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Members of the Pagosa Springs town council expressed their frustration with town manager David Mitchem at the July 18 meeting because of the perception that he is trying to use his position to actually set policy instead of simply presenting both sides of an issue so that the councilors can make an informed decision. In this case, the issue in question was the marijuana moratorium.
“I’m kind of frustrated with the discussion today,” council member David Schanzenbaker said, “in that I feel like this issue has been handled very sloppily. We just received all of this information last night when we knew we had our moratorium expiration happening soon, and now we have to do this convoluted resolution to get us by until we get to the second reading of an ordinance.”
Schanzenbaker was reacting to Mitchem’s explanation for why there was a need to have a resolution and an ordinance, both of which would do essentially the same thing — continue the moratorium on marijuana businesses.
“The council has approved a moratorium on medical marijuana businesses,” Mitchem had explained earlier. “That moratorium expires July 30, 2013. To give council more time to assess its options regarding medical marijuana and recreational marijuana, the town’s legal counsel suggested an extension of that expiration date. What you have before you is Ordinance 794 that would extend the date to January 31, and this is the first reading. To execute a rapid implementation of that moratorium, we also have before you Resolution 2013-19.”
Resolution 2013-19 was titled, “A resolution imposing a temporary moratorium on the processing of applications for medical marijuana centers, medical marijuana optional premises cultivation operations and medical marijuana infused product manufacturing businesses and suspending the delivery of such medical marijuana business products from outside of Archuleta County until Aug. 30, 2013.”
At the same time, town council was asked to pass the first reading of Ordinance 794, which extends the moratorium on the above mentioned medical marijuana businesses until Jan. 31, 2014. However, the ordinance also specifically includes, “a temporary moratorium on the operation of marijuana cultivation facilities, marijuana product manufacturing facilities, marijuana testing facilities, and retail marijuana stores.”
Mitchem went on to explain that the town had previously set July 30 as the expiration date for the current moratorium under the assumption, based on the wording of Amendment 64, that the State of Colorado would have regulations and guidelines in place by July 1. The state has failed to produce those guidelines, and has instead extended its deadline by 120 days.
“They just punted the ball down the field,” Mitchem explained, “and thus far have accomplished very little.”
Consequently, the town would need to also extend its moratorium deadline in order to make a more permanent policy decision regarding marijuana businesses. However, since a town ordinance must pass two readings before it becomes legally binding, even if the town council approved the first reading at the July 18 meeting — which it eventually did — it wouldn’t be able to do the second reading until the next regular meeting on Aug. 6, which would leave a window from July 31 to Aug. 6 where the town would have no moratorium.
Therefore, Mitchem argued that Resolution 2013-19 was also needed to fill in the gap and prevent anyone from applying for a marijuana business license during that window. However, a similar situation occurred in 2012 — Ordinance 762 expired on Sep. 1 while Ordinance 779 did not take effect until Sep. 6 — but the town took no steps at that time to fill in the gap with a separate resolution.
In addition, Mitchem’s pre-meeting brief cited section 6.1.7 (“Qualifications of Applicants”) of the town’s municipal code, which 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, State of Colorado or the Town …” In other words, even without a moratorium, the town’s municipal code prevents the issuance of business licenses for these types of stores because marijuana is still illegal on the federal level.
Mitchem offered no explanation as to why the entire matter could not be handled by changing the expiration date in the resolution to Jan. 31, 2014, and just dropping the use of an ordinance, other than to say that this method was the recommendation of town attorney Bob Cole.
“I think we need to be very carefully with both of these,” Schanzenbaker continued. “Just looking through it last night, I was finding incorrectly stated dates. We’ll need to fix at least three dates in there, I think. For example, in Bob Cole’s legal brief he mentions that we are extending the moratorium to January 31, but in the same paragraph he recommends that we not extend it past January 1, so we’re getting a lot of conflicting information here and we are trying to do it all at the last second.”
Later, when SUN staff asked for a copy of Cole’s memo to verify the discrepancies Schanzenbaker mentioned, Mitchem responded that it was not a public document and was protected by attorney/client privilege.
“If we can do this in a resolution,” Schanzenbaker continued, “I say we extend the moratorium until we can have a conversation and we don’t have to bother with the ordinance. The ordinance includes retail, which the resolution does not, but we have until October first to deal with retail.”
“I think the ordinance speaks to retail related to medical marijuana products,” Mitchem asserted.
“That’s not how I read the ordinance,” Schanzenbaker countered. “The first section reads ‘medical,’ then there is a comma and the word ‘and,’ followed by a description of ‘retail marijuana stores.’ Those are the two separate issues we have been contemplating all along.”
Part of Mitchem’s pre-meeting written brief, which was included in the councilors’ packets, explained the reason behind the resolution and ordinance: “To give the Town Council more time to discuss options regarding medical and recreational marijuana.”
However, during the meeting, Mitchem continued to argue, “The intent is that they all relate to medical marijuana. It may need some refinement. If you want to put the word ‘medical’ in front of the word ‘retail,’ that would be fine.”
Nevertheless, when council member Don Volger made the motion to accept the ordinance, he read it exactly as Mitchem had presented it, without clarifying that it was only supposed to apply to medical marijuana and not retail sales. Council member Darrel Cotton seconded the motion and all approved.
Schanzenbaker continued to press the matter after the vote.
“Mister Mayor, can we have further conversation on this issue?” When Mayor Ross Aragon assented, Schanzenbaker said, “I think at the minimum we need to clarify this idea about whether we just passed a moratorium on retail stores, because the way I read this ordinance, that’s what we just did.”
Mitchem was instructed to call Cole and verify the meaning of the ordinance. In a follow-up interview Tuesday afternoon, Mitchem relayed to SUN staff Cole’s confirmation that the ordinance did, in fact, pertain to both medical and retail marijuana businesses.
Earlier in the discussion at the town council meeting, before the vote took place, Mitchem explained that even though the state has thus far failed to establish guidelines for regulations for retail sales, according to the legislation surrounding Amendment 64, businesses may begin applying for licenses on Oct. 1, and municipalities would be forced to deal with them.
Therefore, Mitchem assured the town council the issue would be on the agenda for the Aug. 22 meeting so that, whichever way the council decides to proceed, there will be enough time to have two readings of an ordinance. He also promised that Cole would travel from Denver to assist in the formation of a more permanent policy.
“You said that our legal counsel will be here Aug. 22,” council member Clint Alley clarified, “and you said he was going to bring us some options. I’m still a little concerned. I know we are waiting for the state to come up with some leadership.”
“They are not coming up with such leadership,” Mitchem interjected. “Sorry.”
“I understand,” Alley continued, “but based on our vote the last time we discussed some of this stuff, I was just wondering, are we directing our legal counsel to bring us other options instead of just moratoriums? Maybe we can look at some of the other options and opportunities that may exist for regulating businesses. Will that be presented on August 22?”
“Staff has not received from the town council your pleasure in this matter,” Mitchem said. “Direction from the town council would be helpful. We thought we had received direction from the town council to bring a moratorium forward. While it passed on first reading, it did not pass on second reading, so I guess we are awaiting your direction on how you would like to proceed.”
Mitchem referred to Ordinance 788, which passed the first reading on April 18, but then failed to pass the second reading on May 23. Ordinance 788 would have created a permanent ban on both medical and retail marijuana businesses by changing the town’s municipal code.
“You say staff doesn’t know which direction to go,” Schanzenbaker said. “How do we direct you to move forward in both a prohibition direction and in the direction of establishing regulations for us to then be able to make that decision? If all you’re going to do on August 22 is come to us with another moratorium or a prohibition ordinance, that doesn’t work for the decision making process if we want to explore both directions.”
“Personally, I would just like to see all of our options,” Alley reiterated. “Maybe a moratorium is the way the town will end up voting, but I’d like to see us look at the other side and have that option.”
A further reading of Ordinance 794, however, revealed that Schanzenbaker’s and Alley’s concerns were already addressed by Section 6, which stated, “Town staff is hereby directed to develop, within the temporary suspension period provided by this Ordinance, recommendations to the Town Council regarding whether Medical Marijuana Dispensaries and/or Retail Marijuana Establishments shall be allowed within the Town’s jurisdiction and if so, the appropriate restrictions on location, size, quantity and business license requirements, and to make specific recommendations regarding any proposed amendments to the Town’s ordinances, including the allowing of, definition of, zoning of and offenses related to the operation of Medical Marijuana Dispensaries and Retail Marijuana Establishments.”
“I’ve stated my views on this before,” council member Don Volger said. “I’m not going to go back on that. I think with the vote we recently had there is an indication that marijuana consumption should be legalized for certain purposes and in certain areas. Limited legalization within the town of Pagosa Springs is appropriate and not detrimental.
“This is a very complicated issue, as we all know, and it is a very emotional issue. I don’t want to put it off indefinitely. I have no problem with having a medical marijuana facility here. I have no problem with having at least one retail establishment. I don’t want a whole bunch of them in town. That’s not what I’m asking for, but having one, and regulating it appropriately, I don’t think it would be a detriment. In fact, it may be a benefit to many people.
“I have been against marijuana my entire law enforcement career, and one of the reasons was because it was illegal, but to proceed without talking with our legal counsel and thinking about more options — because the state hasn’t made concrete decisions on regulations — would be inappropriate. We need to put it off so we can talk to our legal counsel and get some of these issues on the table, and then make a more informed decision on how to proceed.”
While Volger agreed with establishing a temporary moratorium until the issue could be sorted out, he went on to express his frustration with the state for not establishing the regulations and guidelines it had promised, and while council member Tracy Bunning agreed, he also went on to express his further discomfort with the wait-and-see stance of the federal government, which still considers marijuana illegal and has forced the state of Colorado to put itself on the cutting edge and to act as the trail-blazer on this issue.
In Tuesday’s follow-up interview, Mitchem assured SUN staff that his intent is not to influence town council’s decision on the matter or to limit the options being presented. He promised that, on Aug. 22, Cole will provide council with research and advice on a variety of regulatory options in addition to the prohibition option.