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HomeMy WebLinkAbout2010-06-22 CC Item No. 14REPORT TO CITY COUNCIL TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: ROBERT A. BRADY CITY MANAGER DATE: JUNE 22, 2010 SUBJECT: APPEAL OF VIOLATION OF LAKE ELSINORE MUNICIPAL CODE BY "R" SIDE MEDICAL, 31641 AUTO CENTER DRIVE UNIT "A" Background The business known as "R" Side Medical applied for a business license on December 23, 2009. The applicant's description of the business indicated that they sold clothing and apparel, and "Holistic Medicines ". In the process of approving the Business License the Planning Technician felt the description of "Holistic Medicines" to be vague and so she made the applicant aware of the City's Ordinance #1173 prohibiting the establishment of medical marijuana dispensaries. The Planning Technician noted this on the bottom of the license prior to signing her approval. The business received their initial inspection and after confirming everything was in order, the building Inspector signed the approval of the business license on January 4, 2010. Several months later after receiving complaints about the business distributing and / or selling marijuana, Code Enforcement investigated the business and found them to be in violation of the City's ordinance prohibiting medicinal marijuana dispensaries in the City of Lake Elsinore. Because "R" Side Medical was operating a business that is not allowed under the City's municipal code, the business was cited and ordered to close. The applicant has appealed the citations issued for violating the City's medical marijuana dispensary prohibition and the revocation of the business license. Discussion Following the issuance of a citation, "R" Side Medical filed a lawsuit against the City of Lake Elsinore seeking to prevent enforcement of the City's ban on medical marijuana dispensaries. On June 1, 2010, Riverside Superior Court Judge Mac Fisher denied "R" Side Medical's request for a temporary restraining order against the City. The case remains pending. AGENDA ITEM NO. 14 Page 1 of 13 Appeal of Business License Revocation June 22, 2010 Page 2 Following the denial by the Superior Court of the temporary restraining order, City Code Enforcement officers visited "R" Side Medical on June 7th. Upon arrival, "R" Side employees closed the access window to the cashier's area where marijuana products have been sold. The City has issued follow -up citations to the owner for operating without a business license. He has nonetheless refused to close the store. The Court of Appeal in the Fourth District which includes Riverside County is currently considering a medicinal marijuana dispensary ban imposed by the City of Anaheim. That court has indicated that a decision will be issued on July 18, 2010. However, at this time, the City Attorney's office has advised that there are no legal precedents prohibiting enforcements of the City's medical marijuana dispensary ban. Fiscal Impact None Recommendation That the City Council deny the appeal. Reviewed by: Robin Chipman Building & Safety /Code Enforcement Manager Approved by: Robert A. Brady 11 City Manager 0 ATTACHMENTS: 1. Letter of Appeal dated June 7, 2010 2. Copy of Business License Application 3. Copy of Ordinance 1173 4. Copy of Notice of Correction Revoking License 5. Pictures of Illegal Business Activities 6. Location map Page 2 of 13 CITY OFD LAKE OLSITYORE DREAM EjCTREME City Clerk's Office 130 S. Main Street, Lake Elsinore, CA (951) 674 -3124, Ext. 269 For Official Use Only Date Received: kxt 7 , _ Received By. i Date Fee Paid: APPEAL OF PLANNING COMMISSION ACTION FORM 0- Policy 100 -8: The purpose of this Policy is to provide a standardized procedure for consideration of appeals from Planning Commission decisions. Within 15 calendar days of a Planning Commission decision, any person may appeal a decision to the City Council by filing this form and submitting a $200 fee. A copy of this policy is attached with further important information. Name: �D /C'46/ GLC Date: Mailing Address: 0 61X/ l�JrO CASAJrE2C _5'vrrem- City: Ge`/ A:--a C Sii✓O �E Phone No.: e%S /- ZY1- YYf/ Fax No.: State: C-W Zip Code: 9�05-:50 E -Mail: Sub ect of A' =peal Information Subject of Appeal: Project No.(s): Project Applicant: Project Location: �6`f/ tJry C'�ic'/ %iJ5, ria - Date of Planning Commission Action: I, the undersigned, hereby appeal the above action of approval /denial by the Lake Elsinore Planning Commission, for the following reasons: (Please cite specific action being appealed.) Attach additional pages as needed. Y��dcri� %si Signature: Page 3 of 13 California Proposition 215 (1996) - Wikipedia, the free encyclopedia Implementation and effect http://en,wildpedia.org/wild/California Proposition 215_(1996 The initiative was partially implemented through the California Medical Marijuana Program created by Senate Bill 420. Both San Diego County and San Bernardino County initially refused to implement the program, but were rebuffed by the California Supreme Court.[71 Implementation across the State vaned widely; urban areas in Northern California were the center of California's fledgling marijuana market, while rural areas like Mendocino County, Santa Cruz, and Humboldt saw counV- sanctioned )atient registration needed) Though medical marijuana was legalized and accepted by the majority of California voters, Proposition 215 does not cover federal laws. Marijuana is still illegal under federal law which causes a conflict between the state and the U.S. Government. City of Garden Grove v. Superior Court, a published California Court o7 peaf3ecision w 'cl in California is binding on all courts), upheld a ecision o a trial court to "[order] the Garden Grove o ce Department to give [Felix Kha] back his marijuana" E81 stating "[ b]ecause the act is strictly a federal offense, the state has 'no power to pums ... [it) ... as such. "' California counties accepting applications for medical marijuana as of March 2010. Concerning limits on possession created by Senate Bill 420, the California Supreme Court decision People v. Kelly decided multiple issues. First, it reiterated that "unlike [Proposition 215], which did not immunize medical marijuana users from arrest but instead provided a limited 'immunity' defense to prosecution under state law for cultivation or possession of marijuana [citation], the MMP's identification card system is designed to protect against unnecessary arrest. "1101 Secondly, it agreed with both Kelly and the California Attorney General that the limits were an "unconstitutionally amendatory insofar as it limits an in -court CUA defense" [111 but by providing more rights, not less, the section concerning limits on possession "should remain an enforceable part of the MMP, applicable to the extent possible — including to those persons who voluntarily participate in the program by registering and obtaining identification cards that provide protection against arrest." [12] In 2009, Oakland became the first U.S city to put a tax on marijuana. Approved by voters by a margin of 80 %, t e measure puts an tax on every m gross manluana sales. The tax is estimated to bring in $300,000 to $1,000,000 dollars annually to help the cash - strapped city, f 131 Federal enforcement in California California Proposition 215 (1996) - Wildpedia, the free encyclopedia http: / /en.wWpedia.org/wiki/ California_ Proposition_ 215_(1996) The U.S. Supreme court on May 18th 2009, upheld the right of states to implement and administer their own RE me is marijuana aws, affirming e ong e position–that e eral law does not preempt state medical marijuana laws. The Supreme Court refused to hear San Diego's case against California, where it claimed it wasn't required to issue state mandated medical marijuana IDs, because the federal ban on marijuana trumped California's law. 1231 Page 4 of 13 CITY OF LSIri01:Z,JE DREAM EXTREME CITY CLERKS OFFICE CLAIM AGAINST THE CITY OF LAKE ELSINORE (For Damages to Persons or Personal Property) Received by I Time /Date Received: City Representative A claim must be filed with the City clerk of the City of Lake Elsinore Within six (6) months alter the incident or event occurred. Be awe your claim is against the City of Lake Elsinore, not another public entity. Where space is Insufficient, please use additional paper and Identify infor nation by paragraph number. Completed claims must be mailed or delivered to the City Clerk, City of Lake Elsinore, 130 South Main Street, Lake Elsinore, The undersigned respectfully submits the following claim and information relative to damage to persons andlor personal property: 1. Name of Claimant zz�' --5 /r, 4� a. Address of Claimant: `� /�o ri/ 4&)ro i,� NT�7� b. Phone No. I -1 ) 2TS �� /O c. Date of Birth d. Social Security No. e. Drivers Lic. No. 2. Name, post office address and telephone to which claimant desires notices to be sent, if other than the above: 4=zS1i'&'eCf C4 3. Occurrence or event from which this claim arises: a. Date: ✓� O�fl �` 7% b. Time: c. Place (Exact and specific location) 514-W 4VM d. How many and under what circumstances did damage or injury occur? Specify the particular occurrences, event, act or omission you claim caused the injury or damage (use additional paper if necessary). 717L ,4a>fl ��C� 7�gr�/9ES GuiLl 6E e. What particular action by the City of its employees, caused the alleged damage or in ury? CJ,vr J {ULG �Nii2c� ac/ �p�j�C .�/v�n eC=✓Gt�i iT �w'GCiti�CZ� 0vrpro Eie—' /Ur , C� 02 — Q�i4L�C'Asf/7• ,i'--EV4kr'4 of'f�IJ511UESS L %CENSE /SS0,4A/Cc O� 2 Cir�tT %Oti5',, Page 5 of 13 4. Were there any injuries at the time of this accident? If not state "No Injuries. 5. Give the name(s) of the public employee(s) causing the injury, damage, or loss, if known. 1�r- 6. Name and address of any person injured: S '-9-1 6,5ig'e— (e) (��cnuG f Aq AN d>yeEe-5 , 7. Name and address of the owner of any damaged property: ,CTS /dam, c'4 9z s 3 0 8. Damages claimed: P a. Amount claimed as of this date: $ DG' b. Estimated amount of future costs: $'E' , 7L� c. 'total amount claimed: $ oiyKme wl-f d. Basis for computation of amounts claimed (include copies of all bills, invoices, estimates, ,etc.): �j /S,�v�pJ7P�.v ©s�c�D /N� .11.5 /�1E�S yC�JD J�N� /�c.ic� aU,el�ot //l%�l rr�� 5 NBC ssfr<ey d///b�ia�!!i� vu rc CgZe lZ4 44-1, 9. Names and addresses of all witnesses, hospital, doctors, etc: a. y /Qit cJ itlo Z �f r8, �J 3 j�j ✓ � ur(Cf� S/fE / C. / C[ � , 10. Any additional information That might be helpful in considering this claim: -,W,5Lr , �nJT72r4/Lcr YD'!�/FI–CGFiuT�f �D� /e ��i/on/r��eD /Jean �� rJ14t--V– '57E� r-`f- Warning: if is a criminal offense to file a false claim! (Penal Code 72Ansurance Code 555.1) 1 have read the matters and statements made in the above claim and I know the same to be true of my own knowledge, except as to those matters state upon information or belief as to such matters, I believe the same to b l certify under penalty of perjury that the foregoing is true and correct. 6 -7--le Claimant's Signature Date Page 6 of 13 CITY Or DEPOSIT /FEE RECEIPT q COMMUNITY DEVELOPMENT DEPARTMENT LAKE � LSIlYO�E f Q � 1 130 SOUTH MAIN STREET LAKE ELSINORE, CA 92530 —� DREAM 951.674.3124 Name Q s � I /� MW Phone ( Date , — I ) Address JI� ( r2 C. City /State /Zip Project Account # CRS or L Project /Description��J COST RECOVERY DEPOSITS DD 620 - 0000 - 261 -00 -00 AMOUNT Appeals AMOUNT Annexation 0000- 340 -04 -00 Sign Program Conditional Use Permit 608 - 0000 - 230 -01 -00 Specific Plan Design Review 100 - 0000 - 340 -11 -00 Surface Nining /Reclamation Plan Minor Design Review 100 - 0000 - 340 -03 -00 Tentative Parcel/Tract Map Developer Agreement 100 - 0000 - 320 -26 -00 Variance Environmental 100 - 0000 - 320 -24 -00 Zone Change Extension of Time 100 - 0000 - 340 -06 -00 Landscape Plan Check Fees General Plan Amendment 100- 0000 - 340 -20 -29 Landscape Inspection Fees PLANNING FEES /DEPOSITS G1,15101Oryi MR 100-000-340-09-00 Appeals EF 0000- 340 -04 -00 Application of Abandonment CD 608 - 0000 - 230 -01 -00 Cash Bond /Deposit /Paper Bond CP 100 - 0000 - 340 -11 -00 Copies /Maps /Publications MR 100 - 0000 - 340 -03 -00 Extension of time -Minor Design Review SP 100 - 0000 - 320 -26 -00 Signs General / Temporary / Banner / Balloon SE 100 - 0000 - 320 -24 -00 Temporary Use Permits Short term / Extended MR 100 - 0000 - 340 -06 -00 Other Misc. Fees AD k 100- 0000 - 340 -20 -29 Administrative Fee BUILDING /CODE ENFORCEMENT FEES PU 100 - 0000 - 340 -21 -01 Add'I Bldg Plan Check Hours AD 100- 0000 - 340 -20 -30 Administrative Fee BI 100 - 0000 - 320 -20 -10 Reinspection Fee B E M P AB 100 - 0000 - 340 -13 -03 Nuisance Abatement AB 100 - 0000 - 340 -13 -02 Structure Abatement PA 1 100 - 0000 - 340 -20 -24 Parking Cite Admin AA 100 - 0000 - 340 -20 -23 Administrative Cite Appeal FR 100 - 0000 - 340 -24 -00 Lake Elsinore Fire Review Fee AP 100 - 0000 - 320 -20 -11 Abandoned Property Registration VI 100 - 0000 - 340 -13 -05 Vehicle Impound by Code Enforcement ppB-; L"OCMB;E T • EF Di -aa-• I e. e 1��I a. !s Total Receipt EK 0­111K $30,0D Trans date: 6/07/10 Ttw. 15:21:56 w W n� N iY CIN Ur LAIC€ LS1130.. 11MI, kAtn.. BUILDING, ZONING & FIRE COMPLIANCE APPLICATION COMMERCIAL, INDUSTRIAL, RETAIL, OFFICE AND RESTAURANT BUSINESSES LOCATED WITHIN CITY LIMITS THIS FORM MUST BE COMPLETED BY THE BUSINESS OWNER OR REPRESENTATIVE AND APPROVED BY BOTH PLANNING, BUILDING AND FIRE DIVISIONS PRIOR TO THE ISSUANCE OF YOUR BUSINESS LICENSE IT IS YOUR RESPONSIBILITY TO CALL THE BUILDING DIVISION AT 951.67413124 EXT 239 TO SCHEDULE YOUR REQUIRED INSPECTION. THE LICENSE REVIEW FEE OF $73.00 IS DUE UPON`fHE SUBMITTAL OF THIS FORM TO FINANCE AFT RTHEAPPROVALOFTHEPLANNING IZONINGDIVISION. BUSINESS NAME tt?-ci 5196 'lito ICA t-) 'eel BUSINESS ADDRESS �� SUITE /UMT NO ,r A. CONTACT PERSON I>ti P "oniE `4p)Y=f5 -3/ � TYPE OF BUSINESS (i.e., Manufacturing, Retail, etc.) L yYI— F lo:o ©ter" f, COMPLETE BUSINESS DESCRIPTION c l d : O U M-0+ ^- (o',00 Pwt Sun. CId5+ INCLUDING DAYS /HOURS OF OPERATION -IfAIL PROPERTY OWNER Afyl �5 l Y1Pi PH NE NEW BUSINESS ri -OWNERSHIP CHANGE r" RELOCATION SQUARE FEET NO. OF UNITS (–' OWN [-' RENT /LEASE OUTSIDE STORAGE ([7 YES NO SALE OFALCOHOLIC �- YES hr NO BEVERAGES FOR RESTAURANTSAfdDPLACES UBLICASSEMBLY- NUMBER OF SEATS s' SIGNS /! E ISTING 50NEW F TEMPORARY I chthefallbwing: ' -'v rY. Lease A reerrmdnT: Copy of your lease agreement if you are NOT the property owner. Com ete description of your business operations (processes involved and types of machinery and equipment used). ,r Floor Plan: Show proposed layout of business, including area devoted to office's, sales, storage, manufacturing, seating, restrooms and'other uses. Show significant dimensions so that the area of each type of use can be determined. d Plot Plan : Show location of building or unit on property, and location of any outside equipment. For uses not in shopping or industrial centers, show location, size and number of parking and loading spaces, as well as trash enclosures. ' y �Fures. T: I hereby ce t I have.rea and understand the above, and that the i formati n r•o a ;ugtishedwith this ti accura a ruean ect--�, d licantSfgna Sate 9 c a oning -dg Occ. Group Use permit required `emu; Date w Planning Approval it t < r Date Fire Approval Date m § I ing Approval -1— � 4—��yy y w ' yr �c'i;°• ;- - -_ � �) �� �� ///j ����y (/t,.tLC/ [J i'O t�J Page 8 of 13 ORDINANCE NO. 1173 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LAKE ELSINORE, CALIFORNIA, ADDING CHAPTER 17.69 TO TITLE 17 OF THE LAKE ELSINORE MUNICIPAL CODE TO PROHIBIT THE ESTABLISHMENT OF MEDICAL MARIJUANA DISPENSARIES IN THE CITY OF LAKE ELSINORE WHEREAS, the people of the State of California have enacted Proposition 215, the Compassionate Use Act of 1996 (codified at Health and Safety Code Section 11362.5 and the State Legislature subsequently enacted the Medical Marijuana Program (codified at Health & Safety Code Section 11362.7 et seq.) (collectively "the Act") to allow the medical use of marijuana for certain persons; and WHEREAS, the Act does not require or provide for the opening of businesses commonly known as Medical Marijuana Dispensaries which are defined as any facility or location where medical marijuana is made available to and/or distributed by or to one or more of the following: a primary caregiver, a qualified patient, or a person with an identification card in strict accordance with the Act; and WHEREAS, notwithstanding passage of the Act, the distribution and use of marijuana is prohibited by the Controlled Substances Act. 21 U.S.C. Section 841; and WHEREAS, the United States Supreme Court in Gonzales v. Raich, confirmed that the Controlled Substances Act does not contain a "compassionate use" exemption and therefore it is a violation of Federal Law to possess or distribute marijuana even if for medical purposes; and WHEREAS, the City Council of the City of Lake Elsinore concludes that federal law prohibiting the distribution and use of marijuana precludes the opening of Medical Marijuana Dispensaries within the City of Lake Elsinore. THE CITY COUNCIL OF THE CITY OF LAKE ELSINORE DOES ORDAIN AS FOLLOWS: SECTION 1. The City Council of the City of Lake Elsinore hereby finds and determines that it is the purpose and intent of this Ordinance to prohibit Medical Marijuana Dispensaries in order to promote the health, safety, morals, and general welfare of the residents and businesses within the City. SECTION 2. Chapter 17.69 is hereby added to Title 17 of the Lake Elsinore Municipal Code to read as follows: Page 9 of 13 CITY COUNCIL ORDINANCE NO. 1173 Page 2 of 4 Chapter 17.69 MEDICAL MARIJUANA DISPENSARIES Sections: 17.69.010 Medical marijuana dispensaries defined. 17.69.020 Prohibited. 17.69.010 Medical marijuana dispensaries defined. A. As used in this chapter, "Medical Marijuana Dispensary" or "Dispensary" means any facility or location where medical marijuana is made available to and/or distributed by or to one or more of the following: a primary caregiver, a qualified patient, or a person with an identification card, in strict accordance with California Health and Safety Code Sections 11362.5 and 11362.7 et seq. B. A "Medical Marijuana Dispensary" shall not include the following uses, as long as the location of such uses are otherwise regulated by this code or applicable law: a clinic licensed pursuant to Chapter 1 of Division 2 of the Health and Safety Code, a health care facility licensed pursuant to Chapter 2 of Division 2 of the Health and Safety Code; a residential care facility for persons with chronic life - threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the Health and Safety Code, a residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the Health and Safety Code, a residential hospice, or a home health agency licensed pursuant to Chapter 8 of Division 2 of the Health and Safety Code, as long as any such use complies strictly with applicable law including, but not limited to, California Health and Safety Code Sections 11362.5 and 11362.7 et seq. 17.69.020 Prohibited. Medical Marijuana Dispensaries are prohibited in all City zones, and no permit shall be issued therefor. 17.69.030 No Conflict with State Law. This Chapter 17.69 shall in no way limit the right to possess, use or cultivate marijuana for medicinal purposes as is authorized by the laws of the State of California. SECTION 3. If any provision, clause, sentence or paragraph of this Ordinance or '— the application thereof to any person or circumstance shall be held invalid, such invalidity shall not affect the other provisions of this Ordinance and are hereby declared to be severable. Page 10 of 13 CITY COUNCIL ORDINANCE NO. 1173 Page 3 of 4 SECTION 4. This Ordinance shall take effect thirty (30) days after the date of its final passage. The City Clerk shall certify as to adoption of this Ordinance and cause this Ordinance to be published and posted in the manner required by law. INTRODUCED AND APPROVED UPON FIRST READING this 28`x' day of February, 2006, upon the following roll call vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: ABSTAIN: COUNCILMEMBERS: PASSED, APPROVED AND ADOPTED UPON SECOND READING this 14`h day of March, 2006, upon the following roll call vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: ABSTAIN: COUNCILMEMBERS: Robert E. Mi City of Lake Page 11 of 13 CITY COUNCIL ORDINANCE NO. 1173 Page 4 of 4 ATTEST: Fre Brick Ray, y Clerk City of Lake sinore AS ara Zeid L�bold'City Attorney of Lake Elsinore Page 12 of 13