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Ordinance 2010-03 ORDINANCE NO. 2010-03 AN ORDINANCE OF THE CITY OF GILROY ADDING A NEW ARTICLE VII, SECTION 13.65, ENTITLED "MEDICAL MARIJUANA DISPENSARY AS A PROIDBITED USE" TO THE GILROY CITY CODE, CHAPTER 16, ENTITLED "LICENSES" WHEREAS, the voters of the State of California approved Proposition 215, codified as Health and Safety Code section 11362.5 et seq. and entitled "The Compassionate Use Act of 1996" ("the Act"); and WHEREAS, he intent of the Act was to enable seriously ill persons to obtain, use and cultivate medical marijuana for medical use under limited, specified circumstances; and WHEREAS, The State enacted Senate Bill 420, the Medical Marijuana Program Act ("MMPA") in 2003, effective January 1, 2004, to clarify the scope of the Act, to promote uniform and consistent application of the Act, and to promote fair and orderly implementation of the Act; and WHEREAS, as a result of the Act and MMP A, individuals and entities have established medical marijuana dispensaries in various cities in California; and WHEREAS, under the Federal Controlled Substances Act, 21, U.S.C. Section 801 et seq. ("CSA"), marijuana is listed as a "Schedule I" drug, which means that Congress has found that: (i) it has a high potential for abuse. (ii) it has no currently accepted medical use in treatment in the United States. (iii) there is a lack of accepted safety for use of marijuana under medical supervISIon. This classification renders manufacture, distribution or possession of marijuana a federal criminal offense; and WHEREAS, on June 6, 2005, the Supreme Court issued its decision in Gonzales v. Raich, (2005) 545 US 1, which held that Congress, under the Commerce Clause of the UH\609807.5 010610-04706083 ORDINANCE NO. 2010-03 United States Constitution, has the authority and power to prohibit local cultivation, distribution, and possession of marijuana pursuant to the CSA, even if such activities may not constitute criminal offenses under California law; and WHEREAS, on October 19, 2009, the U.S. Department of Justice issued a memorandum stating that federal resources should not be focused on prosecution of individuals whose actions are in clear and unambiguous compliance with existing state laws providing for medical use of marijuana; and WHEREAS, while experiences in the regulation and policing of medical marijuana dispensaries have varied from city to city, several California cities have reported an increase in crime related to such dispensaries, including burglary, robbery, marijuana DUIs, loitering, and vandalism around the dispensaries, as well as an increase in vehicular traffic and noise in the vicinity of dispensaries, and the sale of illegal drugs, including the illegal resale of marijuana from dispensaries, in the areas immediately surrounding such medical marijuana dispensaries; and WHEREAS, a medical marijuana dispensary, doing business as "Medileaf', has opened within the City of Gilroy, claiming that the City's existing ordinances do not prohibit its operation despite the fact that: (i) the City's Zoning Ordinance does not list a medical marijuana dispensary as a permitted use and the City Code does not otherwise permit issuance of a business license to a medical marijuana dispensary; and (ii) the City's staff interpreted local law as banning medical marijuana dispensaries and communicated such interpretation publicly and to the City Council; and (iii) the City Council considered and rejected making changes to local law that would have conditionally permitted medical marijuana dispensaries, including the dispensary that opened for business; and WHEREAS, City staff has recently been approached by at least one potential applicant who expressed interest in opening an additional medical marijuana dispensary and sought information about doing so. Staff has also discovered evidence that one or UH\809807.5 010610-04706083 -2- more medical marijuana providers are currently operating within the City in addition to Medileaf; and WHEREAS, the current status of state, federal and local law and court rulings related thereto, coupled with the position of the U.S. Department of Justice referred to above, may lead to the establishment of additional medical marijuana dispensaries within the City of Gilroy, which dispensaries may commence operations based on the fact that Medileafhas been allowed to operate pending final adjudication of the merits of the City's lawsuit against it; and WHEREAS, the City Council finds and intends that this Ordinance is declaratory of, and is intended to act as a clarification of, existing Gilroy ordinances; and WHEREAS, this Ordinance is exempt from environmental review pursuant to Section 15061(b)(3) of the Guidelines implementing the California Environmental Quality Act of 1970, as amended, because the Ordinance would not result in a direct or reasonably foreseeable indirect physical change in the environment. The City Council of the City of Gilroy does hereby ordain as follows: SECTION I. Chapter 13 of the Gilroy City Code is hereby amended to add a new Article VII, Section 13.65, entitled "Medical Marijuana Dispensary as a Prohibited Use" to read as follows: ARTICLE VII. MEDICAL MARIJUANA DISPENSARY AS A PROHIBITED USE 13.65 Medical Marijuana Dispensary as a Prohibited Use. A. "Medical Marijuana Dispensary" or "Dispensary" means any facility, enterprise, operation and/or location, fixed or mobile, where medical marijuana is made available to or distributed by or distributed to one or more of the following: 1. A qualified patient; or 2. A primary caregiver. UH\609807.5 -3- 010610-04706083 For purposes of this section, the terms "qualified patient" and "primary caregiver" shall have the definitions set forth in California Health and Safety Code Sections 11362.7. The terms Medical Marijuana Dispensary or Dispensary, for purposes of this section, shall include facilities, enterprises, operations and/or locations operated for charitable purposes and/or non-profit purposes, including those exempted from payment of license taxes pursuant to Section 13.30 of this Article, as well as all facilities, enterprises, operations and/or locations operated for the purpose of making a profit for the owners, investors, officers and/or employees thereof. B. A "medical marijuana dispensary" shall not include the following uses, as long as the location of such uses is otherwise regulated by this code or applicable law: 1. A clinic licensed pursuant to Chapter 1 of Division 2 of the Health and Safety Code; 2. A health 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 6. 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. C. A medical marijuana dispensary as defined above shall not be established, operated or maintained at any location within the City, even if located or operated with an otherwise permitted use. SECTION II. If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council of the City of Gilroy hereby declares that it would have passed and adopted this Ordinance, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that anyone or more UH\809807.5 010610-04706083 -4- sections, subsections, sentences, clauses or phrases may be declared invalid or unconstitutional. SECTION III. Article VII, Section 13.65 of the Gilroy City Code (added by this Ordinance) is declaratory of, clarifies, and affirms existing law. This Ordinance shall be in full force and effect thirty (30) days after its passage and adoption. PASSED AND ADOPTED this 25th day of January, 2010, by the following vote: AYES: COUNCILMEMBERS: BRACCO, DILLON, TUCKER, and PINHEIRO NOES: COUNCILMEMBERS: ARELLANO, GARTMAN, WOODWARD ABSENT: COUNCILMEMBERS: NONE APPROVED: !~~- UH\809807.5 010610-04706083 -5- I, SHA WNA FREELS, City Clerk of the City of Gilroy, do hereby certify that the attached Ordinance No. 2010-03 is an original ordinance, or true and correct copy of a City ordinance, duly adopted by the Council of the City of Gilroy at a regular meeting of said Council held on the 25th day of January, 2010, at which meeting a quorum was present. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of the City of Gilroy this 3rd day of February, 2010. I Sha a Freels, CMC City Clerk of the City of Gilroy (Seal)