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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. girl ALeat ./�'gli 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