Marijuana ban ordinance fails


Staff Writer

Ordinance 788, an ordinance prohibiting all marijuana establishments from operating within the town boundaries of Pagosa Springs, failed to pass the second reading at last week’s town council meeting.

Earlier, on April 18, town council approved the first reading of the ordinance, which was titled, “An ordinance of the Town of Pagosa Springs amending chapter 6 of the Pagosa Springs Municipal Code by the addition thereto of a new Article 5 prohibiting the sale and cultivation of medical marijuana, including medical marijuana centers, optional premises cultivation operations and medical marijuana-infused products manufacturing, and a new Article 6 prohibiting the operation of marijuana clubs, marijuana cultivation facilities, marijuana product manufacturing facilities, marijuana testing facilities and retail marijuana stores.”

“My position has been that we are acting too soon on this issue,” council member David Schanzenbaker explained in an e-mail sent to SUN staff last Wednesday, “and that we’d be better off waiting to see how the state regulations look when that process is completed.  We have until Oct. 1 to decide what direction we’d like to go, since no licenses can be applied for until then, but the mayor has decided, since he sets the meeting agenda, that we should proceed with this prohibition ordinance now.

“Since at our last work session there were several different positions presented on how we might want to proceed with this new industry, I was hoping staff would research the various pros and cons, including projected sales tax revenues we might be passing up by prohibiting shops, the state law conflicting with federal law ramifications, etc., but we haven’t done that work.  Now, we still have a second reading of this ordinance on Thursday, so we could vote it down or amend it, but it’s hard for council to make a well informed decision when we are given only one option on how to proceed and then asked for an up or down vote.”

At the town council meeting the next day, Police Chief William Rockensock introduced the ordinance by saying, “On November 6, 2012, voters in Colorado passed Amendment 64, which permits the use and sale of marijuana by and to adults over 21 years old and also permits the operation of certain recreational marijuana businesses. However, municipalities may prohibit the operation of marijuana establishments by ordinance. Prohibitions or local restrictions must be in place no later than October first, 2013, which is when marijuana businesses may begin operating.”

When the police chief finished introducing the ordinance, Mayor Ross Aragon opened the floor to public comment. Bill Delany, the owner of Good Earth Meds, which is currently the only medical marijuana store in Archuleta County, stepped up to the microphone.

“You folks have a big decision ahead of you,” he said, “and it is a decision about social change. Like it or not, social change is happening in this country. There is a demographic change. If you look at the last two presidential elections, things have shifted. Younger people want to be heard. The recent Reservoir Hill election signifies that.

“Thirty-six hundred people in Archuleta County voted for Amendment 64. I understand that you represent primarily the tourist interests versus the locals, and I don’t know how you wrestle with that, but I do know you can make both happy. The tourists are already here. The marijuana tourists have been coming here for years. You just don’t see them. They are just going to drive to Durango and spend their money there and give them the tax benefits, and the taxes on this are quite large — ten percent. I would predict a retail store could do three million dollars in the first year, which would be a significant tax incentive to you folks.”

According to recently passed legislation, and assuming the bill passes a TABOR (Taxpayer Bill of Rights) vote in November, there will be a 10 percent additional sales tax placed on the retail sale of marijuana, on top of any normal state and local sales taxes.

“There is nothing in the inherent properties of marijuana that makes people do crazy things,” Delany continued. “It makes them do peaceful things. They go home and mind their own business. It’s with alcohol that people congregate in public or drive crazily. A lot of people use the analogy of guns. We want to have everyone armed and everyone says, ‘It’s not the guns; it’s the people who use them.’ It’s the same thing with marijuana. It’s not the joint; it’s the person who uses it. The only difference is in recorded history nobody has ever died from using marijuana, but we have 87 gun deaths and 183 gun injuries per day.”

When Delaney finished speaking, the mayor announced that he would entertain a motion. All of the councilors remained silent, either looking down at their hands or at each other, waiting to see who would speak up.

Council member Darrel Cotton finally made a quick motion to accept the second reading of 788. After another long silence, council member Tracy Bunning seconded the motion.

“I’m kind of surprised that we have moved forward with a second reading,” Schanzenbaker interjected, “because we had a variety of perspectives expressed at last week’s work session. I feel like our job is to follow the intent of the community and the community just voted last November in favor of marijuana possession.

“The only argument I have heard from staff for prohibiting retail shops is that we should not go against federal law, and I just don’t see that as our concern here; that’s for the courts to decide. I need a good reason to go against the will of the people, and I haven’t heard it yet. I was hoping Mr. Cole (town attorney Bob Cole) would have looked into that or mentioned it in his legal memo, but he didn’t mention what the ramifications are when state law and federal law conflict.”

“I make my argument again,” Cotton countered, “over the rules that have not come down, and may not come down. In two months, we are under an obligation to either deny or issue licenses, and without the rules that go along with the issuance of licenses, I’m just not comfortable with issuing the licenses. I don’t believe we’re going to have those rules in two months. The state is never going to move that fast. I just don’t want to get out in the middle of things and then have to change or have to revoke a license.”

Cotton apparently was unaware several marijuana bills had already successfully made it through both the state House and Senate and had been sent to the governor two days earlier, on May 21.

At a public ceremony Tuesday, May 28, in the West Foyer of the Colorado State Capitol, Gov. John Hickenlooper signed the first bills in history to establish a regulated marijuana market for adults. The four measures were approved by the General Assembly on May 8 in accordance with Amendment 64, a ballot measure approved by 55 percent of Colorado voters last November.

“We applaud Gov. Hickenlooper for the initiative he has taken to ensure the world’s first legal marijuana market for adults will entail a robust and comprehensive regulatory system,” said Mason Tvert, director of communications for the Marijuana Policy Project, who served as an official proponent of Amendment 64 and co-director of the campaign. ”This marks another major milestone in the process of making the much-needed transition from a failed policy of marijuana prohibition to a more sensible system of regulation.

“Colorado is demonstrating to the rest of the nation that it is possible to adopt a marijuana policy that reflects the public’s increasing support for making marijuana legal for adults,” Tvert said. “Marijuana prohibition is on its way out in Colorado, and it is only a matter of time before many more states follow its lead.”

HB 1317 and SB 283 create the framework for regulations governing marijuana retail sales, cultivation, and product manufacturing. Under the provisions of Amendment 64, the Colorado Department of Revenue has until July 1 to develop the specific regulations necessary for implementation.

“I would again have to say,” Cotton continued, “that I believe the voters voted to decriminalize the use of marijuana. I don’t believe they voted to open shops on every corner, not that this is what’s going to happen. It was to decriminalize it and quit spending hundreds of millions of dollars every year whipping a dead horse.

“I still say the other 46 percent have a right to be heard, too. A simple majority is not enough, in my mind, to say that it’s okay. I see nothing wrong with prohibiting it now and un-prohibiting it later if the rules are such that we want to do that.”

“Passing this particular ordinance at this time is unnecessary,” council member Don Volger weighed in. “I think we do have the time to wait and see what the state comes up with. I think the state is moving a lot faster than what people anticipated, and they’ve got a lot of work done because they know how important this issue is to the voters of the state of Colorado. All we’re doing by passing this ordinance is making a statement that we are against marijuana. That may not be a bad statement to make, but I’m not willing to do that when there are a majority of people in the state of Colorado who disagree with me. So therefore I think this is premature. We can wait. When it all comes down to it, I think we can safely allow a retail shop, maybe two.”

When Aragon called for a vote, Cotton and Bunning said “Aye.” Schanzenbaker, Volger and council member Kathie Lattin all said “Nay.” Council member Clint Alley was absent.

“Let the record show the vote was a tie,” Aragon said, “three to three.”

“It did not pass,” town manager David Mitchem clarified after the meeting. “Parliamentary procedures say that a tie vote is a failure of the motion. At the council’s pleasure, it may come up at a later date.”

However, this does not mean there will be a rush of people applying for business licenses to open up a bunch of pot shops.

“Town council approved the current moratorium, Ordinance 779, on September sixth, 2012,” Rockensock said, “an ordinance suspending the processing of applications for medical marijuana centers, medical marijuana operational premises, cultivation operations and medical marijuana infused product manufacturing businesses until July thirtieth, 2013.”

According to the final report of the Amendment 64 Implementation Task Force, presented to the Colorado General assembly on March 13, 2013, one of the recommendations is, “that for the first year of licensing, only entities with valid medical marijuana licenses, and those who applied for medical marijuana licenses before December 10, 2012, when Amendment 64 was proclaimed as law, should be able to obtain licenses to grow, process and sell adult-use marijuana.”

Just over a month later, House Bill 1317 was introduced to the Colorado assembly on April 18, passed all three readings in both the House and Senate, and was sent to Gov. Hickenlooper on May 21. According to the introduction, “The bill places a 3-month moratorium on retail marijuana license applications from individuals who are not currently licensed for medical marijuana or an applicant for a medical marijuana license.”

While the legislature opted for three months instead of a full year, It is unclear if a medical marijuana operator must have a pre-existing business license from the Town of Pagosa Springs in order to apply for a retail sales license or if an operator can use a license from the county or other areas of the state as the pre-requisite to opening a store here. Delany’s business is located outside of Pagosa Springs, and no other medical marijuana business currently exists in the town.