Live blog: Safety committee hears Charlie Brown's latest pot proposal
Denver City Councilman Charlie Brown is back before council's safety committee this morning, presenting his proposed ordinance to regulate the city's medical marijuana dispensaries. We're live-blogging the hearing. You'll find Brown's proposal at the bottom of this post, with our most recent reports at the top.
11:20 a.m.: The last provision: licensing fees. The proposal calls for a $2,000 application fee, which is what the city charges for adult cabaret liquor licenses. The annual renewal will be $3,000.
"You're going to have a lot of work," Jeanne Robb tells the head of Excise and License, since all of the dispensaries would have to be licensed by March 1 under this proposal.
Broadwell points out that the requirement is simply to have applications in by that date.
"We're at the end," Linkhart says. "It won't be perfect."
Not quite: Rick Garcia mentions that some committee members might still want to push for the December 1 date. "I feel strongly about it," he says. "It will pare out a variety of operators" -- operators the city might not want.
"We're going to have to agree to disagree on this," Brown says. "You say 'pare out,' I say 'close down.'"
Johnson compliments Brown and Broadwell for their "incredible amount of work," and Linkhart for getting it through.
And Linkhart continues to move it forward: The proposal will go to the Mayor/Council meeting next week, with a first reading at Denver City Council on January 4 and a public hearing January 11.
"In the meantime, members of the public are welcome to contact us," Linkhart concludes. "Particularly Councilman Brown."
11:14: a.m.: Carol Boigon conjures quite an image when she mentions that she was in Ann Arbor in the '60s, and is curious about how we ascertain the purity of the pot. What about the label requirements in the proposal?
Nevitt suggests streamlining the language regarding labels: "Otherwise we're in the food business." Done.
10:28 a.m.: David Broadwell asks whether the councilmembers want the ordinance to be silent on the issue of cultivation, or somehow deal with it. As the proposal was written, he says, "We're not regulating quantity issues" -- not the number of patients a dispensary would serve, not the number of plants that might be cultivated on site.
"Cultivation is more of a state issue," Linkhart says. "I haven't heard an argument yet for why we don't want plants in a store."
Faatz tries to give him one. Say a dispensary moves into a former neighborhood grocery store, where it can have a "huge grow operation... I don't think that's what the neighborhood wants," she says.
Nevitt proposes removing section H in 24-408, which refers to cultivation; Linkhart suggests removing the reference to cultivation in 24-402. Both are taken out of the proposal.
This will mean that if a dispensary is growing marijuana, it is subject to any current Denver zoning/health department rules -- as well as any rules for grow operations that the state might add later.
On to food!
10:40 p.m.: This stinks!
The conversation moves to the provision that would regulate odors. "I don't think we do that for anyone else," Linkhart says.
Au contraire! Nevitt says that the Greenprint committee recently rewrote the "stink ordinance," and suggests that dispensaries be held to the same standards of any other business.
Up pops a spokesman from the Department of Environmental Health. "Odor is primarily a nuisance issue," he says. "We don't make a distinction as to the quality of the odor." Enough complaints, and the department will investigate an odor -- and that would apply to medical marijuana, too.
Garcia asks if it would be enough to cross-reference existing laws. Broadwell points out that the proposal does that in many places.
On to a smellier topic: cultivation.
10:25 a.m.Two hours in, the discussion gets to dispensary hours. As proposed, they would be 11 a.m. to 11 p.m.
Carol Boigon suggests more standard business hours -- maybe 9 a.m. to 7 p.m.
Liquor stores can be open from 8 a.m. to midnight, Linkhart notes.
"This is really where we need to think about the customer," Michael Hancock says.
The majority votes to change the hours of operation in the proposal from 11 a.m. to 11 p.m. to 7 a.m. to 9 p.m.
10:10 a.m.: The next sticky issue: on-site consumption.
"I do not believe we should allow it," Brown says. "I do not believe that's what the voters had in mind in 2000 -- to have cannabis clubs on-site. Let's get ready for a big discussion on this one."
Doug Linkhart goes first. He recently toured Peace in Medicine, where they have a vaporizer -- "an easier, safer way to consume," he says. "Some of these patients are new and may need to have some supervision."
Carol Boigon suggests sticking to the no-smoking rules -- but as Linkhart points out, many patients are not smoking their medicine.
Judy Montero agrees with Charlie -- really! -- on the issue of on-site consumption: "Truth is, you're pretty relaxed after that, and it's quite possible that they could hurt someone from driving or whatever."
The majority of the councilmembers agree with Brown -- even if he does not, Linkhart notes -- and he suggests that the language banning on-site consumption remain in the ordinance. It does, and the discussion moves on.
10 a.m.: To break the impasse, Linkhart calls for another vote, this time with just the councilmembers who are on the Safety Committee -- since this proposal will be coming out of the committee. And it will be coming out with the date of January 1, rather than December 1. (Unless there's another vote in the next ninety minutes.)
Now that the date is settled, sort of, the discussion returns to buffer zones. Boigon brings up parks, libraries. "Does anyone have any appetite to expand this list?" she asks.
At last, consensus: Nope.
9:50 a.m.: December 1 versus January 1? Linkhart asks for a vote, and January 1 passes -- 5 to 4.
Judy Montero asks for a recap, because she didn't understand what they were voting on: "I want people in the community to be clear about what we just did."
Attorney David Broadwell clarifies: "We won't enforce the spacing requirements after any dispensary that had a sales tax license by January 1. Anyone else will be fully subject to the spacing requirements."
They take another vote. It's now 6 to 6.
9:30 a.m.: "I can't believe it, but I actually agree with Councilman Brown," says Councilwoman Judy Montero. Nor can anyone else on the table.
But what, exactly, are they all agreeing on? The January 1 date? The 1,000 foot buffer?
Councilman Paul Lopez is sick of seeing liquor store after liquor store in his district, along with check-cashing store after check-cashing store. That's why he likes the buffers between dispensaries and would like to go the way of Aurora -- with 2,000 feet.
Councilwoman Carol Boigon isn't a member of the committee, but she's come in to talk about some of the discussion that has come up in a Colorado counties group. What's happened in California "is alarming," she says, and perhaps we should think of a "broader spectrum" of facilities included in the buffer zone.
"It is about neighborhoods," Councilman Michael Hancock says. "And we're all rookies here. Do we want to see dispensary after dispensary in our neighborhoods?" He says he's gotten two calls from friends who want to lease space to dispensaries, and have asked him to back off from the spacing issues -- people who started their business plans right around December 1, and knew that dispensaries would have to be at least 500 feet from daycare centers, for example.
But now council is talking about making the buffers "more restrictive," Council President Jeanne Robb notes, so is it fair to hold them to December 1?
Yes, Faatz says, since there's been public notice that regulations would be coming: "We need to stick with that."
"You can toss out all the political labels on this," Brown says. "Everybody looks at this differently. Here's what bothers me: We did not send out any documents that the date of December 1 would be our date. We never formally voted on it. When we had the first meeting, we didn't know how many dispensaries we had."
Denver now has 194 dispensaries -- how many of those would be in violation of retroactive rules? he asks. "I do think we need to respect the people who have invested in this, and go to January 1."
9:20 a.m.: It's become a numbers game.
A week ago, 138 dispensaries had applied for their sales tax licenses. Yesterday, it was well over 190. That's close to sixty new dispensaries in just a few days. "It's growing exponentially," attorney Broadwell says.
Which makes the December 1 date now in the proposal -- the date after which dispensaries could not open within 500 feet of a school or daycare or within 1,000 feet of another dispensary -- a critical point. "The problem is a lack of notification," Brown says. How can dispensaries that commenced business within the past two weeks be penalized when the provision had not yet been adopted?
Councilman Rick Garcia asks Broadwell to explain the practical ramifications of including a date.
"The practical effect of including a date is to give consideration to those who opened before there were such requirements," Broadwell responds. This would essentially grandfather those businesses in. But dispensaries that got into the business after the discussion started "don't have the same moral high ground."
Linkhart proposes changing the date to January 1, and also increasing the distance from a school/daycare to 1,000 feet.
9:13 a.m.: Could Joe Nacchio own a dispensary? His name came up two weeks ago as an example of someone with a record who might still be able to open a dispensary. As the proposed ordinance now reads, anyone who owns 10 percent of a dispensary is subject to a background check, and no one will be allowed to own a portion of a dispensary if that person "has been convicted of a felony or has completed any portion of a felony sentence within the preceding five years."
Turns out this discussion won't be so sticky. The consensus is that Nacchio could indeed open a dispensary five years after he's done his time -- but not too close to a school.
9:05 a.m.:The committee narrowly escapes voting on Nevitt's proposed change in the section about cameras, but they leave the language as is and move on to alarms and safes.
"This is a new industry," Councilwoman Marcia Johnson points out. "We can come back if we found out that we have indeed overmanaged."
Councilman Rick Garcia points out that such requirements might discourage would-be dispensary owners who aren't prepared to make the financial commitment to such security measures.
"We're not overregulating when we say the safe should be 'securely attached,'" Brown notes. After all, at the Lakewood dispensary that was recently broken into, the safe was attached to drywall.
The discussion moves beyond security, and back to the sticky issue of ownership.
8:50 a.m.:Ah, security. Councilman Michael Hancock compares thieves who prey on dispensaries to rampaging squirrels: There's something inside that they want.
Brown says that he's heard dispensaries can't get insurance unless they have security cameras.
Linkhart mentions the privacy concerns involved with cameras. "Personally, I don't like to micromanage any business," he says. "If they have valuable stuff, they'll protect it."
Attorney David Broadwell, who's been doing the legal work for the city on this proposal, addresses the privacy/security issue. "This version is toned down," he says. For example, police cannot demand the film from security cameras at "whim." The names and identifying information of patients are protected by Amendment 20, he points out; HIPAA also enters into the equation.
"This section has been toned down quite a bit," agrees councilman Chris Nevitt. "It appears to be common sense: cameras, a safe, an alarm, security guards can't be some guy's idiot nephew with a uniform. I was all prepared to get all wound up about this." But he's not.
8:40 a.m.:"I want to get something out of here by 11:30," says committee chair Doug Linkhart. "It may not make everyone happy." And to move things along, he suggests that the more controversial points be left until the end of the meeting.
So Councilman Charlie Brown picks up where he left off two weeks ago, about half-way through his proposed ordinance, in the section that discusses operating plans for dispensaries, including security. "Last week, we had two break-ins. One in Lakewood and one in your district, Carla," he says, addressing Carl Madison, whose district covers some of downtown, and the East Colfax/City Park area. "So we've got problems."
Draft Text Denver Medical Marijuana Dispensary Licensing Ordinance
Amend Chapter 24, D.R.M.C. ("Health and Sanitation") by adding a new Article XI, to read as follows:
Article XI. Medical Marijuana Dispensaries
Sec. 24-401. Purpose and legislative intent. Although the possession and use of marijuana is and remains unlawful under Federal law, Section 14 of Article XVIII of the Colorado Constitution ("Amendment 20") provides an exception to prosecution under state criminal laws when marijuana is possessed and used for medicinal purposes by a patient who has been diagnosed with a debilitating medical condition and by the patient's primary caregiver. Amendment 20 does not, however, contain any provision for the lawful sale or distribution of marijuana to patients and, to date, the State of Colorado has failed to adopt laws or regulations to clearly explain how and whether marijuana may be lawfully sold or otherwise distributed to patients. As a result of this ambiguity in the State law, unregulated medical marijuana dispensaries have proliferated in Denver and elsewhere in Colorado. The purpose of this Article is to license and regulate medical marijuana dispensaries in the interest of public health, safety and general welfare. In particular, this Article in intended to regulate the sale and distribution of marijuana in the interest of patients who qualify to obtain, possess and use marijuana for medical purposes under Amendment 20, while promoting compliance with other state laws that prohibit trafficking in marijuana for non-medical purposes. Nothing in this article is intended to promote or condone the sale, distribution, possession or use of marijuana in violation of any applicable law. Compliance with the requirements of this article shall not provide a defense to criminal prosecution under any applicable law.
Sec. 24-402. Definitions. The following words and phrases, when used in this article, shall have the meanings respectively assigned to them:
(1) Director means the director of the department of excise and licenses, or the director's duly authorized representative.
(2) Marijuana shall have the same meaning as is set forth in section 38-175 (c).
(3) Medical Marijuana dispensary means a business that sells or otherwise distributes marijuana through one or more primary care-givers to six (6) or more patients for medical use, along with any cultivation of marijuana associated with such sale or distribution. The term "medical marijuana dispensary" shall not include any person or entity that distributes marijuana for medical use exclusively to five (5) or fewer patients, and shall not include the private possession and medical use of marijuana by an individual patient or caregiver to the extent permitted by Article XVIII, Section 14 of the Colorado Constitution and any other applicable state law or regulation.
(4) Medical use shall have the same meaning as is set forth in Article XVIII, Section 14(1)(b) of the Colorado Constitution, or as may be more fully defined in any applicable state law or regulation.
(5) Parent shall have the same meaning as set forth in Article XVIII, Section 14 (1)(c) of the Colorado Constitution, or as may be more fully defined in any applicable state law or regulation.
(6) Patient shall have the same meaning as is set forth in Article XVIII, Section 14(1)(d) of the Colorado Constitution, or as may be more fully defined in any applicable state law or regulation.
(7) Primary care-giver shall have the same meaning as is set forth in Article XVIII, Section 14(1)(f) of the Colorado Constitution, or as may be more fully defined in any applicable state law or regulation.
(8) School or child care establishment means any public or private school meeting all requirements of the compulsory education laws of the state and providing instruction to students in kindergarten through grade twelve; any public or private schools or pre-schools that provide preparatory schooling for children of any age younger than the state age of mandatory attendance; or any child care establishment as defined by and regulated under Chapter 11 of this Code.
Sec. 24-403. License Required.
(a) On and after [March, 1, 2010] it shall be unlawful for any person to sell or otherwise distribute any marijuana for medical use in Denver without obtaining a license to operate as a medical marijuana dispensary pursuant to the requirements of this article. This licensing requirement shall apply regardless of whether or not a medical marijuana dispensary has commenced operation prior to [March 1, 2010]. Any medical marijuana dispensary that has commenced operation prior to [March 1, 2010] and for which a license application has been filed pursuant to this article prior to that date may continue in operation pending final action by the director on the application. Any such preexisting medical marijuana dispensary that does not or cannot meet the licensing requirements set forth in this article and therefore fails to obtain a license shall be terminated immediately upon such denial.
(b) The license requirement set forth in this article shall be in addition to, and not in lieu of, any other licensing and permitting requirements imposed by any other federal, state, or city law including, by way of example, a retail sales tax license, a retail food establishment license if applicable, any applicable zoning or building permit, and an alarm system permit.
Sec. 24-404. General licensing procedures.
Except as otherwise specifically provided in this article, the general procedures and requirements for issuance and administration of licenses by the director, as more fully set forth in Article I of Chapter 32, shall apply to medical marijuana dispensary licenses. To the extent there is any conflict between the provisions of this article and Article I of Chapter 32, the provisions of this article shall control.
Sec. 24-405. Application.
(a) Application for a medical marijuana dispensary license shall be made to the director upon forms provided by the director for that purpose. In addition to the information required by Chapter 32 of this Code, the application shall include the following information:
(1) Name and address of the owner or owners of the medical marijuana dispensary in whose name the license is proposed to be issued.
(2) If the owner is a corporation, the name and address of any officer or director of the corporation, and of any person holding ten percent (10%) or more of the issued and outstanding capital stock of the corporation.
(3) If the owner is a partnership, association or company, the name and address of any member holding ten percent (10%) or more of the interest therein.
(4) Name and address of any manager or managers of the medical marijuana dispensary, if the manager is proposed to be someone other than the owner.
(5) A statement of whether or not any of the foregoing persons have:
a. Been denied an application for a medical marijuana dispensary license pursuant to this article or any similar state or local licensing law, or had such a license suspended or revoked. b. Been convicted of a felony or has completed any portion of a sentence due to a felony conviction within the preceding five (5) years.
(6) Proof of ownership or legal possession of the licensed premises for the term of the proposed license. If the licensed premises will be leased, the application shall include written consent by the owner of the property to the licensing of the premises for a medical marijuana dispensary.
(7) An operating plan for the proposed medical marijuana dispensary including the following information:
a. A description of the products and services to be provided by the medical marijuana dispensary, including an indication of whether or not the dispensary proposes to engage in the retail sale of food for human consumption. b. A floor plan, drawn to scale, showing the layout of the medical marijuana dispensary and the principal uses of the floor area depicted therein, including a depiction of where any services other than the dispensing of medical marijuana are proposed to occur on the licensed premises. c. A security plan indicating how the applicant intends to comply with the requirements of section 24-408 (d), including an indication of whether or not the applicant intends to utilize licensed security guards.
(8) An area map, drawn to scale, indicating, within a radius of one-quarter mile from the boundaries of the property upon which the medical marijuana dispensary is located, the proximity of the property to any school or child care establishment, to any other medical marijuana dispensary, or to any residential zone district.
(b) Any application for a medical marijuana dispensary permit shall be accompanied by the application fee, criminal background check fee, and annual fee as required by section 32-93.
(c) Upon receipt of an application for a medical marijuana dispensary license, the director shall circulate the application to the Department of Community Planning and Development, the Department of Finance, the Department of Environmental Health, the Denver Police Department, and the Denver Fire Department to determine whether the proposed dispensary is in full compliance with any and all laws, rule and regulations administered by the respective departments
(d) The director shall perform a criminal background investigation for each applicant or manager to determine compliance with section 24-406.
(e) The director shall perform an inspection of the proposed licensed premises to determine compliance with any applicable requirement of this article.
(f) The director shall deny any application for a license that is not in full compliance with this article, any other applicable city law or regulation, or any state law or regulation governing medical marijuana dispensaries. The director shall also deny any application that contains any false or incomplete information.
24-406. Persons prohibited as licensees and managers.
(a) No license provided by this article shall be issued to or held by:
(1) Any person who, in the immediately proceeding twelve months had a medical marijuana dispensary license revoked by the city.
c. Any person who has been convicted of a felony or has completed any portion of a felony sentence within the preceding five (5) years.
(2) with this prohibition applying to:
a. Any owner who is a natural person.
b. If the owner is a corporation, any officer or director of the corporation, and any person holding ten percent (10%) or more of the issued and outstanding capital stock of the corporation.
c. If the owner is a partnership, association or company, any member holding ten percent (10%)or more of the interest therein.
(b) No licensed premises shall be managed by any person who has been convicted of a felony or has completed any portion of a felony sentence within the preceding five (5) years.
24-407. Prohibited locations.
(a) All medical marijuana dispensary licenses shall be issued for a specific fixed location which shall be considered the licensed premises. All sales or distribution of medical marijuana shall be made directly by a primary care-giver to a patient upon the licensed premises, or via personal delivery of the medical marijuana by the primary care-giver from the licensed premises to the patient at the patient's residence.
(b) No medical marijuana dispensary license shall be issued for the following locations:
(1) In any residential zone district as defined by the zoning code of the city, or in any other location where retail sales are prohibited by the zoning code.
(2) Within five hundred (500) feet of any school or child care establishment, with the distance computed by direct measurement from the nearest property line of the land used for school or child care purposes to the nearest portion of the building in which the medical marijuana dispensary is located, using a route of direct pedestrian access. This restriction shall not apply to any applicant who submits a license for a medical marijuana dispensary prior to [March 1, 2010] in any location where the same applicant had obtained a retail sales tax license for the dispensary on or before [December 1, 2009], regardless of whether the actual sale or other distribution of medical marijuana had commenced at that location as of [December 1, 2009].
(2) Within one thousand (1,000) feet of any other medical marijuana dispensary, with the distance computed by direct measurement from the nearest portion of the building in which one one medical marijuana dispensary is located to the nearest portion of the building in which the other medical marijuana dispensary is located, using a route of direct pedestrian access. This restriction shall not apply to any applicant who submits a license for a medical marijuana dispensary prior to [March 1, 2010] in any location where the same applicant had obtained a retail sales tax license for the dispensary on or before [December 1, 2009], regardless of whether the actual sale or other distribution of medical marijuana had commenced at that location as of [December 1, 2009].
24-408. Requirements related to licensed premises.
(a) No marijuana shall be smoked, eaten or otherwise consumed or ingested on the licensed premises.
(b) No person under eighteen years of age shall be permitted on the licensed premises, unless the person has been qualified to possess marijuana for medical use in accordance with Article XVIII, Section 14 (6) of the Colorado Constitution and the person is accompanied by a parent.
(c) The name and contact information for the owner or owners and any manager of the medical marijuana dispensary shall be conspicuously posted in the dispensary.
(d) Any and all cultivation, processing, storage, display, sales or other distribution of marijuana shall occur within an enclosed building and shall not be visible from the exterior of the building.
(e) No licensed premises shall be managed by any person other than the owner or the manager listed on the application for the license.
(f) The medical marijuana dispensary shall be closed to the public, and no sale or other distribution of marijuana shall occur upon the licensed premises or via delivery from the licensed premises between the hours of [11 p.m. and 11 a.m.]
(g) The licensed premises shall be monitored and secured 24-hours per day including, at a minimum, the following security measures:
(1) Installation and use of security cameras to monitor all areas of the licensed premises where persons may gain or attempt to gain access to marijuana or cash maintained by the medical marijuana dispensary. Recordings from security cameras shall be maintained for a minimum of seventy-two hours in a secure off-site location.
(2) Installation and use of a safe for overnight storage of any processed marijuana, and cash on the licensed premises, with the safe being incorporated into the building structure or securely attached thereto.
(3) Installation of a monitored user alarm system pursuant to Division 2 of Article IV of Chapter 42 of this Code.
(4) To the extent the licensee utilizes security guards to patrol the licensed premises, any such guards shall be duly licensed in accordance with Article V of Chapter 42 of this code.
(h) Cultivation and processing of marijuana upon the licensed premises shall be permitted only when the premises are equipped with a ventilation system that filters out the odors of the marijuana so it is not detectable from the exterior of the building or from any adjoining premises. Approval of such a system from the building department is required prior to the cultivation or processing of marijuana beginning on the licensed premises.
24-409. Requirements related to public health and labeling.
(a) All marijuana sold or otherwise distributed by the licensee shall be packaged and labeled in a manner that indicates the quantity and type of marijuana dispensed, and advises the purchaser that the marijuana is intended for use solely by the patient to whom it is sold, and that any re-sale or re-distribution of the marijuana to any third person is a criminal violation.
(b) Any licensee selling marijuana in the form of prepared food shall be required to obtain a retail food establishment license issued by the director in accordance with Article III of Chapter 23 of this Code. The licensee shall comply with any and all applicable state and local health regulations related to the preparation, labeling, and sale of prepared food items.
24-410. Compliance with state law.
(a) To the extent the state has adopted or adopts in the future any additional or stricter law or regulation governing the sale or distribution of marijuana for medical purposes, the additional or stricter regulation shall control the establishment or operation of any medical marijuana dispensary in the city. Compliance with any applicable state law or regulation shall be deemed an additional requirement for issuance or denial of any license under this article, and non-compliance with any applicable state law or regulation shall be grounds for revocation or suspension of any license issued hereunder.
(b) Any medical marijuana dispensary licensed pursuant to this article, may be required to prove, upon demand by law enforcement, that the source and quantity of any marijuana found upon the licensed premises is in full compliance with any applicable state law or regulation.
(c) If the state prohibits the sale or other distribution of marijuana through medical marijuana dispensaries, any license issued pursuant to this article shall be deemed to be immediately revoked by operation of law, with no ground for appeal or other redress on behalf of the licensee.
(d) The issuance of any license pursuant to this article shall not be deemed to create an exception, defense, or immunity to any person in regard to any potential criminal liability the person may have for the cultivation, possession, sale, distribution, or use of marijuana.
Amend Article II of Chapter 32 concerning License Fees by adding a new section 32-93, to read as follows:
Sec. 32-93. Medical marijuana dispensaries.
Application and license fees for medical marijuana dispensaries are as follows:
(1) Application fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,000 (2) Criminal background check fee, per person checked . . . . . Actual costs (3) License fee, per year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $3,000
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