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HomeMy WebLinkAbout128 - 12/01/2009 - IMPOSING A MORATORIUM ON THE ACCEPTANCE AND PROCESSING OF APPLICATIONS FOR THE ISSUANCE OF LICENSES }J ORDINANCE NO. 128, 2009 , OF THE COUNCIL OF THE CITY OF FORT COLLINS IMPOSING A MORATORIUM ON THE ACCEPTANCE AND PROCESSING OF APPLICATIONS FOR THE ISSUANCE OF LICENSES OR PERMITS RELATED TO BUSINESSES THAT SEEK TO DISPENSE MEDICAL MARIJUANA AND ON THE ESTABLISHMENT OR OPERATION OF ANY SUCH NEW BUSINESSES IN THE CITY WHEREAS, at the general election held in November, 2000, the voters of the State of Colorado adopted Amendment 20 to the Colorado Constitution(the"Amendment')adding Article XVIII to the Constitution; and WHEREAS, the Amendment creates an affirmative defense to, and exception from, state criminal laws pertaining to the possession and use of marijuana when such possession or use is for the treatment of debilitating medical conditions and when certain conditions specified in the Amendment are met; and WHEREAS,over recent months,55 businesses offering medical marijuana for sale or other distribution have obtained or applied for sales tax licenses in the City, and the City is receiving inquiries on a daily basis from persons interested in establishing additional such businesses in the City; and WHEREAS, under the general zoning laws of the City, these businesses, referred to herein as medical marijuana dispensaries or"MMDs,"likely constitute retail sales operations or clinics that are permitted uses in a wide variety of zone districts, including those that are primarily intended for residential use; and WHEREAS, the City currently has no land use or business regulation concerning the operation of MMDs; and WHEREAS, the unregulated operation of MMDs in the City presents serious health and safety concerns to the citizens of Fort Collins; and WHEREAS, ambiguities in the wording of the Amendment have created uncertainty as to which MMDs may properly be considered "primary care-givers" under the Amendment for the purpose of providing medical marijuana to patients suffering debilitating medical conditions; and WHEREAS, the Colorado Department of Public Health and Environment (the "Department'), which is responsible for the administration of the medical marijuana program established by the Amendment, is continuing to consider changes in its administrative regulations that govern MMDs as primary care-givers; and WHEREAS,the same question about MMDs as primary care-givers is currently under review by the Colorado appellate courts and may also be the subject of proposed legislation in the upcoming session of the state legislature; and WHEREAS, municipalities throughout Colorado are struggling to gain control over the recent proliferation of MMDs and have enacted various kinds of local regulations in an attempt to curtail abuses of the medical marijuana exception created by the Amendment; and WHEREAS, a significant period of time will be required in order for the City Manager and City Attorney and their respective staffs to clarify the evolving state of the law with regard to MMDs,and to formulate recommended amendments to the City Code to deal with the subject; and WHEREAS, with the influx of MMDs, the City Council is concerned about its ability to protect the public welfare and preserve the character of the City's neighborhoods and commercial areas where MMDs might be located; and WHEREAS, the imposition of a moratorium for a reasonable period of time on the,, acceptance, consideration, and approval of all applications for City licenses, permits, and development proposals related to the operation of MMDs,and on the establishment of MMDs in the City, will allow City staff and the City Council to investigate the City's ability to regulate such businesses and develop and implement appropriate regulations; and WHEREAS,three to four months is a reasonable period of time and no longer than necessary for the City to determine the extent to which MMDs will be regulated on a statewide basis and to properly investigate,develop,and, if appropriate,adopt and implement any local regulations related to MMDs; and WHEREAS, neither the proprietors of existing and proposed MMDs nor the patients they serve or intend to serve will be unduly prejudiced by the imposition of such a moratorium, since the number of existing MMDs in the City should be adequate to meet the medical marijuana needs of such patients for said period of time. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the recitals contained in this Ordinance are hereby adopted and incorporated as findings of fact of the City Council. Section 2. That the proliferation of unregulated MMDs in the City warrants the imposition of a moratorium because of the serious health and safety concerns presented by such unregulated MMDs, including the following: (a) operators of MMDs are subject to a greater risk of violent burglaries and robberies than the operators of most other businesses because of the presence of marijuana and substantial amounts of cash on the premises; -2- (b) it is very hard to determine which MMDs are lawful and which are not since there are no licensing or permit requirements for such businesses, no requirement that records be kept of the number of patients served, no limitations on quantities or on-site consumption,and no other regulations that could help investigating officers make such determination; (c) the on-site production of marijuana can create unsafe conditions on the business premises such as excessive electrical connections that create fire hazards and mold and fungus in the areas used to grow the marijuana; and (d) in the absence of licensing requirements such as those associated with liquor establishments, there is no way to limit the ownership and operation of MMDs to persons of good moral character, so as to minimize the illegal activity that can be associated with such businesses. Section 3. That, for the purposes of this Ordinance,the following definitions shall apply: a. Medical mariyuana dispensary or MMD shall mean a property or structure used to sell, distribute, transmit, give, dispense or otherwise provide marijuana in any manner to patients or primary care-givers pursuant to the authority contained in Amendment 20 to the Colorado Constitution and the implementing state statutes and administrative regulations, except those properties or structures that are used by an individual primary care-giver to provide marijuana to a single patient. b. Patient shall mean a person who has a debilitating medical condition. Section 4. That it is necessary for thepreservation of the public safety,health,and welfare to delay the acceptance and processing of applications for City licenses,permits, and development proposals related to the establishment and operation of medical marijuana dispensaries in the City until the City has had a reasonable opportunity to determine the extent of the City's regulatory authority over such businesses and to further determine what regulations,if any, should be imposed by the City upon these businesses. Section 5. a. That a moratorium is hereby imposed, as of the effective date of this Ordinance (the "Effective Date"), on the acceptance and processing of any applications to the City for the approval of licenses,permits,or development proposals related to the establishment or operation of medical marijuana dispensaries, and on the processing of any pending applications for such licenses or permits. -3- b. That this moratorium shall continue in effect until the 31 st day of March, 2010, or such earlier date as may be determined by the City Council by ordinance. c. That no medical marijuana dispensaries shall be established or shall operate within the City after the Effective Date and until the expiration of this moratorium, except those medical marijuana dispensaries that: (i) to the extent required under Sections 25 -73 or 25 -74 of the City Code, have been issued a sales tax license pursuant to an application filed with the City prior to the Effective Date, and (ii) are in compliance with all zoning requirements for the property on which they are located. Section 6 . That no license, permit, or development proposal related to the establishment or operation of a medical marijuana dispensary that was approved by the City prior to the Effective Date of this ordinance may be amended during the term of this moratorium. Section 7 . That all persons applying to the City for the issuance or amendment of a sales and use tax license during the term of this moratorium shall indicate, on a form approved by the City, whether any part of the business that is the subject of the application involves the provision of medical marijuana to patients with debilitating medical conditions or their primary care-givers . Section 8 . That the failure of any person to provide the information required under Section 7 of this ordinance, or the provision of any false information to the City related to a sales tax application, or the establishment or operation of a medical marijuana dispensary contrary to the provisions of Section 5of this Ordinance during the term of this moratorium shall constitute a misdemeanor criminal offense punishable as provided in Section 1 - 15 of the Code of the City of Fort Collins . Section 9 . That, during the term of this moratorium, the City Manager and City Attorney are hereby directed to analyze the following issues and develop for City Council consideration regulations as they may deem necessary and appropriate to address said issues : a. the extent to which MMDs are legally protected under the Amendment; b. the impact of MMDs on the character of residential neighborhoods and commercial areas where they may be located; and c , any increase that will likely occur in vehicular traffic or in nuisance or criminal activities in areas where MMDs are located. Section 10 . That on or before March 2 , 2010, the City Manager and City Attorney are further hereby directed to present for the City Council ' s formal consideration such laws and regulations relating to medical marijuana dispensaries in the City as the City Manager considers -4- necessary and appropriate for the preservation of the health, safety and welfare of the residents of the City. Section 11. That nothing herein shall be construed as decriminalizing or making lawful in the City any MMD or other business involved in the acquisition, possession, manufacture, production,use,sale,distribution,dispensing,or transportation of marijuana or related paraphernalia that is not lawful under state criminal laws. Introduced, considered favorably on first reading, and ordered published this 17th day of November,A.D.2009,and to be presented for final passage on 1 s day of December,A.D.2009. Mayo l \ 1 ATTEST: City Clerk Passed and adopted on final reading on the 1 st4ayoece- her, A.D. 2009. Mayor ATTEST: ti - City Clerk -5-