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012-11 - Ordinance - Renewing Moratorium RE Medical Marijuana DispensariesIntroduced by: City Attorney Drafted by: City Attorney Reviewed by: City Attorney Introduced: August 9, 2011 Public Hearing: August 9, 2011 Adopted: August 9, 2011 ORDINANCE NO. 012-11 AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON, RENEWING A MORATORIUM ON ACCEPTING OR PROCESSING APPLICATIONS, PERMITS, OR LICENSES FOR ANY BUILDING OR LAND USE ACTIVITY INVOLVING MEDICAL MARIJUANA DISPENSARIES WHEREAS, the Port Orchard City Council adopted Ordinance No. 002-11 at an open public meeting on February 22, 2011 imposing a moratorium on the acceptance or processing of any applications for building or land use activities relating to a medical marijuana business or dispensary, or facilities within which a medical marijuana business or dispensary will be operated; and declaring said ordinance a public emergency; and WHEREAS, on March 22, 2011, in accordance with RCW 35.63.200, the Port Orchard City Council held a public hearing on the adopted moratorium; and having heard public testimony regarding the moratorium, the Port Orchard City Council confirmed the moratorium passed on February 22, 2011 and also exempted certain vested developments from the effects of the moratorium; and WHEREAS, RCW 35.63.20o authorizes cities to renew moratoria for six-month periods; and WHEREAS, a renewal of the moratorium is necessary to preserve the integrity of the City's new Comprehensive Plan in 20o8 and its development and to ensure that the regulations continue to meet the needs of the City and public; and WHEREAS, the Washington State Legislature passed E2SSB 5073, which established requirements for the licensure of medical marijuana dispensers, determining expiration dates and renewal requirements; providing for mandatory inspections of licensed dispensers' locations, establishing procedures governing the suspension and revocation of licenses of dispensers, establishing safety standards, storage requirements, license application and renewal fees, providing penalties for violations, etc.; and WHEREAS, on April 29, 2011, the Governor partially vetoed E2SSB 5073, eliminating the provisions that would have directed state employees to authorize and license commercial businesses that produce, process or dispense cannabis; and WHEREAS, Section 1102 of the bill was not vetoed, and provides the ability to cities and towns to adopt and enforce zoning requirements, business licensing requirements, health and safety Ordinance No. 012-11 Page 2 of 5 requirements and business taxes on the production, processing or dispensing of cannabis or cannabis product within their jurisdiction; and WHEREAS, until the Washington State Legislature adopts regulations addressing medical cannabis dispensaries, the City of Port Orchard does not know whether it must adopt a comprehensive regulatory system for medical marijuana dispensaries or a lesser system (to avoid preemption by state law); and WHEREAS, the Port Orchard City Council therefore believes a moratorium to preserve the status quo is necessary, so that the City can determine whether regulations are necessary, and if so, the scope of such regulations, and will need time to draft, consider and adopt the appropriate regulations and to provide for public comment and review through the Planning Commission and City Council processes; and WHEREAS, since E2SSB 5073 was enacted, City staff has begun to compile the necessary data to develop a new zoning code, zoning map, and development regulations that will be eventually presented to City Council for their consideration; and WHEREAS, in accordance with RCW 35.63.200, on August 9, 2011 the City Council held a public hearing on the renewal of the adopted moratorium; and WHEREAS, having heard public testimony regarding the renewal of the moratorium, the City Council wishes to renew the moratorium as adopted in Ordinance No. 002-11 and as modified below; and WHEREAS, the City Council finds that a renewal of the moratorium fosters a substantial government interest in ensuring that the City is in compliance with State laws and to allow adequate time for staff to review its development regulations; and WHEREAS, the City Council adopts the foregoing as its findings of fact justifying adoption of this Ordinance; now, therefore, THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, DO ORDAIN AS FOLLOWS: SECTION i. For purposes of interpreting the meaning of this Ordinance the following definitions shall apply. (a) "Cannabis or Marijuana" means all parts of the plant Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or resin. For the purposes of this Ordinance, "cannabis" or "marijuana" does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture or preparation of the mature stalks, except the resin extracted therefrom, fiber, oil, or cake, or the sterilized seek of the plant which is incapable of germination. Ordinance No. 012-11 Page 3 of 5 The term "cannabis" or "marijuana" includes cannabis products and usable cannabis. (b) "Cannabis products" means products that contain cannabis or cannabis extracts, have a measurable THC concentration greater than three -tenths of one percent, and are intended for human consumption or application, including, but not limited to, edible products, tinctures, and lotions. The term "cannabis products" does not include useable cannabis." (c) "Designated provider" means a person who is: 1. eighteen years or older; 2. has been designated in a written document signed and dated by a qualifying patient to serve as a designated provider under this Ordinance; 3. is in compliance with the terms and conditions set forth in RCW 69.51A.040. A qualifying patient may be the designated provider for another qualifying patient and be in possession of both patients' cannabis at the same time. (d) "Dispense" means the selection, measuring, packaging, labeling, delivery, or retail sale of cannabis, cannabis products or marijuana to a qualifying patient or designated provider. (e) "Exempt development permits" or "exempt business license applications" shall include all of the following permit applications for a structure or use of property proposed to be operated as a medical marijuana or cannabis dispensary, as defined in this Ordinance: r 1. any permit application meeting the description in this subsection (e) that is subject to the vested rights doctrine, and that was submitted to the City and determined by the City staff to be complete on or before the effective date of Ordinance 002-11; and/or 2. any business license application meeting the description in this subsection (e) that was submitted to the City on or before the effective date of Ordinance 002-11. (f) "Non -Exempt development permits or Non-exempt business license" shall include: 1. any permit application meeting the description in subsection (e) above that is not subject to the vested rights doctrine and that was submitted to the City after the effective date of Ordinance 002-11; and/or 2. any business license application meeting the description in subsection (e) above that was submitted to the City after the effective date of Ordinance 002-11. (g) "Medical marijuana dispensary" is hereby defined as any individual, business, corporation or other entity which: 1. sells or otherwise dispenses marijuana cannabis or cannabis products to more than one "qualifying patient" in any thirty (30) day period or to any Ordinance No. 012-11 Page 4 of 5 person who does not meet the definition of "qualifying patient" under the terms of the Act, or 2. maintains more than one one -month supply of marijuana, cannabis or cannabis products for one qualifying patient on the premises at any time, or 3. provides for the cultivation of more than 15 marijuana or cannabis plants by collective or cooperative ventures at a location. The receipt of cash or other legal tender in exchange for, contemporaneously with or immediately following the delivery of marijuana or cannabis or cannabis products, shall be presumed to be a sale. Any person or entity which sells or otherwise dispenses marijuana to more than one person and/or qualifying patent in any thirty (3o) day period or cultivates marijuana for more than one person and/or qualifying patient, shall be presumed to be a "medical marijuana dispensary." (h) "Medical use of cannabis or marijuana" means the manufacture, production, processing, possession, transportation, delivery, dispensing, ingestion, application or administration of cannabis or marijuana for the exclusive benefit of a qualifying patient in the treatment of his or her terminal or debilitating medical condition. (i) "Qualifying patient" means a person who: 1. is a patient of a health care professional; 2. has been diagnosed by that health care professional as having a terminal or debilitating medical condition; 3. is a resident of the State of Washington at the time of such diagnosis; 4. has been advised by that health care professional that he or she may benefit from the medical use of marijuana or cannabis. SECTION 2. Purpose. The purpose of this renewed moratorium is to allow the City additional time to determine whether medical marijuana (cannabis) dispensaries are allowed by existing law, and if so, to determine whether the City should adopt any regulations allowed by E2SSB 5073 on such dispensaries. City staff has begun reviewing the code language used by other jurisdictions and drafting potential code provisions to be considered by Council. If the City determines that such regulations are needed, the City needs adequate time to study the issue and determine whether its regulations need to be amended in order to address medical marijuana dispensaries, and to adopt those regulations. SECTION 3. Moratorium Imposed. The moratorium on the acceptance of all non-exempt development permit applications and non-exempt business license applications defined in Section 1(f) of this Ordinance, and as previously established by Ordinance 002-11, is hereby renewed for a six-month period from the current expiration on August 19, 2o11, and shall remain in effect until February 15, 2012, unless earlier terminated pursuant to the provisions of Ordinance No. 002-11. All such non-exempt applications shall be rejected and returned to the applicant. With regard to the City's acceptance of any exempt development permit application or exempt business license application, such acceptance shall only allow processing to proceed, but shall not constitute an assurance that the application will be approved. Ordinance No. 012-11 Page 5 of 5 SECTION 4. Duration of Moratorium. The moratorium imposed by this Ordinance shall not terminate until February 15, 2012, or at the time all of the events described in Section 2 have been accomplished, whichever is sooner. The Council shall make the decision to terminate the moratorium by ordinance, and termination shall not otherwise be presumed to have occurred. SECTION 5. Public Hearing on Moratorium. Pursuant to RCW 35.63.200, on August 9, 2011, the City Council held a public hearing on the renewal of the adopted moratorium. SECTION 6. If any section, sentence, clause or phrase of this Ordinance should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause or phrase of this Ordinance. SECTION 7. This ordinance shall be in full force and effect five (5) days after posting and publication as required by law. A summary of this Ordinance may be published in lieu of the entire ordinance, as authorized by State Law. PASSED by the City Council of the City of Port Orchard, APPROVED by the Mayor and attested by the City Clerk in authentication of such p atricia J. Y4*atfikk, MMC, City Clerk APPROVED AS TO FORM: '-'� C-'�� Gregory A. J cob , City A t rney NOTICE OF CITY OF PORT ORCHARD ORDINANCE The following is a summary of an Ordinance approved by the Port Orchard City Council at their regular Council meeting held August 9, 2011. ORDINANCE NO. oil-ii AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON, RENEWING A MORATORIUM ON ACCEPTING OR PROCESSING APPLICATIONS, PERMITS, OR LICENSES FOR ANY BUILDING OR LAND USE ACTIVITY INVOLVING MEDICAL MARIJUANA DISPENSARIES Copies of Ordinance No. 012-11 are available for review at the office of the City Clerk of the City of Port Orchard. Upon written request a statement of the full text of the Ordinance will be mailed to any interested person without charge. Thirty days after publication, copies of Ordinance No. 012-11 will be provided at a nominal charge. City of Port Orchard Patti Kirkpatrick City Clerk Publish: Kitsap Sun August 12, 2011