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Agenda 02/14/2017 Item #11A02/14/2017 EXECUTIVE SUMMARY Recommendation to direct the County Attorney to advertise and bring back to the Board of County Commissioners (Board) an Ordinance that will implement a temporary moratorium on cannabis dispensing businesses for six months to establish the appropriate Land Development Code Amendments. Note by County Attorney: Approval of this item will immediately commence the moratorium period pending future Board action on the Ordinance. OBJECTIVE: To direct the County Attorney to advertise and bring back to the Board an ordinance that will establish a six month moratorium on cannabis dispensing businesses, while the Collier County Land Development Code (LDC) is amended to regulate the appropriate location and restrictions upon future locations for dispensing businesses. CONSIDERATIONS: In 2014 the Florida Legislature enacted a law legalizing low-THC medical cannabis in Florida and, with the passage of Amendment 2 on the November 8, 2016, Election ballot to expand the law to legalize medical cannabis for compassionate care and legalize high-THC formulation (medical Cannabis) in Florida. Based upon that recognition, the Board desires to establish a comprehensive set of land use regulations that provides for the appropriate zoning designation and locational restrictions appropriate for such cannabis dispensing businesses. The Board has expressed concerns over the potential adverse impacts on the health, safety, and welfare of residents and business from secondary effects associated with the distribution of cannabis, potentially including, offensive odors, trespassing, theft, fire hazards, increased crime in and about the dispensary, robberies, negative impacts on nearby businesses, nuisance problems, and increased DUI incidents. Additionally, the above potential adverse impacts are accentuated by the current difficulties experienced by cannabis businesses in obtaining banking services necessitating such businesses to operate on a cash basis. To provide for such regulatory frame work that addresses the identified concerns, the Board recognizes that a moratorium is necessary until the appropriate regulations are developed, vetted with the Community and the local Planning Commission and adopted through a land development code (LDC) amendment. Additionally, State licensing and regulatory framework directs that the criteria for the number and the location of, and other permitting requirements that do not conflict with state law or department rule for, dispensing facilities of cannabis businesses may be determined by local Ordinance. It should be noted that the Florida Legislature will develop the statutory regulations regarding the Amendment 2 during the spring legislative session, with the regulations anticipated to be signed by the Governor on July 1, 2017. The moratorium is designed to expire on August 14, 2017. FISCAL IMPACT: The approximate cost to advertise the proposed Ordinance is $400. LEGAL CONSIDERATIONS: The Second District Court of Appeals adopted the “pending ordinance doctrine” in the case of Smith v. City of Clearwater, 383 So.2d 681 (Fla. 2d DCA 1980), rev. den. 403 So.2d 407. The court in Smith, supra at 689, stated that an applicant is entitled to a permit under existing regulations only if the proposed regulation that would preclude the intended use is not “pending” when application is made. A proposed governmental action is deemed “pending” if there are active and documented efforts by those authorized to develop and prepare the proposed regulatory change, and the 11.A Packet Pg. 224 02/14/2017 local Governing Board or Planning Board is aware of these efforts. Smith, supra, at 689. In other words, upon approval of this item, staff will no longer accept applications for new development orders seeking approval of commercial land uses within the identified boundary of the U.S.41 corridor until the Land Development Code amendments are heard by the Board. With that said, this item is approved as to form and legality. A majority vote is needed for approval of the Ordinance. However, an affirmative vote of four is needed for the potential Land Development Code amendments. -JAK GROWTH MANAGEMENT PLAN IMPACT: The adoption of the Moratorium will not impact the Growth Management Plan. RECOMMENDATION: To: (1) Direct the County Attorney to advertise and bring back to the Board an Ordinance that will implement a six month moratorium on new applications for development orders for medical marijuana dispensaries, and (2) Direct staff to develop and bring forward Land Development Code amendments regarding the appropriate zoning designation and locational restrictions appropriate for such cannabis dispensing businesses. Prepared by: Mike Bosi, AICP, Planning & Zoning Director, Zoning Division, Growth Management Department ATTACHMENT(S) 1. Exhibit-A-Moratorium Ordinance - Cannabis (PDF) 2. Exhibit-B-Medical Marijuana Ordinances (PDF) 11.A Packet Pg. 225 02/14/2017 COLLIER COUNTY Board of County Commissioners Item Number: 11.A Item Summary: Recommendation to direct the County Attorney to advertise and bring back to the Board of County Commissioners (Board) an Ordinance that will implement a temporary moratorium on cannabis dispensing businesses for six months to establish the appropriate Land Development Code Amendments. Note by County Attorney: Approval of this item will immediately commence the moratorium period pending future Board action on the Ordinance. (Mike Bosi, GMD Zoning Director) Meeting Date: 02/14/2017 Prepared by: Title: Operations Analyst – Growth Management Operations & Regulatory Management Name: Judy Puig 01/26/2017 12:32 PM Submitted by: Title: Division Director - Planning and Zoning – Zoning Name: Michael Bosi 01/26/2017 12:32 PM Approved By: Review: Growth Management Department Judy Puig Level 1 Division Reviewer Completed 01/26/2017 12:33 PM Zoning Michael Bosi Additional Reviewer Completed 01/26/2017 1:49 PM Growth Management Department Jeanne Marcella Level 2 Division Administrator Completed 01/26/2017 2:05 PM Growth Management Department James French Additional Reviewer Completed 01/31/2017 10:24 AM County Attorney's Office Jeffrey A. Klatzkow Level 3 County Attorney's Office Review Completed 01/31/2017 5:21 PM Office of Management and Budget Valerie Fleming Level 3 OMB Gatekeeper Review Completed 02/01/2017 11:25 AM Budget and Management Office Mark Isackson Additional Reviewer Completed 02/01/2017 3:19 PM County Manager's Office Nick Casalanguida Level 4 County Manager Review Completed 02/01/2017 4:38 PM Board of County Commissioners MaryJo Brock Meeting Pending 02/14/2017 9:00 AM 11.A Packet Pg. 226 ORDINANCE NO. 2017 - _____ AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, ESTABLISHING A TEMPORARY MORATORIUM ON CANNABIS DISPENSING BUSINESSES AS FURTHER DEFINED HEREIN; PROVIDING FOR PENALTIES, PROVIDING FOR NON-INCLUSION IN THE CODE OF LAWS AND ORDINANCES; PROVIDING FOR CONFLICT AND SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, in 2014, the Florida Legislature enacted a law legalizing low-THC medical cannabis in Florida; and WHEREAS, in 2016, the Florida Legislature expanded the law to legalize medical cannabis in Florida; and WHEREAS, future constitutional amendments and legislation may further expand the legal use of cannabis in Florida; and WHEREAS, a comprehensive State licensing and regulatory framework for the cultivation, processing, and dispensing of cannabis now exists; and WHEREAS the comprehensive State licensing and regulatory framework directs that the criteria for the number and location of, and other permitting requirements that do not conflict with state law or department rule for, dispensing facilities of cannabis businesses may be determined by local ordinance; and WHEREAS, cannabis businesses licensed pursuant to the law have begun cultivating cannabis for processing and dispensing; and WHEREAS, the dispensing of cannabis is currently illegal under federal law and the United States Drug Enforcement Agency has recently confirmed that cannabis remains a Schedule I drug under federal law, but the United States Department of Justice has discussed federal enforcement of such laws with respect to state regulated cannabis operations in the 2012 “Cole Memorandum,” and; WHEREAS, potential adverse impacts on the health, safety, and welfare of residents and business from secondary effects associated with the distribution of cannabis exist, potentially including, offensive odors, trespassing, theft, fire hazards, increased crime in and about the dispensary, robberies, negative impacts on nearby businesses, nuisance problems, and increased DUI incidents; and WHEREAS, certain of the above potential adverse impacts are accentuated by the current difficulties experienced by cannabis businesses in obtaining banking services necessitating such businesses to operate on a cash basis; and WHEREAS, there exists the potential for misappropriation of medical cannabis to non-medical uses; and WHEREAS, an overabundance of dispensing facilities can affect the viability of such facilities, result in compliance issues, lead to the improper diversion of products, and accentuate threats to the public health, safety, and welfare; and 11.A.a Packet Pg. 227 Attachment: Exhibit-A-Moratorium Ordinance - Cannabis (2654 : Cannabis dispensing businesses temporary moratorium) 2 WHEREAS, on November 8, Florida voted to amend the Florida Constitution to legalize the cultivation, production, and dispensing of medical cannabis for a broader population of eligible patients; and WHEREAS, Florida laws relating to the cultivation, production, and dispensing of cannabis products are rapidly changing – raising substantial questions about whether cannabis-related land uses, as a category of commercial use, may have deleterious and negative secondary effects on surrounding land uses and communities; and WHEREAS, the purpose of this ordinance is to place a temporary moratorium on the opening of certain new cannabis dispensing facilities, and on the expansion or relocation of certain existing cannabis dispensing facilities; and WHEREAS, the Board of County Commissioners (Board) hereby finds that the temporary moratorium imposed by this ordinance is intended to give the Board the time reasonably necessary to investigate the impacts of cannabis dispensing facilities, and if necessary, to promulgate reasonable regulations relating to such establishments; and WHEREAS, the Board hereby finds that this ordinance advances an important government purpose by reducing the likelihood of the unregulated negative secondary effects of cannabis dispensing facilities; and WHEREAS, the Board hereby finds that this ordinance is in the best interest of the public health, safety, and welfare; and WHEREAS, the Board has determined it is in the public interest to adopt this ordinance pursuant to the Board’s police powers and Section 381.986, Florida Statutes, to protect the health, safety, and welfare of the public. NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that: SECTION ONE: Purpose and intent. The purpose of this Ordinance is to provide the Board of County Commissioners of Collier County, Florida, with the opportunity to review the impact of recent changes in law and the potential passage of a constitutional amendment, as well as the impact of cannabis dispensing in other jurisdictions, to determine how such dispensing should be permitted or regulated in Collier County. SECTION TWO: Definitions. (1) The following words and phrases, when used in this Ordinance, shall have the meanings ascribed to them in this Ordinance: a. Cannabis means all parts of any plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin. 11.A.a Packet Pg. 228 Attachment: Exhibit-A-Moratorium Ordinance - Cannabis (2654 : Cannabis dispensing businesses temporary moratorium) 3 b. Cannabis dispensing business or business shall mean a business location offering cannabis for retail sale pursuant to a license to dispense cannabis issued under applicable law. c. Compassionate Use Act shall mean section 381.986, Florida Statutes, and chapter 2016- 123, Laws of Florida, as amended from time to time, and any rules or regulations promulgated thereunder. d. State shall mean the State of Florida. (2) In addition to the definitions contained in Subsection (1), other terms used in this Ordinance shall have the meaning ascribed to them in the Compassionate Use Act, and such definitions are incorporated into this Ordinance by this reference. SECTION THREE: Temporary Moratorium. Beginning on the effective date of this Ordinance, a moratorium is hereby imposed on the opening of new cannabis dispensing businesses and on the expansion or relocation of existing cannabis dispensing businesses in Collier County. a. During the moratorium, it is unlawful and a violation of this ordinance for any person or entity to open or cause to be opened any cannabis dispensing business within Collier County. b. During the moratorium, it is unlawful and a violation of this ordinance for any person or entity to relocate or cause to be relocated any cannabis dispensing business within Collier County. c. During the moratorium, it is unlawful and a violation of this ordinance for any person or entity to expand or cause to be expanded any cannabis dispensing business within Collier County. d. During the moratorium, Collier County shall not accept, process or approve any application for business tax receipts, licenses, building permits, land use permits, or any development permits concerning or related to a cannabis dispensing business. e. During the moratorium, Collier County shall not accept, process or approve any business tax receipts, building permits, land use permits, or any development permits concerning or related to a cannabis dispensing business. f. During the moratorium, Collier County shall not accept, process or approve any licenses, permits, or approvals for any property, entity, or individual for the sale or dispensation of cannabis so long as this Ordinance is in effect. Nothing in this temporary moratorium shall be construed to prohibit the use of cannabis pursuant to the Compassionate Use Act or other applicable Florida Law, or the delivery of cannabis in compliance with the Compassionate Use Act or other applicable Florida Law. SECTION FOUR: Study and Recommendations. The County Manager is hereby directed to study, land development regulations for cannabis dispensaries and the impact of such regulations in other jurisdictions. 11.A.a Packet Pg. 229 Attachment: Exhibit-A-Moratorium Ordinance - Cannabis (2654 : Cannabis dispensing businesses temporary moratorium) 4 SECTION FIVE: Penalties. Any person or entity who violates any provision of this Ordinance or who fails to comply therewith, or with any of the requirements thereof, shall be fined in an amount not exceeding five hundred dollars ($500.00) per violation, per day, or be imprisoned for a period of time not to exceed sixty (60) days. SECTION SIX: Conflict and Severability. In the event this Ordinance conflicts with any other ordinance of Collier County or other applicable law, the more restrictive shall apply. If any phrase or portion of this Ordinance is held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion. SECTION SEVEN: Non-Inclusion in the Code of Laws and Ordinances. Given the temporary nature and effect of this Ordinance, it is the intent of the Board of County Commissioners that this Ordinance not be codified. SECTION EIGHT: Effective Date. This Ordinance shall be effective upon filing with the Department of State. PASSED AND DULY ADOPTED by the Board of County Commissioners of Collier County, Florida, this _______ day of _____________, 2017. ATTEST: BOARD OF COUNTY COMMISSIONERS DWIGHT E. BROCK, Clerk COLLIER COUNTY, FLORIDA By:_____________________________ By:_____________________________ , Deputy Clerk Penny Taylor, CHAIRWOMAN Approved as to form and legality: _______________________________ Jeffrey A. Klatzkow, County Attorney 11.A.a Packet Pg. 230 Attachment: Exhibit-A-Moratorium Ordinance - Cannabis (2654 : Cannabis dispensing businesses temporary moratorium) MEDICAL MARIJUANA COUNTY ORDINANCES/MORATORIA as of 1/26/17 COUNTY Ordinance Moratoria Alachua Yes Baker Yes Bay Yes Broward Yes Calhoun Yes Charlotte Yes Citrus Yes Clay Yes Columbia Yes Desoto Yes Dixie Yes Escambia Yes Flagler Yes Franklin Yes Glades Yes Hamilton Yes Hernando Yes Highlands Yes Hillsborough Yes Indian Rvier Yes Jax/Duval Yes Lake Yes Levy Considering Manatee Yes Marion Yes Miami-Dade Yes Monroe Yes Nassau Yes Orange Yes Osceola Yes Palm Beach Considering Pasco Yes Polk Yes Putnam Yes St. Lucie Yes Sumter Yes Washington Yes 11.A.b Packet Pg. 231 Attachment: Exhibit-B-Medical Marijuana Ordinances (2654 : Cannabis dispensing businesses temporary moratorium)