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HomeMy WebLinkAboutMemorandumCITY OF MIAMI OFFICE OF THE CITY ATTORNEY MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM: Victoria Mendez, City Attorney ,j a DATE: April 22, 2021 RE: City Commission Meeting — April 22, 2021 Resolution directing the City Attorney to take any and all actions necessary, in law or equity, including the filing of a declaratory action, to seek clarification on any conflicts between Federal and State law concerning the sale, possession, and distribution of marijuana. File No.: 8912 The attached proposed Resolution directs the City Attorney to take any and all actions necessary, in law or equity, including the filing of a declaratory action, to seek clarification on any conflicts between the Controlled Substances Act of 1971 and State law concerning the sale, possession, and distribution of marijuana. Attachment(s) cc: Arthur Noriega, V, City Manager Miriam Santana, Agenda Coordinator VM/BLM/GKW/vja 4:: Y City of Miami City Hall Y 3500 Pan American Drive Legislation Miami, FL 33133 www.miamigov.com Resolution Enactment Number: R-21-0162 File Number: 8912 Final Action Date:4/22/2021 A RESOLUTION OF THE MIAMI CITY COMMISSION DIRECTING THE CITY ATTORNEY TO TAKE ANY AND ALL ACTIONS NECESSARY, IN LAW OR EQUITY, INCLUDING THE FILING OF A DECLARATORY ACTION, TO SEEK CLARIFICATION ON ANY CONFLICTS BETWEEN THE FEDERAL CONTROLLED SUBSTANCES ACT OF 1971 AND FLORIDA LAW CONCERNING THE SALE, POSSESSION, AND DISTRIBUTION OF MARIJUANA. WHEREAS, Section 381.986(11), Florida Statutes, provides that a municipality may, by ordinance, ban medical marijuana treatment center dispensing facilities from being located within the boundaries of the municipality and that a municipality that does not ban such a facility may not place specific limits, by ordinance, on the number of such facilities located within the municipality; and WHEREAS, Section 381.986(11), Florida Statutes, further provides that a municipality may determine, by ordinance, the criteria for the location of and other permitting requirements that do not conflict with State law or department rule for medical marijuana treatment center dispensing facilities located within the boundaries of the municipality; and a municipality may not enact ordinances for permitting or for determining the location of such facilities that are more restrictive than its permitting or locations for pharmacies licensed under Chapter 465, Florida Statutes, except that such facilities may not be located within 500 feet of a public or private elementary, middle, or secondary school unless the municipality approves the location through a formal proceeding open to the public at which the county or municipality determines that the location promotes the public health, safety, and general welfare of the community; and WHEREAS, while marijuana for medical purposes is allowed by State law under Section 381.986, Florida Statutes, marijuana remains illegal under federal law because it remains classified as a Schedule I drug by the Drug Enforcement Administration under the Controlled Substances Act of 1971 ("Act"); and WHEREAS, Congress chose to preempt state law to the extent that it "positively conflicts" with a provision of the Act as shown in Section 903 which provides: No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and the State law so that the two cannot consistently stand together; and WHEREAS, potential adverse impacts on the health, safety, and welfare of residents and businesses from secondary effects associated with the sale and distribution of marijuana exist; and WHEREAS, marijuana dispensing facilities are unable to obtain banking services and are generally required to operate on a cash only basis which may cause such businesses, their employees, and their patrons to become targets for violent crimes; and WHEREAS, the uncertainty regarding the conflict between State law and the Act should be resolved prior to the City of Miami ("City") taking any action on authorizing marijuana dispensaries in the City; and WHEREAS, it is in the best interest of the City to resolve this issue in a court of appropriate jurisdiction; NOW, THREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as if fully set forth in this Section. Section 2. The City Commission hereby directs the City Attorney to take any and all actions necessary, in law or equity, including the filing of a declaratory action, to seek clarification on any conflicts between the Act and State law concerning the sale, possession, and distribution of marijuana. Section 3. This Resolution shall become effective immediately upon its adoption. APPROVED AS TO FORM AND CORRECTNESS: 1 i ria i "ndez, Cify Attor iey 411312021 Pursuant to the resolution, this item became effective immediately upon adoption by the Commission.