The URL can be used to link to this page

Home My WebLink About2018 02 12 Regular 500 Medical Marijuana Dispensing FacilitiesCOMMISSION AGENDA ITEM 500 REQUEST: Informational Consent Public Hearings Regular X February 12, 2018 KS BF Regular Meeting City Manager Department The Community Development Department, City Manager, and City Attorney's Office request that the City Commission provide direction on medical marijuana dispensing facilities in light of the passage of SB 8 -A by the Florida Legislature in Special Session, approved by the Governor and effective on June 23, 2017. SYNOPSIS: On June 12, 2017, the City Commission extended a temporary moratorium prohibiting any and all medical cannabis activities within the jurisdictional limits of the City of Winter Springs during the moratorium period, currently scheduled to expire on April 3, 2018. In conjunction with the moratorium, the City Commission directed City staff to develop proposed land development regulations and other recommendations regarding such cannabis related activities. However, given the recent enactment of amendments to section 381.986, Florida Statutes, the Community Development Department, City Manager, and City Attorney's Office are requesting direction from the City Commission. Specifically, SB 8 -A contains provisions preempting local regulations related to marijuana activities, except that state law provides that a municipality may, by ordinance, ban medical marijuana treatment center dispensing facilities from being located within the boundaries of that municipality. However, a municipality that does not ban dispensing facilities may not place specific limits on the number of dispensing facilities that may locate in the municipality and, further, may not enact ordinances for permitting or determining the location of dispensing facilities which are more restrictive than its ordinances permitting or determining the locations for pharmacies licensed under chapter 465, Florida Statutes. Regular 500 PAGE 1 OF 5 - February 12, 2018 CONSIDERATIONS: 1. On October 10, 2016, the City Commission adopted Ordinance No. 2016 -08 imposing a temporary moratorium on any and all medical cannabis activities within the jurisdictional limits of the City of Winter Springs during the moratorium period. 2. On June 12, 2017, the City Commission adopted Ordinance No. 2017 -10 extending the temporary moratorium until April 3, 2018. At that time, the City Commission expressed particular concern regarding the regulatory uncertainty regarding medical cannabis activities within the State of Florida due to the fact that the Florida Legislature had not yet enacted any legislation implementing Amendment 2. 3. Given the City's temporary moratorium, medical marijuana dispensing facilities are currently banned within the City of Winter Springs until April 3, 2018. 4. Subsequent to the adoption of Ordinance No. 2017 -10, the Florida Legislature held a special session at which the Legislature enacted SB 8 -A (including amendments to Section 381.986, Florida Statutes), which are intended to implement Amendment 2. SB 8 -A was signed by Governor Scott on June 23, 2017, and becomes effective immediately. 5. SB 8 -A provides that the regulation of cultivation, processing, and delivery of marijuana by medical marijuana treatment centers is preempted to the state. See 381.986 (11), Florida Statutes. However, with respect to regulating the location of dispensing facilities of medical marijuana treatment centers, Section 381.986, Florida Statutes, provides each municipality and county a limited choice regarding the location of dispensing facilities of medical marijuana treatment centers within the various local jurisdictions around the state. Specifically, Section 381.986, Florida Statutes provides that a municipality may, by ordinance, ban medical marijuana treatment center dispensing facilities from being located within the boundaries of that municipality. This choice only applies to dispensing facilities and the preemption prohibiting municipal regulations will apply to other aspects of medical marijuana treatment centers governed by state law. 6. However, a municipality that does not ban dispensing facilities may not place specific limits on the number of dispensing facilities that may locate in the municipality and, further, may not enact ordinances for permitting or determining the location of dispensing facilities which are more restrictive than its ordinances permitting or determining the locations for pharmacies licensed under chapter 465, Florida Statutes. 7. Therefore, at least with respect to enacting zoning laws regulating the location of dispensing facilities within the jurisdictional limits of the City of Winter Springs, Section 381.986, Florida Statutes, appears to provide a "binary choice" for the City Commission to consider: The City Commission can either: (i) ban medical marijuana treatment center dispensing facilities, or (ii) such facilities will be treated like pharmacies for purposes of determining permitted locations. 8. Currently, the City of Winter Springs zoning regulations allow traditional pharmacies (drug and sundry stores) to be located within the C -1, C -2, C -3, Town Center (T- 4 and T -5 Transects), commercial areas in the Tuscawilla PUD, and GID (incidental use) zoning districts. Further, the wholesale distribution of pharmaceuticals is also permitted in the CC zoning district. Regular 500 PAGE 2 OF 5 - February 12, 2018 9. Given the aforementioned "binary choice," the Community Development Department, City Manager, and City Attorney's Office believes direction is warranted from the City Commission at this time in light of the passage of SB 8 -A. Specifically, the City Commission should provide direction on whether to impose a ban on medical marijuana dispensing facilities within the City of Winter Springs. 10. If the City Commission desires to consider imposing a ban, the City Staff and City Attorney's Office will prepare the necessary ordinance and present the same to the City's Local Planning Agency/P &Z Board for consideration and a public hearing in the near future. The Ordinance and LPA/P &Z recommendation will then be presented to the City Commission for first reading and public hearing at a future regular City Commission meeting before the moratorium period expires. 11. If the City Commission does not desire to impose a ban, the moratorium will expire on April 3, 2018, and medical marijuana dispensing facilities will be permitted in the C -1, C -2, C -3, Town Center (T -4 and T -5 Transects), and GID (incidental use) zoning districts, and commercial areas in the Tuscawilla PUD, if a ban is not enacted by the City Commission prior to the moratorium expiration pursuant to Section 381.986, Florida Statutes. 12. Currently, marijuana remains a Schedule 1 drug under both Florida and federal law, and its use remains prohibited under federal law. On January 4, 2018, U.S. Attorney General Sessions issued a memorandum to all United States Attorneys rescinding previous nationwide guidance ( "Cole Memorandum ") specific to marijuana enforcement promulgated during the Obama Administration. It is uncertain as to what impact (if any) the rescission of the Cole Memorandum will have on the federal government's investigative and prosecutorial discretion related to marijuana cultivation, distribution and possession in states that have authorized such activities for recreational and /or medical purposes, especially given that Congress continues to prohibit, since 2014, the Justice Department from spending funds to interfere with the implementation of state medical cannabis laws. The spending prohibition enacted by Congress is currently known as the "Rohrabacher- Blumenauer Amendment" and has been a budget appropriations rider attached to recurring omnibus spending bills. It was recently renewed on January 22, 2018 as part of a stopgap spending bill through February 8, 2018. The rider has essentially read as follows: None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana. In the case United States v. McIntosh, 8333 F.3d 1163 (9th Cir. 2016), the 9th Circuit overturned a former Justice Department interpretation of the aforementioned rider and held that several criminal defendants from California and Washington could avoid prosecution for various federal marijuana offenses on the basis that under the Appropriations Clause, the Regular 500 PAGE 3 OF 5 - February 12, 2018 rider, at the time the case was decided, prohibited the United States Justice Department from spending funds to prevent states' implementation of their own medical marijuana laws. The 9th Circuit further concluded that the rider prohibits the federal government only from preventing the implementation of those specific rules of state law that authorize the use, distribution, possession, or cultivation of medical marijuana. The Department of Justice does not prevent the implementation of state rules authorizing conduct when it prosecutes individuals who engage in conduct unauthorized under state medical marijuana laws. Individuals who do not strictly comply with all state -law conditions regarding the use, distribution, possession, and cultivation of medical marijuana have engaged in conduct that is unauthorized, and prosecuting such individuals does not violate rider. Id. at 1178. This decision will likely hold influence on other circuit courts. However, the 9th Circuit explicitly observed and commented upon the temporal nature of the rider. The Court noted that while the rider currently prohibits the expenditure of funds, Congress could appropriate funds for such prosecutions tomorrow. Further, the Court issued a warning about its observation and stated: "[t]o be clear, § 542 [the rider] does not provide immunity from prosecution for federal marijuana offenses. The [Controlled Substance Act] prohibits the manufacture, distribution, and possession of marijuana. Anyone in any state who possesses, distributes, or manufactures marijuana for medical or recreational purposes (or attempts or conspires to do so) is committing a federal crime. The federal government can prosecute such offenses for up to five years after they occur. See 18 U.S.C. § 3282. Congress currently restricts the government from spending certain funds to prosecute certain individuals. But Congress could restore funding tomorrow, a year from now, or four years from now, and the government could then prosecute individuals who committed offenses while the government lacked funding. Moreover, a new president will be elected soon, and a new administration could shift enforcement priorities to place greater emphasis on prosecuting marijuana offenses. Id. at 1179. In other words, there is currently no permanent protection of state medical marijuana programs from the enforcement of federal law as it currently exists. 13. The zoning status of medical marijuana dispensing facilities within the surrounding jurisdictions is set forth on the attached matrix prepared by City staff. 14. At this time, Staff is requesting direction from the City Commission to determine whether it would like to (i) allow the current moratorium to expire, which will allow dispensing facilities to be located within the City in the same manner as pharmacies; (ii) ban medical marijuana treatment center dispensing facilities within the City's jurisdictional boundaries; or (iii) extend the temporary moratorium. Extension of the moratorium is not recommended because a ban could be implemented with the intent to permanently prohibit dispensing facilities, with the intent to revisit the ban in general, or with the intent that the City revisit the regulation of marijuana dispensing facilities if an appropriate ordinance regulating both pharmacies and marijuana dispensing facilities in the same manner could be crafted to the satisfaction of the City Commission. Regular 500 PAGE 4 OF 5 - February 12, 2018 APPLICABLE LAW, PUBLIC POLICY, AND EVENTS: Home Rule Powers (now substantially preempted by state law regarding marijuana dispensaries and other matters related to marijuana cultivation and possession) Winter Springs Code of Ordinances City of Winter Springs Comprehensive Plan Compassionate Use Act, s. 386.986, F.S.; Right to Try Act, s. 499.0295, F.S. Amendment 2; Senate Bill 8 -A FISCAL IMPACT: There is no direct fiscal impact related to the City Commission's consideration of this Agenda Item. COMMUNICATION EFFORTS: This Agenda Item has been electronically forwarded to the Mayor and City Commission, City Manager, City Attorney /Staff, and is available on the City's Website, LaserFiche, and the City's Server. Additionally, portions of this Agenda Item are typed verbatim on the respective Meeting Agenda which has also been electronically forwarded to the individuals noted above, and which is also available on the City's Website, LaserFiche, and the City's Server; has been sent to applicable City Staff, Media/Press Representatives who have requested Agendas /Agenda Item information, Homeowner's Associations/Representatives on file with the City, and all individuals who have requested such information. This information has also been posted outside City Hall, posted inside City Hall with additional copies available for the General Public, and posted at six (6) different locations around the City. Furthermore, this information is also available to any individual requestors. City Staff is always willing to discuss this Agenda Item or any Agenda Item with any interested individuals. RECOMMENDATION: Staff recommends the City Commission provide feedback and direction regarding the possible future location of medical marijuana treatment center dispensing facilities within the City. ATTACHMENTS: 1. Exhibit A - Zoning Matrix RE: Surrounding Local Jurisdictions Regular 500 PAGE 5 OF 5 - February 12, 2018 EXHIBIT A Medical Marijuana Treatment Center and Licensed Medical Marijuana Dispensaries Current Standing Action By Action Date Effective Date Notes Seminole County Temp Moratorium ORD# 2017 -38 9/26/2017 9/26/2017 270 days Altamonte Springs Permitted ORD# 15 -1690 12/01/2015 12/01/2015 LDC 3.44.8 Casselberry Temp Moratorium ORD# 17 -1467 08/28/2017 08/28/2017 180 days Lake Mary Banned ORD# 1571 09/07/2017 09/07/2017 Longwood Permitted ORD# 17 -2116 5/01/2017 5/01/2017 LDC Article II Oviedo Permitted ORD# 1655 09/07/2017 09/07/2017 LDC Article V Sanford Temp Moratorium ORD# 4396 01/23/2017 01/23/2017 Winter Springs Temp Moratorium ORD# 2016 -08 10/10/2016 10/10/2016 270 days • - • Pemitted ORD #2107 -21 11/14/2017 1/1/2018 500 -ft from schools, between 7 a.m. -9 P.M. Apopka Banned ORD# 2582 08/16/2017 City is looking into Special Exeption Edgewood Permitted Special Exception ORD# 2014 -04 06/17/2014 06/17/2014 Ch 134, Art IV, Div 10, Sec 134 - 438 Maitland Permitted Conditional Use ORD# 1265 11/10/2014 11/10/2014 Chapter Sec 2 Prohibits cannabis nabis f far arms Ocoee Banned ORD# 2017 -027 11/07/2017 11/07/2017 LDC Article V 5 -8 Orlando Permitted ORD# 2017 -25 06/05/2017 Chapter 58 LDC Windermere Banned ORD# 2017 -02 10/10/2017 10/10/2017 Code Article VII Winter Garden Banned ORD# 2017 -24 07/27/2017 Code Chapter 118 Article XI Winter Park Banned ORD# 3081-17 08/14/2017 08/14/2017 - • • Permitted ORD# 2016 -97 10/17/2016 10/17/2016 Code Article VIII Chapter 14 Kissimmee Banned ORD# 2961 08/15/2017 08/15/2017 St. Cloud Temp Moratorium ORD# 2017 -36 07/13/2017 07/13/2017