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Marijuana: Boulder rejects pot shop ban, but councilman urges caution moving forward

Update: Yesterday, we noted that the Boulder City Attorney's office planned a presentation suggesting that city council approve a moratorium until at least 2014 on new marijuana retail outlets legalized under Amendemnt 64; see previous coverage below. Last night, the council chose not to go forward with such an ordinance until the public and stakeholders can weigh in. Boulder City Councilman Macon Cowles sees that as the right call.

Cowles, an attorney by trade, was unable to attend last night's meeting because he's preparing for a big trial. But he favors the delay in approving any ordinance that might prohibit retail outlets.

In his words, "I think what we want to do at the city council in Boulder is take a longer look at this -- get some public input before making a decision about how we proceed."

At the same time, he understands the arguments put forward by the city attorney.

"With the medical marijuana regulations, we went out substantially in front of the state -- formulated our regulations before the state had come up with theirs," he notes. "And that resulted in a lot of extra work for the city attorney's office and staff. We want to avoid doing that -- wasting staff time to the extent we can -- by having a better coordinated effort. And I think it makes sense to take this slowly, one step at a time, and see what the state is going to do.

Macon Cowles.
Macon Cowles.

"The state has a problem, too," he goes on, "because this issue tends to eat up huge amounts of staff resources at whatever level at which it's located, because of the uncertainties of the law at the local, state and federal levels. The federal government has this insane war on drugs going on that has huge ramifications for people at every level of our government and for society in general. There's a huge devotion of resources. And now a private moneymaking industry has been built up around the war on drugs to try to collar people, and it has unintended and very severe consequences not only here, but in other countries as well, like we're seeing in Mexico."

The Boulder City Council "wants to respect the will of the voters to legalize marijuana in the State of Colorado," he stresses. "But we really can't act alone on this. There has to be coordination with some of the other government entities that are responsible for this."

Yesterday, senior assistant city attorney Kathy Haddock argued against delaying action until the federal government announces whether or not it will allow Colorado to move forward with implementing the measure. After all, she said, A64's language establishes a timeline and the feds aren't on a schedule. Cowles adds another reason for alacrity.

"The problem with waiting for the federal government is that we may be waiting a long time," he points out. "The people have said, 'We want to legalize marijuana under this constitutional amendment,' and I don't know that it means we should wait. But on the other hand, I don't think people want us to approach this in a way that really degrades other governmental services because we're regulating a new industry and trying to figure out how it's done.

"There's so much now that's in play. Conceivably you could have liquor stores wanting to get into this business as an adjunct to selling wine, spirits and beer. And we're hearing concerns from medical marijuana establishments who say, 'Wait a minute. Regulation in this sphere is going to have a huge impact on our businesses, and we've got a lot at stake here.' And since it's certainly not government's role to pick winners and losers in developing a new industry, we need to hear from these establishments and other people who are concerned."

The questions raised by Amendment 64 are fascinating, Cowles maintains. "I'm 64 years old, and we've been talking about the legalization of marijuana since I was in college -- and here we are. But it's not quite as easy as one day it's illegal and the next day it's legal. Just because of the infrastructure that's been built to make the use of marijuana a crime and to aggressively go after the people who are involved in the growing and transporting of it means you have to plan and proceed more carefully, until the day when Amendment 64 can be incorporated into our day-to-day lives."

Continue to see our previous coverage, including the complete moratorium presentation prepared by the Boulder City Attorney's office.

Original post, 11:13 a.m. December 4: Boulder County is perceived to be a marijuana-friendly place, but Boulder City Council actively opposed Amendment 64. Now, in the wake of A64's passage, the council will consider a recommended moratorium on retail pot shops allowed under the measure (see the document below), with conversation about allowing such outlets potentially put off until the fourth quarter of 2014. Why?

According to senior assistant city attorney Kathy Haddock, who'll co-deliver a presentation about Amendment 64 code impacts with Boulder City Attorney Tom Carr at tonight's city council meeting, slated to start at 6 p.m tonight., the move "isn't a ban, and it's not about trying to go against the voters. It's totally about regulatory issues and uncertainty about where we're going to be, and the role that local governments are going to play in the licensing process."

Boulder City Council.
Boulder City Council.

The document accompanying this message in this evening's Boulder City Council agenda offers the following list of "uncertainties" left by A64's approval:

• Will the federal government sue to enjoin implementation?

• If the federal government is going to take action, will it wait until after the state adopts implementing legislation as it did in challenging Arizona's immigration laws?

• Will the justice department take criminal action against businesses?

• What affect will Amendment 64 have on established medical marijuana businesses?

• Within the regulatory scheme specified in Amendment 64, what, if any, authority will the state delegate to local governments for local licensing and enforcement?

• Will the state adequately fund whatever law it adopts so that there is review of licensing applications and enforcement of violations?

• What effect will recreational marijuana businesses have on medical marijuana businesses?

Since the answers to these questions remain elusive thus far, Carr and Haddock argue in favor of a moratorium for reasons they outline in their report's "analysis" segment. It reads:

The city has extensive experience regulating medical marijuana businesses. It appears likely that many of the same issues will be raised by recreational marijuana businesses. In the case of medical marijuana businesses, the state has not yet fully funded or implemented a licensing program or enforcement of its laws. Virtually all of the regulatory work and enforcement has been left to local governments. Without a ban, because legislation could take until May, 2013, and regulations are not required to be adopted until July 1, 2013, staff would have to commence work on changes to the land use code to allow recreational medical marijuana businesses before knowing what the state law was going to be. While staff was successful at adopting and implementing a licensing program for medical marijuana prior to the state adopting its law or issuing licenses, the Medical Marijuana Amendment to the Colorado Constitution did not restrict the city from implementing licensing laws and did not include a declaration of statewide concern. It also took an enormous amount of effort by city staff across several departments and hiring temporary employees to reach the current level of compliant, inspected and licensed businesses.

Given these factors, the document recommends "that council pass an ordinance banning recreational marijuana businesses for an interim period. Council should revisit this issue when some of the answers to the questions listed above have been resolved. Staff recommends that this be scheduled for the fourth quarter of 2014. This would allow approximately eighteen months after the state regulations are to go into effect in July 2013. This would give ample time to review the state process and draft potential land use or, if necessary, licensing regulations."

This logic doesn't ring true to a number of Amendment 64 proponents.

Continue to read more about a proposed moratorium against marijuana shops in Boulder.

In a Boulder Daily Camera article about the ordinance recommendation, Sensible Colorado's Josh Kappel points out that Boulder would be joining Douglas County as the only ones in Colorado thus far to preemptively block pot shops from opening on the A64 schedule. But while DougCo voters opposed the measure, those in Boulder favored it by a 66 percent majority. As such, Kappel argues that "if the Boulder City Council does not implement Amendment 64, they are ignoring the will of the voters."

Haddock rejects that theory. In her view, the ordinance is mostly about logistics.

"The way Boulder does things, there's a lot of staff work that goes into an ordinance before council sees it," she says. "So we looked at this and realized we're not going to know what the state's going to do before they start issuing licenses, and how they're going to staff.

"With medical marijuana, they ran out of money and stopped staffing," she goes on, "and they still haven't issued licenses on a lot of applications they received in 2010. So we need to see if that's going to be the effect here, and then figure out what the city's policy should be -- get direction from council before we're deep into drafting, then hold meetings with businesses and interested people before it goes to the planning board -- because the way Amendment 64 is written, the only local control is through land use -- and then to city council."

Could Boulder simply repurpose many of its medical marijuana regulations for the recreational kind? It's not that simple, Haddock maintains.

"The way recreational marijuana is regulated by the amendment, it's very different from medical marijuana. We just have no idea what the state may delegate to local jurisdictions to make decisions about, or if everything will be handled by land use, or if they'll set up a dual-licensing program like medical marijuana. With medical marijuana, we had businesses going before we had the regulations, so we needed to act right away. But with recreational, our hands are tied until the state tells us what they're delegating."

Why not wait to push through an ordinance until the federal government decides if it will allow Amendment 64 to be enacted, or whether the Justice Department will intervene to block it?

"That would be fine, except that they're not on a deadline," she replies. "The amendment provides a deadline for when the state needs to act, but we have no idea how long we would have to put things off until the feds act."

Continue to read more about a possible Boulder pot shop moratorium, and to see the document recommending the ordinance.

Boulder Mayor Matt Appelbaum will be among those considering an ordinance tonight.EXPAND
Boulder Mayor Matt Appelbaum will be among those considering an ordinance tonight.

As for the council's collective pre-election opposition to Amendment 64, "they were very clear that it had nothing to do with whether or not marijuana should be legalized. It was totally about the effect on local government and on how we regulate the businesses."

She offers the following example. "For alcohol, we have federal licenses and cleanliness standards and ways to measure levels of potency, if that's the right word. We don't have any of that for marijuana, and local governments aren't really set up to fill in that gap. We've had to with medical marijuana -- to say, 'The places where edibles are manufactured have to be clean,' and that kind of stuff. But we don't know if we'll have to do the same thing for this. So it's a regulation issue, not a philosophy issue."

Such an ordinance can't be adopted tonight. "The way the agenda is set up, it comes under 'recommendations from the city attorney,'" Haddock points out. "The council will then give us direction, and they could tell us to come up with an ordinance, which hasn't been drafted yet. Or they could tell us to draft a different ordinance -- one that might call for a time-out period."

Here's the council agenda for this evening. The Amendment 64 code impacts document begins on packet page number 120 and is six pages in length.

Boulder City Council Agenda December 4 2012

More from our Marijuana archive: "Amendment 64: Douglas County to ban retail marijuana sales a year before they could happen."


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