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18-2135_Failed -Amending Chapter 22 to Prohibit Medical Marijuana Treatment Center Facilities 1301603129;GbjmfeupQbtt ORDINANCE NO. 18-2135 AN ORDINANCE OF THE CITY OF LONGWOOD, FLORIDA AMENDING CHAPTER 22 OF THE CITY CODE OF ORDINANCES TO PROHIBIT MEDICAL MARIJUANA TREATMENT CENTER DISPENSING FACILITIES WITHIN THE BOUNDARIES OF THE CITY AS AUTHORIZED BY SECTION 381.986, FLORIDA STATUTES; PROVIDING LEGISLATIVE FINDINGS; REPEALING ORDINANCE 17-2116 WHICH AMENDED ARTICLES II, V, AND XIII OF THE LONGWOOD DEVELOPMENT CODE TO CREATE PROVISIONS TO REGULATE MEDICAL MARIJUANA DISPENSARIES WHICH HAS NOW BEEN PREMPTED BY STATE LAW; PROVIDING FOR CODIFICATION, MORATORIUM CONTIGENCY; SEVERABILITY, CONFLICTS, AND AN EFFECTIVE DATE. WHEREAS, the City of Longwood has the authority to adopt this Ordinance pursuant to Article VIII of the Constitution of the State of Florida; Chapters 163 & 166, Florida Statutes; and Section 381.986, Florida Statutes; and WHEREAS, Section 381.986(11), Florida Statutes, authorizes a county or municipality to m being located within the WHEREAS does not ban dispensing facilities under this subparagraph may not place specific limits, by ordinance, on the number of dispensing facilities that may locate within that county or enact ordinances for permitting or for determining the location of dispensing facilities which are more restrictive than its ordinances permitting or determining the locations for pharmacies licensed WHEREAS, Section 381.986, Florida Statutes severely limits, through State preemption, l over the zoning and permitting of medical marijuana dispensaries, thereby substantially surrounding land uses for which dispensaries may not be compatible; and WHEREAS, prior to the enactment of Section 381.986, Florida Statutes, on May 1, 2017 the City adopted Ordinance 17-2116 to regulate and limit medical marijuana dispensaries and such ordinance is now preempted by Section 381.986, Florida Statutes; and Ordinance No. 18-2135 Page 1 of 4 WHEREAS, given, among other things, the potential negative secondary land use effects of medical marijuana dispensing facilities and the statutory restrictions on local government authority to regulate number and location of dispensing facilities if not banned, there is a rational basis for the City to exercise its authority under Section 381.986(11), Florida Statutes to ban dispensing facilities within the boundaries of the City; and WHEREAS, the City finds that this Ordinance is in the interests of the public health, safety, and welfare. NOW, THEREFORE, BE IT ENACTED BY THE CITY COMMISSION OF THE CITY OF LONGWOOD, FLORIDA: SECTION 1. Recitals. The foregoing recitals are hereby ratified and confirmed as being true and correct and are hereby made a part of this Ordinance and adopted as legislative findings. SECTION 2. Amendment of City Code. Chapter of the City of Longwood Code is hereby amended to add a new Article VI to read as follows: CHAPTER 22 - BUSINESSES Article VI. Medical Marijuana Dispensary. Sec. 22-71. Medical Marijuana Treatment Center Dispensing Facilities. (1) Prohibition. Medical Marijuana Treatment Center Dispensing Facilities are prohibited and shall not be located within the boundaries of the city. The city shall not accept, process or approve any request or application for a development order, building permit or other approval associated with a proposed Medical Marijuana Treatment Center Dispensing Facility. (2) Definition. For the purposes of this section, the term Medical Marijuana Treatment Center Dispensing Facility means any facility where medical marijuana or any product derived therefrom is dispensed at retail. (3) Interpretation. This section and the terms used herein shall be interpreted in accordance with F.S. § 381.986 and Ch. 64-4 of the Florida Administrative Code. The intent of this section is to ban medical marijuana treatment center dispensing facilities from being located within the boundaries of the city as authorized by F.S. § 381.986(11). Ordinance No. 18-2135 Page 2 of 4 SECTION 3. Repeal. Ordinance 17-2116 adopted on May 1, 2017 is hereby repealed except for the amendment to the note for Figure 12.1.1 - Table of Allowable Uses in ARTICLE XII HERITAGE VILLAGE URBAN CODE. The Longwood Development Code shall be amended accordingly reflected in attached hereto and incorporated herein. SECTION 4. Codification. Section 2 of this Ordinance shall be incorporated into the City of Longwood City Code of Ordinances and Section 3 of this Ordinance shall be incorporated into the Longwood Development Code. Any section, paragraph number, letter and/or any heading may be changed or modified as necessary to effectuate the foregoing. Grammatical, typographical and similar or like errors may be corrected, and additions, alterations, and omissions not affecting the construction or meaning of this Ordinance or the City Code may be freely made. SECTION 5. Moratorium Contingency. In the event Section 381.986, Florida Statutes is amended or interpreted by a court of competent jurisdiction in a way as to eliminate or prevent the cor prohibit Marijuana Treatment Center Dispensing Facilities within the city limits, upon the effective date of such an automatic one-year moratorium shall go into place on the acceptance, processing and approval of Marijuana Treatment Center Dispensing Facilities (including by way of acceptance, proceeding and approval of applications for development orders and permits) within the City limits in order to give the City time to evaluate changes in the potentially enact local legislation regarding the same. Such one-year moratorium may be terminated early through resolution or ordinance of the City Commission. SECTION 6. 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 7. Conflicts. In the event of a conflict or conflicts between this Ordinance and any other ordinance or provision of law, this Ordinance controls to the extent of the conflict, as allowable under the law. SECTION 8. Effective Date. This Ordinance shall become effective immediately upon adoption by the City Commission of the City of Longwood, Florida. th FIRST READING on this 5 day of February, 2018 SECOND READING AND ADOPTION this ___________, 2018 Ordinance No. 18-2135 Page 3 of 4 CITY OF LONGWOOD, FLORIDA ______________________________ Ben Paris, Mayor ATTEST: __________________________________ Michelle Longo, City Clerk, CMC, FCRM Approved as to form for use and reliance by the City of Longwood only: __________________________ Daniel W. Langley, City Attorney S:\\AKA\\CLIENTS\\Longwood, City of\\General L324-21313\\Medical Marijuana\\Ordinance 18-2125 - Banning Medical Marijuana Dispensaries 1-22-2018.docx Ordinance No. 18-2135 Page 4 of 4 EXHIBIT A The Longwood Development Code shall be amended as follows (Words that are stricken out are deletions; words that are underlined are additions; Articles, Sections, Subsections and Provisions not referenced in this ordinance are not modified): ARTICLE II LAND USE AND OVERLAY DISTRICTS 2.3.1. Table of allowable uses. The following uses are allowable, subject to the standards, regulations, and criteria of this code and the Longwood Comprehensive Plan, and may be further restricted by the planning districts in the Longwood Design Guidebook. All uses, unless exempted specifically or by supplemental standards or definition, must be contained within a principal structure. A principal structure may not be a tent, trailer, canopy, shed, tent, or similar structure. The use table is intended to apply to new development or changes of use that create impacts that are not supported by the site: A = allowable, subject to the standards, regulations and criteria of this Code. S = allowable, subject to the standards, regulations, and criteria of this Code and supplemental standards of section 5.4.0, pertaining to the specific use. Where a use is subject to supplemental standards, the specific section is included in parentheses. C = subject to a Conditional Use Permit PD = subject to planned development approval * = Uses allowed only as an accessory use o = Allowed only in multi-unit centers = Prohibited on properties adjacent to CR 427 south of SR 434 (except property which is located directly adjacent to the intersection of CR 427 and SR 434 provided that such property is developed with superior architectural design which exceeds standard LDC requirements and is comparable in nature to the requirements for new commercial construction in the Longwood Historic District as well as superior streetscaping and landscaping) = Prohibited on properties adjacent to SR 434 and CR 427 Medium Medium Neighborho Low Density Infill Density od Public/ Density Residentiand IndustriConservati ResidentiCommerciaInstitution Residential Mixeal on al l Mixed-al al (MDR-d-Use (MDR-7) Use 15) Medical Marijuan S a Dispensa Page 1 ry (5.4.20) ARTICLE V SUPPLEMENTAL STANDARDS 5.4.20 Medical Marijuana Dispensaries. A. The purpose of this section is to protect the public health, safety, and welfare by prescribing the manner and standards under which a medical marijuana dispensary may be approved for locating and conducting business in the city. The regulations contained in this section are intended to: 1. Provide for the lawful, safe sale and distribution of marijuana for medical use to qualifying patients who are authorized to legally obtain, possess, and use medical marijuana or to personal caregivers authorized to obtain and possess marijuana in accordance with state law; and 2. Protect public health and safety through reasonable limitations on business operations as they relate to noise and public safety, security for the business and its personnel, and other health and safety concerns; and 3. Promote and protect the character and vitality of the city's residential neighborhoods and commercial districts through site development standards for dispensaries and limiting location of dispensaries to the Infill and Mixed-Use District, excluding the Heritage Village; and 4. Protect sensitive land uses from the potential adverse impacts of dispensaries by requiring physical separation between such uses as schools and child care centers; and 5. Prohibit any cultivation and processing of marijuana within the city limits; and 6. Provide for the allowance of two medical marijuana dispensaries consistent with state law. B. Unless otherwise indicated, the following words and phrases used in this article shall have the following meanings: 1. Marijuana has the same meaning given cannabis in F.S. § 893.02(3). 2. Medical marijuana dispensary shall mean a business licensed to dispense marijuana for medical use pursuant to applicable law and that is engaged in the retail sale of marijuana or products derived from marijuana. 3. Medical use means the acquisition, possession, use, delivery, transfer, or administration of marijuana or related supplies by a qualifying patient or personal caregiver for use by a qualifying patient for the treatment of a debilitating medical condition. 4. Personal caregiver means a person who is at least 21 years old who has agreed to assist with a qualifying patient's medical use of marijuana and has a caregiver identification card issued by the Florida Department of Health. Page 2 5. Qualifying patient means a person who has been diagnosed to have a debilitating medical condition, who has a physician certification and a valid qualifying patient identification card pursuant to state law. C. Letter of Approval. Up to two medical marijuana dispensaries may be permitted within the City limits, provided they are designed, located, and proposed to be operated so that the public health, safety, and welfare are protected and the requirements of this section are met. Prior to the commencement of a medical marijuana dispensary use and receiving any required building permits, including permits for permanent or temporary signage, a proposed operator shall submit an application to the community development department and other documentation acceptable to the community development services director indicating compliance with the requirements of this section. 1. A Letter of Approval issued by the Department authorizes an applicant to operate a dispensary at a particular location, but does not constitute an approval of any required building permit or development order. The applicant must maintain compliance with this section prior to, during, and after the issuance of permits. 2. Each application for a medical marijuana dispensary shall be considered on a case- by-case basis for compliance with the requirements of this section. 3. As a condition of approval, the City may attach any other conditions reasonably related to the requirements of this chapter and to mitigate the impacts intended to be addressed herein. 4. The following materials will be required as part of the application. The failure to include any of these items at submittal will result in the application being deemed incomplete. An incomplete application will not be accepted for consideration until such time as the deficiencies are addressed. i. An application fee as established by the City Commission by resolution. ii. An application form, available from the Community Development Department. iii. An accurate location map demonstrating that the applicant meets the requirements of subsection (G), reflecting the proposed location of the dispensary as well as the location of and distance from any other use specified in the locational criteria in subsection (G). iv. A copy of an active license to operate a medical marijuana dispensary from State of Florida, Department of Health, Office of Compassionate Use (or v. A signed and notarized operational plan from the applicant expressing understanding and intent to comply with the City and Development Code generally, this section, and the specific standards of (G) and (H) above throughout all phases of the development process, including site planning, building permitting, and operations, as well as an understanding of the penalties for the violation of any section of this code. The operational plan shall include a detailed response to each of the requirements in subsection (H). vi. Information to satisfy the landlord notification requirements of (I) and (J) below. Page 3 D. Application Process. 1. The City shall accept application for Medical Marijuana Dispensary locations beginning on May 15, 2017 at 7:30 a.m. at the Community Development Department. 2. Applications will be considered in the order that they are received and for the location noted on the application only. If the applicant desires to change locations, they will need to submit a new application and it will be considered in the order it is received. 3. Incomplete applications will be rejected. 4. If an application is received for a location that cannot be approved, the application will be denied and the Department will consider the next application in line. 5. An application may not held for or transferred to a new owner. 6. An approved application will allow the applicant to apply for any additional permits: site plans, building permits, etc. at the location specified. If the applicant is unable to secure approval of those permits within one year of approval of the issuance of the approval letter, the approval will be voided and a new application will need to be submitted and will only be considered if there are not already two dispensaries with letters of approval. E. It shall be unlawful for any person or entity to establish or operate a medical marijuana dispensary in the City without first having obtained from the State of Florida approval to do so pursuant applicable law and regulations and a letter of application compliance from the City required under this section. It shall be unlawful for any person or entity with a medical marijuana dispensary in violation of the requirements of this section or in violation of a condition of a Letter of Approval. By accepting a Letter of Approval issued pursuant to this section, the owners and operators of a medical marijuana dispensary waive any claim concerning, and release the City, its officers, elected officials, employees, attorneys and agents from, any liability for injuries or damages of any kind that result from any arrest or prosecution of business owners, operators, employees, clients, or customers of the operator for a violation of state or federal laws, rules, or regulations. The issuance of a Letter of Approval pursuant to this section shall not be deemed to create an exception, defense, or immunity for any person in regard to any potential criminal liability the person may have under state or federal law for the cultivation, possession, sale, distribution, or use of marijuana. F. The City shall not approve a proposed medical marijuana dispensary, if it determines any one of the following: 1. The proposed medical marijuana dispensary will create noise, traffic, odor, public safety hazards, or other nuisances to a degree that it will be disruptive to abutting or nearby properties and will lead to degradation of property values and instability to nearby neighborhoods or business districts; or 2. The proposed medical marijuana dispensary does not comply with the applicable criteria in this Longwood Development Code and the supplemental standards in this section; or Page 4 3. The applicant is unable to demonstrate to the satisfaction of the City that the proposed medical marijuana dispensary will be operated in a manner that the required conditions for its operation and conducting of business as set forth in subsections (G) and (H) will be met and consistency maintained, including a map provided by the applicant indicating that the business will meet the site location and distance requirements in (G) below. 4. The applicant cannot provide evidence of an active licenses or approval from the State of Florida, Department of Health, Office of Compassionate Use (or any medical marijuana dispensary pursuant to the applicable law. 5. There already exists within the City two medical marijuana dispensaries with a Letter of Approval. G. Locational criteria. A medical marijuana dispensary shall: 1. Be located within 200 feet of SR 434, U.S. Hwy. 17-92, and/or Ronald Reagan Blvd. This distance shall be measured from the right-of-way line of the named roads to the nearest property line of the property proposed for the dispensary; and 2. Not be located within the Heritage Village 3. Not be located within 300 feet of i. any school ii. child day care facility iii. property with a future land use of Low Density Residential (LDR) Distance shall be measured by drawing a straight line between the perimeter property line of the site occupied by the medical marijuana dispensary use to the closest property line of the school, child day care, LDR property. These distance separation requirements apply without regard as to whether the uses and facilities at issue are located within or outside the city limits; and H. Operational criteria. In conducting its business, a medical marijuana dispensary shall: 1. Not allow and affirmatively take measures to prevent the consumption of marijuana, products derived from marijuana or alcoholic beverages on the property on which the medical marijuana dispensary is located, including parking areas and sidewalks; and 2. Not allow and affirmatively take measures to prevent individuals qualified to enter the dispensary to stand, sit (including in a parked vehicle), or gather outside of the building, including in any parking areas, sidewalks, or rights-of-way proximate to the dispensary for any period of time longer than that reasonably required to arrive, transact the necessary business in accordance with the law and depart; and 3. Ensure that no queuing of vehicles of those utilizing said dispensary occurs in the rights-of-way abutting or proximate to the dispensary; and 4. Be compliant at all times with state and local laws and regulations; and 5. Only operate or accept deliveries between 9:00 a.m. and 7:00 p.m., Monday through Friday, and between 9:00 a.m. and 12:00 p.m. on Saturday; and Page 5 6. Not allow and affirmatively take measures to prevent the odor of marijuana to be detected by a person with a normal sense of smell outside the exterior of the dispensary building; and 7. Not allow and affirmatively take measures to prevent a person under the age of 18 in the medical marijuana dispensary at any time without being accompanied by a legal guardian or parent unless otherwise expressly permitted by general law; and 8. Allow only qualifying patients, personal caregivers, employees of the business, or other qualified individuals including authorized city and state officials within the medical marijuana dispensary; and 9. Contain all activity at the medical marijuana dispensary within the dispensary building except for on-site parking and waste receptacles, allowing no outdoor storage; and 10. Permit entry and inspection by authorized city, county and state officials of the medical marijuana dispensary during business hours, including without limitation, police officers, fire marshal, health inspectors, code enforcement, and building official; and 11. Not conduct sales of any products other than marijuana for medical use, related supplies and educational materials; and 12. Provide an armed security guard from a licensed security company on the premises at all times the dispensary is open for business. 13. Continue to meet the application requirements of this section and any conditions set forth in the letter of application compliance. 14. Post conspicuous signs on at least four sides of the building that no loitering is allowed on the property; and 15. Conspicuously post a sign at the entrance of the medical marijuana dispensary notifying persons of the restrictions regarding those authorized to enter the medical marijuana dispensary described in (7) and (8) in Section H above; and 16. Not have a drive-through, drive-up, or drive-in facility; and 17. Shall meet current requirements for site lighting regardless of any previous nonconformities; and 18. Shall have a plan satisfactory to the City for the disposal of any products that could create a security risk; and 19. Contain no more than 5,000 square feet of floor area; and 20. Meet all on-site parking requirements for a medical clinic; and 21. Shall not be operated from a moveable, mobile, or transitory location; and 22. Be properly ventilated to sufficiently filter any odor of marijuana emanating from the medical marijuana dispensary; and 23. Install and maintain a security alarm system and/or panic buttons approved by the city police department in the interior of the medical marijuana dispensary building; and st 24. On or before October 1 of each year, provide the City with evidence of an active license or approval from the State of Florida, Department of Health, Office of a medical marijuana dispensary pursuant to the applicable law. 25. Not allow and affirmatively prevent the onsite sale or consumption of alcohol. 26. Not allow and affirmatively prevent the onsite cultivation of marijuana. Page 6 I. Any landlord, leasing agent or owner of property upon which a medical marijuana dispensary operates, who knows, or in the exercise of reasonable care should know, that a medical marijuana dispensary is operating in violation of Longwood City Code, Longwood Development Code, or applicable Florida law, must prevent, stop, or take reasonable steps to prevent the continued illegal activity on the leased premises. J. Landlords who lease space to a medical marijuana dispensary must expressly incorporate language into the lease or rental agreement stating that failure to comply with the Longwood City Code and Longwood Development 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. The applicant shall provide a notarized affidavit from the landlord, leasing agent, or owner of property indicating compliance with this section. K. Violations. Beyond the standard code enforcement procedures for the City, medical marijuana dispensaries that are found in violation of this section by the city two times within any 12-month period shall have their Letter of Approval revoked. The decision to revoke a Letter of Approval is appealable to the City Commission by the operator provided that written notice of appeal stating in detail the basis for appeal is submitted to the City Clerk within fifteen (15) days of the City sending written notice that the revocation has occurred. L. Consistency with State Law. Should any provision of this section be found to be in conflict with state law, the provision in conflict shall be superseded without invalidating the remainder of the section. M. Annual Compliance Review. Each approved dispensary shall have an annual review of its letter of approval to ensure that compliance has been maintained with the requirements of this section. This annual review shall not preclude staff from completing necessary reviews or inspections at any other point. N. Administration Fee. The owner and operator of a medical marijuana dispensary shall pay st to the City an annual administration fee on or before January 1 of each year after one full year of operation. This annual fee shall be established by the City Commission by resolution. ARTICLE XII HERITAGE VILLAGE URBAN CODE Figure 12.1.1 - Table of Allowable Uses Note: Pain management clinics, pawn shops, medical marijuana dispensaries, and tattoo parlors are prohibited within all districts in the Heritage Village. Massage therapy establishments are allowed only pursuant to the standards of LDC 5.4.13. Page 7