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HomeMy WebLinkAboutOrdinance No. 09-2014 ORDINANCE NO. 09-2014 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA, AFFECTING THE USE OF LAND IN THE CITY RELATING TO MEDICAL MARIJUANA TREATMENT CENTERS, WHETHER FOR MEDICAL OR RECREATIONAL USE, AND RELATING TO PAIN MANAGEMENT CLINICS; AMENDING CHAPTER 110, ZONING, OF THE CAPE CANAVERAL CODE OF ORDINANCES TO INCLUDE "MEDICAL MARIJUANA TREATMENT CENTERS" AND "PAIN MANAGEMENT CLINICS" AS SPECIAL EXCEPTIONS IN THE Cl, C2,AND Ml ZONING DISTRICTS AND SETTING FORTH STANDARDS AND REQUIREMENTS FOR SUCH USES; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS; INCORPORATION INTO THE CODE; SEVERABILITY; AND AN EFFECTIVE DATE. WHEREAS, the City is granted the authority, under Section 2(b), Article VIII, of the State Constitution, to exercise any power for municipal purposes, except when expressly prohibited by law; and WHEREAS, a ballot initiative has been scheduled for state wide vote in November, 2014, to allow the dispensing and use of marijuana for medical purposes by persons with debilitating diseases; and WHEREAS, in 1996, the state of California became the first state to legalize the use, possession and cultivation of medical marijuana, and several other states subsequently enacted laws legalizing medical marijuana in various circumstances; and WHEREAS, the California Police Chiefs Association developed a Task Force on Marijuana Dispensaries to develop the "White Paper on Marijuana Dispensaries" ("White Paper"), which white paper was published in 2009; and WHEREAS, the White Paper on Marijuana Dispensaries examined the direct and indirect adverse impacts of marijuana dispensaries in local communities and indicates that marijuana dispensaries may attract or cause ancillary crimes, marijuana smoking in public or around children, the sale of other, illegal drugs at dispensaries, loitering and nuisances, and increased traffic accidents and driving under the influence arrests in which marijuana is implicated; and WHEREAS, the White Paper further indicates that crime statistics may inadequately reflect the actual number of crimes committed at marijuana dispensaries, and additionally, that City of Cape Canaveral Ordinance No.09-2014 Page 1 of 10 the presence of marijuana dispensing businesses may contribute to the existence of a secondary market for illegal, street-level distribution of marijuana; and WHEREAS, the White Paper outlines the following typical complaints received from individuals regarding certain marijuana dispensary study areas: high levels of traffic going to and from the dispensaries, people loitering in the parking lot of the dispensaries, people smoking marijuana in the parking lot of the dispensaries, vandalism near dispensaries, threats made by dispensary employees to employees of other businesses, and citizens worried that they may become a crime victim due to their proximity to dispensaries; and WHEREAS, the White Paper found that many medical marijuana business owners had histories of drug and violence-related arrests, that records or lack of records showed that some owners were not properly reporting income generated from the sales of marijuana, that some medical marijuana businesses were selling to individuals without serious medical conditions, and that the California law had no guidelines on the amount of marijuana which could be sold to an individual; and WHEREAS, the White Paper ultimately concludes that there are many adverse secondary effects created by the presence of medical marijuana dispensaries in communities; and WHEREAS, the City Council of the City of Cape Canaveral, has determined that, in the event the State of Florida legalizes medical marijuana, it is in the best interests of the citizenry and general public to regulate medical marijuana treatment centers; and WHEREAS, the City Council of the City of Cape Canaveral has the responsibility and authority to determine what uses are best suited to particular zoning categories as well as land uses within the City; and WHEREAS, the City Council of the City of Cape Canaveral has determined that given the potential impact on the surrounding areas, that medical marijuana treatment centers and pain management clinics should be permissible only within the C-1, C-2, and M-1 zoning districts after a hearing and finding by the City's Board of Adjustment that said medical marijuana treatment center or pain management clinic complies with city regulations; and WHEREAS, the City Council of the City of Cape Canaveral has determined that it is advisable and in the public interest to set certain distance and other siting standards in regard to the location and operation of pain management clinics and medical marijuana treatment centers; and WHEREAS, the City Council of the City of Cape Canaveral, Florida, hereby finds this Ordinance to be in the best interests of the public health, safety, and welfare of the citizens of Cape Canaveral. NOW, THEREFORE, THE CITY OF CAPE CANAVERAL HEREBY ORDAINS AS FOLLOWS: City of Cape Canaveral Ordinance No.09-2014 Page 2 of 10 Section 1. Recitals. The foregoing recitals are hereby fully incorporated herein by this reference as legislative findings and the intent and purpose of the City Council of the City of Cape Canaveral. Section 2. Amendment to Chapter 110, Zoning. Chapter 110, Zoning, of the Code of Ordinances, City of Cape Canaveral, Florida, is hereby amended as follows (underlined type indicates additions and strikeout type indicates deletions, while asterisks (* * *) indicate a deletion from this Ordinance of text existing in Chapter 110. It is intended that the text in Chapter 110 denoted by the asterisks and set forth in this Ordinance shall remain unchanged from the language existing prior to adoption of this Ordinance): Sec. 110-1. Definitions. Medical marijuana treatment center means an entity that acquires, cultivates, possesses, processes (including development of related products such as food, tinctures, aerosols, oils, or ointments), transfers, transports, sells, distributes, dispenses, or administers marijuana, products containing marijuana, related supplies, or educational materials to qualifying patients or their personal caregivers and is registered by the state Department of Health. Sec. 110-334. Special exceptions permissible by board of adjustment. (c) Special exceptions may be permitted for the following: (18) Medical marijuana treatment centers, subject to the requirements of section 110- 489 of this Code. * * Sec. 110-354. Special exceptions permissible by board of adjustment. (c) Special exceptions may be permitted for the following: (15) Pain management clinics, subject to the requirements of section 110-489 of this Code. City of Cape Canaveral Ordinance No.09-2014 Page 3 of 10 (16) Medical marijuana treatment centers, subject to the requirements of section 110- 489 of this Code. Sec. 110-383. Special exceptions permissible by the board of adjustment. (c) Special exceptions may be permitted for the following: (15) Medical marijuana treatment centers, subject to the requirements of section 110- 489 of this Code. Sec. 110-489. Pain management clinic and medical marijuana treatment center regulations. Pain management clinics and medical marijuana treatment centers may only be permitted by special exception in the C-1, C-2 and M-1 and C 2 zoning districts, subject to the general conditions for special exceptions and subject to the following requirements: (a) State registration. Pain management clinics and medical marijuana treatment centers must be registered with the state if as required by Florida law. If registration is required by state law, then proof of registration, application for registration or letter of exemption must be provided with the special exception application for the pain management clinic or medical marijuana treatment center. (b) Pain management clinic licensing__Each pain management clinic shall be operated by a medical director who is a Florida-licensed physician, board-certified in pain medicine, and who shall be responsible for complying with all requirements related to registration and operation of the clinic. The designated physician must have a full, active, and unencumbered license under F.S. ch. 458 or ch. 459, and shall practice at the clinic location for which the physician has assumed responsibility. Within ten days after termination or absence of the medical director, the clinic must notify the city of the identity of another medical director for the clinic. (c) Separation requirements from similar uses. There shall be no less than one-half-mile distance between each pain management clinic and/or each medical marijuana treatment center regardless of the municipal boundaries of the city. (d) Separation requirements from schools, churches and daycare facilities. No pain management clinic or medical marijuana treatment center shall be permitted to locate City of Cape Canaveral Ordinance No.09-2014 Page 4 of 10 within 1,000 feet of any public or private school, church, or daycare facility and no public or private school, church, or daycare facility shall be permitted to locate within 1,000 feet of a pain management clinic or medical marijuana treatment center. (e) Hours of Operation. Pain management clinics and medical marijuana treatment centers shall only be permitted to operate between the hours of 9:00 a.m. and 7:00 p.m., Monday through Friday, and 9:00 a.m. to 12:00 5:00 p.m. on Saturday. (f) Requirement for indoor operation and prohibition on loitering. There shall be no outdoor seating areas, queues, or customer waiting areas. All activities of the pain management clinic or medical marijuana treatment center; including sales, display, preparations and storage1; shall be conducted entirely within an enclosed building. A pain management clinic or medical marijuana treatment center shall provide adequate seating for its patients and business invitees. The pain management clinic or medical marijuana treatment center shall not direct or encourage any patient or business invitee to stand, sit, gather or loiter outside of the building where the clinic or center operates, including in a parked car, including in any parking areas, sidewalks, rights-of-way, or neighboring properties for any period of time longer than reasonably required for patients to conduct their official business and depart. The pain management clinic or medical marijuana treatment center shall post conspicuous signs on at least three (3) sides of the building stating that no loitering is allowed on the property. Vehicular Traffic. The pain management clinic or medical marijuana treatment center shall ensure that there is no queuing of vehicles in the rights-of-way. No pain management clinic or medical marijuana treatment center shall have a drive-through or drive-in service aisle. (h) Prohibition of on-site consumption of pain management drugs, marijuana or alcohol. No consumption of a pain management drug, marijuana, or alcoholic beverage shall be allowed on the premises, including in the parking areas, sidewalks, or rights-of-way. f Parking. Any parking demand created by a pain management clinic or medical marijuana treatment center shall not exceed the parking spaces located or allocated on site, as required by the city's parking regulations. An applicant shall be required to demonstrate that on-site traffic and parking attributable to the pain management clinic or medical marijuana treatment center will be sufficient to accommodate traffic and parking demands it generates, based upon a current traffic and parking study prepared by a certified professional. (g-){ Prohibition on cash only businesses. Limiting payment for goods or services to cash only is prohibited. ( (k) Daily Reports Required. Pain management clinics and medical marijuana treatment centers shall be required to submit to the Brevard County Sheriffs Office a daily summary containing the following information from the prior business day: City of Cape Canaveral Ordinance No.09-2014 Page 5 of 10 (i) The total number of prescriptions written that day; (ii) The total number of doses of drugs sold and/or dispensed by the pain management clinic or medical marijuana treatment center that day (including samples), specifying how many doses were sold or dispensed; the person prescribing or dispensing same; and the manner of payment by each person who was dispensed drugs at the clinic that day; and (iii) The state of residence of each person to whom drugs were prescribed or dispensed that day. (i)(l) Prohibition on home occupations. A pain management clinic or medical marijuana treatment center shall not be permitted as a home occupation. j)(m) No pain management clinic or medical marijuana treatment center shall be wholly or partially owned by, or have any contractual relationship (whether as a principal, partner, officer, member, managing member, employee, independent contractor, or otherwise) with any physician, pharmacist, or any other person who prescribes drugs and who, within five years prior to the receipt of any application for special exception: (i) Has been suspended, had his or her license revoked, or been subject to disciplinary action for prescribing, dispensing, administering, providing, supplying, or selling any controlled substance in violation of any state, federal, or similar law where such person is licensed to practice; (ii) Has been convicted of, pled nolo contendere to, or violated any plea agreement regarding an arrest for, a violation of any state, federal, or similar law related to drugs or alcohol, specifically including but not limited to, prescribing, dispensing, administering, providing, supplying, or selling any controlled substance; (iii) Has been suspended, had his or her license revoked, or been subject to disciplinary action by any state, federal, or other governmental entity where such person is licensed to practice; (iv) Has had any state, federal, or other governmental entity where such person is licensed to practice take any action against such person's license as a result of dependency on drugs or alcohol; or (v) Has been convicted of, pled nolo contendere to, or violated any plea agreement regarding an arrest for, any felony or crime involving moral turpitude. (k)(n) No pain management clinic or medical marijuana treatment center shall be wholly or partially owned by, or have as a principal, partner, officer, member, managing member, or otherwise where the owner is an entity, any person who: (i) Has been convicted of, pled nolo contendere to, or violated any plea agreement regarding an arrest for, a violation of any state, federal, or similar law related to drugs or alcohol; or (ii) Has been convicted of, pled nolo contendere to, or violated any plea agreement regarding an arrest for, any felony or crime involving moral turpitude. City of Cape Canaveral Ordinance No.09-2014 Page 6 of 10 (1)(o) No pain management clinic or medical marijuana treatment center shall employ any person, as an independent contractor or otherwise, who: (i) Has been convicted of, pled nolo contendere to, or violated any plea agreement regarding an arrest for, a violation of any state, federal, or similar law related to drugs or alcohol, specifically including but not limited to,prescribing, dispensing, administering, providing, supplying or selling any controlled substance; or (ii) Has been convicted of, pled nolo contendere to, or violated any plea agreement regarding an arrest for, any felony or crime involving moral turpitude within the five years preceding the application for special exception. (m)(p) Landlord Responsibilities. (i) Any landlord, leasing agent, or owner of property upon which a pain management clinic or medical marijuana treatment center operates, who knows, or in the exercise of reasonable care should know, that a medical marijuana treatment center is operating in violation of city code or applicable Florida law, including the rules and regulations promulgated by the state Department of Health, must prevent, stop, or take reasonable steps to prevent the continued illegal activity on the leased premises. (ii) Landlords who lease space to a medical marijuana treatment center must expressly incorporate language into the lease or rental agreement stating that failure to comply with city code is a material non-curable breach of the lease and shall constitute grounds for termination of the lease and immediate eviction by the landlord. (n)(q) Additional application information. An applicant seeking a special exception for a pain management clinic or medical marijuana treatment center shall, in addition to the general application information required for special exceptions,provide the following: (i) The pain management clinic's or medical marijuana treatment center's registration number issued by the Florida Department of Health, as required by Florida law. (ii) For pain management clinics, the nName of the medical director, as required herein, responsible for complying with all requirements related to operation of the pain management clinic and the medical director's Drug Enforcement Agency number. (iii) A list of all persons associated with the management or operation of the pain management clinic or medical marijuana treatment center, whether paid or unpaid, part-time or full-time, including all contract labor and independent contractors. This list shall include, but not be limited to, all owners, operators, employees and volunteers. For persons listed, the following additional information must be provided: (A) Person's title, current home address, telephone number and date of birth; City of Cape Canaveral Ordinance No.09-2014 Page 7 of 10 (B) List of all criminal convictions whether misdemeanor or felony; that are drug related; (C) A copy of a current Florida driver's license or government issued photo identification; and (D) A set of fingerprints. (iv) If the property owner is different from the owner of the pain management clinic or medical marijuana treatment center, the applicant shall provide the name, address, telephone number and a copy of a Florida driver's license or government issued photo identification of the property owner along with the application. (v) An inventory of diagnostic equipment to be located at the clinic; (vi) A natural disaster management plan; (vii) A floor plan showing the location and nature of adequate security measures, including those required by the State of Florida for controlled substances, to safeguard all drugs to be dispensed in the course of its business. (viii) An affidavit of the medical director of the pain management clinic, or owner of the medical marijuana treatment center, signed under oath, attesting: (A) That their practice is located at the subject site; pain management clinic; (B) That no employees of the facility have been convicted of a drug-related felony within the five years preceding the application for special exception; (C) That the pain management clinic or medical marijuana treatment center will not knowingly employ any such convicted felons thereafter; and (D) For pain management clinics, 'ghat the medical director shall be required to inform the city within ten days should the medical director be terminated or otherwise leave the affiliation of the pain management clinic as medical director. The medical director of the pain management clinic, or owner of the medical marijuana treatment center shall be required to keep all application information updated with the city at all times, even after issuance of a special exception, and said information shall be verified annually by the city in conjunction with the city's local business tax receipt renewal process. The medical director of the pain management clinic, or owner of the medical marijuana treatment center shall notify the city of any change to the information within ten days of any new person becoming associated with the pain management clinic or medical marijuana treatment center or any other change to the application information required herein. Failure to properly maintain updated information with the city shall be grounds for revocation of the pain management clinic special exception. fjj Single special exception application/Single classification of special exception. Only one (1) special exception may be issued for a location or any single building and only under a City of Cape Canaveral Ordinance No.09-2014 Page 8 of 10 single classification for either a pain management clinic or medical marijuana treatment center. Compliance with Law. The pain management clinic or medical marijuana treatment center shall at all times be subject to the requirements of all applicable federal, state, county and local laws and ordinances, as they may be amended from time to time. Suspension or Revocation of Special Exception. Any special exception granted for a pain management clinic or medical marijuana treatment center may be temporarily suspended or absolutely revoked by majority vote of the board of adjustment at a public hearing, when the board of adjustment has determined by competent substantial evidence that either: (i) The pain management clinic or medical marijuana treatment center has obtained the special exception upon false statements, fraud, deceit, misleading statements, or suppression of material facts; (ii) The pain management clinic or medical marijuana treatment center has committed substantial violations of the terms and conditions on which the special exception was granted; (iii) The pain management clinic or medical marijuana treatment center no longer meets the requirements of this section or other applicable law; or (iv) The medical director or any other employee of the pain management clinic or medical marijuana treatment center knowingly allowed illegal activities to be conducted on the premises. Prior to any special exception being revoked, the pain management clinic or medical marijuana treatment center shall be provided with minimum due process including notice of the grounds for revocation and hearing date, an opportunity to be heard, the right to present evidence, and the right to cross-examine adverse witnesses. (u) Certification affidavit by applicants for related uses. (i) Any application for a business tax receipt under chapter 70 of this code, as a pain management clinic or as a medical marijuana treatment center as such terms are defined in section 110-1 of this code, shall be accompanied by an executed affidavit certifying registration with the State of Florida and the city as a pain management clinic or as a medical marijuana treatment center, as applicable. The failure of an applicant to identify the business in the application for a business tax receipt as a pain management clinic or medical marijuana treatment center will result in the immediate expiration of the business tax receipt and immediate ceasing of all activity conducted in the pain management clinic or medical marijuana treatment center. (ii) Any applicant's application for a business tax receipt and executed affidavit relating to use as a pain management clinic or as a medical marijuana treatment center, where applicable, shall be provided to the city building division at the time of the proposed use. City of Cape Canaveral Ordinance No.09-2014 Page 9 of 10 Section 3. Repeal of Prior Inconsistent Ordinances and Resolutions. All prior inconsistent ordinances and resolutions adopted by the City Council, or parts of ordinances and resolutions in conflict herewith are hereby repealed to the extent of the conflict. Section 4. Incorporation Into Code. This Ordinance and all Exhibits hereto shall be incorporated into the City of Cape Canaveral City Code and any section or paragraph, number or letter and any heading may be changed or modified as necessary to effectuate the foregoing. Grammatical, typographical and like errors may be corrected and additions, alterations and omissions, not affecting the construction or meaning of this Ordinance and the City Code may be freely made. Section 5. Severability. If any section, subsection, sentence, clause, phrase, word or provision of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, whether for substantive, procedural or any other reason, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions of this Ordinance. Section 6. Effective Date. This Ordinance shall become effective immediately upon passage and adoption by the City Council, however, the opening and/or operating of a medical marijuana treatment center as defined by the Florida constitution or Florida law shall occur only upon and after the effective date upon which medical marijuana treatment centers are deemed legal by the State of Florida. ADOPTED by the City Council of the City of Cape Canaveral, Florida this 16th day of September, 2014. 4ir . i . ROCKY RAND LS,Mayor For Against ATTEST: John Bond x }, i� ANG LA APP ' ON,City Clerk,MMC Bob Hoog Second Buzz Petsos Motion First Reading: August 19,2014 Legal Ad published: August 28,2014 Rocky Randels X Second Reading: September 16,2014 Betty Walsh X Approved as to legal form and sufficiency for the Cly of Cape Canaveral only by: . ---' ANTHON A. GARGANESE,City Attorney City of Cape Canaveral Ordinance No.09-2014 Page 10 of 10