City attorney cites need for more staff discussion before talking with commission about zoning code amendments to allow medical marijuana dispensaries

Robert Fournier explains recommendations in a Sept. 2 memo

The City Commission sits in session on July 17. News Leader photo

In early July, as the Sarasota City Commission unanimously agreed to a two-month ban on medical marijuana dispensaries within the city limits, City Attorney Robert Fournier anticipated being able to report back to the board by Sept. 5 on recommendations for next steps.

The board on July 3 directed staff to research how best to amend the city’s Zoning Code to provide for locations of such dispensaries without concern that the facilities could spring up all over the city, including on the circle of the tony St. Armands shopping district.

When no such report ended up on the Sept. 5 agenda, city residents used social media to vent complaints, saying Fournier was ignoring the deadline. At least one group — Stand Up Fight Back SRQ — asked supporters of dispensaries within the city to plan on attending the evening session of the Sept. 5 meeting to protest.

A representative of that group also emailed Commissioner Jen Ahearn-Koch, who forwarded the email to Fournier and asked for an update.

In a response to Ahearn-Koch that he sent at 8:13 p.m. on Labor Day, Fournier wrote, “I readily acknowledge that the September 5th meeting was the target date to get back to the City Commission with a report on the staff’s review of current zoning regulations applicable to pharmacies and recommended possible ways that the Zoning Code regulations applicable to pharmacies might be amended to allow medical marijuana dispensaries in the City.”

City Attorney Robert Fournier. File photo

“I knew before the agenda request was due that an additional meeting with staff would be necessary,” he pointed out, before he could make the report to the commission. “While I do apologize for the delay,” he wrote Ahearn-Koch, “I also did not want to submit the item prematurely before resolving possible differences of opinion on staff.”

Fournier also told Ahearn-Koch, “I am troubled by the hint or suggestion that this item is not on the September 5th agenda because it is my personal preference that dispensaries be prohibited in the City. I would like to take the opportunity to state that this is simply not the case.”

He further informed Ahearn-Koch that the person who sent her the email — which included information that also was posted on Facebook — incorrectly stated that he had put an item on the Sept. 5 agenda regarding the follow-up dispensaries discussion and then subsequently removed it.

Fournier continued, “If the City Commission authorizes moving forward in the direction envisioned, an ordinance will be subsequently prepared. The plan discussed with staff would be to get the ordinance to a public hearing before the Planning Board by the end of the year and the City Commission would be required to hold two separate public hearings after the first of the new year. This schedule can still be followed whether the report is presented at the September 5th or the September 18th meeting.”

In fact, Fournier pointed out to Ahearn-Koch, he had prepared a memo for the commissioners, to bring them up-to-date on staff discussions in response to their July request for options to consider.

That memo outlines a number of recommendations that would allow the commission to provide for medical marijuana dispensaries in designated zoning districts.

‘Principal’ and ‘accessory’ uses in zoning districts

Dated Sept. 2, the memo explains that the concern for the commission in July was action the Florida Legislature took on June 9 — “just ten days before the scheduled ‘first reading’ and public hearing on a proposed ordinance that would have allowed medical marijuana dispensaries as a permitted land use in the City within specified office zone districts.”

The Legislature enacted Senate Bill 8-A, Fournier noted, which would have necessitated the city’s allowing dispensaries in all the zoning districts where pharmacies are permitted, “without restrictions or limitations.” The only other option, as he explained to the board members on July 3, was to ban dispensing facilities within the city boundaries, as the state law also allows municipalities to do.

On July 3, commissioners voiced concerns about those choices, ultimately agreeing to ask staff “to review the Zoning Code, focusing on the locations where pharmacies are currently permitted, and come back with some recommendations as to how the Zoning Code might be amended to allow medical marijuana dispensaries,” as Fournier put it in the Sept. 2 memo.

“This alternative also specifically included authorization for staff to make any recommendations regarding amendments to existing regulations applicable to pharmacies as might be necessary or appropriate,” Fournier added.

In his email to Ahearn-Koch on Sept. 4, Fournier wrote, “I have spent a good deal of time working with [staffs of the Neighborhood and Development Services and Planning departments] on this matter since July. To make a long story short, we decided that it would be feasible to identify and define drugstores and pharmacies as separate land uses in the Zoning Code.”

City Attorney Robert Fournier included this chart in his Sept. 2 memo to the City Commission. Image courtesy City of Sarasota

The memo explains that the terms “pharmacy” and “drugstore” are not defined in the city’s Zoning Code. “Although the terms are sometimes used interchangeably,” Fournier pointed out, they could be used to create separate zoning districts. “The definition of a drugstore would pertain to an establishment more focused on the retail sale of over the counter drugs and medications (plus other items often sold in drugstores,” Fournier wrote. Then, the “definition of a pharmacy would pertain to an establishment primarily focused on the compounding, preparation and dispensing of medication prescribed for or recommended for use by an individual.”

Furthermore, Fournier explained, through the incorporation of those separate definitions into the Zoning Code, the code could acknowledge that pharmacies are sometimes the primary permitted uses for zoning purposes, but they more often are found to be “accessory uses.” For example, he continued, pharmacies could function as accessory uses to the principal uses of drugstores or grocery stores. Then, pharmacies could be permitted in certain zoning districts as primary uses, but in other districts, they would be allowed only as accessory uses, he noted.

The city has four zones where pharmacies exist as principal permitted uses, Fournier wrote: Commercial General, Commercial Shopping Center-Regional, Downtown Core and Downtown Edge. In those zones, a medical marijuana dispensary “would have to be a permitted principal use as well,” he added. “However, staff does not support the concept of a dispensary as [such a] use in the [Downtown Edge district]. Staff’s recommendation is to remove pharmacies as a principal permitted use in that district. “This would allow the existing pharmacy in the [Downtown Edge] zone to continue to operate lawfully as a non-conforming use; but no new pharmacies or dispensaries would be allowed in [that zone].”

Fournier acknowledged that some of the commissioners might have a similar concern about allowing pharmacies as a principal permitted use in the Downtown Core district. However, if the decision were made to keep pharmacies in that district, he added, “then staff might want to recommend a minimum distance” between pharmacies/dispensaries.

In July, city some commissioners voiced a desire to prohibit the location of medical marijuana dispensaries in areas such as St. Armands Circle. File photo

Ultimately, Fournier explained, if pharmacies are allowed as either principal or accessory uses in a zoning district, then medical marijuana dispensaries “could be subject to the same regulations … Due to legal and practical constraints, it is not anticipated that dispensaries will be operating as accessory uses to drugstores, grocery stores or hospitals in the near future; but it has to be acknowledged that this could happen [at some point].”

Fournier also pointed out that the city has 13 zoning districts where pharmacies may be located, though none exists in those districts. Among them are Commercial Business Newtown, Downtown Bayfront District and Downtown Neighborhood District. Therefore, he wrote, “the Zoning Code could be amended to delete a pharmacy as a permitted principal or accessory use in these districts with no impact on any existing business establishments.”

Finally, Fournier noted, staff’s recommendation is that in addition to any separation requirements between pharmacies/dispensaries that might be implemented in the [Downtown Core] zone,” the city should require a minimum separation of 500 feet between a dispensary and a school, “as this is specifically authorized under the newly applicable state law.”

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