law; as a result, the City would be obligated to commit substantial resources to
regulating and overseeing the operation of medical marijuana distribution facilities to
ensure that the facilities operate lawfully and are not fronts for illegal drug trafficking;
and, furthermore, it is uncertain whether even with the dedication of significant resources
to the problem, the City would be able to prevent illegal conduct associated with
medical marijuana distribution facilities, such as illegal cultivation and transport of
marijuana and the distribution of marijuana between persons who are not qualified
patients or caregivers under the CUA and MMP; and
(e) Medical marijuana dispensaries of the types operated in other cities are
contrary to the goals established in the City's General Plan; and
WHEREAS, an ordinance prohibiting medical marijuana distribution facilities and
prohibiting the issuance of any land use permits or entitlements for medical marijuana
distribution facilities is necessary and appropriate to maintain and protect the public
health, safety and welfare of the citizens of Poway; and
WHEREAS, an ordinance prohibiting medical marijuana distribution facilities and
prohibiting the issuance of any land use permits or entitlements for medical marijuana
distribution facilities conforms with and is adequate to carry out the certified land use plan;
further, that such an ordinance is consistent with the City's General Plan; and
WHEREAS, the City Council is mindful of the needs of medical marijuana
patients and has developed this Ordinance in a manner that does not interfere with a
Ordinance No. 736
Page 3
patient's ability to produce his or her own medical marijuana or to obtain medical
marijuana from a primary caregiver or as otherwise allowed under the CUA and the
MMP; and
WHEREAS, the City Council finds, pursuant to Title 14 of the California Code of
Regulations, Section 15061(b)(3), that this Ordinance is exempt from the requirements of
the California Environmental Quality Act ( "CEQA ") in that it can be seen with certainty that
there is no possibility that the activity in question may have a significant effect on the
environment.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF POWAY DOES
ORDAIN AS FOLLOWS:
Section 1: The Poway City Council hereby finds that the above - listed findings are true
and correct.
Section 2: In the exercise of its legislative powers, the City of Poway has an overriding
interest in planning and regulating development of all uses within the City. Implicit in any
plan or regulation is the City's interest in maintaining and improving the quality of life and
the character of the City's neighborhoods. Without safe neighborhoods, areas of the City
can quickly deteriorate, with detrimental consequences to social, environmental, and
economic values. It is the intent of the City Council to assure that all neighborhoods
remain well - planned and that residents maintain a high quality of life. This intent may be
effectuated by a comprehensive study resulting in amendments to the Zoning Ordinance.
Allowing the location and establishment of medical marijuana dispensaries, cooperatives or
collectives, without prohibition, is likely to create a burden on public safety resources,
including both law enforcement and emergency response services, thereby reducing the
quality of life within the City's neighborhoods.
Section 3: The intent of this Ordinance is to prohibit the use of any property within any
zone in the City of Poway as a medical marijuana dispensary, cooperative or collective.
The issuance of any permit, license, or certificate for the operation of any such uses shall
be prohibited. Nothing in this Ordinance shall create any criminal liability for any individual
who is a qualified patient or primary caregiver to a qualified patient, and is possessing or
consuming medical marijuana in compliance with the Compassionate Use Act of 1996
(California Health and Safety Code Section 11362.5) and the Medical Marijuana Program
(California Health and Safety Code Section 11362.7 et seq.) provided, however, that no
such qualified patient or primary caregiver is using property in the City of Poway contrary to
this Ordinance.
Section 4: Section 17.04.514 is added to Chapter 17.04 of Title 17 of the Poway
Municipal Code to read as follows:
17.04.514 "Medical Marijuana Dispensaries, Cooperatives, and
Collectives" shall mean any facility or location, whether fixed or mobile,
where medical marijuana is made available to three (3) or more of any of the
Ordinance No. 736
Page 4
following persons: a primary caregiver, a qualified patient, or a patient with
an identification card. Each of these terms is identified in strict accordance
with California Health and Safety Code Section 11362.7 et seq. as such
sections may be amended from time to time. A "medical marijuana
dispensary" shall not include the following uses, as long as the location of
such uses is otherwise regulated by this code and applicable state or federal
law:
(1) A clinic licensed pursuant to Chapter 1 Division 2 of the Health and
Safety Code;
(2) A healthcare facility licensed pursuant to Chapter 2 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 residential care facility for the elderly licensed pursuant to Chapter
3.2 of Division 2 of the Health and Safety Code; and
(5) 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 complies strictly with applicable law, including but not limited
to, Health and Safety Code Section 11362.5 et seq.
Section 5: Section 17.08.100 to Chapter 17.08 Title 17 of the Poway Municipal Code is
amended by adding subsection J to the matrix to read as follows:
RR -A RS -2 RS -3 RS-4 RS -7 RC RA
through C,
RS -1
J. Medical X X X X X X X
Marijuana
Dispensaries
Collectives
and
Cooperatives
as defined in
PMC Section
17.04.514
Ordinance No. 736
Page 5
Section 6: Section 17.08.110 to Chapter 17.08 Title 17 of the Poway Municipal Code is
amended by adding subsection L to the matrix to read as follows:
RR -A RS -2 RS -3 RS-4 RS -7 RC RA
through C,
RS -1
L. Medical X X X X X X X
Marijuana
Dispensaries
Collectives
and
Cooperatives
as defined in
PMC Section
17.04.514
Section 7: Section 17.08.120 to Chapter 17.08 Title 17 of the Poway Municipal Code
is amended by adding subsection I to the matrix to read as follows:
RR -A RS -2 RS -3 RS-4 RS -7 RC RA
through C,
RS -1
I. Medical X X X X X X X
Marijuana
Dispensaries
Collectives
and
Cooperatives
as defined in
PMC Section
17.04.514
Section 8: Section 17.08.130 to Chapter 17.08 Title 17 of the Poway Municipal Code is
amended by adding subsection B to the matrix to read as follows:
RR -A RS -2 RS -3 RS-4 RS -7 RC RA
through C,
RS -1
B. Medical X X X X X X X
Marijuana
Dispensaries
Collectives
and
Cooperatives
as defined in
PMC Section
17.04.514
Ordinance No. 736
Page 6
Section 9: Section 17.08.140 to Chapter 17.08 Title 17 of the Poway Municipal Code is
amended by adding subsection F to the matrix to read as follows:
RR -A RS -2 RS -3 RS-4 RS -7 RC RA
through C,
RS -1
F. Medical X X X X X X X
Marijuana
Dispensaries
Collectives
and
Cooperatives
as defined in
PMC Section
17.04.514
Section 10: Section 17.08.150 to Chapter 17.08 Title 17 of the Poway Municipal Code is
amended by adding subsection B to the matrix to read as follows:
RR -A RS -2 RS -3 RS-4 RS -7 RC RA
through C,
RS -1
B. Medical X X X X X X X
Marijuana
Dispensaries
Collectives
and
Cooperatives
as defined in
PMC Section
17.04.514
Section 11: Section 17.10.060 to Chapter 17.10 Title 17 of the Poway Municipal Code is
amended by adding to the matrix, in the category of "Miscellaneous Uses," to read as
follows:
MU CO CN CB TC CG AG /C
Medical X X X X X X X
Marijuana
Dispensaries
Collectives
and
Cooperatives
as defined in
PMC Section
17.04.514
Ordinance No. 736
Page 7
Section 12: Section 17.16.020 to Chapter 17.16 Title 17 of the Poway Municipal Code is
amended by adding subsection F to the matrix to read as follows:
MHP
F. Medical Marijuana Dispensaries Collectives and Cooperatives as defined in PMC Section X
17.04.514
Section 13: Section 17.18.020 to Chapter 17.18 Title 17 of the Poway Municipal Code is
amended by adding subsection C to read as follows:
C. Notwithstanding any provision of the Municipal Code to the contrary,
the use of any property within any planned residential development zone in
the City of Poway as a medical marijuana dispensary, cooperative or
collective, as defined in PMC 17.04.514 is prohibited. The issuance of any
permit, license, or certificate for the operation of any such uses shall be
prohibited.
Section 14: Section 17.20.020 to Chapter 17.20 Title 17 of the Poway Municipal Code is
amended by adding subsection G to read as follows:
G. Notwithstanding any provision of the Municipal Code to the contrary,
the use of any property within any planned community zone in the City of
Poway as a medical marijuana dispensary, cooperative, or collective, as
defined in PMC 17.04.514 is prohibited. The issuance of any permit, license,
or certificate for the operation of any such uses shall be prohibited.
Section 15: Section 17.22.020 to Chapter 17.22 Title 17 of the Poway Municipal Code is
amended by adding subsection P to read as follows:
P. Medical Marijuana Dispensaries Collectives and Cooperatives as defined in PMC Section X
17.04.514
Section 16: Section 17.23.020 to Chapter 17.23 Title 17 of the Poway Municipal Code is
amended by adding subsection AA to read as follows:
AA. Medical Marijuana Dispensaries Collectives and Cooperatives as defined in PMC Section X
17.04.514
Section 17: Section 17.24.020 to Chapter 17.24 or Title 17 of the Poway Municipal Code
is amended by adding subsection 11 to read as follows:
11. Medical Marijuana Dispensaries Collectives and Cooperatives as defined in PMC Section X
17.04.514
Ordinance No. 736
Page 8
Section 18: Section 17.26.035 is added to Chapter 17.26 of Title 17 of the Poway
Municipal Code to read as follows:
17.26.035 Medical Marijuana Dispensary, Cooperative or Collective.
Notwithstanding any provision of the Municipal Code to the contrary, the use of any
property within any zone in the City of Poway as a medical marijuana dispensary,
cooperative or collective, as defined in PMC 17.04.514 is prohibited. The issuance
of any permit, license, or certificate for the operation of any such uses shall be
prohibited.
Section 19: The City Council of the City of Poway hereby declares that should any
section, paragraph, sentence, phrase, term or word of this Ordinance, hereby adopted, be
declared for any reason to be invalid, it is the intent of the City Council that it would have
adopted all other portions of this Ordinance irrespective of any such portion declared
invalid.
Section 20: This Ordinance shall take effect thirty (30) days after the date of this passage,
and before the expiration of fifteen (15) days from the passage thereof shall be published
at least once with names and members voting for and against the same in the Poway
News Chieftain, a newspaper of general circulation, published and circulated in the City of
Poway and thenceforth and thereafter the same shall be in full force and effect.
EFFECTIVE DATE: This Ordinance shall take effect and be in force thirty (30) days
after its adoption.
CERTIFICATION /PUBLICATION: The City Clerk shall certify the adoption of this
Ordinance and cause it or a summary of it, to be published with the names of the City
Council members voting for and against the same in the Poway News Chieftain, a
newspaper of general circulation in the City of Poway within fifteen (15) days after its
adoption and shall post a certified copy of this Ordinance in the Office of the City Clerk in
accordance with Government Code § 36933.
Introduced and first read at a regular meeting of the City Council of the City of
Poway this 17th day of January 2012, and thereafter PASSED AND ADOPTED at a regular
meeting of said City Council held on the 7th day of February 2012.
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Don Higginson, Wa
ATTEST: I
• - A . royan, MMC, City Clerk
Ordinance No. 736
Page 9
STATE OF CALIFORNIA )
) SS
COUNTY OF SAN DIEGO )
I, Linda A. Troyan, MMC, City Clerk of the City of Poway, do hereby certify, under
penalty of perjury, that the foregoing Ordinance No. 736 was duly adopted by the City
Council at a meeting of said City Council held on the 7th day of February 2012, and that it
was so adopted by the following vote:
AYES: GROSCH, MULLIN, CUNNINGHAM, HIGGINSON
NOES: NONE
ABSTAIN: BOYACK
DISQUALIFIED: NONE
i • a A. Troyan, MMC, City Clerk
City of Poway