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HomeMy WebLinkAbout4166 OrdinanceORDINANCE NO. 4166 AN ORDINANCE of the City of Pasco, Washington, Prohibiting Uses Which Are Illegal Under Local, State or Federal Law in any Zone of the City and Applying Such Regulation to Recreational Marijuana Retail Sales, Processing, and Production, and Medical Marijuana Dispensaries and Collective Gardens WHEREAS, in 1998, the voters of the State of Washington approved Initiative Measure No. 692. Now codified as Chapter 69.51A RCW, entitled the Medical Use of Marijuana Act, which created an affinnative defense to state criminal liability for seriously ill persons who are in need of marijuana for specified medical purposes and who obtain and use medical marijuana under limited, specified circumstances; and WHEREAS, the legislature adopted ESSB 5073, with certain provisions vetoed by the Governor, which became effective July 22, 2011, which enacted provisions authorizing establishment and operation of "collective gardens" for medical marijuana purposes subject to land use powers of municipalities within the State of Washington; and WHEREAS, on November 6, 2012, the voters of the State of Washington approved Initiative Measure No. 502 ( "Initiative 502 ") which decriminalized possession and use of marijuana for "recreational uses" and established a licensing protocol for marijuana production, processing, and retailing and tasking the Washington State Liquor Control Board the responsibility to establish regulations and licensing marijuana products; and WHEREAS, Congress passed the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91 -513, 84 Stat. 1236, to create a comprehensive drug enforcement regime it called the Controlled Substances Act, 21 U.S.C. § 801 -971. Under the Controlled Substances Act (also "CSA "), Congress established five "schedules" of controlled substances. Controlled substances are placed in specific schedules based upon their potential for abuse, their accepted medical use in treatment, and the physical and psychological consequences of abuse of the substance. See U.S.C. § 812(b); and WHEREAS, marijuana is currently listed as a "Schedule I" controlled substance, 21 U.S.C. § 812(c), Schedule I(c)(10). For a substance to be designated a Schedule I controlled substance, it must be found: (1) that the substance "has high potential for abuse "; (2) that the substance "has no currently accepted medical use in treatment in the United States "; and (3) that "[t]here is a lack of accepted safety for use of the drug or other substance under medical supervision." 21 U.S.C. § 812(b)(1). The Controlled Substances Act sets forth procedures by which the schedules may be modified. See 21 U.S.C. § 811(a); and WHEREAS, under the Controlled Substances Act, it is unlawful to knowingly or intentionally "manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance," except as otherwise provided in the statute. 21 U.S.C. § 841(a)(1). Possession of a controlled substance, except as authorized under the Controlled Substances Act, is also unlawful; and WHEREAS, the United States Supreme Court has held in Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed. 2d 1 (2005), that Congress was within its rights and powers under the Commerce Clause to regulate marijuana as a Schedule 1 controlled substance pursuant to the Controlled Substances Act. And that, under the Supremacy Clause of the U.S. Constitution, the federal Controlled Substances Act will prevail over any conflicting State law; and WHEREAS, Court decisions in other jurisdictions have held that local legislation authorizing conduct and uses in violation of the federal Controlled Substances Act are in conflict with such federal legislation and thus preempted by the federal law [cf., Pack v. Superior Court, 199 Cal.App.4`h 1070, (October 4, 2011); Emerald Steel Fabricators v. Bureau of Labor and Industries, 348 Or. 159, 230 P.3d 518 (2010)1; and WHEREAS, on January 16, 2014, the Washington State Attorney General issued an opinion (AGO 2014 -2) concluding that Initiative 502 does not preempt counties, cities and towns from banning marijuana production, processing, and retail businesses within their jurisdictions, and concluding that the issuance of a license from the Liquor Control Board does not entitle licensee to locate or operate a marijuana processing, producing, or retail business in violation of local rules or without necessary approval from local jurisdictions, concluding that local jurisdictions are permitted under the law to prohibit such activities; and WHEREAS, the Washington State Court of Appeals Division 1 issued a decision in Cannabis Action Committee, et al. v. City of Kent (March 31, 2014) that ESSB 5073 did not legalize medical marijuana nor collective gardens, upholding the City of Kent's authority to ban medical marijuana, collective gardens and dispensaries; and WHEREAS, the general police powers of the City of Pasco empower and authorize the City of Pasco to adopt land use controls to provide for the regulation of land uses within the City and to provide that such uses shall be consistent with applicable law; and WHEREAS, the City Council of the City of Pasco found and determined that Title 25 of the Pasco Municipal Code should be amended in Section 25.08.010 providing that no use in violation of local, state or federal law shall be allowed in any zone within the city, and that such amendment specifically applies to prohibit the retail sales, processing and production of recreational marijuana, and dispensaries of cannabis and collective gardens for the production, processing, and retail sale of cannabis for medical uses; and WHEREAS, the City Council finds and determines that the regulation of marijuana for recreation or medical purposes is subject to the authority and general police power of the City to develop specific and appropriate land use controls regarding such uses, and the City Council reserves its powers and authority to appropriately amend, modify and revise such prohibition to implement such land use controls in accordance with applicable law; and WHEREAS, the City Council finds and determines that Title 25.08.020 "Conflicting Provisions" of the Pasco Municipal Code should be amended to add new section 25.08.020(2) prohibiting collective medical marijuana gardens and recreational marijuana related land uses within the City; and WHEREAS, the City Council has conducted a legislative public hearing for the purpose of determining the interest of the citizens of the City of Pasco regarding recreational and medical marijuana production, processing and sale within the City; and WHEREAS, the City Council finds and detennines that approval of such amendments, prohibiting recreational or medical marijuana production, processing, or retail sales as a land use, is in the best interest of residents of the City of Pasco; NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF PASCO, WASHINGTON, DOES ORDAIN AS FOLLOWS: Section 1. That Section 25.08.020 entitled "Conflicting Provisions" of the Pasco Municipal Code, shall be and hereby is amended and shall read as follows: 25.08.020 CONFLICTING PROVISIONS. Where this Title imposes a greater restriction upon land, buildings, or structures than is imposed or required by other rules, regulations, standards, policies, ordinances, contracts, covenants public or private, deeds, or statutes lawfully adopted by the City of Pasco, the provisions of this Title shall govern and take precedent. In the case of conflicts between the text, maps and tables of this Title, the text shall govern unless otherwise stated. (2) Marijuana related land uses such as marijuana production processing retail sales and /or collective gardens or dispensaries as may be allowed by State law are expressly prohibited from locating or operating in any zone within the City of Pasco. Section 2. This ordinance shall be in Rill force and effect five days after passage and publication as required by law. PASSED by the City Council of the City of Pasco, at its regular meeting of 2014. Matt Watkins, Mayor APPROVED AS TO FORM: Leland B. Kerr, City Attorney