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HomeMy WebLinkAboutOrd 1131 Medical Marijuana MoratoriumOrdinance No. 1131 CITY OF PALM DESERT STAFF REPORT DATE: DECEMBER 14 , 2006 TO: CITY COUNCIL FROM: CITY ATTORNEY SUBJECT: REQUEST FOR TWELVE-MONTH EXTENSION OF THE MORATORIUM ON THE ESTABLISHMENT AND OPERATION OF MEDICAL MARIJUANA DISPENSARIES RECOMMENDED ACTION: It is recommended that the City Council approve, by not less than a four -fifths (4/5) vote as required by state law, the attached Ordinance further extending the moratorium on medical marijuana dispensaries for an additional twelve (12) months. BACKGROUND: On December 24, 2005, after conducting a properly noticed public hearing, the City Council enacted Ordinance No. 1106, an interim urgency ordinance making findings and establishing a temporary moratorium on the establishment and operation of medical marijuana dispensaries in the City. Pursuant to Government Code Section 65858, the interim urgency ordinance remained in effect for forty-five days, after which it was extended by the City Council for an additional ten months and fifteen days pursuant to Ordinance No. 1109. In support of the Interim Urgency Ordinance and the initial extension, the City Council made the following findings: 1. In 1996, the voters of the State of California approved Proposition 215, which was codified as Health and Safety Code Section 11362.5, et seq., and entitled the Compassionate Use Act of 1996 ("the Act"); 2. The intent of Proposition 215 was to enable persons who are in need of medical marijuana for medical purposes to obtain and use it under limited, specified circumstances; 3. On January 1, 2004, SB 420 went into effect. SB 420 was enacted by the Legislature to clarify the scope of the Act and to allow cities and counties to adopt and enforce rules and regulations consistent with SB 420 and the Act; 4. The Palm Desert Municipal Code, including the Palm Desert Zoning Code, does not address or regulate in any manner the existence or location of medical marijuana dispensaries in the City; 5. After receiving inquiries from persons interested in establishing medical marijuana dispensaries, numerous other cities in the State of California have adopted ordinances prohibiting or heavily regulating such dispensaries; 6. Because a significant number of cities have prohibited or heavily regulated medical marijuana dispensaries, there is a substantially increased likelihood that such establishments will seek to locate in the City of Palm Desert; 7. A medical marijuana dispensary has already located in the City of Palm Desert; 8. Other California cities that have permitted the establishment of medical marijuana dispensaries have witnessed an increase in crime, such as burglaries, robberies, and sales of illegal drugs in the areas immediately surrounding such dispensaries; 9. The United States Supreme Court addressed marijuana use in California in United States v. Oakland Cannabis Buyers' Cooperative, (2001) 532 U.S. 483. The U.S. Supreme Court held that the federal Controlled Substances Act continues to prohibit marijuana use, distribution, and possession, and that no medical necessity exception exists to these prohibitions. Further, according to the U.S. Supreme Court's decision in Gonzales v. Raich, (2005) 545 U.S. 1, federal law presently prohibits the use of medical marijuana. However, since the U.S. Supreme Court was not presented with and did not address the issue of whether federal law preempts state law with respect to medical marijuana dispensaries, it did not resolve the conflict between federal law and California laws regarding the legality of medical marijuana dispensaries; and 10. To address the apparent conflict in laws, as well as the community and statewide concerns regarding the establishment of medical marijuana dispensaries, it is necessary for the City of Palm Desert to study the potential impacts such facilities may have on the public health, safety, and welfare. DISCUSSION: As the City Council's findings demonstrate, the Interim Urgency Ordinance was enacted in response to the likelihood that the City of Palm Desert would receive, and in fact did receive, an application for a business license for a medical marijuana dispensary before it could properly evaluate potential impacts and/or put into place satisfactory regulations to protect against the adverse impacts that typically accompany such establishments. Moreover, a medical marijuana dispensary has already located in the City. Based on the experiences of other cities, the primary adverse impacts could include increased crime, an increase in driving under the influence of marijuana, illegal drug trafficking near the dispensaries, and thefts, burglaries, and/or robberies at or near the dispensaries. In addition, the U.S. Supreme Court held in Gonzales v. Raich, (2005) 545 U.S. 1, held that local cultivation and/or use of marijuana is prohibited under federal law. Consequently, there is a conflict between state laws and federal laws on this subject. Several cities and counties have recently filed lawsuits against, and requested legal opinions from, the State Attorney General based upon the apparent conflict. On November 27, 2006, the City issued a report pursuant to Government Code section 65858 reflecting the steps the City is taking in order to alleviate the conditions that led up to the adoption of Interim Urgency Ordinance No. 1106. City staff has not concluded its research and thus has not yet made any final recommendations to the City Council regarding the form of any permanent regulations to be imposed on medical marijuana dispensaries, if any. Based on the foregoing, City staff recommends that the City Council further extend the existing moratorium on the establishment and/or operation of medical marijuana dispensaries for an additional twelve months pursuant to Government Code section 65858. FISCAL IMPACT: None. :ITY COUNCIL pcCTION: APPROVED i/ DENIED RECEIVED /OTHER / e( MEETI AYES: NOES ► 1 - "`JJJ ABSENT: ABSTAIN: VERIFIED BY: rA,�, Original on File w City Clerk's Off.re ORDINANCE NO.2006-1131 AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, EXTENDING FOR AN ADDITIONAL TWELVE MONTHS THE MORATORIUM RELATING TO THE ESTABLISHMENT AND OPERATION OF MEDICAL MARIJUANA DISPENSARIES THE CITY COUNCIL OF THE CITY OF PALM DESERT, DOES ORDAIN AS FOLLOWS: SECTION 1. Purpose The purpose of this interim urgency ordinance is to further extend a moratorium for an additional twelve (12) months. Ordinance No. 1106 imposed a temporary forty-five (45) day moratorium on the establishment and operation of medical marijuana dispensaries in the City. Ordinance No. 1106 was subsequently extended by the City Council for an additional ten (10) months and fifteen (15) days by Ordinance No. 1109. The extension provided by Ordinance No. 1109 is set to expire on December 23, 2006. SECTION 2. Authority The City Council hereby enacts this interim urgency ordinance by not less than a four -fifths (415) vote and extends Ordinance No. 1106 for an additional twelve months under the authority granted to it by Article XI, Section 7 of the California Constitution and section 65858(a) of the California Government Code. SECTION 3. Findings A. Pursuant to Government Code section 65858, on December 24, 2005, the City Council adopted, by not less than a four -fifths vote, Interim Urgency Ordinance No. 1106 establishing a temporary moratorium on the approval or issuance of any use permit, variance, building permit, business license or other applicable entitlement for the establishment or operation of a medical marijuana dispensary for a period of forty-five (45) days. B. In preparation for extending Ordinance No. 1106, and pursuant to Government Code section 65858(d), the City issued a written report describing the measures taken to alleviate the condition which led to the adoption of Ordinance No. 1106. C. Pursuant to Government Code section 65858(a), on February 3, 2006, the City Council adopted, by not less than a four -fifths vote, Interim Urgency Ordinance No. 1109 extending the temporary moratorium on the approval or issuance of any use permit, variance, building permit, business license or other applicable entitlement for the establishment or operation of a medical marijuana dispensary for an additional ten (10) months and fifteen (15) days. The extension provided by Ordinance No. 1109 is set to expire on or about December 23, 2006. Ordinance No. 1131 D. In preparation for further extending Ordinance No. 1106, and pursuant to Government Code section 65858(d), on November 30, 2006, the City Council issued a written report describing the measures taken to alleviate the conditions which led to the adoption of Ordinance No. 1106 ("Report"). E. Based on the Report, the City Council has determined that the circumstances and conditions that led to the adoption of Ordinance No. 1106, which are set forth in the recitals of Ordinance No. 1106, have not been alleviated as of the date of this Ordinance and continue to create the concerns described in Ordinance No. 1106. F. The City Council now seeks to extend the temporary prohibition on the establishment and operation of medical marijuana dispensaries, as currently authorized under Ordinance No. 1106, in order to allow City staff to conclude its research and make final recommendations to the City Council regarding the form of any permanent regulations to be imposed on medial marijuana dispensaries, if any. G. The City Council has determined there is a need to extend the moratorium for an additional twelve months as authorized under section 65858(a) of the California Government Code. H. The notice and public hearing required by section 65858(a) of the California Government Code for the extension of the moratorium have been provided in accordance with applicable law. SECTION 4. Restatement of Findings The City Council hereby incorporates by reference and restates the findings contained in Ordinance No. 1106, as follows: 1. In 1996, the voters of the State of California approved Proposition 215, which was codified as Health and Safety Code Section 11362.5, et sea., and entitled the Compassionate Use Act of 1996 ("the Act"). 2. The intent of Proposition 215 was to enable persons who are in need of medical marijuana for medical purposes to obtain and use it under limited, specified circumstances. 3. On January 1, 2004, SB 420 went into effect. SB 420 was enacted by the Legislature to clarify the scope of the Act and to allow cities and counties to adopt and enforce rules and regulations consistent with SB 420 and the Act. 4. The Palm Desert Municipal Code, including the Palm Desert Zoning Code, does not address or regulate in any manner the existence or location of medical marijuana dispensaries. 5. After receiving inquiries from persons interested in establishing medical marijuana dispensaries, numerous other cities in the State of California have adopted ordinances prohibiting or heavily regulating such dispensaries. 2 Ordinance No. 1131 6. Because a significant number of cities have prohibited or heavily regulated medical marijuana dispensaries, there is a substantially increased likelihood that such establishments will seek to locate in the City of Palm Desert. 7. A medical marijuana dispensary has already located in the City of Palm Desert and another is seeking to locate in the City as well. 8. Other California cities that have permitted the establishment of medical marijuana dispensaries, have witnessed an increase in crime, such as burglaries, robberies, and sales of illegal drugs in the areas immediately surrounding such dispensaries. 9. The United States Supreme Court addressed marijuana use in California in United States v. Oakland Cannabis Buyers' Cooperative, (2001) 532 U.S. 483. The U.S. Supreme Court held that the federal Controlled Substances Act continues to prohibit marijuana use, distribution, and possession, and that no medical necessity exception exists to these prohibitions. Further, according to the U.S. Supreme Court's decision in Gonzales v. Raich, (2005) 545 U.S. 1, federal law presently prohibits the use of medical marijuana. However, since the U.S. Supreme Court was not presented with and did not address the issue of whether federal law preempts state law with respect to medical marijuana dispensaries, it did not resolve the conflict between federal law and California laws regarding the legality of medical marijuana dispensaries. 10. To address the apparent conflict in laws, as well as the community and statewide concerns regarding the establishment of medical marijuana dispensaries, it is necessary for the City of Palm Desert to study the potential impacts such facilities may have on the public health, safety, and welfare. SECTION 5. Extension of Deadline Pursuant to Government Code 65858, the City Council hereby extends the moratorium for an additional twelve months. The expiration date for the moratorium is thus further extended from December 23, 2006, to December 14, 2007. SECTION 6. Effective Date This urgency ordinance shall take effect immediately upon its adoption by at least a fourth -fifths (4/5) vote of the City Council. This urgency ordinance shall continue in effect for twelve months upon its adoption and shall thereafter be of no further force and effect. SECTION 7. Compliance with California Environmental Quality Act The City Council finds that this ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, 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 municipal code review. 3 ordinance No. 1131 SECTION 8. Severability If any section, subsection, sentence, clause phrase or word of this ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction or preempted by state legislation, such decision or legislation shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Palm Desert hereby declares that it would have passed this ordinance and each and every section, subsection, sentence, clause or phrase not declared invalid or unconstitutional without regard to any such decision or preemptive legislation. SECTION 9. Effective Date This ordinance shall become effective immediately upon adoption if adopted by at least a four - fifths vote of the City Council and shall be in effect for twelve months from the date of adoption. SECTION 10. Publication The City Clerk shall certify to the adoption of this ordinance and cause it, or a summary of it, to be published once in a newspaper of general circulation printed and published within the City of Palm Desert. PASSED, APPROVED and ADOPTED this day of , 2006, by the City Council of the City of Palm Desert, California by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: ATTEST: Rachelle Klassen, Palm Desert City Clerk APPROVED AS TO FORM: David J. Erwin, Palm Desert City Attorney Richard S. Kelly, Mayor City of Palm Desert, California 4 REPORT OF THE CITY OF PALM DESERT REGARDING THE MEASURES TAKEN TO ALLEVIATE CONDITIONS WHICH LED TO ADOPTION OF THE MORATORIUM ON MEDICAL MARIJUANA DISPENSARIES I. Introduction On December 24, 2005, after conducting a properly noticed public hearing, the City Council of the City of Palm Desert enacted Ordinance No. 1106, an interim urgency ordinance making findings and establishing a temporary moratorium on the establishment and operation of medical marijuana dispensaries in the City. Pursuant to Government Code Section 65858, the interim urgency ordinance remained in effect for forty-five days, after which it was extended by the City Council for an additional ten months and fifteen days pursuant to Ordinance No. 1109. State law requires that prior to extending the moratorium, the City must issue a report at least ten days prior to the public hearing on the extension, which addresses the steps the City is taking to alleviate the conditions which led up to the moratorium. The proposed twelve-month extension on the medical marijuana moratorium will be on the December 14, 2006 City Council agenda for consideration. Accordingly, the City has prepared this report in satisfaction of the requirements of Section 65858. II. Background to Adoption of the Interim Urgency Ordinance In support of the Interim Urgency Ordinance and the initial extension, the City Council made the following findings: 1. In 1996, the voters of the State of California approved Proposition 215, which was codified as Health and Safery Code Section 11362.5, et seq., and entitled the Compassionate Use Act of 1996 ("the Act"); 2. The intent of Proposition 215 was to enable persons who are in need of inedical marijuana for medical purposes to obtain and use it under limited, specified circumstances; 3. On January 1, 2004, SB 420 went into effect. SB 420 was enacted by the Legislature to clarify the scope of the Act and to allow cities and counties to adopt and enforce rules and regulations consistent with SB 420 and the Act; 4. The Palm Desert Municipal Code, including the Palm Desert Zoning Code, does not address or regulate in any manner the existence or location of inedical marijuana dispensaries in the City; , 5. After receiving inquiries from persons interested in establishing medical marijuana dispensaries, numerous other cities in the State of California have adopted ordinances prohibiting or heavily regulating such dispensaries; 6. Because a significant number of cities have prohibited or heavily regulated medical marijuana dispensaries, there is a substantially increased likelihood that such establishments will seek to locate in the City of Palm Desert; 7. A medical marijuana dispensary has already located in the City of Palm Desert and another is seeking to locate in the City as well; 8. Other California cities that have permitted the establishment of inedical marijuana dispensaries have witnessed an increase in crime, such as burglaries, robberies, and sales of illegal drugs in the areas immediately surrounding such dispensaries; 9. The United States Supreme Court addressed marijuana use in California in United States v. Oakland Cannabis 13uyers' Cooperative, (2001) 532 U.S. 483. The U.S. Supreme Court held that the federal Controlled Substances Act continues to prohibit marijuana use, distribution, and possession, and that no medical necessity exception exists to these prohibitions. Further, according to the U.S. Supreme Court's decision in Gonzales v. Raich, (2005) 125 S.Ct. 2195, federal law presently prohibits the use of inedical marijuana. However, since the U.S. Supreme Court was not presented with and did not address the issue of whether federal law preempts state law with respect to medical marijuana dispensaries, it did not resolve the conflict between federal law and California laws regarding the legality �of inedical marijuana dispensaries; and 10. To address the apparent conflict in laws, as well as the community and statewide concerns regarding the establishment of inedical marijuana dispensaries, it is necessary for the City of Palm Desert to study the potential impacts such facilities may have on the public health, safety, and welfare. III. Measures Taken Since the Adoption of the Interim Urgency Ordinance: As the City Council's findings demonstrate, the Interim Urgency Ordinance was enacted in response to the likelihood that the City of Palm Desert would receive, and in fact did receive, an application for a business license for a medical marijuana dispensary before it could put into place satisfactory regulations to protect against the adverse impacts that typically accompany such establishments. Moreover, a medical marijuana dispensary has already located in the City. Based on the experiences of other cities, the primary adverse impacts could include increased crime, an increase in driving under the influence of marijuana, illegal drug trafficking near the dispensaries, and thefts, burglaries, and/or robberies at or near the dispensaries. To alleviate the conditions that led to the adoption of the Interim Urgency Ordinance, the City is taking the following steps: 1. City staff, the Police Department, and the City Attorney's office is continuing to conduct research into the possible and likely impacts of inedical marijuana dispensaries and into regulations for the City to adopt in order to mitigate such impacts; 2. City staff is continuing to gather factual data regarding the adverse impacts experienced by other cities that have permitted medical marijuana dispensaries. This information is currently being processed to determine the likelihood that such impacts might result in the City of Palm Desert; 3. City staff continues to conduct research into the City's options for permanent regulation of inedical marijuana dispensaries. This research includes a review of all city ordinances in California that either prohibit or regulate medical marijuana dispensaries; 4. City staff continues to meet with medical marijuana advocates and patients in order to address their concerns; 5. City staff continues to communicate with and monitor the Riverside County Board of Supervisors decision banning medical marijuana dispensaries in the incorporated areas of Riverside County and their attempt to join other counties in a court challenge of state medical marijuana laws; 6. City staff continues to monitor the Federal Drug Enforcement Administration's recent search-and-seizure raids at a medical marijuana dispensary located in a neighboring city; and 7. City staff is attempting to interpret the law with regard to this subject matter, including but not limited to the U.S. Supreme Court's opinion in Gonzales v. Raich, (2005) 545 U.S. 1, regarding the conflict in state and federal laws with regard to medical marijuana use and dissemination, as well as the recent lawsuits filed by the Counties of San Diego, Kern, and Ventura against the State Attorney General relating to the validity of the Compassionate Use Act in light of the Raich opinion. IV. Conclusion City staff has not concluded its research and thus has not yet made any final recommendations to the City Council regarding the form of any permanent regulations to be imposed on medical marijuana dispensaries, if any. For this reason, the City Council has concluded that it is appropriate to extend the Interim Urgency Ordinance for the additional statutory period of twelve months pursuant to Government Code Section 65858 to permit City staff to complete their research and make their recommendations and to allow the City Council to adopt such regulations as it deems appropriate in light of those recommendations. C11Y OF PAIf� DESERT I �j-510 FR�.D WARING L�RIVE PAL�t �ESERT, �,ALIFORI�IA 92260-2578 I TEL: ]fi0 346-o6ii FAX: ]60 340-0574 i info��palm-desert.org NOTICE OF PUBLIC HEARING BEFORE THE PALM DESERT CITY COUNCIL - MEDICAL MARIJUANA DISPENSARIES - NOTICE IS HEREBY GIVEN that the City Council of the City of Palm Desert, California, will conduct a public hearing at 4:00 p.m. on Thursdav, December 14, 2006, in the Palm Desert Civic Center Council Chamber, 73-510 Fred Waring Drive, Palm Desert, California. Said public hearing will be for the purpose of determining whether or not to extend the moratorium on the establishment and operation of inedical marijuana dispensaries in the City, which was adopted by Ordinance No. 1109 on February 3, 2006. At any time not later than the hour of the public hearing, any person wishing to provide written comment may file it with the City Clerk's Office. Any person wishing to personally address the City Council on these matters will be provided the opportunity to do so at the scheduled public hearing. Dated this 30th day of November, 2006. Rachelle D. Klassen, City lerk City of Palm Desert, California City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260-2578 Publish: December 2, 2006 t'mI1�tD a IEa(lm ruN MEMORANDUM COMMUNITY SERVICES DtVISIOfV To: Honorable Mayor and Members of the City Council From: Patricia Scully, CFEE Senior Management Analyst Date: December 14, 2006 Re: MEDICAL MARIJUANA DISPENSARIES MORATORIUM At its meeting of November 8, 2006, the Palm Desert Public Safety Commission recommended that the City Council extend the moratorium on medical marijuana dispensaries in the City of Palm Desert as recommended by the City Attorney. A copy of the draft minutes of the subject meeting are attached for your information. Please let me know if you have any questions or require further information. Attachment: as noted PRELIMINARY MINUTES PUBLIC SAFETY COMMISSION NOVEMBER 8, 2006 VIII. OLD BUSINESS A. Update Regarding Correspondence from Citizen Sandra Coleman Relative to Concerns About Traffic Circulation in and around Canyon National Bank and the Adjacent Church Parking Lot on Country Club Drive Mr. Greenwood noted that the Commission had previously requested that staff provide copies of correspondence to the property owners notifying them of the City's concern with this situation; however, in the course of reviewing the site and the plans, the Church submitted a plan to modify its site. That gave staff the opportunity to require installation of a stop sign on its driveway. He said in looking at the entire layout of the site, he felt this would be the best solution to alleviate the concerns and allow for the best traffic flow. B. Report from City Attorney Relative to an Ordinance Either Banning Medical Marijuana Dispensaries in the City of Palm Desert or Allowing Same with Specific Restrictions The following is a verbatim transcript of this portion of the meeting: � RL Chairman Rick Lebel JL Commissioner Jim Larsh DJE City Attorney David J. Erwin MN Commissioner Marty Nethery GK Vice Chair Gloria Kirkwood PS Senior Management Analyst Pat Scully RSK Mayor Pro Tem Richard S. Kelly JB Commissioner Jim Butzbach CLO City Manager Carlos L. Ortega RL Our next item under Old Business, one that we've been relishing, is a report from the City Attorney relative to an ordinance either banning medical marijuana dispensaries in the City of Palm Desert or allowing same with specific restrictions. Okay? (Unclear) JL ThaYs why we're here. 10 PRELIMINARY MINUTES PUBLIC SAFETY COMMISSION NOVEMBER 8, 2006 DJE The Commission will recall thatthe Council passed an interim ordinance moratorium in December of `05 and then extended that for ten months, fifteen days. The moratorium runs out December 22"d of`06. We have been working on an ordinance with the Police Department. It is, I think, one of the more restrictive that we've seen in the State. It is generally patterned after the Roseville ordinance, which is very detailed and goes into a lot of limitations/restrictions on the operation, the individuals involved in the operation. We were working on that, and then the County decided...but we did look at the County ordinance that was going through the Planning Commission. In looking at it, it is somewhat similar but does not go into as great a detail as this one does. Then Grover Trask came in with his white paper, and the Board of Supervisors prohibited these items in the County. What is interesting to me is that they did not prohibit or stop the County from issuing the cards, which seemed like they were speaking out of two sides of their mouth in a way. I think probably they're waiting to see what is going to happen in the litigation and, in fact, they have joined...Riverside County has joined with San Diego County in the litigation, trying to have a determination of whether Federal law controls or whether State law will control in this instance. RL Well, they've attempted to, but their request was cast out because they got in too late. MN I thought I read that the court denied their request to intervene...is that not true? JL It was too late. DJE That's my understanding, that they have not been allowed to do that. There is another case pending that they can get into if they want to. IYs out of the City of Garden Grove, which is also raising similar issues. I don't know whether County Counsel has decided to do that or not. One of the things that has crossed our minds in the ordinance that we've been working on is that the Council really has, and the Commission really has, three alternatives...either to recommend passage of an ordinance permitting it with restrictions on it or prohibiting it or we can extend the moratorium for an additional one-year period of time. Under the current scenario, I think our recommendation to the Council is to extend the moratorium and let's see what happens in the court cases. If at any time we decide we are not going to wait any longer, we can also take whatever action we want to take with regard to either the permitting of them under limited circumstances or the prohibition. But I think the third alternative that you have in addition to the two mentioned on your Agenda is consideration of extending the moratorium. And that is our recommendation, under the current circumstances, and see what happens in the court cases. MN And not adopt any ordinance. DJE Not adopt any at the moment. 11 PRELIMINARY MINUTES PUBLIC SAFETY COMMISSION NOVEMBER 8, 2006 MN What...l don't know if Pat can answer this...did I read in the paper or did I hear someplace that...remember the last time we talked, the license was coming up for renewal, the business license, and we had issues about whether it was a taxing issue or a regulatory issue and whether it was meaningless...what happened with that? DJE It apparently got issued without anybody knowing about it. GK Again? PS Oh, okay then. JL Wait a minute...again? DJE That is my... RL How in the hell could that happen? RSK That's what I asked. RL I am sorry...how in the world... GK We talked about that at the last meeting. DJE The Council is waiting for an explanation of how that happened. MN Not only that, in our minutes we said specifically, you know, that's not going to happen...not that we have that much power, but I think staff bought into that, so I guess...anyway, the point is, it happened. DJE It did happen. And Council is waiting for an explanation of why. MN Now, Dave, can you tell us... DJE They did not want that to happen. JL Why can't Council get an explanation? Somebody had to tell... JB Someone issued it...or reissued it. JL There's got to be a paper trail on it. JB The Business Licensing Department? DJE The Business Licensing Department is the one that issued it. 12 PRELIMINARY MINUTES � PUBLIC SAFETY COMMISSION NOVEMBER 8, 2006 MN Dave, let's... RL As a medical equipment dispensary. JL Equipment dispensary? (Unclear) MN Dave, we have...and I don't know if you're prepared to answer this, but I'll ask and you can tell me. We had a discussion at the last meeting and the meeting before that where we talked about this about whether the licensing process is...l don't want to say meaningless...but whether it's of a regulatory nature or just a taxing. And so... DJE It is a revenue producing (unclear) MN And so issuing or not issuing it is not going to stop... DJE No MN If you didn't have a license and he continued to operate, what recourse would the City have, if any? DJE We have the recourse of two things...either to stop them from operating without a license...if they applied for it, we would issue it...or attempt to collect the amount of the dollars. MN Without the license. DJE Correct. MN So, the City doesn't have to issue the license, but you can't shut the business down...if they offer the money, you can't shut them down? DJE We have not been able to successfully shut a business down that offered to pay the money. MN That offered to pay the money. DJE That is correct. MN So the answer to the question is even though somebody, you know, who messed up...we've got to know, you know...even though somebody messed up by issuing the license, if they had offered the money, license or no license, we couldn't shut them down. 13 PRELIMINARY MINUTES PUBLIC SAFETY COMMISSION NOVEMBER 8, 2006 DJE We probably could not close the business, that is correct. MN Okay. RSK They have a question for you, Carlos. RL Even though the business is a non-conforming or non-addressed use... DJE Well, our Planning Department made a determination that it was not non- conforming so far as zoning was concerned in the first instance. MN Way back when... DJE Way back when. MN ...a year ago. RL So the Planning Department says it is a conforming use? DJE So far as zoning is concerned. RL Okay. Can you clarify for us... JL (unclear) this again. RL Can you clarify for us the term "medical dispensary" because it's not in law. DJE It's not in the law. There are medical cooperatives that can cultivate marijuana, but dispensary is not in the law. That term is not defined, is not mentioned in the Compassionate Use Act. JL Well, isn't that in the DA's white paper'? DJE Yes. (Unclear) RL Correct. MN So... (Unclear) RL Well, we've been dealing with this issue now for approximately eight months, perhaps a little longer than that. We've had...we've had it agendized at least four 14 PRELIMINARY MINUTES PUBLIC SAFETY COMMISSION NOVEMBER 8, 2006 meetings. At one of the...whether it's the first or the second meeting, perhaps in April or May...we asked if staff would get clearance to ask the Attorney's Office to prepare two draft ordinances for review (so that goes back a minimum of six months, which would be an ordinance which would permit and restrict it or an ordinance to prohibit it) so that we could review those, and we could take some action. It seems like we've been fraught with frustration on every point in terms of trying to get action or information in order that we could make a recommendation to the City Council. At our last meeting, a month ago, we had virtual assurance from staff that the ordinances would be at that meeting for our review. They were not. (Unclear) GK The previous one. RL Previous...for review. They were not. At this meeting, and in our staff packages, there were no ordinances for our review, so it appears that we are unable to make a recommendation to Council. Perhaps your recommendation forour consideration, a recommendation that they extend the moratorium for another year, might be one to consider, but that would be a recommendation that I would be embarrassed to make, frankly, because we've been trying to get sufficient data and information to be able to review to make a determination to make a very clear recommendation to Council...and we've been unable to make that recommendation for nearly a year. I would be embarrassed to ask the Council to consider a moratorium for another year. I couldn't make that recommendation. I'm sure maybe members of the Commission may have different feelings about that, but that would be very embarrassing for the Commission to do that after the Commission has struggled for month after month after month to try to get some clear language that we could review and read and make our recommendation to Council. GK Mr. Chairman, may I make a point here from our previous minutes? We specifically requested, and this is to our City Manager...in fact, I spoke to Mayor Ferguson and said is there any kind of notation in the business license when it comes up for renewal, and...to make sure that we know what's going to be happening with this renewal. And he, in fact, said correct, we have definitely made a notation, we are looking at that, and we are trying to figure out whether or not we can or need to go ahead and renew this license. So I'm confused as to....l don't want to belabor it, but I'm confused as to why did this get renewed, how did it get renewed, under what basis was the license renewed? CLO I think the City Attorney explained the basis under which it was issued in the first pface. You will recall that probably about a year ago, one of the things that the Council considered...there are provisions in the Municipal Code under which the Council can revoke a business license, okay, and one of those was that it was against, I think, the law. But before the Council could revoke it, there were two 15 PRELIMINARY MINUTES PUBLIC SAFETY COMMISSION NOVEMBER 8, 2006 methods by which it could do it. One was to go ahead and revoke it and then provide a public hearing or notify the holder of the license that we intended to revoke it and hold the public hearing. The Council chose the latter, and I think at the end of that public hearing the Council chose not to revoke it but instead to carry it further to see, I think at that time, what the County was going to propose. ThaYs my recollection. And so pending no revocation by the City Council, how the (unclear) determines, we had no choice but to reissue it. Because for us to revoke it, I don't think we had the grounds. At least the Councit chose not to revoke it at that time. MN The business license is...l mean, I share the frustration, but the business license issue realiy is a non...has taken us no place because as the City Attorney has said, and I think Mayor Ferguson said in the meeting before that that was his understanding is that it's a revenue matter. If they tender the money, we don't have to issue the license, but we can't put them out of business. So that really takes us no place, even though iYs frustrating that it happened, and I'm sure there's frustration at the City Council and here and every place else. But, you know, it's not going to take us any place that we want to get pursuing that license issue. I'm not sure that I...I'm certainly frustrated. I'm not sure that I would be embarrassed to, given what we know now that we didn't know before, to pass along a recommendation of a moratorium. I'd like to do it after having seen the two proposed ordinances and then have that alternative because, you know, if you have the two ordinances...but we know some things now that we didn't know two months ago, which was our last meeting. We know that the County tried to get in that law suit but can't. We know that we got that white paper by the District Attorney that we didn't have, who's told us, in his opinion at least, although that white paper was...l haven't studied it...l know you have, and the people that work with you have, Dave, but it wasn't a model of clarity. It seemed to me there were some inconsistencies or at least some holes in it. But iYs there. And we know that the County, you know, if you read the minutes and you think about what we talked about, we thought by now the County would have adopted an ordinance, and we wanted to wait and see what the County was going to do, review what the County was coming up with, and maybe use that as a model or at least something to work with and to compare with whatever proposed ordinance the City Attorney was going to provide. In fact, my understanding was the City Attorney was probably going to look at that County ordinance, and we might make it more restrictive, but we certainly weren't going to be less restrictive. Sounds like the City of Roseville that you're using as a model is more restrictive than the County ordinance. DJE Much more. MN So I'm not...while I'm really frustrated because we spent a ton of time on this, and we've all done a lot of reading on it, I'm not sure that the recommendation to extend the moratorium, given that the County's involvement in a lawsuit is in limbo, given the white paper by the DA which says..and the County's decision there aren't going 16 PRELIMINARY MINUTES PUBLIC SAFETY COMMISSION NOVEMBER 8, 2006 to be any of these in the County, and given the fact that, you know, the business license, we couldn't shut them down with that anyway if we had wanted to, and these lawsuits are pending, and it sure would be nice to know what the outcome of the lawsuits are because the courts...presumably, the problem is...they'll probably be appealed no matter what the decision is, and so there's probably not going to be a definitive decision by any court of appeal, and written appellate decision, within the next two years, and we'd be lucky to get it in that so, wouldn't you say, Dave... DJE Probably, yes. MN ...by a court of appeal, unless there is a summary judgment motion or something quicker than that. So...the problem is, I guess, a moratorium you said could be extended for a year... DJE Yes. MN ...and it expires on December 22�d. At the end of that year, then what? DJE That is the end. We cannot go any further. MN ThaYs it. You either have to act...you can't...no more moratorium...you have to act. So a year buys us the possibility of seeing what exactly...what do we find out. If there's a decision in the lawsuit at the trial court level, at least we'd have that. DJE Right. MN The cap...is the Fontana case...it's not as far along as the one in San Diego... DJE The Garden Grove? MN I mean Garden Grove. DJE No MN IYs not as far along (unclear)thaYs why the County...okay. So, we may have more information in a year than we have now, but not necessarily so. And so, really, to me, the question is do we act now? It would be nice to see a couple of possible ordinances, alternative ordinances...do we act now or do we wait and try to have more information given the status quo. Then it comes down to can we live with the status quo for another year? That's really the question...or less than a year because it would be another two or three months before the City Council is able to act. So it's do we act now or do we act in, you know, eight months, six, eight, nine months, so that's really the question it comes down to, I think, and hopefully have more information. So...l only say that because I don't want to... 17 PRELIMINARY MINUTES PUBLIC SAFETY COMMISSION NOVEMBER 8, 2006 (Unclear) JL What does the new license extend to, since he got another license? DJE I do not know the date. It would be for one year, so if it was issued in the last couple of weeks... JL (unclear) do anything. He's already got a license, and the City Council's not going to do anything. MN Well, no the... DJE The moratorium is to prohibit any use as a cooperative, dispensary, whatever you want to call it. So that use is now prohibited. JL Alright. MN Would this facility in the City be...if that were to happen, if the City Council were to adopt that ordinance, would that use...could that be shut down, to be blunt about it, or would... DJE If it is to prohibit it, the answer is yes. If it is to restrict it, they have, I believe iYs 60 days or 90 days to comply with all of the restrictions. MN And then if they don't, they can... DJE If they don't, they're shut down. MN So the business license doesn't really prevent that from happening. The business license has no bearing on that part. DJE That's correct. MN If an ordinance were passed, they'd have to comply or be shut down... DJE ThaYs correct. MN ...depending on what the ordinance said. DJE Yes. MN And the County still is issuing the...what are they called? Identification... ST Medial marijuana ID cards. 18 PRELIMINARY MINUTES PUBLIC SAFETY COMMISSION NOVEMBER 8, 2006 MN Medical marijuana cards. ST The understanding is the County of Riverside is still following the law and following the law, as vaguely as it's written on the books right now. The argument is whether dispensary should be used or not. The advocates will tell you in the verbiage of the law, it says "store". They are taking that as a broad term to allow them to operate dispensaries. The County didn't see it that way and based on the white paper of the District Attorney, they chose to deal/address the issue of dispensaries only, and they agreed with the DA saying that dispensaries aren't written into the law, therefore we won't follow the law other than whaYs written right now, and we'll challenge the law through the courts, but the couldn't get in. MN When you say they won't follow the law, they will follow the law, but there are no dispensaries allowed, so therefore we're not going to allow any dispensaries. ST Right. (Unclear) follow the law as it exists right now. MN Yeah. I know you had two or three really important issues in this regard. Short of outlawing this, one was medical marijuana cards being a requirement. This guy has signed a...he has signed a contract, an agreement, with the City that he will require that, correct? ST No. DJE Correct. MN Hasn't he? ST Well, how do we enforce it? If we find out that he's selling to people that don't have medical marijuana ID cards, what' the enforcement option for the City? DJE Basically at that point, I think we could say he's violating the agreement, which right now we consider he's operating under that agreement, without the benefit of anything in our zoning ordinance. And I think we'll take a different position than our Planning Department and attempt to close him down. ST At this point, Mr. Hochanagel is doing everything he can to make sure he stays within the lines as they are vaguely written right now. So as I understand, he's selling to medical marijuana ID card patients solely. We haven't come across anybody he's selling to recently that isn't a medical marijuana ID card holder, so I should say it's not that he has violated the ordinance at this point...we haven't contacted him as such yet. MN So that was....(unclear) thinking about the status quo for a minute. The medical marijuana cards, I know, is a big issue with law enforcement. 19 PRELIMINARY MINUTES PUBLIC SAFETY COMMISSION NOVEMBER 8, 2006 ST Well, hold on a second. Keep in mind, all that does for your Palm Desert Police Department, is it puts a regulation upon this business only. It has nothing to do with anybody once they walk out of that business. If they're outside that business and they don't tell us where they bought it, we're still in the same boat, okay. They're in the City of Palm Desert, in possession of marijuana, and we have to determine is it a violation of the law, or can they legitimately have it? So the medical marijuana ID card regulation that we put upon Canna Help only deals with them on property and (unclear) our recourse toward them for them being able to distribute. It has nothing to do with us dealing with other people out in the field, whether they bought it from Palm Springs, whether they bought it on the street, whether they're growing it in their own home, okay. There's no regulation at this point in the City of Palm Desert saying they have to...the user, the person in possession of it, has to have a medical marijuana ID card. The only regulation we put upon the dispensary... MN So frame the issue for us, Captain. You stop somebody, one of your officers stops somebodyforwhatever reason, probable cause, and they have marijuana on them, and it's a violation of the law... ST We have to determine...is it medical marijuana or is it not? MN So they say, oh medical marijuana...if it's not... (unclear) ST If they say, no I don't have medical marijuana, iYs not medical marijuana, then we arrest them. MN Yeah. If they say it is, then... ST If they say it is, now we're in the conundrum of determining how do we determine that. If they went by the option that's available to them, and they went down to the Department of Health, and they obtained a Riverside County medical marijuana ID card, and they show that to us, and we run that number through a system that we can access 24 hours a day, and it comes back as a valid card, we hand them their "medicine" and their card, and we send them on their way, okay. We haven't come across that. We've come across people that have a letter of recommendation, which is clearly within what the law says they can do, but yet that law doesn't tell us exactly what format that letter is supposed to be in. It doesn't tell us what that card looks like. It doesn't tell us how we're supposed to verify that letter. As a matter of fact, they're photocopies with different types of writing on them. And the other issue that we have for regulation, since we're on the issues, is that medical marijuana recommendation letter we're finding now has three different colored dots on it. And we talk to them and say well, whaYs this. Well, that's because this yellow dot is when I registered at Canna Help, and this green dot is when I registered at Palm Springs Care Givers, and this red dot is when I registered over here. RL But who's the primary care giver? 20 PRELIMINARY MINUTES PUBLIC SAFETY COMMISSION NOVEMBER 8, 2006 ST Exactly the point...primary care giver, you know. So there's the other part. And then the third part of the problem that we have is a business operating for profit selling a controlled substance by Federal standards. If you want to call it a medicine, fine, but he's dispensing medication at his own cost that he's setting the price, and he's making money hand over fist. RL Sure he is. ST So, if there's a way to regulate that, that would be interesting to know as well. Our biggest problem on the street is the medical marijuana ID card and our ability for our officer to make a determination right now. We're not going to stand...per the direction of the Sheriff, we're going to abide by the law, so we're not going to make a moral judgment upon that person if they're abiding by the law. The problem we have is how do we know if they're abiding by the law or not. That's our problem. MN Of your three situations here, if they don't say anything about medical marijuana and they're arrested, if they show you a card...medical marijuana, and they show you a card, and you let them go and give them back their "medicine," and...the tough situation is they don't have a medical marijuana card, but they claim medical marijuana, so that's what...in the short run, we really need to address that, if there's a way to do it. DJE I would apologize to the Commission. I know that I missed your last meeting. RL I hope you enjoyed the cruise, though. DJE I did, very much so. I would apologize. I did not understand you wanted to see the ordinances. I can get them to you immediately. MN I don't know that we've seen the agreement. Maybe it was in the papers you gave us originally. DJE I'll be happy to get that for you. MN Can you get a copy of that agreement that this guy has? I'd like to see what he agreed to and didn't agree to, and maybe... JL You mean the most current agreement? MN Well, he has an agreement he signed in the spring or something? ?? Better part of a year ago. RSK I have a question. 21 PRELIMINARY MINUTES PUBLIC SAFETY COMMISSION NOVEMBER 8, 2006 RL Yes. RSK If the Commission here is going to make a recommendation as to whether the moratorium should be continued or not, don't they have to do that tonight in order for the Council to have a recommendation when they make a decision? DJE The Council will be acting December 14`h PS The answer is yes. RSK So if the Commission wants to be included in that decision, we need to get its recommendation tonight. MN If there's a recommendation...forget our recommendation. If the Council decides to extend the moratorium, that doesn't mean that any time in that next year...or let me rephrase that...at any time during the next year... RSK We can do (unclear) in between. MN ...you can adopt an ordinance. A month later, or six months later... RSK Yes. MN Okay. So, then, I don't think there's any choice if we're going to have any input to the Council, I think given where the situation stands and given the Flux,the change, since our last meeting, I think that the recommendation has to be to adopt a moratorium but then ask staff and the City Attorney to provide us with alternative ordinances, draft ordinances, as well as that agreement for us to consider at the next meeting or maybe two months hence, given the December issues, and then we can make a recommendation to the Council, and the Council will decide...if we recommend just leave it as it is and wait longer, fine. If we recommend one of the two ordinances, then the Council will consider our recommendation and take whatever action it deems appropriate. I think we would almost have no choice where we're at, frustrating as it may be. RL Comments? JB Does the moratorium have to be extended for a year, or can it be... DJE They can act at any time. The maximum period of time is a year. JB A year, okay. DJE And normally when we do that, we extend it for the maximum time, with the understanding that we can act at any time during that period of time. 22 PRELIMINARY MINUTES PUBLIC SAFETY COMMISSION NOVEMBER 8, 2006 ST (unclear) we come across a case where they've sold to somebody with just a recommendation letter, which is violation of the agreement they made, thaYs enough grounds, one case, for us to go ahead and shut them down? DJE Yes. PS Marty, was that a motion? MN Shall I make...does that sound...shall I make that motion? GK Are we...the Commission's...our original position, I believe, the Commission's position was originalty to prohibit. Are we pretty much all... JL A year ago. GK A year ago, right. Where are we today? JB I haven't changed. JL I haven't changed, either. MN I'd sure like to see the two...l mean, prohibition is a reasonable possibility. I'm sure I like the idea a lot. But I'd sure like to see the alternatives and see what kind of ordinance...what kind of serious restrictions can be put on...especially one as detailed as perhaps this one that we're hearing about now or detailed in the County's. I'd kind of like to see that before I... JB We could be comfortable saying we had two drafts. MN I think so. GK Could we make our motion to extend the moratorium for six months rather than for a year, or does it make any difference? ?? It doesn't make any difference. DJE You can come up with a recommendation to the Council requesting that they act next month or one month later. RL However, if we do make the recommendation that they would only extend the moratorium for six months,then that would mean at the end of that six month period of time, the Council would have to take action (unciear) or another. GK Right. 23 PRELIMINARY MINUTES PUBLIC SAFETY COMMISSION NOVEMBER 8, 2006 DJE That's correct. RL So that would be putting... MN I wouldn't want to put that kind of pressure on them. RL ...it would be putting more pressure on them. MN The Council will act when it feels appropriate anyway. JL I think the Council is tired of hearing about this, too. RL I don't doubt it, I don't doubt it at all. GK Make the motion, Marty, I'll... MN Okay. I think...l guess the motion is that we recommend to the Council that it extend the moratorium for a year, for the maximum period of time, which I guess is a year from December 22nd DJE It would be a year from the 14�n MN ...a year from the 14`h, alright, extend the moratorium for a year, and that in the meantime ask that the City Attorney provide us with alternative ordinances, one outright prohibition consistent with the law,of course,and a second permitting to the extend consistent with the law, with significant restrictions and we will consider those at our next meeting. GK And a copy of the agreement. MN And a copy of the agreement. That's a request, I don't know if it has to be in the motion. JB Yeah, I'd like to see the agreement, too. MN Really the motion is to extend the moratorium. ThaYs the formal motion. The rest of it, I guess, is a request to staff to provide us with the information. PS You've got it. RL We have a motion and a second on the floor. All of those in favor... JB Aye G K Aye 24 PRELIMINARY MINUTES PUBLIC SAFETY COMMISSION NOVEMBER 8, 2006 JL Aye RL Aye M N Aye RL Opposed? RSK I think you did the right thing. RL Continuing on with the Agenda, we have a report...... IX. REPORT ON CITY COUNCIL ACTION (S) 25