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Town imposes medical marijuana moratorium

Amidst often contentious proceedings, the Pagosa Springs Town Council voted unanimously to place a moratorium on medical marijuana dispensaries through March 31, 2010.

The decision to hold an executive session (a meeting closed to the public) did little to soothe the nerves of audience members, forced to wait outside chambers for almost 90 minutes while council discussed the matter behind closed doors. Although Colorado law on open meetings allows an executive session “to receive legal advice from an attorney on specific legal questions,” closed proceedings are usually reserved for discussions of ongoing litigation, property negotiations, personnel matters or matters of national or local security. However, since some believed the legal question before council was one of reconciling town code with state and federal law, the crowd waiting outside chambers appeared frustrated that council had decided to discuss the issue without public scrutiny.

Once Town Manager David Mitchem opened the door to allow the audience inside, council members remained tight-lipped as to what had transpired during the executive session. After the audience was seated, Mayor Ross Aragon asked council, “Is there any discussion?”

A pregnant pause followed, leading Aragon to ask for a motion. Seemingly unsure on how to proceed, a brief, quiet exchange took place between council members Shari Pierce and Darrel Cotton regarding language of the moratorium ordinance and how it would be presented.

Finally, council member Jerry Jackson spoke, revealing some of what might have occurred during the executive session. “Mr. Mayor, I think we should definitely look at a moratorium,” Jackson said, “and I’d like to see us extend it until March 31, until the legislature has had time to meet and be done.”

Jackson was referring to a deadline set by the Colorado State Legislature (see related article on A-5) for findings due by two subcommittees looking into medical marijuana (one regarding law enforcement issues, the other to make recommendations to the state health department regarding regulation).

“I don’t think we really need to spend attorney fees on this, right now,” Jackson continued, “I think we have to sit back and see what the state legislature says and just go forward and impose the moratorium.”

It was at that point that Aragon began to grow visibly annoyed with audience members who had come to advocate for the dispensaries. After the mayor asked for further discussion (from council), Richard Present (representing one of the businesses seeking a business license to dispense medical marijuana) inquired, “Is this an open meeting? Are we allowed to speak?”

Although Aragon said it was an open meeting, he stated there would be protocol to follow and, since he had not yet opened the meeting up to public comment, audience members would have their chance to speak when the mayor deemed it appropriate.

“Do we raise our hands?” Present asked.

“Try to conform to what we’re trying to do here,” said the mayor, “we’re trying to have an orderly meeting. If you raise your hand I’ll recognize you. But if you’re going to treat this like a three-ring circus ... you’re smiling every time we make a comment.”

Then, as if to make his point, Aragon pointed to medical marijuana proponent Paul Coffey, saying “You!”

Coffey was taken aback. “You have a problem with me smiling? I can’t smile in here? You’re annoyed because I have a smile on my face?”

Another pregnant pause passed before council members Pierce and Stan Holt attempted to still the waters, explaining again that the Pagosa Springs Town Council had protocol to follow and that the meeting had not yet been opened to public comment.

After more discussion among council members, making it clear that Emergency Ordinance No. 745 would extend the original 90-day moratorium to just over six-months, and a motion to approve the revised ordinance made by Cotton and a seconded by Holt, the mayor finally opened the meeting to public comment.

“If you’re going to wait on the state legislature,” Present said, “here’s the problem with that: This (state law) is an amendment to the state constitution. If the legislature wants to change that, it’s going to go to the voters. And instead of 55 percent (the margin by which the original measure passed), it’s going to be 70 percent … the fact of the matter is that, you’re going to be losing tax dollars, tax money going to Salida, to Alamosa, to Durango. That’s just silly.”

“I honestly believe that waiting for the state legislature is a waste of time,” said Martin Woods, another potential medical marijuana businessman. “We’re going to be creating some jobs. I can do this out of my home. Why not do this now, start collecting some tax money and let us start serving our patients.”

Woods was referring to Colorado law that allows a so-called “care-giver” to provide medical marijuana to a registered patient. Indeed, any state resident designated as a care-giver can cultivate marijuana for the use by a designated patient.

It was with the definition of “care-giver” that Holt appeared prepared to trap the proponents of medical marijuana. Reading the definition included in the law, that a care-giver makes meals, runs errands, provides other services the patient could not perform on their own, etc., Holt asked if the business owners would also provide those services.

Dusty Higgins, representing the potential providers, said that, indeed, his business provided all of those services (and more) — for a price. “If they ask us for those services, we provide them. We’re working with Durango, hand-in-hand, the mayor has been out to see us, the sheriff has been out to see us. You’re slowing down progress for cancer patients, AIDS patients, glaucoma patients.”

Coffey spoke up (also representing the providers), saying, “We’ve been asked to move up here,” adding that his business (Nature’s Medicine) had not initially considered moving to Pagosa Springs. “We’re talking about a legal product that we can pay legal taxes on. So why are you here, hindering a legal business that has been on the books for nine years? It’s here, one way or another, and your tax dollars are going to Durango. You’re encouraging black market. You’re saying we’re going to encourage black market for six months and knock a legal business out.”

Holt responded that the town, effectively, had its hands tied. “Because the state failed, now it’s on the backs of municipalities to sort it out.”

Pierce followed, saying, “I don’t think we’re just going to sit and wait.”

Cotton continued, saying, “We can’t just say it’s OK and ignore those things (state and federal laws). We’d like to do it correctly and do it one time.”

However, on Monday, the U.S. Attorney General made it clear that the Justice Department would not prosecute medical marijuana users or providers, as opposed to the policy of the previous administration — potentially setting a precedent difficult for future administrations to reverse.

Unconvinced by council’s circumspection and seeming circumlocution, the business owners began to talk amongst themselves, saying audibly that they were sure council had made its decision well before the public was allowed back into the room.

It was at that point that Aragon stood up, pounded his fists on the dais, and directed Police Chief Jim Saunders to escort Higgins and Present from the room. Throwing up their hands, the two showed themselves out, under Saunders’ watchful eye.

With public comment ended, council passed the emergency ordinance.

The town of Pagosa Springs has a full agenda today, both in meetings with representatives of other bodies and at today’s mid-month council meeting. Town officials meet with representatives from the Pagosa Area Water and Sanitation District, the Pagosa Fire Protection District and the county at a work session scheduled at 8 a.m. in council chambers. Council meets again at 10 a.m. with the Board of County Commissioners at 10 a.m. (to discuss AEDA and Parks and Recreation funding), then reconvenes for the mid-month meeting at noon. Among agenda items are Land Use and Development Code rescissions of so-called Big Box regulations (see related article on Page 1) and AEDA “plans for future growth.”

jim@pagosasun.com