Medical marijuana delivery service moratorium - Anaheim Ordinance 6281

7/27/2019 Medical marijuana delivery service moratorium - Anaheim Ordinance 6281

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ORDINANCE NO.

AN URGENCY ORDINANCE OF THE CITY OF ANAHEIMADDING CHAPTER 4.21 TO TITLE 4 OF THE ANAHEIMMUNCIPAL CODE PROHIBITING THE ESTABLISHMENTOR OPERATION OF MOBILE MEDICAL MARIJUANADISPENSARIES.

WHEREAS, the People of the State of California approved Proposition 215,which was codified as California Health and Safety Code 11362.5 and entitled theCompassionate Use Act of 1996 ("CUA"); and

WHEREAS, the CUA prohibits the laws criminalizing the possession orcultivation of marijuana from applying to a qualified patient, or to a patients primary caregiver,who possesses or cultivates marijuana for the personal medical use of the patient upon therecommendation of a physician, and also prohibits the criminal prosecution or punishment of a

physician for recommending marijuana to a patient for medical purposes; and

WHEREAS, California courts have held that the CUA creates a limited exceptionfrom criminal liability for seriously ill persons who need medical marijuana for specifiedmedicinal purposes and who obtain and use medical marijuana under limited, definedcircumstances; and

WHEREAS, thereafter, the Legislature of the State of California enacted SenateBill 420 in 2003 (the Medical Marijuana Program or "MMP"), codified as California Healthand Safety Code 11362.7 et seq., which requires the State Department of Health Services toestablish and maintain a voluntary program for the issuance of identification cards to qualified

patients and primary caregivers, and which also prohibits the arrest of a qualified patient or aprimary caregiver with a valid identification card for the possession, transportation, delivery orcultivation of medical marijuana; and

WHEREAS, one purpose of the CUA and MMP is [t]o encourage the federal andstate governments to implement a plan to provide for the safe and affordable distribution ofmarijuana to all patients in medical need of marijuana; and

WHEREAS, neither the federal nor the state government has implemented aspecific plan to provide for the safe and affordable distribution of marijuana to all patients inmedical need of marijuana, thus leaving cities without direction as to how the CUA is intended

to be implemented, particularly in regard to distribution of medical marijuana through mobile orstorefront dispensaries; and

WHEREAS, the MMP provides statutory guidance for medical marijuana use andcultivation, but it does not explicitly address the role of mobile or storefront medical marijuanadispensaries, nor does the MMP require that cities provide for or allow the establishment and/oroperation of mobile or storefront medical marijuana dispensaries; and


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WHEREAS, notwithstanding the passage of the CUA and the MMP, thepossession, sale and distribution of marijuana is prohibited by the Federal Controlled SubstancesAct, 21 U.S.C. 801 et seq., and Section 11359 of the California Health and Safety Code; and

WHEREAS, California law does not expressly authorize the sale or distribution of

marijuana by mobile or storefront medical marijuana dispensaries to a primary care giver, aqualified patient or a person with an identification card, as those terms are defined in Section11362.7 of the California Health and Safety Code; and

WHEREAS, the Anaheim Municipal Code currently does not expressly restrictthe existence or operation of mobile medical marijuana dispensaries in the City of Anaheim; and

WHEREAS, mobile medical marijuana dispensaries have been established andoperated in and from numerous locations in California, and as a consequence, local agencieshave reported negative secondary effects on the community, which effects include (i) illegal drugactivity and drug sales; (ii) robbery of mobile medical marijuana dispensaries; (iii) driving under

the influence of a controlled substance by persons who have obtained marijuana from a mobileor storefront medical marijuana dispensary; and (iv) persons acquiring marijuana from a mobileor storefront medical marijuana dispensary and then selling it to non-qualified persons; and

WHEREAS, the California Police Chiefs Association has compiled an extensivereport detailing the negative secondary effects associated with storefront medical marijuanadispensaries. The City Council hereby finds that the report contains persuasive anecdotal anddocumentary evidence that both storefront and mobile medical marijuana dispensaries pose athreat to public health, safety and welfare, and therefore this report, which is part of the recordbefore the City in this matter, is hereby incorporated into the City Council's findings in thisordinance; and

WHEREAS, California Health and Safety Code 11362.5(c)(2) expresslyprovides that nothing in the CUA "shall be construed to supersede legislation prohibiting personsfrom engaging in conduct that endangers others, nor to condone the diversion of marijuana fornon-medical purposes." Health and Safety Code 11362.83 similarly anticipates localregulation, providing that "[n]othing in this article shall prevent a city from adopting andenforcing local ordinances that regulate the location, operation, or establishment of a medicalmarijuana cooperative or collective civil and criminal enforcement of local ordinances [and] other laws consistent with this article;" and

WHEREAS, in City of Riverside v. Inland Empire Patients Health and WellnessCenter, Inc. (2013) 56 Cal.4th 729, the California Supreme Court held that neither the CUA northe MMP preempt local regulation or bans of medical marijuana dispensaries, and that cities canaffirmatively and proactively prohibit such activities and uses; and

WHEREAS, successful enforcement actions involving storefront dispensarieshave coincided with an increase in mobile marijuana dispensaries. In other parts of the state,shuttered marijuana dispensaries have converted their operations to mobile delivery services.There is reason to expect the same in the City of Anaheim, particularly in light of the recentCalifornia Supreme Court decision upholding local agency bans on medical marijuana


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dispensaries and the City's willingness to cooperate with federa1law enforcement operationstargeting these dispensaries; and

WHEREAS, an attorney who describes himself as one who represents "Californiadispensary clients battling local government roadblocks" has been advising his marijuana

dispensary clients to change their business model as a result of the California Supreme Courtdecision so that marijuana is distributed from a mobile source; and

WHEREAS, the exact number of mobile marijuana dispensaries operating inCalifornia is uncertain because the state does not keep a record of such dispensaries. However,in July of 2013, over fifteen marijuana distributors located in Anaheim advertised the mobiledelivery of marijuana on "Weedmaps.com," an internet commercial listing service. Most ofthese distributors advertised mobile delivery of marijuana within the Anaheim city limits; and

WHEREAS, mobile medical marijuana dispensaries have been associated withcriminal activity. Delivery drivers, for example, have been targets of armed robbers who seek

cash and drugs. As a result, many of the drivers for medical marijuana dispensaries reportedlymay carry weapons or have armed guards as protection. Examples of such criminal activityreported in the media include the following:

a. In March of 2013, a West Covina deliveryman was reportedly robbed aftermaking a delivery. The deliveryman told police that he was approached by twosubjects in ninja costumes who chased him with batons and took the marijuanaand money he was carrying.

b. In February of 2013, a Temecula deliveryman was reportedly robbed of cashoutside of a restaurant, which led to a vehicular chase that continued until therobbers' vehicle eventually crashed on a freeway on-ramp.

c. In January of 2013, marijuana deliverymen in Imperial Beach were reportedlyrobbed after being stopped by assailants (one with a semiautomatic handgun) aftermaking a stop.

d. In January 2013, a deliveryman was reportedly robbed of three ounces ofmarijuana while making a delivery outside a restaurant in Riverside, and he toldpolice that the suspect may have had a gun.

e. In May of 2012, a deliverywoman in La Mesa was reportedly shot in the facewith a pellet gun by assailants who subsequently carjacked her vehicle.

f. In August of 2011, a deliveryman was reportedly robbed of $20,000 worth ofmarijuana (approximately 9 pounds) and a cellular phone in Fullerton, andsuffered a head injury during the crime.

g. In June of 2011, a marijuana delivery from a Los Angeles mobile marijuanadispensary turned deadly in Orange County when four individuals reportedlyambushed the dispensary driver and his armed security guard and tried to robthem. One of the suspects approached the delivery vehicle and confronted the


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driver and a struggle ensued. A second suspect armed with a handgun,approached the security guard, who fired at the suspect hitting him multiple times.

h. In April of 2011, a customer reportedly made arrangements for a medicalmarijuana deliveryman to meet him in a store parking lot in Salinas. The

deliveryman was robbed, at gunpoint of approximately $1,000 in cash and 1.5pounds of marijuana.

i. In May of 2010, a college student delivering medical marijuana was reportedlyrobbed at gunpoint in Richmond. The assailants took $1,000 in cash and a poundof marijuana.

The City Council hereby finds that the aforementioned reports of criminal activitycontain persuasive, documented evidence that mobile medical marijuana dispensaries anddeliveries pose a threat to public health, safety and welfare; and

WHEREAS, a recent study published on May 27, 2013 in JAMA (Journal of theAmerican Medical Association) Pediatrics showed that, as marijuana appears in an increasingnumber of homes, so, too, does evidence of accidental ingestion of marijuana and marijuana-infused food by young children. According to the study, more children appear to accessmarijuana-laced brownies, cookies and beverages sold through marijuana dispensaries, leading toincreased emergency room visits. These children often suffer anxiety attacks when they start tofeel unexpected symptoms of being high: hallucinations, dizziness, altered perception andimpaired thinking. In addition, the study found that ingestion of highly potent marijuana byyoung children can suppress respiration and even induce coma. It is believed that the continuedproliferation of mobile medical marijuana dispensaries will provide children greater access tocookies, candies, brownies and beverages that contain marijuana without warning labels or child-resistant containers; and

WHEREAS, concerns about non-medical marijuana use in connection withmedical marijuana distribution operations have been recognized by federal and state courts. Oneexample is People v. Leal (2012) 210 Cal.App.4th 829:

"Not surprisingly, it seems that the enhanced protection from arresthas proven irresistible to those illegally trafficking marijuana, for ifthere is even rough accuracy in the anecdotal estimate by thearresting detective in this case that nearly 90 percent of thosearrested for marijuana sales possess either a CUA recommendationor a card - then there is obviously widespread abuse of the CUAand the MMP identification card scheme by illicit sellers ofmarijuana. Ninety percent far exceeds the proportion of legitimatemedical marijuana users one would expect to find in the populaceat large. For this and other reasons, it is impossible for us not torecognize that many citizens, judges undoubtedly among them,believe the CUA has become a charade enabling the use ofmarijuana much more commonly for recreational than for genuinemedical uses;" and


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WHEREAS, despite the CUA and MMP, the United States Attorneys inCalifornia have all taken action to enforce the federal Controlled Substances Act againstmarijuana dispensaries, and have issued letters stating that California cities and officials facepossible criminal prosecution for enabling these dispensaries to violate federal law; and

WHEREAS, the California Constitution grants charter cities the power to makeand enforce all ordinances and regulations with respect to municipal affairs. Article XI, Section7 of the California Constitution provides that a city may make and enforce within its limits allpolice, sanitary and other ordinances and regulations not in conflict with general laws; and

WHEREAS, the City of Anaheim, as a charter city, by and through its CityCouncil, has and may exercise all powers necessary to ensure the general welfare of itsinhabitants; and

WHEREAS, there exists a current and immediate threat to public health, safetyand welfare if the City does not adopt an ordinance prohibiting the establishment, operation or

use of mobile medical marijuana dispensaries; and

WHEREAS, it is the purpose and intent of this ordinance prohibiting all mobilemarijuana dispensaries to promote the health, safety, morals and general welfare of the residentsand businesses in the City of Anaheim; and

WHEREAS, the failure to prohibit mobile medical marijuana dispensaries willexpose the City to costs related to the regulation, enforcement and negative secondary effects ofsuch dispensaries, including an increase in violent crime; and

WHEREAS, the City Council has determined that there is a high likelihood thatmobile medical marijuana dispensaries will immediately increase in the City without theadoption of this ordinance. The City Council finds that this ordinance is necessary as anemergency measure to preserve the public peace, health and/or safety pursuant to Anaheim CityCharter Section 511; and

WHEREAS, the City Council hereby finds that, because of the inconsistencybetween state and federal law relating to the possession, sale and distribution of marijuana, andbecause of the documented threat to the public health, safety and welfare caused by medicalmarijuana dispensaries (including mobile dispensaries), it is in the best interest of the citizens ofAnaheim that the City prohibit the establishment and operation of mobile medical marijuanadispensaries within the City; and

WHEREAS, this ordinance is enacted pursuant to California Health and SafetyCode Sections 11362.5(c)(2) and 11362.83 and the Citys police power as granted broadly underArticle XI, Section 7 of the California Constitution, in order to promote the health, safety andwelfare of the citizens of Anaheim.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ANAHEIMDOES HEREBY ORDAIN AS FOLLOWS:


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SECTION 1.

That new Chapter 4.21 be, and the same is hereby, added to Title 4 of theAnaheim Municipal Code, to read as follows:

CHAPTER 4.21

MOBILE MEDICAL MARIJUANA DISPENSARIES

4.21.010 PURPOSE AND FINDINGS.

The City Council finds that federal and state laws prohibiting the possession, saleand distribution of marijuana preclude the establishment or operation of City-sanctioned orpermitted Mobile Medical Marijuana Dispensaries within the City of Anaheim. In order topromote and ensure the health, safety and welfare of the City and its residents, the declaredpurpose of this chapter is to prohibit Mobile Medical Marijuana Dispensaries as provided in this

chapter.

4.21.020 MOBILE MEDICAL MARIJUANA DISPENSARY DEFINED.

"Mobile Medical Marijuana Dispensary" means any facility, location, clinic,cooperative, collective, club, individual, business or group that transports, delivers, or arrangesthe transportation or delivery of, medical marijuana to a "qualified patient," a person with an"identification card" or a "primary caregiver," as those terms are defined in Section 4.20.020 ofthis Code. All other terms applicable to this Chapter 4.21 shall be defined as set forth in Chapter4.20 of this Code, unless otherwise defined differently in this Chapter 4.21.

4.21.030 MOBILE MEDICAL MARIJUANA DISPENSARIES PROHIBITED.

Mobile Medical Marijuana Dispensaries are prohibited in the City of Anaheim. Itshall be unlawful for any person or entity to own, manage, conduct or operate any MobileMedical Marijuana Dispensary, or to participate as an employee, contractor, agent or volunteer,or in any other manner or capacity, in any Mobile Medical Marijuana Dispensary in the City ofAnaheim.

4.21.040 MARIJUANA DELIVERY PROHIBITED.

.010 No person shall deliver marijuana to any location within the City ofAnaheim from a Mobile Medical Marijuana Dispensary, regardless of where the Mobile MedicalMarijuana Dispensary is located, or engage in any action or operation in furtherance of thispurpose.

.020 No person shall deliver any marijuana-infused product, such as tinctures,baked goods or other consumable products, to any location within the City of Anaheim from aMobile Medical Marijuana Dispensary, regardless of where the Mobile Medical MarijuanaDispensary is located, or engage in any action or operation in furtherance of this purpose.


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4.21.050 PUBLIC NUISANCE DECLARED.

Operation of any Mobile Medical Marijuana Dispensary within the City ofAnaheim in violation of the provisions of this chapter is hereby declared a public nuisance andmay be abated by all available means.

4.21.060 USE OR ACTIVITY PROHIBITED BY STATE OR FEDERAL LAW.

Nothing contained in this chapter shall be deemed to permit or authorize any useor activity which is otherwise prohibited by any state or federal law.

SECTION 2. EXISTING NONCONFORMING USES.

Any Mobile Medical Marijuana Dispensary existing or operating within the Cityof Anaheim on the effective date of this ordinance shall cease operations forthwith.

SECTION 3. COMPLIANCE WITH CALIFORNIAENVIRONMENTAL QUALITY ACT.

The City Council finds that this ordinance is not subject to the CaliforniaEnvironmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activity will notresult in a direct or reasonably foreseeable indirect physical change in the environment) and15060(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 inphysical change to the environment, directly or indirectly.

SECTION 4. DECLARATION OF FACTS SUPPORTING URGENCYMEASURE; EFFECTIVE DATE.

This ordinance is adopted as an urgency measure pursuant to, and as authorizedby, Section 511 of the Anaheim City Charter. The statements of fact set forth in the preamble tothis ordinance are incorporated herein by this reference. Based on those facts, the City Councilfinds, determines and declares that the immediate preservation of the peace, health, safety andwelfare of the City and its residents necessitates the enactment of this ordinance as an urgencyordinance. Accordingly, this ordinance shall become effective immediately upon adoption.

SECTION 5. SEVERABILITY.

The City Council of the City of Anaheim hereby declares that should any section,paragraph, sentence or word of this ordinance hereby adopted be declared for any reason to beinvalid, it is the intent of the City Council that it would have passed all other portions of thisordinance independent of the elimination herefrom of any such portion as may be declaredinvalid.

SECTION 6. SAVINGS CLAUSE.

Neither the adoption of this ordinance nor the repeal of any other ordinance of thisCity shall in any manner affect the prosecution for violations of ordinances, which violations


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were committed prior to the effective date hereof, nor be construed as a waiver of any license orpenalty or the penal provisions applicable to any violation thereof. The provisions of thisordinance, insofar as they are substantially the same as ordinance provisions previously adoptedby the City relating to the same subject matter, shall be construed as restatements andcontinuations, and not as new enactments.

THE FOREGOING ORDINANCE was introduced at a regular meeting of theCity Council of the City of Anaheim held on the 23rd day of July, 2013, and passed and adoptedas an urgency measure on that date, by the following roll call vote:

AYE:

NOES:

ABSENT:

ABSTAIN:

ATTEST:

CITY OF ANAHEIM

By: __________________________________MAYOR OF THE CITY OF ANAHEIM

ATTEST:

By: ______________________________________CITY CLERK OF THE CITY OF ANAHEIM

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Medical marijuana delivery service moratorium - Anaheim Ordinance 6281

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