Ordinance 11-06ORDINANCE NO. 2011-06
AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF EASTVALE,
CALIFORNIA, ADDING CHAPTER 6.40 OF TITLE 6 OF THE CITY OF EASTV ALE
MUNICIPAL CODE TO PERMANENTLY PROHIBIT MEDICAL MARIJUANA
DISPENSARIES
THE CITY COUNCIL OF THE CITY OF EASTVALE DOES ORDAIN AS FOLLOWS:
SECTION 1. In enacting this Chapter, the City Council finds as follows:
1. In 1970, Congress enacted the Controlled Substances Act (CSA) which, among other things,
makes it illegal to import, manufacture, distribute, possess or use marijuana in the United
States.
2. In 1996, the voters of the State of California approved Proposition 215 (the "Act" (codified as
Health and Safety (H&S) Code section 11362.5 et. seq.).
3. The Act creates a limited exception from criminal liability for seriously ill persons who are in
need of medical marijuana for specified medical purposes and who obtain and use medical
marijuana under limited, specified circumstances.
4. On January 1, 2004, SB 420 went into effect. SB 420, known as the "Medical Marijuana
Program" (codified as H&S Code sections 11362.7-11362.83) ("MMP") was enacted by the state
Legislature to clarify the scope of the Act and to allow cities and other governing bodies to adopt
and enforce rules and regulations consistent with SB 420.
5. The Act expressly anticipates the enactment of additional local legislation. It provides:
"Nothing in this section shall be construed to supersede legislation prohibiting persons from
engaging in conduct that endangers others, nor to condone the diversion of marijuana for non-
medical purposes." H&S Code §11362.5.
6. The City Council takes legislative notice, based on the materials presented to the Council
during the legislative process leading to the enactment of this Chapter of the fact that several
California cities and counties which have permitted the establishment of medical marijuana
dispensaries have experienced serious adverse impacts associated with and resulting from
such dispensaries. According to these communities, according to news stories widely reported,
medical marijuana dispensaries have resulted in and/or caused an increase in crime, including
burglaries, robberies, violence, illegal sales of marijuana to, and use of marijuana by, minors
and other persons without medical need in the areas immediately surrounding such medical
marijuana dispensaries. The City of Lake Elsinore also has reported the negative consequences
of such facilities that are supported by information from the Riverside County Sheriff's
Department. The City of Eastvale reasonably could anticipate experiencing similar adverse
impacts and effects.
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7. The City Council further takes legislative notice that marijuana dispensaries can be banned
under City of Claremont v. Kruse (2009) 177 Cai.App.4th 1153 and City of Corona v. Naulls
(2008) 166 Cai.App.4th 418.
8. The Drug Enforcement Agency ("DEA"), the federal agency charged with enforcing the CSA,
has expressed its view that state medical marijuana laws like Proposition 215 and the MMP
impede its ability to enforce the CSA; have "caused conflict and confusion among the law
enforcement community;" are "viewed as jeopardizing the historical cooperation between
federal, state, and local drug enforcement officials;" and "undercut enforcement of the
Controlled Substances Act." While the City Council in no manner intends or undertakes by the
adoption of this chapter to enforce federal law, the City Council is concerned that the comments
by the DEA reflect to some extent the adverse secondary impacts identified above. The City
also is concerned about interfering with federal law enforcement efforts.
9. The City Council further takes legislative notice that concerns about nonmedical marijuana
use arising in connection with Proposition 215 and the MMP also have been recognized by state
and federal courts. See, e.g., People ex ref. Lungren v. Peron, 59 Cai.App.4th 1383, 1386-1387
(1997); Gonzales v. Raich, 125 S.Ct. 2195, 2214 n.43 (2005).
10. The City Council further takes legislative notice that the use, possession, distribution and
sale of marijuana remain illegal under the CSA; that the federal courts have recognized that
despite California's Act and MMP, marijuana is deemed to have no accepted medical use
(Gonzales v. Raich, 125 S. Ct. 2195; United States v. Oakland Cannabis Buyers' Cooperative
532 U.S. 483 (2001 )); that medical necessity has been ruled not to be a defense to prosecution
under the CSA (United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483); and
that the federal government properly may enforce the CSA despite the Act and MMP. (Gonzales
v. Raich, 125 S. Ct. 2195.)
SECTION 2. Chapter 6.40 of the Eastvale Municipal Code is hereby added to read as follows:
"Chapter 6.40
Medical Marijuana Dispensaries
6.40.010. Findings and purpose.
The City Council finds that federal laws prohibiting the possession, sale and distribution of
marijuana, and alternatively their undesirable secondary effects, preclude the opening or
operation of medical marijuana dispensaries within the City, and in order to serve public health,
safety, and welfare of the residents and businesses within the City, the declared purpose of this
Chapter is to prohibit medical marijuana dispensaries as defined in this Chapter.
6.40.020. Medical marijuana dispensary defined.
(a) A medical marijuana dispensary is a facility or location, whether fixed or mobile, where
medical marijuana is made available to, distributed by, or supplied to the following:
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(1) More than a single qualified patient;
(2) More than a single person with an identification card; or
(3) More than a single primary caregiver.
The term "medical marijuana dispensary" includes a medical marijuana cooperative.
(b) A medical marijuana cooperative is two (2) or more persons collectively or cooperatively
cultivating, using, transporting, possessing, administering, delivering or making available
medical marijuana, with or without compensation.
(c) All terms used in this section, including but not limited to "medical marijuana," "qualified
patient," "identification card," and "primary caregiver," shall be as defined in strict accordance of
California Health and Safety Code section 11362.5. et seq.
6.40.030. Medical marijuana dispensary prohibited.
It shall be unlawful for any person or entity to own, manage, conduct, or operate any medical
marijuana dispensary or to participate as an employee, contractor, agent or volunteer, or in any
other manner or capacity, in any medical marijuana dispensary in the City of Eastvale.
6.40.040. Use or activity prohibited by state or federal law.
Nothing contained in this chapter shall be deemed to permit or authorize any use or activity
which is otherwise prohibited by any state or federal law.
6.40.050. Penalty.
Except as may otherwise be expressly provided, any person who violates any provision of this
Chapter is guilty of a misdemeanor and shall, upon conviction thereof, be punished in the
manner provided in Eastvale Municipal Code Section 1.01.220, or in any other applicable
provisions of the Municipal Code. "
SECTION 3. If any section, subsection, subdivision, sentence, clause, phrase, or portion of
this Ordinance is for any reason held to be invalid or unconstitutional by the decision of any
court of competent jurisdiction, such decision shall not affect the validity of the remaining
portions of this Ordinance. The City Council hereby declares that it would have adopted this
Ordinance, and each section, subsection, subdivision, sentence, clause, phrase, or portion
thereof, irrespective of the fact that any one or more sections, subsections, subdivisions,
sentences, clauses, phrases or portions thereof be declared invalid or unconstitutional.
SECTION 4. CEQA.
This ordinance is not subject to the California Environmental Quality Act ("CEQA") pursuant to
§§ 15060 (c) (2) (the activity will not result in a direct or reasonable foreseeable indirect physical
change in the environment) and 15060 (c) (3) the activity is not a project as defined in§ 15378
of the CEQA Guidelines (Title 14, Chapter 3 of the California Code of Regulations) because it
has no potential for resulting in physical change to the environment, directly or indirectly.
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SECTION 5. The provisions of this ordinance are intended to and do supersede any
provisions of the ordinances of the County of Riverside which cover the same matters as in this
Ordinance and which are in effect pursuant to Ordinance No. 2010-1 of the City.
SECTION 6. Declaration of Facts Supporting Urgency Ordinance. This ordinance is
adopted under the authority of Section 36937 of the California Government Code. The
statements of fact set forth in the preamble to this Ordinance are incorporated by this reference.
There are a number of inquires to establish marijuana dispensaries within the City of Eastvale
which, in the absence of this Ordinance, may pose a public safety threat to health, safety and
welfare of the children and others within the City. In the absence of the immediate effect of this
Ordinance, the safety of children and other potential victims within the City will be threatened or
imperiled. For these same reasons, property values in many neighborhoods would also be
substantially impacted. Therefore, the City Council finds, determines and declares that the
immediate preservation of the public peace, health, safety and welfare necessitates the
enactment of this ordinance as an urgency ordinance, and accordingly, this Ordinance shall
take effect immediately upon 4/5ths vote.
SECTION 7. The City Clerk shall attest to the passage of this urgency ordinance, causing it to
be posted as required by law, and it shall be in full force and effect immediately upon its
adoption.
PASSED, APPROVED AND ADOPTED this 23rd day of March, 20
Attest_-:.
Approved as to form:
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STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) §
CITY OF EASTVALE )
I, Judy L. Haughney, INTERIM CITY CLERK OF THE CITY OF EASTVALE, DO HEREBY
CERTIFY that the foregoing Ordinance Number 2011-06 was duly and regularly adopted by the
City Council of the City of Eastvale at a regular meeting held the 23rd day of March, 2011, by the
following vote:
AYES:Council Members Welch, Howell, Bootsrna, Mayor Pro Tern
DeGrandpre and Mayor Rush
NOES: None
ABSENT: None
ABSTAIN: None
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