The board finds and declares as follows:
(1)
In 1996, the voters of the State of California approve Proposition 215 (codified as California Health and Safety Code section 11362.5, and entitled "The Compassionate Use Act of 1996"). The intent of Proposition 215 was to enable persons who are in need of marijuana for medical purposes to use it without fear of criminal prosecution under limited, specified circumstances.
(2)
In 2004, the Legislature enacted Senate Bill 420 (codified as California Health and Safety Code Sections 11362.7 et seq.) to clarify the scope of Proposition 215, and to provide qualifying patients and primary caregivers who collectively or cooperatively cultivate marijuana for medical purposes with a limited defense to certain specified state criminal statutes.
(3)
Health and Safety Code Section 11362.83 expressly allows cities and counties to adopt and enforce ordinances that are consistent with the Medical Marijuana Program.
(4)
The Federal Controlled Substances Act, 21 U.S.C. § 801 et seq., classifies marijuana as a Schedule I Drug, which is defined as a drug or other substance that has a high potential for abuse, that has no currently accepted medical use in treatment in the United States, and that has not been accepted as safe for use under medical supervision. The Federal Controlled Substances Act makes it unlawful, under federal law, for any person to cultivate, manufacture, distribute or dispense, or possess with intent to manufacture, distribute or dispense, marijuana. The Federal Controlled Substances Act contains no exemption for the cultivation, manufacture, distribution, dispensation, or possession of marijuana for medical purposes.
(5)
Facilities which dispense marijuana have proven to have serious harmful effects on the neighborhoods in which they are located, to owners of property in such neighborhoods, and to citizens living, visiting, shopping, conducting business or otherwise present in the area, as reported by several other California counties and cities. Such effects are due to such factors as the illegal nature of the activity, the presence of large quantities of marijuana at the dispensaries, the presence of large amounts of cash, the presence of weapons, and other factors. Harmful effects at the dispensaries and the surrounding areas have included an increase in burglaries, robberies, illegal sales of drugs, use or possession of marijuana by unauthorized persons, attacks on persons entering or leaving the premises, loitering, smoking marijuana in public places, and driving while under the influence of marijuana.
(6)
For the above reasons, staff is developing proposed regulations which the board can consider adopting, to regulate medical marijuana dispensaries so as to prevent the above harmful effects on the County of Kings unincorporated areas.
(7)
In February 2009, the U.S. Attorney General stated that federal law enforcement officials would ease enforcement at California medical marijuana facilities. This statement, along with other factors, has resulted in burgeoning interest in establishing medical marijuana dispensaries in the State of California and the region of the County of Kings (including incorporated cities within the county). In response, numerous cities and counties around the state are enacting regulations. Among the counties adjacent to Kings County, many agencies have recently enacted ordinances either prohibiting or regulating medical marijuana dispensaries, or establishing a moratorium on medical marijuana dispensaries. These regulations can be expected to have the effect of redirecting persons desirous of establishing such dispensaries, to consider doing so in the unincorporated area of Kings County. The county has received several inquires regarding the establishment of medical marijuana dispensaries.
(8)
Proposition 215 and Senate Bill 420 do not preempt local zoning or nuisance regulations affecting medical marijuana-related land uses; rather, Senate Bill 420 (Health and Safety Code Section 11362.83) expressly allows cities and counties to adopt and enforce ordinances that are consistent with state law. The scope of local regulatory power continues to be challenged by proponents of medical marijuana-related land uses, and is presently being resolved by the appellate courts in cases such as City of Claremont v. Kruse 177 Cal.App.4th 1153 (2009) and Qualified Patients Ass'n v. City of Anaheim, 187 Cal.App.4th 734 (2010).
(9)
Under the current provisions of the Kings County Zoning Code (Appendix "A" of the Kings County Code of Ordinances), medical marijuana dispensaries are not identified as a permitted use, or a use permitted subject to a use permit, in any zoning district in the county. Further, medical marijuana dispensaries are not found to be substantially similar to other permitted uses; permitted uses, site plan review; or conditional uses. The county interprets these provisions to mean that such uses are prohibited. However, the county recognizes that numerous other local governments have faced arguments that medical marijuana dispensaries are permitted uses under similar ordinances, or are encompassed within generic permitted uses, such as "miscellaneous retail" or "medical clinics."
(10)
The county is currently engaged in the consideration and study of possible means of regulating or prohibiting medical marijuana dispensaries, including zoning regulations and other regulations, and by this article shall direct the continuation of such consideration and study.
(11)
If medical marijuana dispensaries are allowed to be established, developed, constructed, maintained, or operated in the county without appropriate regulations, such uses may be established in areas, or operated in a manner, that would conflict with the proposed regulations to be considered and studied by the county, and would therefore defeat the purpose of the proposal to study and adopt new regulations regarding medical marijuana dispensaries.
(12)
The establishment, development, construction, maintenance, or operation of medical marijuana dispensaries, and the continued approval of use permits, variances, building permits, or any other applicable entitlements authorizing their establishment, would result in a current and immediate threat to the public health, safety and welfare, because such uses threaten to cause the harmful "secondary effects" identified above within the unincorporated area of the County of Kings, and because such uses may frustrate the accomplishment of the goals of the medical marijuana dispensary regulations that the county will consider and study. It is therefore necessary to adopt this article to prohibit their establishment, development, construction, maintenance, or operation during the period of such consideration and study.
(13)
On August 2, 2011, the Board of Supervisors of the County of Kings adopted Ordinance Number 654 temporarily prohibiting the establishment or operation of medical marijuana dispensaries, which will expire on September 15, 2011 unless further extended as provided by law.
(14)
On September 13, 2011, the Board of Supervisors of the County of Kings held a public hearing wherein they received testimony regarding the extension of the temporary prohibition on the establishment or operation of medical marijuana dispensaries.
(Ord. No. 654.1, § 1, 9-13-11)
For the purpose of this article, the following terms shall have the following meanings:
(1)
Development application shall mean an application for any permit or approval to be issued by any County of Kings officer, department or other agency, including subdivisions, use permits, variances, building permits, or any other entitlement for use.
(2)
Collective means an association or combination of primary caregivers and/or qualified patients jointly cultivating and/or storing marijuana for medical purposes as provided in Health and Safety Code Section 11362.775.
(3)
Cooperative means an association or combination of primary caregivers and/or qualified patients jointly cultivating and/or storing marijuana for medical purposes as provided in Health and Safety Code Section 11362.775, and properly incorporated under the California Corporations or Food and Agriculture Code.
(4)
Medical marijuana dispensary shall mean: a collective or cooperative maintaining a physical operating location within the unincorporated areas of Kings County.
(5)
Marijuana shall have the same meaning as that set forth in Health and Safety Code Section 11018.
(6)
Person shall include: Any natural person, association, corporation, cooperative, partnership, collective, limited liability company, or any other social or business entity.
(Ord. No. 654.1, § 2, 9-13-11)
No person shall cause or permit the establishment, development, construction, maintenance, operation, or enlargement of a medical marijuana dispensary, within the unincorporated areas of the County of Kings, nor shall any development application be accepted, filed, processed, issued or approved for such a medical marijuana dispensary during the term of this moratorium ordinance. This interim ordinance shall in no way limit the right to possess or use marijuana for medicinal purposes as is presently authorized by the laws of the State of California as set forth in the Health and Safety Code.
(Ord. No. 654.1, § 3, 9-13-11)
The county administrative officer or his/her designee is directed to issue a written report describing the measures taken by the county to alleviate the conditions which have led to the adoption of this article, at least ten days prior to the expiration of this article.
(Ord. No. 654.1, § 4, 9-13-11)
The board of supervisors hereby directs the chief administrative officer, in consultation with county counsel, sheriffs office, district attorney, department of public health, probation department, and the community development agency to consider and study possible means of regulating or prohibiting medical marijuana dispensaries, including zoning and other regulations.
(Ord. No. 654.1, § 5, 9-13-11)
This article shall be in effect until the earlier of the following, and shall thereupon be repealed and of no further force or effect:
(1)
The completion of study, consideration and legislative action upon the proposed regulations for medical marijuana dispensaries referred to in section 15-235, designated as such by the board of supervisors; or
(2)
Ten months and 15 days from September 15, 2011.
(Ord. No. 654.1, § 6, 9-13-11)
Pursuant to Government Code Section 65858, Subdivision (d), the Board of Supervisors of the County of Kings hereby ratifies and approves the report issued by the county on August 26, 2011 describing the measures taken to alleviate the conditions which led to the adoption of Ordinance 654.
(Ord. No. 654.1, § 7, 9-13-11)
FOOTNOTE(S):
(30) Editor's note— Ord. No. 654, §§ 1—6, adopted August 2, 2011, did not specifically amend the Code. Subsequently, Ord. No. 654.1, adopted September 13, 2011, amended Ord. No. 654. The provisions of Ord. No. 654.1, §§ 1—7, have been included herein as Art. XI, §§ 15-231—15-237, at the discretion of the editor. See also the Code Comparative Table. (Back)