2013-128 Prohibit Mobile Marijuana Dispensaries ORDINANCE NO. 2013-128
AN ORDINANCE OF THE CITY OF MENIFEE, CALIFORNIA,
AMENDING THE MENIFEE MUNICIPAL CODE ADDING
CHAPTER 5.60 TO PROHIBIT MOBILE MARIJUANA
DISPENSARIES NECESSARY FOR PRESERVING PUBLIC
PEACE, HEALTH, AND SAFETY.
The City Council of the City of Menifee hereby ordains as follows:
Section 1. Findings. In enacting this ordinance, the City Council finds
and takes legislative notice as follows:
1. In 1970, Congress enacted the Controlled Substances Act (21 U.S.C. Section
801 et seq.) which, among other things, makes it illegal to import,
manufacture, distribute, possess, or use marijuana for any purpose in the
United States and further provides criminal penalties for marijuana use; and
2. The Compassionate Use Act ("CUA"), codified at California Health and Safety
("H&S") Code Section 11362.5, was approved by California voters in 1996
and legalized the use of marijuana for specific medical purposes; and
3. California courts have held that the CUA creates a limited exception for
criminal liability for seriously ill persons who are in need of medical marijuana
for specified medicinal purposes and who obtain and use medical marijuana
under limited, specified circumstances; and
4. In 2003 the State of California adopted SB 420, the Medical Marijuana
Program ("MMP"), codified at California Health and Safety ("H&S") Code
Section 11362.7, which clarifies the scope of the Compassionate Use Act and
allows local jurisdictions to adopt and enforce rules consistent with SB 420;
and
5. The CUA 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 nonmedical purposes." (H&S Code
Section 11362.5.) The MMP similarly anticipates local regulation, providing:
"Nothing in this article shall prevent a city . . . from adopting and enforcing . .
. local ordinances that regulate the location, operation, or establishment of a
medical marijuana cooperative or collective . . . civil and criminal enforcement
1
of local ordinances; [and] . . . other laws consistent with this article (H&S
Code 11362.83.); and
6. The California Supreme Court has established that neither the CUA or MMP
preempt local regulation in the case of City of Riverside v. Inland Empire
Patients Health and Wellness Center, Inc., 56 Cal. 4th 729 (2013); and
7. The exact number of delivery services operating in California is unclear, since
the state does not keep a registry of mobile medical marijuana distributors. In
March of 2013, over 30 services within 30 miles of Menifee advertised direct
delivery of marijuana on "Weed maps.com", an internet commercial listing
service. By May 29, 2013, 50 services within 30 miles of Menifee advertised
direct delivery of marijuana on "Weedmaps.com". Most deliver within the
Menifee City limits; and
8. An increase in mobile dispensaries has been found to coincide with
successful enforcement actions involving storefront dispensaries. In other
parts of the state, shuttered businesses turned to delivery services instead.
There is reason to expect the same in the City of Menifee, particularly in light
of the City's ban on dispensaries being recently upheld by the California
Supreme Court and the City's willingness to cooperate with federal law
enforcement operations; and
9. An Inland Empire attorney who describes himself as one who represents
"California dispensary clients battling local government roadblocks" has been
advising his marijuana dispensary clients to change their business model as a
result of the California Supreme Court decision so that marijuana is
distributed from a mobile source. This attorney has consistently represented
dispensaries operating in the City of Menifee; and
10. Mobile dispensaries have been associated with criminal activity. Delivery
drivers, for example, are targets of armed robbers who seek cash and drugs.
As a result, many of the drivers reportedly carry weapons or have armed
guards as protection. Examples of such criminal activity reported in the media
include the following:
a. In March of 2013, a West Covina deliveryman was reportedly robbed
after making a delivery. The deliveryman told police that he was
approached by two subjects in ninja costumes who chased him with
batons. He was scared and dropped a bag with some marijuana and
money, which was taken by the suspects.
b. In February of 2013, a Temecula deliveryman was reportedly robbed
of cash outside of a Denny's restaurant, which led to a vehicular
chase that continued until the robbers' vehicle eventually crashed on a
freeway on ramp.
c. In January of 2013, marijuana deliverymen in Imperial Beach were
reportedly robbed after being stopped by assailants (one with a
brandished semiautomatic handgun) after making a stop.
d. In January 2013, a deliveryman was reportedly robbed of three
ounces of marijuana while making a delivery outside a Carl's Jr.
restaurant in Riverside, and he told police that the suspect may have
had a gun.
e. In May of 2012, a 23-year-old deliverywoman in La Mesa was
reportedly shot in the face with a pellet gun. After running away, the
assailants carjacked her vehicle.
f. In August of 2011, a medical marijuana deliveryman was reportedly
robbed of $20,000 worth of his marijuana (approximately 9 pounds)
and a cellular phone in Fullerton. The driver suffered a head cut during
the crime.
g. In June of 2011, a marijuana delivery from a Los Angeles mobile
dispensary turned deadly in Orange County when four individuals
reportedly ambushed the mobile dispensary driver and his armed
security guard and tried to rob them. One of the suspects approached
the delivery vehicle and confronted the 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
medical marijuana deliveryman to meet him in a Safeway parking lot in
Salinas. The deliveryman had about $1,000 in cash and 1.5 pounds of
marijuana. As the deliveryman began weighing the order, he looked up
and saw a silver handgun in his face. The customer stole money and
marijuana. The judge sentenced the customer to five years in state
prison.
i. In May of 2010, a college student who delivers medical marijuana
door-to-door was reportedly robbed at gunpoint in Richmond. The
assailants took $1,000 in cash and a pound of marijuana; and
11. Concerns about non-medical marijuana use in connection with medical
marijuana distribution operations have been recognized by federal and state
courts. One example is People v. Leal, 210 Cal.App.4th 829 (2012):
"Not surprisingly, it seems that the enhanced protection from arrest has
proven irresistible to those illegally trafficking marijuana, for if there is even
rough accuracy in the anecdotal estimate by the arresting detective in this
case — that nearly 90 percent of those arrested for marijuana sales
possess either a CUA recommendation or a card — then there is obviously
widespread abuse of the CUA and the MMP identification card scheme by
illicit sellers of marijuana. Ninety percent far exceeds the proportion of
legitimate medical marijuana users one would expect to find in the
populace at large. For this and other reasons, it is impossible for us not to
recognize that many citizens, judges undoubtedly among them, believe the
CUA has become a charade enabling the use of marijuana much more
commonly for recreational than for genuine medical uses.'; and
12. Despite the Compassionate Use Act and the Medical Marijuana Program, the
United States Attorneys in California have all taken action to enforce the
federal Controlled Substances Act against marijuana dispensaries, and have
issued letters stating that California cities and officials face possible criminal
prosecution for enabling dispensaries to violation federal law; and
13. The California Constitution grants charter cities the power to make and
enforce all ordinances and regulations with respect to municipal affairs. Article
XI, Section 7 of the California Constitution provides a city may make and
enforce within its limits all police, sanitary and other ordinances and
regulations not in conflict with general laws; and
14. The City of Menifee, by and through its City Council has and may exercise all
powers necessary to ensure the general welfare of its inhabitants; and
15. There exists a current and immediate threat to public health, safety and
welfare in the absence of the City adopting an ordinance prohibiting
establishment, operation or use of mobile marijuana dispensaries; and
16. It is the purpose and intent of this Ordinance prohibiting all mobile marijuana
dispensaries to promote health, safety, morals, and general welfare of the
residents and businesses within the City; and
17. The failure to prohibit mobile marijuana dispensaries or medical marijuana
dispensaries will expose the City to costs related to regulation, enforcement,
and the negative secondary effects of dispensaries including an increase in
violent crime.
Section 2. Need for Regulation. The City Council has determined that
there is a high likelihood that mobile_marijuana dispensaries will immediately
flourish in the City without the adoption of this Ordinance. The City Council finds
that this Ordinance is necessary as for preserving the public peace, health, or
safety.
Section 3. Amendment of Code. The Menifee Municipal Code is
hereby amended by the addition of a new Chapter 5.60 to read in its entirety as
follows:
"Chapter 5.60
MOBILE MARIJUANA DISPENSARIES
Sections:
5.60.010 Definitions.
5.60.020 Mobile Marijuana Dispensaries Prohibited.
5.60.030 Marijuana Delivery Prohibited.
5.60.040 Excluded Operations.
5.60.050 Public Nuisance Declared.
5.60.060 Violations.
5.60.010 Definitions. The following words and phrases shall, for the
purposes of this chapter, have the meanings respectively ascribed to them
by this section, as follows:
(a) "Mobile Marijuana Dispensary" means any clinic, cooperative, club,
business or group which transports or delivers, or arranges the transportation
or delivery, of medical marijuana to a Person.
(b) "Person" means any person, firm, corporation, association, club,
society, or other organization. The term Person shall include any owner,
manager, proprietor, employee, volunteer or salesperson.
(c) "Operation" means any effort to locate, operate, own, lease,
supply, allow to be operated, or aid, abet or assist in the operation of a
Mobile Marijuana Dispensary.
5.60.020 Mobile Marijuana Dispensaries Prohibited. Mobile Marijuana
Dispensaries are prohibited in the City of Menifee. No person shall locate,
operate, own, suffer, allow to be operated or aide, abet or assist in the
operation of any Mobile Marijuana Dispensary within the City.
5.60.030 Marijuana Delivery Prohibited. (a) No Person shall deliver
marijuana to any location within the City from a Mobile Marijuana Dispensary,
regardless of where the Mobile Marijuana Dispensary is located, or engage
in any Operation for this purpose.
(b) No Person shall deliver any marijuana-infused product such as tinctures,
baked goods or other consumable products, to any location within the City
from a Mobile Marijuana Dispensary, regardless of where the Mobile
Marijuana Dispensary is located, or engage in any Operation for this
purpose.
5.60.040 Public Nuisance Declared. Operation of any Mobile Marijuana
Dispensary within the City in violation of the provisions of this chapter is
hereby declared a public nuisance and shall be abated pursuant to all
available remedies.
5.60.050 Violations. Violations of this Chapter may be enforced by any
applicable law. "
Section 4. CEQA Compliance. This ordinance is not a project within the
meaning of Section 15378 of the State CEQA (California Environmental Quality
Act) Guidelines, because it has no potential for resulting in physical change in the
environment, directly or indirectly. In the event that this Ordinance is found to be
project under CEQA, it is subject to the CEQA exemption contained in CEQA
Guideline section 15061(b)(3) because it can be seen with certainty to have no
possibility of a significant effect on the environment.
Section 5. Severability. If any section, subsection, sentence, clause,
phrase or portion of this Ordinance is for any reason held to be invalid or
unconstitutional by the final decision of any court of competent jurisdiction, such
decision shall not affect the validity of the remaining portions of this Ordinance.
The City Council declares that it would have adopted this Ordinance, and each
section, subsection, clause, phrase or portion thereof, irrespective of the fact that
any one or more sections, subsections, phrases or portions might be declared
invalid or unconstitutional.
Section 6. Effective Date. This ordinance shall take effect 30 days from
the date of its adoption.
Section 7. Certification. The City Clerk shall certify to the adoption of
this ordinance and cause publication once in a newspaper of general circulation
in accordance with California law.
PASSED, ADOPTED AND ENACTED this 6'h day of August, 2013.
r
Scott A. Mann, Mayor
Approved as to Form:
Julieq9ayward Bi gs,' i y Attorney
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, KATHY BENNETT, City Clerk of the City of Menifee, do hereby attest to and certify the
attached Ordinance No. 13-128 to be the original ordinance adopted by the City Council
of the City of Menifee on August 6, 2013 and that said ordinance was published in
accordance with the law.
Date: o
Kathy Bennett, City Clerk
NIF`
Scott A.Mann
Mayor
Wallace W.Edgerton STATE OF CALIFORNIA )
Deputy Mayor COUNTY OF RIVERSIDE ) ss
John V.Denver CITY OF MENIFEE )
Councilmember
I, Kathy Bennett, City Clerk of the City of Menifee, do hereby certify that the
Thomas Fuhrman foregoing Ordinance No. 2013-129 was duly adopted by the City Council of the
Councilmember City of Menifee at a meeting thereof held on the 6i" day of August 2013 by the
Greg August
following vote:
Councilmember
Ayes: August, Denver, Edgerton, Mann
Noes: Fuhrman
Absent: None
Abstain: None
Kathy Benn� Clerk
29714 Haun Road
Menifee,CA 92586
Phone 951.672.6777
Fax 951.6793843
w .dtyofinenifee.us