THE CITY OF RANCHO PALOS VERDES ORDINANCE NO. 446U THE CITY OF RANCHO PALOS VERDES ORDINANCE NO. 446U THE CITY OF RANCHO PALOS VERDES ORDINANCE NO.446U

ORDINANCE NO. 446U


AN ORDINANCE OF THE CITY OF RANCHO PALOS VERDES AMENDING SECTIONS OF THE RANCHO PALOS VERDES MUNICIPAL CODE RELATING TO THE ISSUANCE OF BUSINESS LICENSES AND ADOPTING FINDINGS OF URGENCY.


WHEREAS, the City of Rancho Palos Verdes issues business licenses for businesses doing business within its boundaries; and

WHEREAS, in 1996, the California voters adopted Proposition 215, the Compassionate Use Act (“Prop 215”), decriminalizing the use of marijuana for medical purposes, which was augmented by the State Legislature in 2004 and codified at Section 11362.5 et seq. of the California Health and Safety Code; and

WHEREAS, widespread implementation of Prop 215 was delayed due to several ensuing court cases challenging its validity; and

WHEREAS, the California Supreme Court has stated that Prop 215 makes the possession of marijuana for medical purposes non-criminal (People v. Mower, 28 Cal.4th 457, 472 (2002)); however, the federal courts have not recognized such a medical necessity exception under federal law (United States v. Oakland Cannabis Buyer’s Cooperative, 121 S. Ct. 1711 (2001)); and

WHEREAS, the United States Supreme Court has ruled that the federal Commerce Clause powers gave Congress the authority to enact the Controlled Substances Act, which bans, among other things, the cultivation, use and transfer of marijuana for noncommercial purposes even though that cultivation, use and transfer occurs completely within the State of California, so that the federal ban covers marijuana cultivated, used or transferred pursuant to Prop 215; however, the Court did not expressly invalidate Prop 215 (Raich v. Ashcroft, 125 S. Ct. 2195 (2005)); and

WHEREAS, a subsequent Ninth Circuit holding puts cities on notice that a city cannot invoke federal immunity for a marijuana dispensary operator by designating that operator as an “official” city dispensary operator (United States v. Rosenthal, 454 F.3d 943 (2006)), from which it can be inferred that city officials could potentially incur co-conspirator liability if they authorize activities that violate federal law; and

WHEREAS, the City has not yet established any express criteria permanently banning or regulating the issuance of business licenses for medical marijuana dispensaries, stores, or co-ops; and

WHEREAS, at least two neighboring cities recently discovered that a medical marijuana dispensary was established within each of their jurisdictions; and

WHEREAS, with the expansion of medical marijuana dispensaries in other cities, it is foreseeable that a medical marijuana dispensary may seek to establish its business within the boundaries of the City; and

WHEREAS, cities have experienced adverse secondary impacts to the public peace, health, safety and welfare around medical marijuana dispensaries, such as an increase in thefts and robberies in support of illegal drug commerce; and

WHEREAS, the City Council is concerned that the establishment of medical marijuana dispensaries, stores, or co-ops within the City, in violation of federal law, has the potential to cause adverse impacts to surrounding neighborhoods and the public peace, health, safety, and welfare of the City’s residents and the general public, and further, that public officials and employees are put at risk for being co-conspirators if required to issue business licenses to businesses whose activities violate federal law; it is therefore urgent that the City adopt this ordinance to require that all applicants affirm that they will not conduct activities that are illegal under the Rancho Palos Verdes Municipal Code, the laws of the State of California, or the laws of the United States of America while clarifying that business licenses do not authorize the conduct of unlawful businesses or activities and, and

WHEREAS, this ordinance is presented as an urgency ordinance because the above-referenced facts increase the possibility that a medical marijuana dispensary may be established in the City before the City has enacted appropriate regulations, and is, therefore, necessary for preserving the public peace, health, and safety;

NOW, THEREFORE THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES DOES ORDAIN AS FOLLOWS:

Section 1. Section 5.04.050 of Chapter 5.04 of Title 5 of the Rancho Palos Verdes Municipal Code is hereby revoked and replaced as follows:

“5.04.050 License and tax payment required.

A. There are imposed upon the businesses, trades, professions, callings and occupations specified in this chapter license taxes in the amounts prescribed in this chapter effective upon the effective date of this chapter. It is unlawful for any person to transact and carry on any business, trade, profession, calling or occupation in the city without first having procured a license from the city so to do and paying the tax prescribed in this chapter or without complying with any and all applicable provisions of this chapter.

B. This section shall not be construed to require any person to obtain a license prior to doing business within the city if such requirement conflicts with applicable statutes of the United States or of the state. Persons not so required to obtain a license prior to doing business within the city nevertheless shall be liable for payment of the tax imposed by this chapter.

C. No business license issued by the city pursuant to this chapter shall be construed as authorizing any conduct or continuance of any illegal or unlawful business or practice, or the furnishing, sale, or providing of any service, good, or product that is illegal or prohibited under the laws of the United States, the laws of the State of California, the federal and state constitutions, this Code, or any other applicable law, ordinance, rule or regulation. Any such business license shall be void.”

Section 2. Section 5.04.110 of Chapter 5.04 of Title 5 of the Rancho Palos Verdes Municipal Code is hereby revoked and replaced as follows:

“5.04.110 Application—First License

A. Upon a person making application for the first license to be issued hereunder for the applicant’s business for a newly established business, such person shall furnish to the collector a sworn statement, upon a form provided by the collector, setting forth the following information:

1. The exact nature or kind of business for which a license is requested;

2. The place where such business is to be carried on, and if the same is not to be carried on at any permanent place of business, the places of residences of the owners of same;

3. In the event that application is made for the issuance of a license to a person doing business under a fictitious name, the application shall set forth the names and places of residences of those owning said business;

4. In the event that the application is made for the issuance of a license to a corporation or a partnership, the application shall set forth the names and places of residence of the officers or partners thereof;

5. In all cases where the amount of license tax to be paid is measured by gross receipts or by the number of dwelling units, of square feet of commercial or industrial buildings constructed as provided in this chapter, or by the number of vehicles used or other computation, count or similar criteria, the application shall set forth such information as may be therein required and as may be necessary to determine the amount of the license tax to be paid by the applicant;

6. An affirmation by the applicant that the business will not be an illegal or unlawful business or practice, and that it will not furnish or provide any service, good, or product that is illegal or prohibited under the laws of the United States, the laws of the State of California, the federal and state constitutions, this Code, or any other applicable law, ordinance, rule or regulation;

7. Any further information that the collector may require to enable the collector to issue the type of license applied for;

8. If the amount of the license tax to be paid by the applicant is measured by gross receipts or by the number of dwelling units or square feet of commercial or industrial buildings constructed as provided in this chapter, or by the number of vehicles used or other computation, count or similar criteria, the applicant shall estimate the gross receipts or number of bedrooms and dwelling units or number of square feet of commercial or industrial buildings constructed, or the number of vehicles to be used or other criteria, respectively, for the period to be covered by the license to be issued. Such estimate, if accepted by the collector as reasonable, shall be used in determining the amount of license tax to be paid by the applicant; provided, however, the amount of the license tax so determined shall be tentative only, and such person shall, within thirty days after the expiration of the period for which such license was issued, furnish the collector with a sworn statement, upon a form furnished by the collector, showing the actual gross receipts or number of dwelling units or square feet of commercial or industrial buildings constructed, or number of vehicles or other criteria, respectively, during the period of such license, and the license tax for such period shall be finally ascertained and paid on the basis of such actual gross receipts, number of bedrooms and dwelling units or square feet or number of vehicles or other criteria, as the case may be, after deducting from the payment found to be due, the amount paid at the time such first license was issued.

B. The collector shall not issue to any such person another license for the same, or any other business, until such person shall have furnished to the collector the sworn statement and paid the license tax as required in this section.”

Section 3. Section 5.04.120 of Chapter 5.04 of Title 5 of the Rancho Palos Verdes Municipal Code is hereby revoked and replaced as follows:

“License—Renewal

In all cases, the applicant for the renewal of a license shall submit to the collector for his or her guidance in ascertaining the amount of the license tax to be paid by the applicant, a sworn statement, upon a form to be provided by the collector, setting forth such information concerning the applicant’s business during the preceding year (or such other period as may be applicable if the license tax period is less than one year) as may be required by the collector to enable the collector to ascertain the amount of the license tax to be paid by said applicant pursuant to the provisions of this chapter. Such form shall also include a signed affirmation by the applicant that the business will not be an illegal or unlawful business or practice, and that it will not furnish or provide any service, good, or product that is illegal or prohibited under the laws of the United States, the laws of the State of California, the federal and state constitutions, this Code, or any other applicable law, ordinance, rule or regulation.”

Section 4. Findings. The City of Rancho Palos Verdes issues business licenses for businesses doing business within its boundaries. The City currently has not established any express provision forbidding a business to open its operations in the City or continue to operate in the City if the business conducted violates City, state or federal law. Because of the lack of such provision, medical marijuana dispensaries, stores, or co-ops could be established in the City at any time unless this ordinance is immediately adopted. The establishment of medical marijuana dispensaries, stores, or co-ops within the City, in violation of federal law, has the potential to cause adverse impacts to surrounding development and to risk the public peace, health, safety, and welfare of the City’s residents and the general public. Further, public officials and employees are put at risk for being co-conspirators if required to issue business licenses to businesses whose activities violate federal law. Thus, it is urgent that the City adopt this ordinance requiring that all applicants affirm that their business will not conduct activities that are illegal under the Rancho Palos Verdes Municipal Code, the laws of the State of California, or the laws of the United States of America, and clarifying that business licenses do not authorize the conduct of unlawful businesses or activities. Based on the foregoing, the City Council hereby finds that there exists a current and immediate threat to the public health, safety and welfare requiring this change in the business license provisions; further hereby finds that this ordinance is necessary for the immediate preservation of the public peace, health and safety; hereby declares the facts constituting the urgency; and passes this ordinance by at least a four-fifths vote of the City Council. Accordingly, this measure is adopted immediately upon introduction pursuant to Government Code Section 36934 and shall take effect immediately pursuant to Government Code Section 36937(b).

Section 5. The City Council declares that, should any provision, section, subsection, subdivision, paragraph, sentence, clause, phrase or word of this ordinance be rendered or declared unconstitutional, or invalid, or ineffective by any final action in a court of competent jurisdiction, or by reason of any preemptive legislation, the remaining provisions, sections, subsections, subdivisions, paragraphs, sentences, clauses, phrases and words of this ordinance shall remain in full force and effect. The City Council hereby declares that it would have passed each provision, section, subsection, subdivision, paragraph, sentence, clause, phrase or word thereof, irrespective of the fact that any one (1) or more provisions, sections, subsections, subdivisions, paragraphs, sentences, clauses, phrases or words be declared unconstitutional, or invalid, or ineffective.

Section 6. The City Clerk shall cause this Ordinance to be posted in three (3) public places in the City within fifteen (15) days after its passage, in accordance with the provisions of Section 36933 of the Government Code. The City Clerk shall further certify to the adoption and posting of this Ordinance, and shall cause this Ordinance and its certification, together with proof of posting, to be entered in the Book of Ordinances of the Council of this City.

Section 7. This Ordinance shall go into effect and be in full force and effect immediately upon adoption.

PASSED, APPROVED and ADOPTED this 3rd day of October 2006.

/s/ Stefan Wolowicz

Mayor

Attest:

/s/ Carolynn Petru

City Clerk

STATE OF CALIFORNIA )

COUNTY OF LOS ANGELES )ss

CITY OF RANCHO PALOS VERDES )

I, Carolynn Petru, City Clerk of the City of Rancho Palos Verdes, do hereby certify that the whole number of members of the City Council of said City is five; that the foregoing Ordinance No. 446U was duly and regularly adopted by the City Council of said City at a regular meeting thereof held on October 3, 2006, and that the same was passed and adopted by the following roll call vote:

AYES: Clark, Gardiner, Long, Stern, and Mayor Wolowicz

NOES: None

ABSENT: None

ABSTAIN: None

__________________________

City Clerk