News analysis: City examines local options for retail marijuana

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Amendment 64 is now officially state law, allowing adults to grow up to six plants at home and possess small amounts of marijuana without fear of state criminal prosecution.

But that’s about the only clear conclusion from the news earlier this week that Gov. John Hickenlooper certified the Nov. 6 election results. It’s not clear how the federal government will respond to either Colorado’s or Washington’s new laws, nor is it clear how the city will react.

Colorado Springs has some options: It can ban retail sales of marijuana, slated to start no later than January 2014. Or it can issue a moratorium on retail sales and wait for state regulations and federal guidelines. The city also could issue a moratorium until voters can choose whether to ban retail sales — the earliest that can be done is November 2014. Or the city can just sit back and allow the state to license marijuana crops, manufacturing facilities and certification checks required by Amendment 64.

That last option could leave the city open to create its own licensing process. The amendment gives cities and counties the authority to enact their own licensing plans if the state fails to do so within a certain time period.

Some local governments already have issued an outright ban of retail sales, Parker and Douglas County among them. Boulder is considering a moratorium until the state figures out regulations.

“I don’t think a moratorium is necessary,” said Springs Councilor Bernie Herpin. “We can wait and see what the state decides to do.”

Moving forward

Hickenlooper appointed a task force, including state Rep.-elect Dan Nordberg and Assistant District Attorney Dan Zook of Colorado Springs, to look at issues surrounding the state’s new marijuana law. The group first meets Dec. 17 and must have recommendations to the General Assembly by Feb. 28.

No matter what the city decides, people still will be allowed to possess an ounce of marijuana, although public consumption is banned. State and local laws will have to change regarding the possession, sale, distribution or transfer of marijuana to conform to the Colorado constitution, said Kyle Sauer, an attorney with the city attorney’s office.

“We’ll have to have conversations with the Colorado Springs Police Department in order to give them instructions on what to do,” he said. “But driving under the influence of any drug — legal or illegal — is still prohibited.”

The state will have to come up with new regulations for security requirements for marijuana retail stores, labeling requirements for edibles, education about long-term health effects, and the impact of the new laws for employers and employees.

That last point concerned City Council the least, though Sauer said the city would need to come up with new language for its zero-tolerance, drug-free workplace laws. Other local employers — Department of Defense contractors in particular — will have to do the same, he said.

“There’s a good bit of case law that says even if you have a medical marijuana card, you can still be fired if you test positive,” Sauer said. “There’s a case now being heard by the Court of Appeals, it was dismissed by the lower courts, but the higher court has agreed to hear it.”

And much of the ambiguity of Amendment 64 will be figured out in the courts, said City Attorney Chris Melcher.

“There’s a lot we don’t know,” he said. “And we’re trying to figure it out right along with every other city and county in the state. The Colorado Supreme Court, ultimately, will have to decide.”

Among the unknowns: Every adult over the age of 21 can have up to six plants. But what happens in group housing situations?

“Could we have a fraternity with 50 people and they could grow 300 plants?” Melcher asked. “We don’t know. It’s going to be an interesting problem.”

Can people use marijuana in a private restaurant, if there’s a smoking section?

“We don’t know,” Sauer said.

It also isn’t clear if the city can issue its own licensing and fees the way it does with medical marijuana dispensaries. At first glance, it doesn’t appear that the city can, Sauer said.

“But the advocates of the law told the Boulder City Council that it was a dual licensing scheme,” he said. “We’ll have to wait and see.”

Federal response

The city and state are also waiting to see what the federal government’s response will be.

So far, it’s been vague. But U.S. Attorney John Walsh issued his strongest warning yet, after news that the governor had signed Amendment 64 — saying states cannot nullify federal law.

“The Department of Justice is reviewing the legalization initiatives recently passed in Colorado and Washington state,” he said in a statement. “The Department’s responsibility to enforce the Controlled Substances Act remains unchanged. Neither States nor the Executive branch can nullify a statute passed by Congress. In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance.

“Regardless of any changes in state law, including the change that went into effect on Dec. 10 in Colorado, growing, selling or possessing any amount of marijuana remains illegal under federal law. Members of the public are also advised to remember that it remains against federal law to bring any amount of marijuana onto federal property, including all federal buildings, national parks and forests, military installations, and courthouses.”

One Response to News analysis: City examines local options for retail marijuana

  1. We are working hand in hand with these local governments to ensure the will of the People is implemented responsibly. We are listening to these concerns as the task force moves forward and are available to communities, businesses, and organizations looking at the impacts of this amendment.

    Mark Slaugh
    December 20, 2012 at 7:04 pm