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