AGENDA HEADING: Legislative Public Hearings AGENDA REQUEST COMMISSION MEETING DATE: July 3, 2017 BY City Attorney Robert Fournier City Attorney Fournier AGENDA ITEM NO: XII.A.3. Originating Department SUBJECT: Department Head Presenter Public Hearing Re: Proposed Ordinance No. 17-5225 to ban medical marijuana dispensing facilities in the City of Sarasota. COMMISSION PRIORITIES: Business Requirement EXPLANATION: Please see following memorandum from the City Attorney. ADMINISTRATION'S RECOMMENDATION: Motion to approve proposed Ordinance No. 17-5225 on first reading. APPROVAL SUMMARY: Approval Department Head Approval City Auditor and Clerk Approval Required Date Completed Y 06/19/2017 Y 06/19/2017 Completed By Robert Fournier Pamela Nadalini Status APPROVED APPROVED
ADDITIONAL EXPLANATION: AGENDA REQUEST ADDITIONAL ADMIN RECOMMENDATION: FUNDING SOURCE: AMOUNT: HOUSING IMPACT (Per House): NEW CONSTRUCTION: REHABILITATION: $ 0 $ 0 SUPPORT DEPARTMENTS: City Auditor and Clerk - Pamela Nadalini Neighborhood and Development Services - Timothy Litchet City Attorney - Robert Fournier Police - Bernadette DiPino COMMISSION ACTION: Final Action Motion: Motion By: AGENDA DISPOSITION Second By: Vote: 2
MEMORANDUM TO: FROM: RE: DATE: City Commission Robert M. Fournier, City AttorneY!ift1P Medical Marijuana Zoning Ordinance June 15,2017 The purpose of this memorandum is to provide the City Commission with an update as to the status of the above referenced ordinance in light of the action taken by the Florida legislature late last Friday to enact legislation to implement Amendment 2. By way of background, in October 2016, the City Commission adopted an ordinance imposing a nine month moratorium on the establishment and operation of medical marijuana treatment centers and dispensing facilities. The moratorium will expire on July 17, 2017. The purpose of the moratorium was to allow City staff to have sufficient time to investigate the land use impacts of medical marijuana dispensing facilities; to determine what medical marijuana treatment center functions would be best suited to patiicular zone districts in the City; and how best to formulate land development regulations to appropriately govern the new land use now allowed under the Constitution of the State of Florida. Consistent with direction from the City Commission provided last March, City staff has been working with the City Attorney's office to draft a proposed ordinance to bring before the City Commission for public hearing this month in June 2017. Four days ago, I sent an email to the City Commission that this ordinance could not be scheduled for public hearing on June 19, 2017, as originally planned, because I did not want to be put in the position of submitting the proposed ordinance for placement on the City Commission agenda without first having read the new legislation and evaluated its ramifications. Again, consistent with the direction provided by the City Commission in March, the proposed ordinance would have allowed medical marijuana treatment centers in certain zone districts classified as "Office Zone Districts" and as "Production Intensive Zone Districts" (i.e. Commercial/Industrial). Several zone districts were proposed in the ordinance so that the City Commission would have Page 1 of 12
the option to delete any zone districts in which the Commission believed that the new land use would not be appropriate. Medical marijuana treatment centers that engage in cultivation or processing of medical marijuana would require major conditional use approval from the City Commission. The proposed ordinance would also have prohibited medical marijuana treatment centers from having drive-through facilities (i.e. drive up windows); would have restricted hours of operation from 7:00 am to 7:00 pm; and would have prohibited medical marijuana treatment centers within 100 feet of residentially zoned property and within 500 feet of a school, house of worship or another medical marijuana treatment center. However, in light of the new legislation enacted late last week, I have to recommend that the City Commission not proceed with consideration of the proposed ordinance. The new amendments to the Florida Statutes regarding medical marijuana essentially pre-empt the "regulation" of cultivating, processing and delivery of marijuana by medical marijuana treatment centers to the State of Florida. Since zoning or land use regulations are a f01m of governmental "regulation," I have to conclude that the enactment of zoning regulations applicable to facilities engaged in cultivation, processing or delivery of medical marijuana has been pre-empted to the State and that the City may not regulate these activities either by zoning regulations or otherwise. The new amendments to the Florida Statutes regarding medical marijuana do allow local governments to regulate medical marijuana dispensing facilities (as distinguished from the cultivation, processing and delive1y functions). A local government is given two options. First, a county or a municipality may, by ordinance, "ban medical marijuana treatment center dispensing facilities within the boundaries of that county or municipality." Alternatively, a county or a municipality may adopt an ordinance containing criteria for the location of dispensing facilities and containing other permitting requirements not in conflict with state law or Health Depatiment rules. However, if a local government selects the second option and opts to regulate the dispensing facilities, then the local government may not enact ordinances which are more restrictive than its ordinances permitting or detetmining permissible locations for pharmacies (as defined and licensed under Chapter 465 Florida Statutes). So, for the City of Sarasota, the consequences of a decision to allow medical marijuana dispensing facilities in the City can be summarized as follows: Page 2 of 12
1. Pharmacies are permitted throughout the downtown. Consequently, medical marijuana dispensing facilities would have to be permitted throughout the downtown as well. 2. Pharmacies are a permitted use in the CT-Commercial Tourist District (i.e. St. Armands Circle). Consequently, medical marijuana dispensing facilities would have to be pennitted in the CT zone district as well. 3. Pharmacies are a permitted use in the NT-Nmih Trail zone district. Consequently, medical marijuana dispensing facilities would have to be permitted in the NT zone district as well. 4. Pharmacies are a permitted use in the CBN-Commercial Business Newtown district. Consequently, medical marijuana dispensing facilities would have to be permitted in the CBN zone district as well. 5. Pharmacies are a permitted use in the Commercial Zone Districts (including Commercial Neighborhood and the Commercial Shopping Center Districts). Consequently, medical marijuana dispensing facilities would have to be permitted in these zone districts as well. 6. Pharmacies are perhaps most often actually not found as principal permitted uses, but as accessmy uses to drugstores, grocery stores and "big box" stores. Consequently, medical marijuana dispensing facilities would have to be permitted as accessory uses to these primary uses as well. 7. Pharmacies are allowed to have drive through facilities. Consequently, the City could not prohibit medical marijuana dispensing facilities from including drive through facilities. 8. Pharmacies are not restricted as to the hours of operation by City Codes. However, the state law does provide that medical marijuana dispensing cannot occur earlier than 7:00am or later than 9:00pm., so the operation of the facility (or more specifically the dispensing function) would be restricted to within these hours by state law. 9. Pharmacies are not subject to a minimum separation distance from residentially zoned property. Consequently, the City could not require a medical marijuana dispensing facility to be located at least 100 feet away from residentially zoned propetiy. Page 3 of 12
10. Pharmacies are not subject to a minimum separation distance from houses of worship or from other pharmacies. Consequently, the City could not require that medical marijuana dispensing facilities be subject to these minimum separation requirements. 11. Pharmacies are not subject to a minimum separation requirement from schools by City zoning regulations. However, the City could impose a minimum 500 ft. separation requirement between a medical marijuana dispensing facility and a school because this separation requirement is included as a requirement of the new statute. Based on previous occasions where the subject has been discussed, it had been my impression that the City Commission was open to allowing medical marijuana dispensing facilities in the City under the Zoning Code; provided the City Commission had the ability to select the appropriate zone districts within which the facilities would be pe1mitted and to establish reasonable zoning regulations to eliminate or mitigate any adverse impacts to neighboring prope1iies. But it appears that the Florida legislature was not willing to defer to the home mle authority of municipalities with regard to the zoning and land use regulations that should be applied to these medical marijuana dispensing facilities. The legislature has not chosen to leave it entirely up to local governments to determine what would work best within their jurisdictions when it comes to zoning for these facilities. Due to the "all or nothing" choice presented to the City Commission by the new law, I am constrained to recommend that the City Commission exercise its statutory option to adopt an ordinance to ban medical marijuana dispensing facilities in the City. This ordinance will be brought to the City Commission for public hearing on July 3, 2017. If the ordinance is adopted as recommended, it will not impair the ability of qualified patients to receive deliveries of medical marijuana in the city. Finally, due to the advance public notice requirements for ordinances that add to the list of permitted land uses within zoning categories, I should also mention that there is now insufficient time to advertise any proposed ordinance that would allow medical marijuana dispensing facilities in the City prior to the expiration of the moratorium. Page 4 of 12
ORDINANCE N0.17-5225 draft!nnfllg/06-19-17 AN ORDINANCE OF THE CITY OF SARASOTA, FLORIDA; EXCERCISING THE OPTION PROVIDED BY SECTION 381.986(11) (b) 1. FLORIDA STATUTES TO BAN MEDICAL MARIJUANA TREATMENT CENTER DISPENSING FACILITIES FROM BEING LOCATED WITHIN THE BOUNDARIES OF THE CITY OF SARASOTA; PROVIDING FOR READING BY TITLE ONLY AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, in 2014 the Florida Legislature enacted a medical marijuana law, the "Compassionate Medical Cannabis Act of 20 14" (codified as 381.986, Florida Statutes) which authorized a limited number oflarge nurseries to cultivate, process, and dispense non-euphoric, low THC cannabis and operate as "Dispensing Organizations" for individuals with certain specified serious ailments; and, WHEREAS, the Florida Legislature in its 2016 session amended the Compassionate Medical Cannabis Act ( 381.986) to include the use of "medical marijuana" for eligible patients with terminal conditions; and, WHEREAS, on November 8, 2016, Florida's voters voted and passed an amendment to the Florida Constitution, titled "Use of Marijuana for Debilitating Medical Conditions" ("Amendment 2"); and, WHEREAS, Amendment 2 fully legalized the medical use of marijuana throughout the State of Florida for those individuals with specified "debilitating" conditions, and authorized the cultivation, processing, transporting and dispensing of marijuana and related activities by licensed "Medical Marijuana Treatment Centers" and ' ' WHEREAS, Amendment 2 further provided that nothing therein would prohibit the Florida Legislature from enacting laws that were consistent with the provisions of the Constitutional amendment; and, WHEREAS, due to the historical prohibition of marijuana, the City of Sarasota does not currently have any land development regulations governing the use of real propetty for purposes of cultivating, processing, distributing or selling Page 5 of 12
marijuana or related activities and such uses are neither lawfully existing nor permissible within the City; and, WHEREAS, on October 17, 2016, the City imposed a nine (9) month moratorium on the operation within the City of any Medical Marijuana dispensing organizations or Medical Marijuana Treatment Centers; and, WHEREAS, since the imposition of the moratorium, City staff has studied the possible land use impacts of medical marijuana treatment centers and has determined what uses are best suited to particular zoning categories and formulated regulations that would appropriately govern the use of real property for purposes of cultivating, processing, distributing or selling marijuana or related activities; and, WHEREAS, said regulations as recommended by staff were incorporated into a proposed ordinance amending the City of Sarasota Zoning Code and such ordinance was noticed and advertised for the first of two required public hearings on Monday, June 19, 2017; and, WHEREAS, after publication of the notice of public hearing on the proposed ordinance but prior to its placement on the June 19, 2017 City Commission agenda, the Florida Legislature enacted legislation to implement the provisions of Amendment 2; and, WHEREAS, said legislation provides that the regulation of the cultivation, processing and delivery of marijuana by medical marijuana treatment centers is preempted to the State of Florida (with exceptions allowing for enforcement of the Florida Building Code and Florida Fire Prevention Code); and, WHEREAS, said legislation provides that counties and municipalities may decide either to (1) ban medical marijuana treatment center dispensing facilities within their jurisdictions; or, alternatively (2) allow medical marijuana treatment center dispensing facilities within their jurisdictions; and, WHEREAS, in the event that a local government opts to allow medical marijuana treatment center dispensing facilities, the 2017 legislation amending Section 381.986 of the Florida Statutes to implement Amendment 2 provides that the City may not enact an ordinance for permitting or determining the location of such facilities containing provisions that are more restrictive that its ordinances for petmitting or determining the location of pharmacies; and, 2 Page 6 of 12
WHEREAS, although the City Commission was prepared to consider a proposed ordinance which would have allowed medical marijuana dispensing facilities as a permitted use in several different zone districts, the proposed ordinance cannot be adopted in part because ce1iain provisions that would have been applicable to dispensing facilities are more restrictive than the regulations applied to pharmacies, which would be unlawful under the statute as amended in 2017; and, WHEREAS, the statutory amendments implementing Amendment 2 have forced the City Commission to make a choice between allowing medical marijuana dispensing facilities in numerous locations throughout the City where the City Commission does not believe such facilities would be appropriate (at least initially) and prohibiting medical marijuana dispensing facilities altogether; and, WHEREAS, upon consideration of its options, the City Commission finds that it would be in the public interest to exercise the option to ban medical marijuana treatment center dispensing facilities in the City of Sarasota at the present time. NOW THEREFORE BE IT ENACTED BY THE PEOPLE OF THE CITY OF SARASOTA, FLORIDA: Section 1. The City Commission hereby formally exercises the option given to counties and municipalities under Sec. 381.986 (11) (b) 1. Florida Statutes (2017) to ban medical marijuana treatment center dispensing facilities from being located within the boundaries of the City of Sarasota. Medical marijuana treatment center dispensing facilities shall be prohibited throughout the City of Sarasota in all zone districts. Section 2. The City Commission supports the proposition that Florida municipalities that decide to permit medical marijuana treatment centers should be able to prepare, vet and adopt reasonable, Constitutional and otherwise lawful land use regulations for permitting and determining the location of medical marijuana 3 Page 7 of 12
treatment center dispensing facilities without a statutmy restriction tying such regulations to its regulations applicable to phannacies. The City Commission finds that medical marijuana treatment center dispensing facilities and pharmacies are two separate and distinct land uses which could reasonably be subject to differing, overlapping or identical land use regulations as determined by the municipality in which the facilities are located. Section 3. The provisions of Section 1 of this ordinance which ban medical marijuana treatment center dispensing facilities from being located within the boundaries of the City of Sarasota shall not be codified in the Zoning Code at the present time. However, nothing herein shall prevent codification in the future by the adoption of a subsequent ordinance. Section 4. Effective Date: This Ordinance shall take effect immediately upon second reading. PASS ED on first reading by title only, after posting on the bulletin board at City Hall for at least three (3) days prior to first reading, as authorized by Article IV, Section 2, Chatier of the City of Sarasota, Florida this _ day of 2017. PAS SED on second reading and finally adopted this day of 2017. 4 Page 8 of 12
CITY OF SARASOTA, FLORIDA Shelli Freeland Eddie, Mayor ATTEST: Pamela M. Nadalini, MBA, CMC City Auditor and Clerk Mayor Shelli Freeland Eddie Vice Mayor Liz Alpert Commissioner Jen Ahearn-Koch Commissioner Hagen Brody Commissioner Willie Charles Shaw cityatty/nnf/ig/onl.l7~5225/(zta-mcdical Marijuana Treatment Centers)/06-19-17 5 Page 9 of 12
NOTICE OF PUBLIC HEARING Notice is hereby given that the CITY COMMISSION of the City of Sarasota, Florida will meet on Monday, July 3, 2017, at 6:00p.m. in the Commission Chambers, City Hall, 1565 First Street, Sarasota, Florida. Starting at 6:00 p.m. or as soon thereafter as possible, the Commission will open the scheduled Public Hearings in the order they appear on the Agenda. The following ordinance will be considered at the above scheduled meeting: ORDINANCE NO. 17-5225 AN ORDINANCE OF THE CITY OF SARASOTA, FLORIDA; EXERCISING THE OPTION PROVIDED BY SECTION 381.986(11) (b) 1. FLORIDA STATUES TO BAN MEDICAL MARIJUANA TREATMENT CENTER DISPENSING FACILITIES FROM BEING LOCATED WITHIN THE BOUNDARIES OF THE CITY OF SARASOTA; PROVIDING FOR READING BY TITLE ONLY AND PROVIDING FOR AN EFFECTIVE DATE. Said proposed ordinance is on file in the Office of the City Auditor and Clerk at City Hall at the above address for public inspection from 8:00a.m. to 5:00p.m. Monday through Friday. Interested persons are welcome to attend and may register to speak in respect to the above-proposed ordinance. If a person decides to appeal any decision made by the board, agency, or commission with respect to any matter considered at such meeting or hearing, he or she will need a record of the proceedings, and, for such purpose, he or she may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. In accordance with the Americans with Disabilities Act of 1990 and Section 286.26, Florida Statutes, persons with disabilities needing special accommodation to participate in such public hearing should contact the Office of the City Auditor and Clerk at (941) 954-4160 at least two (2) business days prior to the date of the public hearing as to the nature of the aid and/or service desired. Reasonable auxiliary aids and services will be made available to qualified disabled individuals to the extent that no undue financial or administrative burden results. For the benefit of individuals utilizing hearing aids with at -coil, the City Commission Chambers and SRQ Media Studio are outfitted with a Hearing Induction Loop for enhanced hearing assistance. CITY OF SARASOTA By: Pamela M. Nadalini, MBA, BBA, CMC City Auditor and Clerk I Chief Audit Executive Legal Date: June 23,2017 Page 10 of 12
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