Newark Municipal Code Ch. 5.36 Medical Marijuana Dispensaries and Commercial Cultivation

Footnotes:

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Editor's note— The title of Ch. 5.36 was amended by Ord. No. 491, § II, adopted January 28, 2016.

A. In enacting this chapter, the city council finds as follows:

1. In 1970, Congress enacted the Controlled Substances Act ("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 (the "Act") (codified as Health and Safety Code section 11362.5 et seq.)].

3. The Act 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. On January 1, 2004, the "Medical Marijuana Program" ("MMP"), codified as Health and Safety Code sections 11362.7 to 11362.83, was enacted by the State Legislature to clarify the scope of the Act and to allow cities and other governing bodies to adopt and enforce rules and regulations consistent with the MMP.

5. The Act expressly anticipates the enactment of additional local legislation. It provides: "Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others or to condone the diversion of marijuana for nonmedical purposes." (Health and Safety Code section 11362.5)

6. The city council takes legislative notice of the fact that several California cities and counties which have permitted the establishment of medical marijuana dispensaries have experienced serious adverse impacts associated with and resulting from such dispensaries. According to these communities, according to news stories widely reported and according to medical marijuana advocates, 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 dispensaries. The city council reasonably anticipates that the City of Newark will experience similar adverse impacts and effects. A California Police Chiefs Association compilation of police reports, news stories and statistical research regarding secondary impacts is contained in a copyrighted 2009 white paper report entitled White Paper of Medical Marijuana Dispensaries by California Police Chiefs Association Task Force.

7. The city council further takes legislative notice that as of August 2011, according to at least one compilation, one hundred sixty-one cities and seventeen counties have adopted moratoria or interim ordinances prohibiting medical marijuana dispensaries. The city council further takes legislative notice that one hundred forty-three cities and twelve counties have adopted prohibitions against medical marijuana dispensaries.

8. The city council further takes legislative notice that the California Attorney General has adopted guidelines for the interpretation and implementation of the state's medical marijuana laws, entitled "GUIDELINES FOR THE SECURITY AND NON-DIVERSION OF MARIJUANA GROWN FOR MEDICAL USE (August 2008)." (http://ag./ca.gov/cms\_attachments/press/pdfs/n1601\_medicalmarijuanaguidelines.pdf.) The Attorney General has stated in the guidelines that "[a]lthough medical marijuana 'dispensaries' have been operating in California for years, dispensaries, as such, are not recognized under the law."

9. The city council further takes legislative notice that concerns about nonmedical marijuana use arising in connection with the Act and the MMP also have been recognized by state and federal courts. (See, e.g., Bearman v. California Medical Bd. (2009) 176 Cal.App.4th 1588; People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th 1383, 1386 to 1387; Gonzales v. Raich (2005) 545 U.S. 1.)

10. The city council further takes legislative notice that the use, possession, distribution and sale of marijuana remain illegal under the Controlled Substances Act ("CSA") (Bearman v. California Medical Bd. (2009) 176 Cal.App.4th 1588); that the federal courts have recognized that despite the Act and MMP, marijuana is deemed to have no accepted medical use (Gonzales v. Raich, 545 U.S. 1; United States v. Oakland Cannabis Buyers' Cooperative (2001) 532 U.S. 483); that medical necessity has been ruled not to be a defense to prosecution under the CSA (United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483); and that the federal government properly may enforce the CSA despite the Act and MMP (Gonzales v. Raich, 545 U.S. 1).

11. The city council further takes legislative notice that the United States Attorney General announced in 2008 its intention to maintain enforcement of federal laws as applied to medical marijuana dispensaries which otherwise comply with state law. There is no certainty how long this uncodified policy will remain in effect, and the underlying conflict between federal and state statutes still remains.

12. The United States Department of Justice issued a memorandum dated June 29, 2011, that outlined the department's intent to enforce the CSA in jurisdictions considering legislation that would sanction and regulate commercial cultivation and distribution of marijuana for purportedly medical use.

13. An ordinance prohibiting medical marijuana dispensaries and commercial cultivation, and prohibiting the issuance of any permits, licenses and entitlements for medical marijuana dispensaries and commercial cultivation, is necessary and appropriate to maintain and protect the public health, safety and welfare of the citizens of the city.

B. The purpose of this chapter is to prohibit the establishment, operation, and location (fixed or mobile) of medical marijuana dispensaries and commercial cultivation in the city. Further, this chapter shall not prevent the limited cultivation of medical marijuana for personal use by a qualified patient or primary caregiver, provided such cultivation is in compliance with California Health and Safety Code Section 11362.777.

(Ord. No. 450-U, § I, 10-27-2011; Ord. No. 450, § I, 11-10-2011; Ord. No. 491, § II, 1-28-2016)

A. For the purposes of this chapter, "medical marijuana dispensary" means 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.

B. For the purposes of this chapter, the terms "primary caregiver," "qualified patient" and "person with an identification card" shall be as defined in California Health and Safety Code Section 11362.7, and as the same may be amended from time to time.

C. For purposes of this chapter, a "medical marijuana dispensary" shall not include the following uses, provided that the location of such uses are otherwise regulated by applicable law, and further provided any such use complies strictly with applicable law, including, but not limited to, California Health and Safety Code section 11362.5 et seq. and California Health and Safety Code section 11362.7 et seq.:

1. A clinic licensed pursuant to Chapter 1 of Division 2 of the California 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 illness 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.

5. A residential hospice, or a home health agency, licensed pursuant to Chapter 8 of Division 2 of the Health and Safety Code.

D. For purposes of this chapter, the terms "commercial cannabis activity", "cannabis", and "cultivation" shall have the same meaning as set forth in California Business & Professions Code Section 19300.5, and as the same may be amended from time to time.

(Ord. No. 450-U, § I, 10-27-2011; Ord. No. 450, § I, 11-10-2011; Ord. No. 491, § II, 1-28-2016)

A. Medical marijuana dispensaries and commercial cannabis activity constituting cultivation are prohibited in the city. No medical marijuana dispensary, fixed or mobile, shall establish, locate, operate, or otherwise be permitted within the city. No commercial cannabis activity constituting cultivation shall establish, locate, operate, or otherwise be permitted within the city.

B. The city shall not issue, approve or grant any permit, license or other entitlement for the establishment or operation of a medical marijuana dispensary or commercial cannabis activity constituting cultivation.

C. Cultivation of cannabis for non-commercial, personal purposes by a qualified patient or a primary caregiver, subject to the limitations and requirements of subsection (g) of California Health and Safety Code Section 11362.777, is not prohibited within the city.

(Ord. No. 450-U, § I, 10-27-2011; Ord. No. 450, § I, 11-10-2011; Ord. No. 491, § II, 1-28-2016)

Any use or condition caused, or permitted to exist, in violation of any provisions of this Chapter 5.36 shall be, and hereby is declared to be, a public nuisance and may be summarily abated by the city pursuant to California Code of Civil Procedure Section 731 or any other remedy available to the city.

(Ord. No. 491, § II, 1-28-2016)

In addition to any other enforcement permitted by this Chapter 5.36, the city attorney may bring a civil action for injunctive relief and civil penalties pursuant to the provisions of this Code against any person or entity that violates this chapter.

(Ord. No. 491, § II, 1-28-2016)