By Jim McQuiggin
With acceptance of the first reading of Ordinance 762 on Tuesday night — extending the moratorium on medical marijuana licensing — the town of Pagosa Springs is poised to continue prohibiting medical marijuana businesses within city limits.
The town’s current moratorium expires Sept. 1. If council passes Ordinance 762 on second reading (during the July 5 council meeting), it would be the fourth time that council has instituted a moratorium on issuing licenses for medical marijuana establishments.
However, during Tuesday’s discussion, council briefly considered a total ban on medical marijuana businesses (and delivery) within town limits.
After Town Planner James Dickhoff explained that Ordinance 762 would extend the town’s current moratorium for another year, trustee Stan Holt said, “As an alternative to renewing these moratoriums, for a third time, I move that we join our neighboring communities such as Ignacio and Bayfield in denying these operations within the town limits.”
Trustee Shari Pierce, offered a second, “So we can move on with the discussion.”
In the November 2000 general election, Coloradans passed Amendment 20, which legalized marijuana for medical use. However, John Walsh, the top federal prosecutor in Colorado, recently sent a letter to legislators warning that current regulations could put state employees at risk of federal prosecution.
Referring to Amendment 20, Pagosa Springs town manager David Mitchem added, “What we do know is that the federal government has taken offense to what Colorado has done.”
Of the 15 states that have legalized the use of medical marijuana, federal prosecutors have sent warning letters to three other states — California, Washington and Montana — ostensibly due to the proliferation of medical marijuana patients and businesses following a 2009 statement by the Justice Department that federal law enforcement would no longer make prosecuting medical marijuana businesses a priority.
In the letters, prosecutors stated that the federal government would not be going after seriously ill patients using medical marijuana but would be taking a closer look at the number of patients and providers in the states of concern.
The 2009 Justice Department decision led to a sharp increase in the number of medical marijuana patients and providers in Colorado. In fact, among all the states that have legalized marijuana for medical purposes, Colorado has led other states in the increase of providers and patients. With a population of 6.3 million, Arizona has registered 150 providers or about one provider for every 42,000 citizens. In California, with a population of 36.6 million, there are over 1,000 providers or about one for every 37,000 citizens.
With a population of about 4.9 million, Colorado has more than 800 providers or about one provider for every 6,000 citizens.
Holt cited Walsh’s letter Tuesday night (as well as the number of providers in the state), saying that, “One dispensary in the county is enough.”
While stating she supported Holt’s motion in principle, Pierce said she was concerned that outright banning medical marijuana businesses in Pagosa Springs put the town at risk of a lawsuit. Pierce added that while the town’s medical marijuana subcommittee had considered banning medical marijuana businesses in the town, a moratorium was preferred due to the potential for litigation.
Holt continued, asking staff to draft a resolution that would ban medical marijuana businesses in town while stating his belief that House Bill 1284 would exempt the town from any lawsuits.
In mid-2010, the Colorado Legislature passed HB 1284, which allows municipalities to ban or further restrict medical marijuana centers beyond state regulations. While HB 1284 does not overturn the general intent of Amendment 20 and, as such, does not outlaw medical marijuana use in Colorado, it does give latitude to municipalities regarding how they grapple with local regulations (such as zoning restrictions) for medical marijuana businesses.
Furthermore, HB 1284 continues to allow so-called caregivers to grow marijuana for the purpose of providing registered patients with medical marijuana. As such, the town ordinance would have no effect on caregivers and their ability to deliver medical marijuana to patients.
Pagosa Springs Police Chief Bill Rockensock (also a medical marijuana subcommittee member) said that while he agreed with Holt (“I think the consensus is that we don’t want marijuana in this town.”) he conceded Pierce’s point regarding the risk of litigation.
“I’m not sure that it’s the most prudent way to go,” Rockensock said regarding a total ban.
“While I agree that we don’t want medical marijuana in town,” Pierce said, “we also need to make the most prudent fiscal decision, as well.”
Dickhoff pointed out that the town had time with its moratorium and, given the provisions of HB 1284, would have until Sept. 1, 2012, to make a more permanent decision.
Trustee Don Volger said that while he also agreed with Holt, he would support the moratorium. “This is going to give us time to draft something that’s reasonable and protects the town,” Volger said.
Pagosa Springs Ross Aragon did not stand with the majority of council, however. “I just want the record to show that I voted with trustee Holt,” Aragon said.
With a motion made by trustee Bob Hart and a second by Volger, council approved the first reading of Ordinance 762.