Unlike earlier in the month, when town council unanimously — and without discussion — approved the first reading of Ordinance 787, last week’s second reading sparked quite a bit of discussion and controversy.
The ordinance, which ultimately passed the second reading by another unanimous vote, repealed Sections 12.3.1 and 12.3.2 of the town’s municipal code and replaced them with new wording that makes it legal in Pagosa Springs for a person 21 years of age or older to possess and use less than one ounce of marijuana for recreational purposes.
In a cover letter sent last month to town council, town attorney Bob Cole stated, “The attached Ordinance No. 787 revises Section 12.3.1 to make it a municipal offense for (1) a juvenile to possess, use, or openly display up to 12 ounces of marijuana; (2) an adult to possess, use or openly display more than 1 ounce but less than 12 ounces of marijuana; and (3) for anyone to use up to 12 ounces of marijuana openly and publicly or in a way that endangers others.”
Cole’s letter went on to make the distinction between “drug paraphernalia” and “marijuana accessories,” and stated, “Ordinance 787 also revises Section 12.3.2 of the Municipal Code to prohibit adults from possessing drug paraphernalia, excluding marijuana accessories, and to prohibit juveniles from possessing both drug paraphernalia and marijuana accessories.”
However, the passing of this ordinance and the subsequent change to the town’s municipal code only deals with part of the issue raised by Amendment 64.
On Nov. 6, 2012, Colorado voters passed Amendment 64, which amends the Colorado Constitution to allow anyone 21 years of age or older to legally consume and possess marijuana, while also legalizing the sale of marijuana to adults by licensed retail marijuana stores.
It was the second half of the issue — the creation of regulations governing businesses that produce or sell marijuana — that caused last week’s debate at Town Hall.
“As you’re aware, Amendment 64 was passed by the voters,” Police Chief William Rockensock began, “which allows the possession and consumption of less than an ounce of marijuana for persons twenty-one years of age or older.
“Since we have the inability to prosecute anyone because of the amendment,” Rockensock continued, “we are codifying or changing our municipal code to come into compliance with those things, and clarifying that we can still charge juveniles, we can still charge anyone over the age of twenty-one who possesses more than one ounce of marijuana, and you cannot publicly display or consume marijuana anywhere within the city limits.
“This is clarification and it makes it a lot cleaner for us to be able to do our jobs. That is the reason for the ordinance. It’s not that the town is legalizing marijuana; that was done by the state. What we’re doing is coming into compliance with what the state constitution says.”
“Does all of this language just pertain to personal possession?” Council Member David Schanzenbaker asked. “Will this not affect any potential retail shop in the future if we decide to go that route?”
“That is correct,” Rockensock answered. “That is a completely separate issue and would involve the Land Use and Development Code. This does not pertain to that at all.”
Council Member Clint Alley asked, “When will we decide as a council to either allow or not allow retail sales? Is that something we are going to look into in the future, or at this point are we just sticking with this here.” He indicated his copy of the ordinance. “Or I guess if it is a land use issue, could somebody come in at this point and apply for a license to do so (sell marijuana)?”
“Our current code would prohibit that from taking place,” Town Manager David Mitchem responded. “That particular matter, as to retail sales, will come before the council within the next month. Likely by mid-April we will have a proposal for you to consider. Right now the moratorium on medical marijuana facilities stays in effect and will remain until September, but we won’t wait that long. We will bring something before council for their consideration.”
Council Member Don Volger asked, “Do you know if there’s something going on at the state level right now where we can expect to see some direction as far as their legislation on retail sales?”
“They’re working on their rules and regs,” Mitchem answered, “as they have been working on them for the last three years, so …”
“They put a task force together for Amendment 64 implementation at the state level,” Rockensock added. “They just put a document together in the last couple weeks. It’s a two-hundred page document on recommendations to the state. That document is available — I have it if anyone would like to see it — but as of right now the state has not taken any action on those recommendations.”
The final report from Governor Hickenlooper’s Amendment 64 Implementation Task Force was published on March 13, and can be obtained at www.colorado.gov/cs/Satellite/Revenue-Main/XRM/1251633708470.
According to the report, “Amendment 64 was initiated by the people of the State of Colorado at the biennial regular election held on November 6, 2012. The proposed amendment to the Colorado Constitution sought to make the personal use, possession, and limited home-growing of marijuana legal under Colorado law for adults 21 years of age and older, provide for the regulation of marijuana like alcohol, and allow for the lawful operation of marijuana-related facilities.”
The report goes on to explain that the task force, “was instructed to respect the will of the voters of Colorado and refrain from engaging in a debate of the merits of marijuana legalization or the Amendment itself.”
Amendment 64 was approved by approximately 55 percent of the voting electorate of the State of Colorado, resulting in its proclamation as an amendment to Article XVIII of the Colorado Constitution on December 10, 2012. The vote in Archuleta County reflected the same percentage as the statewide vote—55 percent for the amendment and 45 percent against it.
“Amendment 64 presents issues of first impression in Colorado and in the United States, as no other state except Washington State has legalized marijuana for non-medical, adult use in the face of federal legal restrictions. It also establishes very short timelines for implementation, requiring that the Colorado Department of Revenue adopt all necessary regulations by July 1, 2013 and begin accepting and processing license applications on October 1, 2013. These short timeframes require the state and local governments to consider and resolve in short order numerous legal, policy, and procedural issues that necessarily involve multiple interests and stakeholders.”
“It is my understanding that the next step for the legislature,” Schanzenbaker continued, “is to set up committees to start working on formulating regulations, and they have until July 1, so it might make sense for us to wait a little bit and let the legislature set up some statewide regulations before we take action one way or the other.”
“As I stated earlier,” Mitchem countered, “the state has been working for the last three years on regulations, and has accomplished zero. I’m not optimistic that they will produce regulations in a timely fashion, because they haven’t thus far. They just talk and talk and talk and accomplish nothing.”
“The actual amendment gives local governments the ability to take action on our own,” Rockensock added.
The Task Force’s report contained 58 separate recommendations broken down into 17 different categories ranging from regulatory structure to taxation to consumer safety.
Recommendation number 1.3 states, “The Task Force recommends that the General Assembly enact a statute that provides that a state license for an adult-use marijuana establishment shall be issued conditionally and shall not become operational unless and until local requirements have been met and local authorization to operate is granted, in those jurisdictions that have elected to enact local authorization requirements.
“This statute should recognize the authority of local governments to require local authorization requirements for any adult-use marijuana establishment as a legitimate type of ‘time, place, manner, and number’ regulation at the local level, by which a local county or municipality may: 1. Defer to state standards; 2. Choose to adopt their own standards; or 3. Ban adult-use marijuana establishments within their jurisdictions.
“The statute should further provide that if a local government authority chooses not to enact specific local authorization requirements, a state-issued conditional license shall not become operational unless and until the local government authority affirmatively authorizes the activity for which the state license was issued.
“Local counties and municipalities should neither be required to adopt, nor be prohibited from adopting, additional local standards. Similarly, they should neither be required to conduct, nor be prohibited from conducting, hearings prior to allowing adult-use marijuana establishments to operate in their jurisdictions.”
In other words, the town of Pagosa Springs will have the final authority to determine whether or not it allows marijuana businesses to operate within its boundaries and it seems that five of the council members have already made a decision on the matter without consulting the other two council members.
“I still go back to the stuff we’ve been talking about for the last three years,” council member Kathie Lattin argued. “Individual communities have their rights, and it is part of our municipal code not to allow it within the town boundaries. I just want to make sure we are all aware that it is still a federal offense, and can be prosecuted as a federal offense.”
Council member Darrel Cotton confirmed that the town’s moratorium on medical marijuana facilities will run out in September, then said, “If we don’t do something then we won’t have anything. We have to craft something and move forward, assuming we don’t want marijuana consumption in town.”
“I just have a quick question for David (Mitchem),” Alley interjected. “Will the proposal you plan on bringing to us within the next month or two have some options both ways? Will it be biased one way or will we be able to discuss it and see which way we want to go as a council?”
“Staff is going to bring you a proposal that is consistent with council’s previous actions,” Mitchem admitted, “and consistent with your current statute. Staff is going to bring forward a proposal to ban the sales of marijuana within the town limits and ban marijuana clubs within the town limits because it is inconsistent with your statute that says you will abide by the federal statute. We will craft, essentially, a permanent moratorium.”
“My concern,” Schanzenbaker countered, “is that we have not taken any actions or had any discussions on this issue since the election. Archuleta County voted in favor of Amendment 64, so it seems like it might be time to have a renewed discussion on this issue as to which way we would like to go forward. We have some pretty recent evidence from our constituents that says they approve of this amendment, so at the minimum I would like to see some research on the regulation route and the prohibition route, and not just spend our time and money on prohibition without having a discussion.”
“We have been having discussions for over three years,” Mayor Ross Aragon weighed in, “and some discussions have been very livid. I have had threats over some of the discussions that happened in the very beginning. We don’t want marijuana in our community. With recreational marijuana, what is there to discuss? What kind of message are we sending to our tourist-based economy? What kind of research do you want to do? I don’t have to do research to know that recreational marijuana is bad for children. It doesn’t send a good message. No one can prohibit discussion, but I think enough has been said.”
Aragon’s attempt to stifle the discussion failed, and while Schanzenbaker and Alley continued to advocate for an open and honest debate, predicting that the State of Colorado will continue to move in a more liberal direction, the right side of the bench produced the final word.
“I for one would like to turn the state in a more conservative direction,” Cotton said, “Just for the record.”
Everyone except Schanzenbaker and Alley laughed and nodded.