HomeMy WebLinkAbout2011-034 Six-Month Moratorium on the Addoption of CW 69.51A re: Medical MarijuanaORDINANCE NO. 2011 -34
AN ORDINANCE of the City of Yakima, Washington, adopting a six -month moratorium on
the establishment of medical marijuana or cannabis dispensaries,
production facilities, processing facilities, and collective gardens, with
attendant moratorium on the filing and acceptance of development
applications for, and the location of, land uses operating or conducting
medical marijuana or cannabis dispensary, production, processing, and
collective farm activities; directing development of comprehensive zoning
and business regulations pertaining to medical marijuana or cannabis
dispensaries, production facilities, processing facilities, and collective
gardens; providing that the moratorium shall be in effect for six months,
through January 17, 2012; and declaring an emergency providing for
immediate effective date.
WHEREAS, Initiative Measure No. 692, approved by the voters of Washington State on
November 30, 1998 and now codified as Chapter 69.51A RCW, creates an affirmative defense
for "qualifying patients" to the charge of possession of marijuana, and provides that such
patients can, as an alternative to growing marijuana for their own use, designate a "designated
provider" who can provide (not sell) medical marijuana to "only one patient at a time;" and
WHEREAS, the initiative and current Chapter 69.51A RCW are clear that nothing in its
provisions are to be "construed to supersede Washington state law prohibiting the acquisition,
possession, manufacture, sale or use of Cannabis for non - medical purposes;" and
WHEREAS, the Washington State Department of Health opines that it is "not legal to buy
or sell' medical Cannabis and further opines that "the law [Chapter 69.51A RCW] does not allow
dispensaries," leaving enforcement to local officials; and
WHEREAS, the City acknowledges the right of qualified health care professionals to
recommend the medical use of Cannabis, acknowledges the affirmative defense available to
qualifying patients for the possession of Cannabis as well as the right of patients to designate a
"designated provider" who can "provide" rather than sell Cannabis to "only one patient at any
one time;" and
WHEREAS, the Legislature has passed E2SSB 5073 (the "Act ") and the Governor has
signed the bill but has vetoed several sections of the bill; and
WHEREAS, Section 1102(1) of the Act provides:
Cities and towns may adopt and enforce any of the following pertaining to the
production, processing, or dispensing of cannabis or cannabis products within their
jurisdiction: Zoning requirements, business licensing requirements, health and safety
requirements, and business taxes. Nothing in this act is intended to limit the authority of
cities and towns to impose zoning requirements or other conditions upon licensed
dispensers, so long as such requirements do not preclude the possibility of siting
licensed dispensers within the jurisdiction. If the jurisdiction has no commercial zones,
the jurisdiction is not required to adopt zoning to accommodate licensed dispensers, and
WHEREAS, E2SSB 5073 will be effective on July 22, 2011; and
WHEREAS, in addition to the provisions of Section 1102 of the Act stated above, the Act
authorized "collective gardens" which would allow up to ten (10) qualifying patients to
collectively produce, possess, process, grow and deliver up to fifteen (15) cannabis plants per
patient up to a maximum of forty -five (45) cannabis plants; and
WHEREAS, RCW 36.70A.390 and RCW 35.63.220 authorize the City Council to adopt an
ordinance imposing a moratorium and provide a process for public hearing which must be held
within sixty days of the date of adoption of the moratorium; and
WHEREAS, the City Council finds and determines that the City of Yakima needs time to
consider additional zoning regulations, health and safety regulations, and business licensing
regulations which would deal specifically with the production, processing, or dispensing of
cannabis or cannabis products, including but not limited to "collective gardens," within the City of
Yakima, and the City Council has therefore decided to impose a moratorium for the term of six
months, commencing on the effective date of this ordinance and extending through January 17,
2012, in order to study the issue as determined by the City Council and to consider adopting
appropriate regulations; and
WHEREAS, the City Council finds and determines that imposition of a moratorium is
necessary to (a) provide the City with an opportunity to study the issues regarding siting, zoning
and regulation of the production, processing, or dispensing of cannabis or cannabis products,
including but not limited to "collective gardens," within the City of Yakima and to prepare
appropriate revisions to the City's codes and regulations; (b) to protect the health, safety and
welfare of the citizens of Yakima by avoiding and ameliorating negative impacts of the
proliferation of points of production, processing, or dispensing of cannabis or cannabis products,
including but not limited to "collective gardens," within the City of Yakima; and (c) avoid
applicants possibly establishing vested rights contrary to and inconsistent with any revisions the
City may make to its regulations and codes as a result of the City's study of this matter; and
WHEREAS, the City Council finds, determines and concludes that an emergency exists,
to wit: (a) E2SSB 5073 becomes effective July 22, 2011; (b) neither City staff nor the Planning
Commission have had sufficient opportunity to review the effects of such Act or to formulate,
prepare and recommend appropriate zoning regulations, health and safety regulations, and
business licensing regulations which would deal specifically with the production, processing, or
dispensing of cannabis or cannabis products, including but not limited to "collective gardens,"
within the City of Yakima; and (c) the immediate imposition of this moratorium will preserve the
status quo to enable the City to further study the effects of such Act and to devise appropriate
zoning and regulatory controls to address the effects of such legislation; and
WHEREAS, the City Council authorizes and directs the City Manager to review existing
City codes and zoning regulations, further study the effects resulting from the enactment of
E2SSB 5073, prepare comprehensive proposed amendments to the City codes and zoning
regulations to address the effects of such Act, to confer with community members and City
advisory commissions as appropriate, and to present recommended legislation addressing such
issues to the City Council for consideration and action; and
WHEREAS, the City Council finds and determines that a public hearing on this
moratorium should be held on August 16. 2011, whereupon the City Council may adopt findings
of fact in support of the adoption of this moratorium, or modify the terms thereof; and
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WHEREAS, notwithstanding the term of six months set forth above for the moratorium
adopted herein, this moratorium may at any time hereafter be (a) modified by the City Council in
accordance with applicable law; (b) extended for additional term(s) of six months upon action
following public hearing and adoption of findings in support thereof; (c) terminated by the City
Council upon adoption of appropriate zoning and regulatory codes; or (d) terminated by the City
Council for any reason deemed necessary or appropriate; now, therefore:
BE IT ORDAINED BY THE CITY OF YAKIMA:
Section 1. Moratorium Established. From and after the effective date of this ordinance,
the City shall not allow the filing of or accept any application for a building permit, tenant
improvement, business license, business registration, nonprofit license, permit, subdivision,
short subdivision, site plan review, or any other development, or for any building (including any
additions, expansions, or modifications thereto), land, structure or use, in which the production,
processing, or dispensing of cannabis or cannabis products, including but not limited to
"collective gardens," are or are proposed to be operated or conducted. From and after the
effective date of this ordinance, the production, processing, or dispensing of cannabis or
cannabis products, including but not limited to "collective gardens" are hereby designated as
prohibited uses within all zoning districts of the City of Yakima, and no new land use which
operates or conducts the production, processing, or dispensing of cannabis or cannabis
products, including but not limited to "collective gardens," shall be located within the City and no
existing land use may begin operating or conducting the same. As used in this ordinance, the
following terms have the meanings set forth below:
A. "Marijuana" or "cannabis" means all parts of the plant Cannabis, whether growing or
not; the seeds thereof; the resin extracted from any part of the plant; and every
compound, manufacture, salt, derivative, mixture, or preparation of the plant, its
seeds, or resin. "Marijuana" or "cannabis" does not include the mature stalks of the
plant, fiber produced from the stalks, oil or cake made from the seeds of the plant,
any other compound, manufacture, salt, derivative, mixture, or preparation of the
mature stalks, except the resin extracted therefrom, fiber, oil or cake, or the
sterilized seed of the plant which is incapable of germination. The terms
"marijuana" and "cannabis" include cannabis products and useable cannabis.
B. "Medical marijuana or cannabis dispensary" means premises and equipment used
to select, measure, package, label, deliver, sell, or otherwise transfer (for
consideration or otherwise) marijuana or cannabis for medical use to more than one
qualifying patient within any thirty (30) day period.
C. "Medical marijuana or cannabis processing facility" means premises and
equipment where medical marijuana and cannabis products are manufactured,
processed, handled and labeled for sale, delivery or transfer (for consideration or
otherwise) to a medical marijuana or cannabis dispensary or to more than one
qualifying patient within any thirty (30) day period.
D. "Medical marijuana or cannabis production facility" means premises and equipment
where cannabis is planted, grown, harvested, processed, stored, handled,
packaged or labeled for sale, delivery or transfer (for consideration or otherwise) to
a medical marijuana or cannabis dispensary, or to more than one qualifying patient
within any thirty (30) day period.
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E. A "collective garden" means premises and equipment where qualifying patients
engage in the production, processing, handling, transporting, delivery or transfer (for
consideration or otherwise) of cannabis for medical use as set forth Section 403 of
the Act and subject to the limitations therein.
F. "Cannabis products" means products that contain cannabis or extracts thereof, have
a measurable tetrahydrocannabinol (THC) concentration greater than three - tenths
of one percent per weight or volume, and are intended for human consumption or
application, including but not limited to, edible products, tinctures, and lotions. The
term "cannabis products" does not include useable cannabis.
G. "Useable cannabis" means dried flowers of the Cannabis plant having a
tetrahydrocannabinol (THC) concentration greater than three - tenths of one percent
per weight or volume. Useable cannabis excludes stems, stalks, leaves, seeds and
roots. For purposes of this subsection, "dried" means containing less than fifteen
percent (15 %) moisture content by weight. Useable cannabis does not include
cannabis products.
In addition to the above definitions and as necessary to interpret or apply this
Ordinance, the City hereby adopts those definitions set forth in Chapter 69.51A RCW,
as the same now exists or as it may hereafter be amended.
Section 2. Exemption — Vested Rights. Applications which are legally vested as of the
effective date of this ordinance shall continue to be processed as provided in the Yakima
Municipal Code and according to the land use regulations in effect on the date of vesting.
Section 3. Public Hearing. Pursuant to RCW 36.70A.390 and RCW 35.63.220, a public
hearing will be held on Tuesday, August 16. 2011, for the purpose of taking testimony and, if
this ordinance is passed, adopting written findings and conclusions justifying the moratorium
established by this ordinance.
Section 4. Effective Period of Moratorium. The moratorium adopted by this ordinance
shall become effective immediately upon passage and approval of this ordinance, and shall
remain in effect for six months, through January 17, 2012, subject to adoption of findings and
conclusions as provided in Section 3 above. This moratorium shall also terminate upon the
adoption of permanent regulations governing the location, land use and regulation of persons,
entities and businesses operating with licenses for the production, processing, or dispensing of
medical marijuana or cannabis products, including but not limited to "collective gardens."
Notwithstanding the above, this moratorium may be extended as provided in RCW 36.70A.390
and RCW 35.63.220.
Section 5. Directive to City Manager. The City Council hereby authorizes and directs
the City Manager to review existing City codes and zoning regulations; to further study the
effects resulting from Chapter 69.51A RCW and the Act; to prepare comprehensive proposed
amendments to the City codes and zoning regulations to address the effects of such laws; to
confer with community members and City advisory commissions as appropriate; and to present
recommended legislation addressing such issues to the City Council for consideration and
action.
Section 6. Declaration of Emergency. Pursuant to Article VI Section 2 of the Charter
of the City of Yakima, the City Council finds, determines and declares that this ordinance is an
al
emergency ordinance to provide for the immediate preservation of the public peace, property,
health or safety. The unanimous vote of the City Council shall be necessary for the passage of
this emergency ordinance.
Section 7. Severability. If any section, sentence, clause or phrase of this ordinance
should be held to be invalid or unconstitutional by a court of competent jurisdiction, such
invalidity or unconstitutionality shall not affect the validity of constitutionality of any other section,
sentence, clause or phrase of this ordinance.
Section 8. Ordinance to be Transmitted to Department. Pursuant to RCW 36.70A.106,
this Ordinance shall be transmitted to the Washington State Department of Commerce as
required by law.
Section 9. Effective Date. This ordinance shall be in full force and effect immediately
upon its passage and approval as provided by law and the City Charter.
PASSED BY UNANIMOUS VOTE OF THE CITY COUNCIL, signed and approved this
19th day of July, 2011.
ATTEST:
&= .1"rN AQ A
c
City Clerk-
Effective Date: July 19, 2011
Publication Date: July 22, 2011
Ordinance Approved by Unanimous Vote
of Council Members: July 19, 2011
Micah Cawley/,Mayor
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT P-rneYg°TIG�
Item No. off ar , tier ,
For Meeting of July 19, 2011
ITEM TITLE: An Emergency Ordinance initiating a six -month moratorium on the
establishment of medical marijuana ' or cannabis dispensaries and related
facilities, as well as on the filing of development applications for same, all for
the purpose of allowing the time necessary to study the new laws associated
therewith and to develop appropriate zoning and business regulations
related to medical marijuana; the moratorium shall be in effect immediately
upon execution and shall continue for six months.
SUBMITTED BY: Mark Kunkler, Senior Assistant City Attorney
CONTACT PERSON/TELEPHONE: Mark Kunkler, Senior Assistant City Attorney
(575 -6030)
SUMMARY EXPLANATION:
The purpose of adopting the emergency ordinance initiating a moratorium on the establishment
of medical marijuana or cannabis dispensaries and related facilities in the City of Yakima is to
immediately preserve the status quo for six months, thus allowing the City to fully analyze the
new laws taking effect on July 22, 2011, and to develop appropriate land use zoning and
regulatory controls regarding location and operation of medical marijuana processing,
production and grow operations in order to protect the health, safety and welfare of the citizens
of Yakima. The declaration of emergency and enactment of the moratorium as an emergency
ordinance will allow the immediate effect of the moratorium, thus preventing the establishment
of new medical marijuana facilities before appropriate and necessary review can be conducted
and responsive regulatory provisions can be enacted. A public hearing concerning the
continuation of the moratorium shall be set to take place on August 16, 2011 for the City
Council to adopt findings of fact supporting the adoption of this moratorium or modify the terms
thereof, as required by state law.
Resolution Ordinance X Other (Specify)
Contracts
Mail to (name and address):
Phone:
Funding Source
APPROVED FOR SUBMITTAL:
STAFF RECOMMENDATION: Adopt Ordinance
BOARD /COMMISSION RECOMMENDATION:
COUNCIL ACTION:
Changes to Washington's Medical Marijuana law (SB 5073)
All portions of the new law vetoed by the Governor have been ignored
New Sections of no consequence have been ignored
Only altered portions of the old medical marijuana law are addressed (unaltered sections of the old law
remain intact, see RCW 69.51A)
OLD
NEW
69.51A.005: "...shall not be found
Sec. 102(2)(a): "...shall not be arrested, prosecuted, or subject to
guilty of a crime under state law for
other criminal sanctions or civil consequences under state law
their possession and limited use of
based solely on their medical use of cannabis..."
marijuana"
69.51A.005: "Persons who act as
Sec. 102(2)(b): "Persons who act as designated providers to such
designated providers to such
patients shall also not be arrested, prosecuted, or subject..."
patients shall also not be found
guilty of a crime under state law..."
69.51A.005: "Health care
Sec. 102(2)(c):" Health care professionals shall also not be
professionals also be excepted from
arrested, prosecuted, or subject to other criminal sanctions or civil
liability and prosecution for the
consequences understate law..."
authorization of marijuana use..."
69.51A.030: additions made
Sec. 301(2): Health care professional can only issue medical mj
card after completing an exam, documenting the illness, informing
patient of other options, documenting other measures of
treatment . Health care professional cannot endorse or have an
interest in a dispensary or diagnose at a dispensary. HCP cannot
advertise prescribing medical MJ cards
69.51A.040 (removed and replaced
Sec. 401: "The medical use of cannabis in accordance... does not
w/ sec. 401)
constitute a crime ... may not be arrested, prosecuted..."
"If charged with violation of.state
law relating to
Law enforcement not liable for not seizing mj if: patient or
marijuana—established an
provider has no more than 15 mj plants; no more than 24oz of
affirmative defense..."
usable mj;
If person is both patient and provider, can have double (30 plants,
48oz)
New Sec. 402: A person not registered as medical mj user with the
registry may raise affirmative defense if the person meets certain
conditions
New Sec. 403: patients may create and participate in collective
gardens for the purpose of producing, processing, transporting,
and delivering mj subject to certain conditions
New Sec. 404: patient can change mj providers at any time, and
provider can stop providing to a certain patient at any time
New Sec. 405: A patient or provider exceeding the amount of
allowable mj, but complying with all other rules, may establish an
affirmative defense at trial that the patient's necessary amount of
mj is greater than that prescribed
New Sec. 406: A person not registered with the registry or didn't
present valid documentation to police and was arrested can
establish an affirmative defense at trial
New Sec. 408: Use of medical mj cannot be sole reason to reject
patient for an organ transplant, unless its shown that use poses
significant risk of organ rejection
New Sec. 409: Patient cannot have parental rights restricted solely
because of medical mj use
69.51A.060(1): "It shall be a
Sec. 501(1): "It shall be a class 3 civil infraction to use or display
misdemeanor to use or display
medical cannabis in a manner or place which is open to the view of
medical marijuana in a manner or
the general public."
place which is open to the view of
the general public."
Sec. 501(5): nothing in chapter authorizes use of medical mj to
person subject to WA code of military justice
Sec. 501(6): nothing in chapter requires an accommodation for
medical mj use if an employer has a drug -free work place policy.
New Sec. 1001: By July 1, 2014 WA state institute for public policy
shall conduct cost - benefit analysis of this act
New Sec. 1002: UW and WSU can conduct research of efficacy and
safety of administering mj as medical treatment
New Sec. 1101: No civil or criminal liability may be imposed by any
court on the state and its officers, or a municipality and its officers
for actions taken in good faith under this act
New Sec. 1102: Cities, towns, and counties can adopt zoning
requirements, business licensing requirements, health and safety
requirements, and business taxes pertaining to the production,
processing or dispensing of mj or mj products. This act is not
intended to limit the authority of cities, towns, and counties to
impose conditions of dispensaries.
New Sec. 1103: Provisions of this act are severable
New Sec. 1105: Arrest and prosecution protections of this act may
not be asserted in a supervision revocation or violation hearing by
person who is supervised by a corrections agency or
department... that has determined that terms of this section are
inconsistent with and contrary to his or her supervision
Person may not be licensed as a licensed producer, processor or
dispenser if he or she is supervised by an agency or department
that has determined that licensure is inconsistent with and
contrary to his or her supervision
69.51A.080: Adoption of rules by
New Sec. 1204: 69.51A.080 is repealed
the department of health — Sixty -
day supply for qualifying patients