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HomeMy WebLinkAbout07/19/2011 Off Agenda Item Emergency Ordinance for Six-Month Medical Marijuana Moratorium BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT grn° G y , � Item No. eft i +ervt 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: City Manager STAFF RECOMMENDATION: Adopt Ordinance BOARD /COMMISSION RECOMMENDATION: COUNCIL ACTION: 1 ORDINANCE NO. 2011 - 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 1 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 2 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 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: 3 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. 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 4 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 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. 5 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. Micah Cawley, Mayor ATTEST: By City Clerk Effective Date: Publication Date: Ordinance Approved by Unanimous Vote of Council Members: 6 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 under state 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 Seattle passes bill regulating medical pot shops - seattlepi.com bisfr; 6t.* d- '7 / J y Page 1 of 2 r Seattle passes bill regulating medical pot shops By CHRIS GRYGIEL, SEATTLEPI.COM STAFF Updated 05:07 p.m., Monday, July 18, 2011 Setting up a possible confrontation with the federal government, the City Council on Monday passed a new law that establishes a regulatory framework for the growing number of medical marijuana dispensaries in Seattle. The City Council unanimously passed its own ordinance because efforts to address medical marijuana, which is legal in Washington, foundered earlier this year in Olympia. "How did we get here? The upshot is, (dispensaries are) here and we should regulate them," City Councilwoman Sally Clark said before the vote. The ordinance, sponsored by Councilman Nick Licata, requires medical marijuana dispensaries to obtain a business license, pay taxes and fees and meet city land use codes. They would also be subject to the requirements of the city's "Chronic Nuisance Property Law," meaning if there are repeated complaints about activity at the establishments they could face fines or possible closure. The "open use and display of cannabis" would also be prohibited at the dispensaries. Clark said in the coming months the Council would come up with zoning rules for the businesses - deciding where they can locate and where they would be banned. Dispensaries have opened in Ballard, Capitol Hill and SoDo, to name just a few neighborhoods. "For now, we're trying to provide as much clarity as we can," she said. Phillip Dawdy, an advocate for changes to marijuana laws who spoke in favor the city ordinance. "At the end of the day it's patients that are going to be left out in the cold and pushed on the market if municipalities don't start dealing with this," he said. The state Legislature had passed a medical pot bill, but Gov. Chris Gregoire rejected most of it. She said she worried the legislation put state workers at risk of federal prosecution. Evergreen State voters approved legalizing medical marijuana in 1998. Washington is one of 16 states which allows marijuana use for medical purposes, but the federal government does not recognize any medicinal use for cannabis. The bill that passed in Olympia was designed to set clearer regulations on medical marijuana use and to establish a licensing system and patient registry to protect qualifying patients, doctors and providers from criminal liability. Gregoire vetoed provisions of the bill that would have licensed and regulated medical marijuana dispensaries and producers. She also vetoed a provision for a patient registry under the Department of Health. Uncle Sam has made it clear — the sale and use of marijuana for any purposes violates federal law. Emily Langlie, a spokeswoman for Jenny Durkan, the U.S. Attorney for Western Washington, referred reporters to a memo written earlier this year by Deputy Attorney General James M. Cole that reiterates that people who use, sell or cultivate pot for medical use face arrest and prosecution. http: / /www. seattlepi.com/local /article /Seattle - passes -bill- regulating - medical -pot- shops- 1471271.php 7/19/2011 w Seattle passes bill regulating medical pot shops - seattlepi.com Page 2 of 2 State laws are "not a defense" to civil or criminal enforcement of federal law, Cole said. "Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law," he said. Those individuals could also face federal money laundering charges, according to Cole. And the City Council was previously warned that their new rule might not stand up in state court because, according to one attorney, Seattle can't regulate an illegal business without a specific authority. Seattle's mayor and city attorney and King County's executive and prosecutor had all supported establishing a state framework for medical marijuana. Free Prescription Assist Pot POT: Buy, Sell, or Hold? Use one of our 56,000 prescription Find Pot Online. Free Shipping $50 Don't trade POT until you get our discounts and save at on 100,000 Items! trusted free weekly www.yourrxdiscounts.com Target. com /FreeShipping www.TheBestNewsletters.com Ads by Yahoo! Reader Services: My account I Mobile I RSS feeds I Follow us on Twitter I Facebook I E -mail newsletters I Corrections I Site index Company Info: Advertise online I Contact us I Send us tips I Job openings I About the P -I I Hearst Corp. I Terms of use I Privacy policy I About our ads Advertising Services: SEC by LocalEdge I PPC Management by Metrix4Media Send comments to newmedia @seattlepi.com © 2011 Hearst Communications Inc. mown $ T newspapers http: / /www.seattlepi.com/local/ article / Seattle - passes - bill - regulating - medical -pot- shops- 1471271.php 7/19/2011 Local News 1 Seattle passes rules for medical - marijuana providers' Seattle Times Newspaper Page 1 of 2 gbe$eattle imes Winner of Eight Pulitzer Prizes Originally published Monday, July 18, 2011 at 3:52 PM Seattle passes rules for medical- marijuana providers The Seattle City Council on Monday passed rules governing medical- marijuana operations, just as the state's law is dramatically changing. By Seattle Times staff The Seattle City Council on Monday passed rules governing medical- marijuana providers, requiring they Top comments Hide / Show comments get a city business license and comply with city land -use, fire - safety and other rules. [(CI swear all our council persons must be pot The ordinance, passed unanimously with Councilmember smokers. Why else would they go against... (July Nick Licata absent, will take effect 3o days after being 18, 2011, by nosoupforu) Read more signed by Mayor Mike McGinn, who has been supportive of the medical- marijuana law. [01 Well looks like at least one city got their head The ordinance was in part the result of meetings between out of their azz. (July 18, 2011, by jrock419) Read city officials, including City Attorney Pete Holmes, and more members of the medical - marijuana community. They gathered last month to talk about what is allowable under [C Because Federal Law is unconstitutional, state law, which is dramatically changing July 22, immoral and wrong. (July 18, 2011, by blackmetal) because of Gov. Chris Gregoire's partial veto in May of a Read more proposed landmark bill that would have legalized and regulated dispensaries and grow farms Read all 52 comments > Post a comment > Her veto made dispensaries, which have boomed throughout the state in the past two years, clearly illegal. But she also authorized new 45 -plant "collective gardens" for up to 10 patients at a time, clearly establishing for the first time a right for patients to band together in growing collectives. The new state law suggests that, by rotating several of the 10 patient memberships in each garden, medical - marijuana operations would be able to have large customer bases, Seattle defense attorney Aaron Pelley said at the meeting. Seattle's ordinance means storefront marijuana distributors are likely here to stay, as dispensaries shift, in business model and name, into collective garden co -ops. More than four dozen dispensaries have Seattle business licenses, with at least a dozen more underground, according to city staff. Over the next several months, Seattle will consider further regulation, including possible zoning restrictions that could channel collective gardens into commercial or industrial zones, Councilmember Sally Clark said earlier this month. Staffers were researching current zoning rules for gardens, farms and pharmacies. Seattle's embrace of medical- marijuana dispensers puts it at odds with neighboring cities and likely makes it a magnet for providers pushed out of Shoreline, Kent, Federal Way and others. Kent is expected to hold a hearing on a proposal to ban dispensaries Tuesday. Times staff reporter J.B. Wogan contributed to this report. Information from The Seattle Times archives is included. http: / /seattletimes. nwsource. com /html/ localnews /2015652681_marijuana19m.html 7/19/2011