HomeMy WebLinkAboutSUPPTL INFO - Ord. No. 1138 PRELIMINARY MINUTES
PUBLIC SAFETY COMMISSlON APRIL 11, 2007
VII. CONTINUED BUSINESS
A. Report firom City Attomey Relative to Medical Marijuana Ordinance
The following ia a verbatim transcript of this portion of the Commission meeting:
�
SRG Sheila R. Gilligan, Assistant City Manager for Community Seroices
JB Chairman Jim Butzbach
MN Commissioner Marty Nethery
DJE David J. Ervvin, City Attomey
RL Commissioner Ridc Lebel
MG Mary Gates, Recording Secretary
JL Commissioner Jim Larsh
FT Lt. Frank Tayior
GK �ce Chair Gloria Kirkwood
SRG Chairman Butrbach...may 1 make a request, with the Commission's approval, to
move the subject matter of the marijuana ordinance forward. Our City Attomey is
here, and he has a commitment after this one, so if you couki move it forward prior
to discussing the budget, that would be heipful.
JB I have no problem with that...any opposition?
MN Do you need a motion?
SRG No, just a consensus that it's okay.
DJE Mr. Chairman, members of the Commission, what you have is an updated version
of this ordinance. It tums out it is version number six. 1 thought what 1 would do is
go through and highlight for you and tell you exacdy where the changes were from
our previous meeting. These changes also included changes that have been
suggested by Lt. Taylor. I did meet with him in the interim period of time, and his
changes, 1 believe, are incorporated in here as well. Starting on page one, under
°C°, we changed the Senate Bitl number to the Health and Safety Code Section, so
that has been done. It didn't get done in the third place, but it should have been in
"D"...it�hould be also this 11362.7. In the defini�ons on page two, we have added
a definition of"empioyee" which shafl include empfoyee, independent contractor,
volunteers, or agents. And I noted in reviewing the ordinanoe that volunteers are
not mentioned any piace. i thought they ought to be at least categorized as
employees. In the application process, 9.14.050(B)(6), we have changed this to
read"photographs for iderrtification purposes and full fingerprints(photographs and
fingerprir�ts shall be taken by the poiioe departmeritj.° This is very similar to what
we have in the Massage Ordinance, and we thought it appropriate to put it here. A
similar type of requir�ement was also no#ed under 11 when it talks about the
PRELIMINARY MINUTES
PUBLIC SAFETY COMMiSSiON APRIL 11, 2007
employees, independent contractors, and other persons...they have to go through
the same process with photos,fingerprints, and a background check, atl as set forth
previously. In 9.14.080, which is the investigafion and action on the application,
we've added in the provision that in the event no action occurs within the 45 days,
the application is automatically denied. In 9.14.100, under (B), we have changed
that so that it reads "The applicant has violated any federal, state, or local law,
statute, rute, or regutation." Previousty it said "any focal or state law applicable to
medical marijuana cooperatives. I though that was limfing, so I expanded it to
include any law. I also eliminated, out of(C)...
MN Can I interrupt you?
DJE Certainly
MN Someone is operating one of these in another city or comes to open one in the City
of Palm Desert, and ber.ause this may be a violation of Federat law, do you'd per
se have a reason to deny them?
DJE Yes
MN Because it says, the applicant has violated any Federal law, you'd have an
argument, wouldn't you, that by operating a medicat marijuana cooperative in
another city, even if it was property licensed and operating, maybe that would be a
violation of Federal law, and I don't know if that's intended or if it woutd be argued
it's circular or...
DJE tt could be ar�gued that way. I think one of the things that we have which did not get
raised eartier when the staff issued the business license is that we are not supposed
to issue any business licenses or anything that will be a violation of Federal or State
law.
MN Our existing ordinanoe (unclear)
DJE The existing ordinanoe says that. The argument may well be made, but I think
we're trying to be consistent with our existing ordinance.
JB Can 1 go back to definitions for a second? We have...there was quite a bit of
discussion about the definfion of the Chief of Police at one time as far as, you
know, points of authority or investigations. Do you recall that, sir'?
DJE We've changed most of that so it goes to the Business Licensing Department.
JB So we've just eliminated Chief of Police...okay. Thank you.
DJE It still gces to the Police for review...
JB Revie�w, exactly.
PRELIMINARY AAINUTES
PUBLIC SAFETY COMMISSION APRiL 11, 2007
DJE ...but the processing of it, neally, is the City Business License Department initially,
gathering everything together. Another item that we did under 9.14.100(C) is we
included in here as a reason for denial °convicted of a misdemeanor." We have
eliminated the"involving moral turpitude"comment(unclear)that argument,whether
it is or is not a violation of moral turpitude...it just eliminates an argument. On the
9.14.110, we have added in a third line °volunteer" and have required that this
permit and the registration shall occur prior to any employee acfing on behaff of any
cooperative. So it must be prior to them being involved in any activity at all.
JB Even in a volunteer capacity?
DJE Even in a volurrteer capacity. Then on 9.14.180, I have added back in the
duplication on Federal, State, or local law.
MN Which number is that?
DJE (B), 9.14.180(B)...and added an additionai phrase to this under (G), which says a
ground for suspension is conviction of any crime while conducfing business. On
9.14.210, I have added a subsection (R), that any product or goods shall be a
legalty acquired product from a lawful source. I believe that was Councilman
Ferguson's thought.
RL Question before you move on.
DJE Sure.
RL Back on page S under Section 9.14.190...
MPG Could you speak up, Commissioner Lebet, please?
RL 9.14.190 on page 8...if you read the first statement, it appears that there is a
process that invotves the Business License Department, but the decision of the
Police Chief is final. That would be the second statement.
DJE I'm sorry...say that again.
JL 9.14.190
MN It should say the decision of the Business License Department.
(Unclear)
DJE And it should be °revoking" instead of"revoltingp on the second line.
MN And a capital "I" in "if', the first word.
RL So that woutd give the decision of the Business License Departrnent as opposed
PRELIMINARY MINUTES
PUBLiC SAFETY COMMISStON APRIL 11, 2007
to the Police Chief?
DJE Correct.
RL Thank you.
.!B Thank you, Rick.
DJE Those are the changes that we have made to it that have been included in this
document that you have.
MN And then, of course, the other alternative you gave us, which was the categorical
prohibition, has not changed.
DJE It has not changed, no change.
MN Okay.
JB In our February meeting, I believe we discussed that we wanted to talk...either have
it agendized at the April or May meeting, as I recall, to make a recommendation to
the City Council as per a consideration from them as far as the ordinance is
concemed. Do w�....thank you to the City Attomey for alf the work that has gone
into that. I have read it several times, and I've read other cfies' ordinances...l've
already been asked for copies of this from some other cities to look at. I did say
there would be a fee for it, but would we be able to take an action and dces it have
to be...is there any notice that has to be published that the Public Safety
Commission is going to consider such an issue at all?
SRG No. The public hearing prooess is in front of the City Council.
DJE City Council. The Commission may act on the recommendation so long as it is on
your Agenda. There is no specfic notice required.
SRG And as discussed in previous meefings,you do have two options. You've discussed
both options, and thaYs really at the discretion of the Commission, and whatever
rec:ommendation you make, we will forward it to the City Council.
JB Is the Commission....oh, we have to agendize for the consideration...what we got
today was a report and an update...is that correct'?
SRG It is agendized, though, officially.
JB Oh, okay.
DJE It is on the Agenda today.
JB Okay.
PRELIMINARY MINUTES
PUBLIC SAFETY COMMISSION APRIL 11, 2007
SRG The notification and the agendizing of the item has been done properly, if that is
your question.
JB Okay. Is the Commission in a position today to make a recommendation?
SRG I would ask your colleagues.
JB I'm sorry
SRG I would ask your colleagues. It's in front of you to make a recommendation, if you
so choose.
JB Marty, do you have any comments on this?
MN I'd like to get a report on where we stand...what is the current situation with the
cooperative orthe...forwant of a better word...the business thatwas being operated
here in Pa{m Desert. What is...Lieutenant, can you give us a report on that, or
can...
SRG Actuatly, the City Attomey does, and I think...
MN Maybe he can give us a report.
JL Is it being operated right now?
FT He's coming.
SRG And I'm going to defer all of that to the City Attomey. It's not a question staff ca�
answer.
MN Dave?
DJE Yes.
MN What is the status of the business that was being or is being or was operated in
Palm Desert?
DJE At the present time, the business license has been revoked. My understanding is
that it is still operating by "volunteers" at the present time.
MN And the revocation of the business license was because of...
DJE If the Commission will recall, initially when it opened, it open�d prior to the Council
being aware of it. There was consideration to have the business license revoked
at that fime. An agreemerrt was entered irrto that indicated Mr. Hochanadel would
provide product onfy to those who had a Riverside County card issued by the
County and that there would be no consumption on the premises as well as a
PRELIMINARY MINUTES
PUBLIC SAFETY COMMISSiON APRIL 11, 2007
number of other conditions,that he would comply with the Compassionate Use Act,
and there was a violation of the terms of that agreement. It was on that basis that
the business license was revoked, and Mr. Hochanadel currently is awaiting trial,
I believe, for...one of the violafions is a violation of the Compassionate Use Act,
selling for profit, amo�g othe�charges.
MN And that was the result of the raid that took place from the Riverside...not our local
police but the Riverside County Narcotics Task Force or something.
DJE (unclear) Task Force
MN And those charges arose out of that.
DJE Yes, correct.
JB Anything else? Ridc?
RL I'm looking at a document that's entitled, excuse me, that's numbered...Ordinance
No. 1102 for a date of October 27, 2005. There was an ordinance of the City
Council of the City of Palm Desert adding Chapter 25.12 to Title 25 of the City of
Palm Desert Municipal Code to prohibit the establishment of inedical marijuana
dispensaries in the City of Palm Desert. Was that the second ordinance that we...
DJE That is the second ordinance that you have.
RL And that has not changed since then.
DJE That has not changed.
MN IYs a draft ordinance. It was never enacted.
DJE It was never passed.
RL I understand that.
DJE And that is there for your consideration.
JB Jim?
JL Nothing.
JB Gtoria, do you have any comments?
GK Nothing.
JB Lt. Taylor, do you have any commertts from the law enforcement perspective?
PRELIMINARY MINUTES
PUBLIC SAFETY COMMISStON APRIL 11, 2007
FT The only comment I have is that we sat down...or I sat down with Mr. Erwin and
werrt over the ordinance, and there were some things tfiat we looked at.
SRG Could you speak up.
FT Oh, I'm sorry.
SRG I know I'm going deaf, but we couldn't hear Rick, either.
FT I met with Mr. Ervvin, and we went over the ordinance, and there were some
additions we felt were appropriate or needed to be looked at. I brought those to his
attenfion, and he brought this document up to this point.
DJE There was a point in time, Mr. Chairman, that I believe it was Lt. Taylor's
predecessor did appear at the public hearing on the ordinances in opposition to any
medical marijuana dispensaries. He was urging the prohibition. It was Captain
Thetford.
MN Captain Thetford. Has thart white paper that the County District Attomey's Office
issued in September of 2006...has there been any change or update or modification
to that that you're aware of?
DJE No.
MN And so the Riverside Courrty Disfict Attomey's Office is on record as taking the
legal posfion that the Federal supremacy clause renders the Compassionate Use
Act and the Medical Marijuana Program Act as il{ega{.
DJE Yes.
MN And that has not changed as far as you know.
DJE It has not changed.
(Unclear)
JL If this were passed, the ordinance, how much man hours or time wou{d have to be
sperrt by the Sheriff's Department, or the City Police?
FT Well, the application process is the same as it woutd be with the massage
ordinanoe that is in plaoe, so there is a signficant amount of background that is
done on everyone that is invohred.
JL What about the ongoing inspections and all of that that you'd have (unclear)...who
does that, City staff or would you end up with it?
DJE Combination of enforoement.
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PUBLIC SAFETY COMMISSION APRIL 11, 2007
FT A combination of enforcement.
JL Enforcemerrt of it, you'd end up with it...so it would impact you somewhat. Thank
you.
RL Mr. Erwin
DJE Yes.
RL I'd asked the question a couple of months back whether or not there had been a
definition under Federal or State law regarding medical marijuana cooperafives and
medical marijuana dispensaries. Has anything changed in that area?
DJE There is nothing changed.
RL So the definfion that's being proposed in the ordinance in firont of us today would
be our version of defining that.
DJE That is correct. If you recall, in the Compassionate Use Act in Califomia,technically
there is no mention of a dispensary. They do talk in teRns in one portion of a
cooperative in growing, and they do talk about the care givers,which are all defined
in the Compassionate Use Act, but there is no spec�c definition of a dispensary or
a medical marijuana c:ooperative as such. It is (unclear) as a promotion of the
Compassionate Use Act, which technicalty, if you will recall, if the Commission will
recatl, the Compassionate Use Act isn't an affirmative permission. It provides a
defense if you have certain amount of marijuana for medical purposes to a State
action or prosecution for possession of marijuana. It's still illegal in Califomia,
except you have a defense under the medical Compassionate Use Act. So it's not
an affirmative type of permission that is given as being promoted as that, but that's
not what it says. tt is a defense.
RL Thank you. Mr. Chairman, after months of review and considerabie debate, I would
propose that we rec;ommend to the Council adoption of an ordinance that would
prohibit the establishment of inedical marijuana dispensaries in Palm Desert.
GK I'll second that.
JB IYs been moved and seconded...
MN May we have slightly some more discussion before we vote? There's something I'd
like to put on the record that is persuasive to me, and it follows up just what you
were asking about. I've read this District Attomey white paper, and in conne�tion
with the comment that you just made and the question you just asked the City
Attomey, it says there is no apparent authority for the existence of these store front
medical marijuana....in Califomia, there is no apparent authority for the existence
of these store front medical marijuana businesses, and then quobng later on ftom
the white paper...medical marijuana businesses of any kind do not mest this legal
PRELIMINARY MINUTES
PUBLIC SAFETY COMMISSION APRIL 11, 2007
definition following the definition of...from the Act. In conclusion, he says...the
District Attomey's Office says that it is there opinion that the cooperatives are illegal
and should not be pennitted to exist within the County's border, they are a clear
violation of Federal and State law,they invite more crime, and they compromise the
heanh and welfare of the citizens of the County. It also says they have the potential
for creating liability issues for counties and cities. While I am of the belief that there
are proper medical uses, I don't think it can be debated for medical marijuana, the
state of the law is, I am convinced,that these cooperatives,dispensaries, whatever
name you give them, are illegal under Federal law and that the Califomia law dces
not make them legal. And so for that reason, I am inclined to support this motion.
And I wanted to put that in the record.
JB IYs a very apropos comment. I just...my feeling is,too, and maybe it's just my years
as a cop still talking, but if the American Medical Association, drug developers, and
the Federal Drug Administrabon feel that cannabis has a good medical purpose,
then it should go through the prooess of becoming a Schedule I, II, or III drug, and
it's distributed by a normal pharmacy through normal channels just like our other
drugs are, and it's deait with accordingly.
J4 My only comment is that my mind has not changed since we started all this.
JB Wefl, it has been moved and seconded that...to recommend to the City Council of
the City of Palm Desert that an oniinance be enacted that would prohibit the use of
marijuana dispensaries in the City. Any other discussion before the vote?
RL I might clarify the motion that that would include cooperatives.
JB Include cooperatives.
MN It's really for the adoption of the ordinance, the altemative...
JB Do we still refer to that as 1102?
DJE No.
JB We know it's...as in the draft, okay. Those in favor signify by saying "aye."
GK Aye
JL Aye
RL Aye
MN Aye
JB Aye. Any opposition? No? Hearing none, so recommended.
PRELIMINARY MINUTES
PUBLIC SAFETY COMMtSS10N APRfL 11, 2007
DJE If I might be excused, Mr. Chairman.
JB You are excused, sir, and thank you for all your time and effort.
MN Thank you.
JB Excellent document.
SRG I want you to know this has been a huge job of the Public Safety Commission, and
we have put together a book on everything the Commission has done and the
Council has done, so if any of you ever want to refer to past...we could give this to
the Council as a progress report of Public Safety Commission.
JB Volume 1?
SRG Volume 1, right.
JB Thank you very much, Dave.
GK Thank you.
.!B There were no items held over on the Consent Ca{endar....
For clarification purposes, Commissioner Lebel moved to, by Minube Motion,
recommend to the City Council adoption of an ordinance prohibiting the
establishment of inedical ma�ijua�a diapensaries and cooperatives in the City of
Palm Desert. Mot�on was seconded by Commissioner Kirkwood and carried by a 5-0
vote.
VII1. OLD BUSINESS
A. Consideration of a Draft Operating Manual for the Citizens on Patrol
Program.
Rec: By Minute Mofion, continue to the meeting of May 9, 2007.
The draft manual will be distributed at the April 11, 2007,
meeting.
Action:
IX. REPORT ON CITY COUNCIL ACTION (S)
���€_t��.!�'£D
�!7' Y CE_��K'5 O�FICE
PAE.ti t3ESFRT, CA
��►.� � ?��1 MAY 22 PM 4= ( 7
�V1ay 22, 2007
To; �.A�L�DES�RT CZ'X'X COUNC�L
From: LANNY SWERDLOW
Subjcc�: LBTT�R CONCERMNG 1w1EA�C,A.L MARIJU,A.N,A AG�NU,A,
ITEM AT MA'Y 24, 2997 PALN� AES�RT CITY C�tTNCIL ME�TZNG
THRL� P,A.GES ZNC�.UDING TIIIS COVER. S�ET
I would ap�r�ciat� it if copies of tlaas �ettex could be provaded to mem,bexs of
thc Pa1m Desext City Coun,c�a ix�tax�nc for considexation of this item on the
May 24 Palm Dcscrt City Council meeting,
1 would appreciate a te�ephone call at 760-799-2055 con��ing that this
�etter has been received.
Tha�k you fox your time and conszdexat�on o�this xeques�.
Sincexely,
... �
�.a.�n.y Swerdlow
Recaivad Nay-YZ-OT 04:16pm From- To-CITY OF PALM DESERT Pa�a O1
� MARIJUANA ANTI-PROHIBITi�N PROJECT .�..
�.
AMERICAN HARNI REDUCTION ASSOCIATION �
Compassion and Common 5ense �
� PO Box 739, Palm Springs CA 92263-0739
. � Phone � 760-799-2055 ��
www.mari'uananews.or � email to: lann swerdlow earthiink.net
May 22, ZOU7
To: PALM �ESER'Y.'CTTY COUNCIL
�xoxx�: I,ANNY S W�RDLO W
Subject: M�ll1C;AL MAikZJU'ANA DISP��ISARY A,NA COLL�,CTzvL BA.N
The proposed ax�edxcal �rxiarijuasaa dispex�sary is ill-considexed at tk�xs time for the
'Fo�lowi.x��xeaso�.s.
1. Colleetives and coo�erativcs a�r� s�eeifically pxoteeted un.dez SB 420 an�d tk�e
outxx,�ht bax�n,i�ag of le�itimately oxgax�azed and opezated collcctaves and
coo�eratives would be a vip�ation of st�a,te law_
2. 'Tb,c CaJifornia Attorn�y G��aexal's affice thr�ugh a rec�uest made by�kl�e City of
� �alm S�n�s tl?,xough State 5enazor Sk�exaa Kuchl wx�l be issuing an opinion vn
t�e �egality o�medical marijuana dasp�z�saxies as well as tk�e lEgal culpabil�ity of
e�eeted o£Z�cials and municipalitxes tk�.at;regulate the d�stribu.don o��axaed�cinal
marijuana as provided uxxdex stat� law. �have p�ted below the Opiniun Re�u�st
issucd by t��c Atton�ey General's df.fice.
�respectful�y suggest tt�at tk►e Pa�m Deserl Ciry Council de�ay tkte enactmcnt �£any
ou�trriigk�t ba�n�a�d a�low the e�ati�ag moratorium to cox�ti�x�ue xn force until t�ae,,4ttorr�ey
Genera�'s o�ce assu�es tbeir�e�al opinion. For x�o�re i��ormation on this, �ou may w-a��t to
contact C:alxtoxn�ia JJeputy Attc�rncy Cieneral Maxc No�zun..
'UnfvxtunIIte�y, due tv vtkaez obaigativ�s I cannot attond tkte Tk�►uxsday, May 24 rx�Eetin�of
the Palm Desert City Council,but if yau h.ave any quest�o�as or need additional
in�orn�atioil, pleasc call me anytime at youz conve�e�,ee at 760-799-2055.
5incerely,
C,anny Swerdlar.v
Director
Received �lay-ZZ-07 04:16pm From- To-CITY OF PALM DESERT Pa�e 02
Attoxney Grcnexal,'s OfGc�Opax►ion�equ�sts .A.ssigned Zz�March 200'1
Requcstcd By: Senator Sheila James �uehl
A,ssigned To: l�e�uty At[�mey C�eneral Maxc J.Na�aan
QUeStxptl(S�:
1) ls it�ossible•fox a store fronl r.x�edical x�aa�i.juarn.a dispcnsazy tp be le�ally operat�d
undcr thc Cozaap�sionat� Use Act o�1996 (Healtk�& S�: Code, § 11362.5) axxd the
Medica�Marijuana Pro�rarz� Aet(Health & Saf. Code, §§ 11362.7-11362.83)?
2) If the goveming body of a city,city azxd county, or cou�aty approves an o�rd�z�ance
autk�oxizing and regulati�ng maxijuaz�a dispensax�es to impa�men.t the Compassianate U5t
flct of�996 ax�d the Medical�N�arijuaxxa Pzogra:xa A.ci, ca�an�iaadividual b��d oz'coutacil
zracmbar b�fvu�'�d to bc aoting ila��;ally and be subject 1,n��:deral �x'i.x�rxind] el��tx'�*es,
in,e�udictag ai.din� and abettx�g, or state cz�z�inal chargcs?
3) 1£the gor�ernin�body ofa city,city and county, or county appzoves ax�ordinan.ce
autkAoxizin�and regulating:nr�arijuau�a dispe,nsaries to im�le�e�t the Coxn�assioraate Use
Act af 1996 and the Madieal Marijua�a Progranr�,A.ct, and subsequenl�y a particular
di.spe�nsazy is £c�u�d W bc vi.dlat�,�g;,tatc l.�r�v zegarding sales axid tra£f cking o£anarijuaxaa,
could an elected o�e��l,on the gove�rnx��body be guilty vf stat�c criminal ck�arges'?
4) Does approval of sueh a�n oxd�z�anee open the jurisdictions themse�ves to civil or
CXj,X7111.X113� 11ab1�it�J�
5) Docs the issuaz�c� �f a business liccx�sc xz�v�lvc ac�y addxtional cxvi� ox crir�aiaaal liability
fox a cxty ox co�uaty and its cicctcd govexning body?
The Attorney General weacoanes and solicits the views of i�x�terested persons coaaceming
tbe];egal,issuec�aised in any c�uestxon submitted�or ax� opinion. Comments m.ust be
�rovidzd in writing.
Tkae eat']ier va�ws air� subx�aitted,tli�n�.oXe opportunity wc wx��k�av� lo coz�sider tkaem �n
t�e opizaxon cl�ra���ag a�cid review pmeess. .AJ,� �iews submitted will be e�nsidex�d public
records subject to disciosuz�c� un,der the Pub�ic Reeords Act.
Ta sub�it your w�rittex�cpmment, contact the deputy attorraey g�x�eral whose z�ame
appears next to the itenn vi�intcrest in tb.� list af�cndin�opinion rec�ue�ts appearix��;on
�lhis web.page:
��puty.A.ttaz�aey Genexa�
Marc J. Nolan
1V�axc.Nola��daj.�, •a.�;�v
3Q0 S. 5pring Stxeet
Los Angeles, CA 90013
Phonc: (2�3) Sy7-2255
k�i.lp:/[�g.ca.gav/opinic�ns/m�ntlsly_r�pc�i�t,�?la„�
�
Racelvad May-22-07 04:16pm From- To-CITY OF PALM DESERT Pa�a 03
Klassen, Rachelle
From: City of Palm Desert Web Site [flulclklemo@msn.com]
Sent: Wednesday, May 23, 2007 11:08 PM
To: Klassen, Rachelle; Kim Shanon
Subject: Contact Us Form
First name: adam
Last name: titone
E-mail address: flulclklemo@msn.com
ZIP code: 92211
Comments: outragious out-lawing Rx cannabis that is a bad desicion for all, dont be like
those who brake the law and ruin it for all, but use it to WORK FOR THE CITY NOT THE CITY
WORK AGAINST IT. . . DO WHAT THE PEOPLE WANT! ! ! !
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