Ordinance 30173017
CITY OF ALAMEDA ORDINANCE No.
New Series
ADDING A NEW SECTION 30 -5.15 TO THE ALAMEDA MUNICIPAL
CODE TO PROHIBIT THE OPERATION OF MEDICAL MARIJUANA
DISPENSARIES IN THE CITY OF ALAMEDA
BE IT ORDAINED by the City Council of the City of Alameda:
Section 1. Section 30 -5.15 is hereby added to the Alameda Municipal
Code to read as follows:
Section 30-5.15. Medical Marijuana Dispensaries
a. Findings.
In enacting this Section, 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, also known as the Compassionate Use Act of 1996 (the Act),
codified at Cal. Health & Safety Code (H &S) Sec. 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, S.B. 420 went into effect. S.B. 420, known as
the "Medical Marijuana Program" (MMP) (codified at . Cal. H &S
Code Secs. 11362.7- 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 S.B. 420.
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, nor to condone the diversion of
marijuana for non - medical purposes." Cal. H &S Code Sec.
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, and according to
news stories widely reported, 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 of Alameda reasonably could anticipate
experiencing similar adverse impacts and effects.
7. The City Council further takes legislative notice of a California
Police Chiefs Association compilation of police reports, news
stories and statistical research setting forth the adverse secondary
impacts associated with medical marijuana dispensaries.
http:// www. californiapolicechfiefs.orglnav_ files /marijuana files /Rese
arch.html.
8. The City Council further takes legislative notice that as of July
2009, at least 29 cities and two counties in California have adopted
moratoria or interim ordinances prohibiting medical marijuana
dispensaries. The City Council further takes legislative notice that
as of July 2009, at least 111 cities and seven counties in California
have adopted permanent prohibitions against medical marijuana
dispensaries.
9. The City Council further takes legislative notice that the use,
possession, distribution and sale of marijuana remain illegal under
the CSA; that the federal courts have recognized that despite
California's Act and MMP, marijuana is deemed to have no
accepted medical use (Gonzales v. Raich, (2005) 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, (2001) 532 U.S. 483); and that the
federal government properly may enforce the CSA despite the Act
and MMP. (Gonzales v. Raich, (2005) 545 U.S. 1).
10.While the City Council in no manner intends or undertakes by the
adoption of this ordinance to enforce federal law, the City Council is
concerned about interfering with federal law enforcement efforts.
1 1 . The City Council further takes legislative notice that concerns about
non - medical 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, 1386-1387; Gonzales v. Raich, (2005) 545 U.S.
1, 32 n. 43.
12.AIlowing medical marijuana dispensaries, and issuing permits,
business licenses or other applicable licenses or entitlements
providing for the establishment and/or operation of medical
marijuana dispensaries poses a threat to the public health, safety
and welfare.
13.An ordinance prohibiting medical marijuana dispensaries, and
prohibiting the issuance of any permits, licenses and entitlements
for medical marijuana dispensaries, is necessary and appropriate to
maintain and protect the public health, safety and welfare of the
citizens of Alameda.
14. 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 taws, entitled
"GUIDELINES FOR THE SECURITY AND NON-- DlVERSlON OF
MARIJUANA GROWN FOR MEDICAL USE (August 2008)."
(http://ag.ca.gov/cms_attachments/press/pdfs/nl6olmedicalmariju
anagu idelines. 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."
15.The City Council further takes legislative notice that in City of
Claremont v. Kruse (2009) 177 Cal.App.4th 1153, the Court held
that neither the Act nor the MMP preempts cities from adopting land
use regulations for medical marijuana dispensaries.
15.The City Council further takes legislative notice that the Act
anticipates local regulations at Cal. H &S Code Sec. 11362.5(b)(2):
"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 nonmedical
purposes."
b. Definitions.
As used in this ordinance, the following terms shall be ascribed the following
meanings:
"Medical Marijuana" means "marijuana" as that term is defined and used in
the Act and the MMP, to wit, Cal. H &S Code Secs. 11362.5- 11362.83.
2. "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.
3. A Medical Marijuana Dispensary shall not include the following uses, so
long as such uses comply with this code, Cal. H &S Code Secs.11362.5,
11362.7 et seq., as amended, and other applicable laws:
a) A clinic licensed pursuant to Chapter 1 (commencing with Sec.
1200) of Division 2 of the Cal. H &S Code, as amended.
b) A health care facility licensed pursuant to Chapter 2 (commencing
with Sec. 1250) of Division 2 of the Cal. H &S Code, as amended.
c) A residential care facility for persons with chronic life- threatening
illness licensed pursuant to Chapter 3.01 (commencing with Sec.
1568.01) of Division 2 of the Cal. H &S Code, as amended.
d) A residential care facility for the elderly licensed pursuant to
Chapter 3.2 (commencing with Sec. 1569) of Division 2 of the Cal.
H &S Code, as amended.
e) A hospice or a home health agency, licensed pursuant to Chapter 8
(commencing with Sec. 1725) of Division 2 of the Cal. H &S Code,
as amended.
4. "Person with an Identification Card" shall have the meaning given that
term by Cal. H &S Code Sec. 11362.7, as amended.
5. "Primary Caregiver" shall have the meaning given that term by Cal. H &S
Code Sec.11362.7, as amended.
6. "Qualified Patient" shall have the meaning given that term by Cal. H &S
Code Sec. 11362.7, as amended.
c. operation of Medical Marijuana Dispensaries Prohibited,
Medical marijuana dispensaries are prohibited in the City of Alameda. No person
or entity shall operate or permit to be operated a Medical Marijuana Dispensary
in or upon any premises in the city. The City shall not issue, approve or grant
any permit, license or other entitlement for the establishment or operation of a
medical marijuana dispensary
Section 2. Severability Clause. It is the declared intent of the City
Council of Alameda that if any section, subsection, sentence, clause, phrase, or
provision of this ordinance is held invalid or unconstitutional by a court of
competent jurisdiction, such invalidity or unconstitutionality shall not be so
construed as to render invalid or unconstitutional the remaining p rovision of this
ordinance.
Section 3. This ordinance and the rules, regulations, provisions,
requirements, orders, and matters established and adopted hereby shall take
effect and be in full force and effect from and after the expiration of thirty y
days from the date of Rs final passage.
Section 4. CEQA. This .ordinance is not subject to the California
Environmental Quality Act ( "CEQA ") pursuant to Secs.15060 (c)(2) (the activity
will not result in a direct or reasonable foreseeable indirect physical change in the
environment) and 15060 (c)(3) the activity is not a project as defined in
Sec.15378 of the CEQA Guidelines (Title 14, Chapter 3 of the California Code of
Regulations) because it has no potential for resulting in physical change to the
environment, directly or indirectly; it prevents changes in the environment
pending the completion of the contemplated studies. This ordinance also is
exempt from CEQA pursuant to the "common sense" exemption under
Sec.15061(b)(3) of the CEQA Guidelines, because the City Council hereby
determines and finds that there is no possibility that the ordinance may have a
significant effect on the environment.
Attest:
Lava Weisiger, City CI
City of Alameda
Presiding ity Council
1, the undersigned, hereby certify that the foregoing Ordinance was duly and
regularly adopted and passed by the Council of the City of Alameda in a special
meeting assembled on the 1 8th day of May, 2010 by the followin g vote to wit:
AYES: Councilmembers deHaan, Gilmore, Matarrese, Tam,
and Mayor Johnson — 5.
NOES: None.
ABSENT: None.
ABSTENTIONS: None.
IN WITNESS, WHEREOF, 1 have hereunto set my hand and affixed the official seal of
said City this 19th day of May, 2010.
Lara Weisiger, 0
City of Alameda