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No moratorium: Town sets medical marijuana workshop

A proposed 90-day moratorium on medical marijuana dispensaries was tabled by the Pagosa Springs Town Council at its meeting Tuesday night, set aside in order for council to discuss the matter next week at a workshop.

Avoiding the issue of a moratorium still allows the town to refuse issuing a business license for medical marijuana dispensaries: Section 6.1.7 of the town’s municipal code states, “The Licensing Officer shall approve an application and issue a license unless he or she determines that the business to be operated would violate the laws of the United States, the State of Colorado, or the Town ...”

While medical marijuana is legal in Colorado (approved by voter referendum in 2000), it remains illegal in the U.S., presenting a conflict between state and federal law. It was that conflict that became the focus of discussion among council members.

Last month, after it came to light that several different companies were interested in providing medical marijuana in the area, the town established a “medical marijuana task force” to address legal and public safety issues and then return with recommendations to the council. The task force met Sept. 25 to consider if and how it would issue business licenses to medical marijuana providers. At that meeting, the task force recommended imposing a 90-day moratorium on medical marijuana providers in order to further consider options regarding licensing and zoning issues.

Considering the options, council appeared lukewarm to the idea of a moratorium and it was council member Don Volger who first suggested the matter warranted more discussion, saying, “If we’re going to allow a business that violates federal law, we need to take a comprehensive look at this.”

Suggesting a workshop (with town Attorney Bob Cole) to further discuss the matter, Pagosa Springs Mayor Ross Aragon added, “There’s been a surge of applicants by 18- and 19-year-olds and that bothers me a lot ... I just think we need to be careful in whatever we do.”

While several audience members addressed council, neither for or against the medical marijuana issue, business owner Martin Woods (his establishment, “Nature’s Medicine,” is one of several hoping to dispense medical marijuana) made a plea for council to carefully consider the issue.

“If we understand the need for the patients,” he said, “we have a little bit different perspective. We’re looking to provide safe access and affordable access.”

“If you would just consider the needs of the patients,” Woods said, adding that his proposed business would focus not just on medical marijuana, but would also provide massage therapy as well as alternative herbal medicines.

Council member Stan Holt responded to Woods’ appeal, saying that an Internet search of registered medical marijuana users resulted in only 25 applications countywide. “How can you run a business with three (business) applications locally and only 25 registered users?”

Woods replied that, if council allowed medical marijuana dispensaries in town, “You’ll see more applications for medical marijuana.”

Council member Jerry Jackson told Woods he also had an interest in alternative medicine, adding, “It makes the decision even more difficult.”

Previously, council members Shari Pierce and Mark Weiler had pointed out that, even if council decided to hold fast against allowing medical marijuana dispensaries in town, patients still had the option of Durango. Pierce added that she had contacted a Durango dispensary that would provide free, statewide delivery. Woods countered that relying on delivery service not only puts an undue burden on patients too sick to drive or await deliveries, but, “drives the cost up for all patients.”

Relying on the language of the municipal code, council agreed to forgo a 90-day moratorium on issuing business licenses for medical marijuana dispensaries — stepping back from a request council made to the Archuleta County Board of County Commissioners.

Previously, the BoCC imposed a 60-day moratorium on medical marijuana dispensaries during a special Sept. 30 meeting. The county’s decision to impose a moratorium stemmed from a request from the town council-established medical marijuana task force, the task force asking that the county join the town in imposing a 90-day moratorium in order to allow time for both jurisdictions to adopt cooperative legislation.

It is uncertain how council will proceed following direction derived from the workshop; what is certain is that it has two options.

One option would be to do nothing and allow municipal code to stand, avoiding the issue where state and federal law conflict, ignoring future statutory conflict as it pertains to the best interest of the town.

The second option would require council to revise its code (and incur several thousand dollars in legal expenses, per an estimate provided by Town Manager David Mitchem). That option would require the town to revise language in several sections of municipal code to address federal and state statutory conflict — while holding to the spirit of the town’s Home Rule Charter.

In fact, the town has constitutional authority to reject federal law in favor of state statute. While the Ninth Amendment of the U.S. Constitution states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” a suggestion that federal drug laws are in themselves unconstitutional, no successful argument has been leveled against the Controlled Substances Act of 1971 based on Ninth Amendment language.

However, the Tenth Amendment of the U.S. Constitution (dealing with state’s rights), affirms, in part, ”The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” While Tenth Amendment arguments regarding civil rights issues have been ruled in favor of the federal government, so far no case has been brought before the U.S. Supreme Court regarding the legitimacy of a state’s medical marijuana statutes (so far, 12 states have legalized the use of marijuana for medical purposes).

Therein lies the rationale for the council’s decision to schedule a workshop. While medical marijuana dispensaries were aggressively prosecuted under the administration of former President Bush, current Attorney General Eric Holder said last February that his office would not interfere with medical marijuana dispensaries — leading to the current boom in medical marijuana applications and request for business licenses. The possibility of an attorney general less tolerant of medical marijuana will obviously carry some importance during the workshop.

The workshop has been scheduled for noon Thursday, Oct. 15, at Town Hall.