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Medical marijuana grow limits go before Denver City Council: MMJ advocate predicts fix is in

At 3:30 p.m. today, the Denver City Council will consider zoning language to limit the amount of medical marijuana grown in residential locations. Some advocates believe this measure would severely restrict the rights of MMJ caregivers in Denver -- among them Colorado Coalition for Patients and Caregivers' Robert Chase, who's shared his objections with city council. Not that he thinks his complaints will make any difference.

"They're well on their way to ramming it through," Chase feels.

The council member taking the lead on the MMJ change is Jeanne Robb, who told Westword last month that she "supported our regulations for the dispensary model in our commercial areas, and even in some of our mixed use areas, because I thought it would get the growing out of our residential areas -- and I think it's more appropriate to have it regulated in business areas than to have unregulated home grows in our residential areas."

Robb said she decided to act after dealing with a grow "just off 7th Avenue in our district. It had 68 plants, and it took me four to five months to finally get it moved out of a residential unit. I went to law enforcement, to the DA, to city attorneys, to building inspectors, and said, 'Why does it take us so long to enforce something that shouldn't be in our neighborhood?' And they said, 'Because everything is so unclear.' And I said, 'We need to have some limits.'"

Amendment 20, the measure that legalized medical marijuana in Colorado, allows a caregiver to grow six plants per patient -- so Robb settled on a maximum of twelve plants per caregiver in residential areas. In her view, "that's pretty liberal, and it doesn't seem like a hardship," especially considering that larger grows "create mildew and odor for neighborhoods, and that can be a problem. Police have had seventy complaints from residential grows just since March.

"I'm not saying they're evil, but they definitely impact neighborhoods -- just like someone who has too many dogs. I'm not trying to make a value judgment, but I strongly believe in protecting residential neighborhoods in Denver."

Chase doesn't completely dismiss this goal, but he considers the plant limitations to be unwarranted. He instead suggests that the council limit the amount of space set aside for residential grows to no more than eighty square feet of total area before individuals would be required to have a permit. In a letter to council, he argues that "this is a small fraction of even a small apartment's floor space, and does not require so much illumination that categorical concerns about electrical service and lighting should be raised."

Still, Chase sees no indication that the council has seriously considered his suggestion. "They've already determined what they're going to do, which is impose a twelve-plant limit," he says.

As for the possibility of litigation over this issue, Chase acknowledges that most caregivers "aren't in a position to defend their rights," because they lack the financial resources to hire a lawyer and fund a potentially long and expensive case. Nonetheless, he says, "we're going on record" with their gripes.

"It's been a long rearguard action," he adds. "We've been fighting and losing, fighting and losing. But we go on record to speak the truth -- and they're continuing to lie."

Page down to read Chase's letter to council on the proposed plant limits:

August 30, 2010

Denver City Council

1437 Bannock St. Rm. 451

Denver, CO 80202

Councilors:

I have been asked on behalf of patients to draft a response to Councilor Robb's proposed ordinance (C.B. 10-06-07) regarding the residential growing of cannabis. The arbitrary restrictions you are apparently determined to impose violate patients' right under Article XVIII, Section 14 of the Constitution of Colorado to such amounts of cannabis as are "medically necessary" to treat their conditions, and pointlessly invite litigation against the City. Under the Constitution, caregivers as well as patients are exempted from the State's criminal laws in their provision of medicinal cannabis to their patients, and need not themselves be patients. C.B. 10-0607 makes no allowance for caregivers who are not patients to grow any cannabis; section 11.8.4.1 C. 1. would set a limit based upon the number of "patient registry identification card holder[s]", but a caregiver in compliance with the Constitution and applicable statute need not have (and may well not qualify to obtain) such a card. There are some valid concerns relating to the residential growing of cannabis by caregivers not properly addressed by the proposed ordinance, and I will devote the remainder of this letter to describing them and an appropriate response rather than to any further analysis of the gross defects in the conception of C.B. 10-0607. In deference to the Council's rush to judgment, I will also assume for the purposes of discussion that, contrary to common sense and my own expectations, SB109 and HB1284 will survive constitutional challenges (although Councilors might also reconsider the wisdom of predicating our ordinances on clearly unconstitutional laws passed just three months ago).

Wild and irresponsible claims have been made by Prohibitionists in law enforcement comparing residential grows to meth labs, alleging that houses in which cannabis is grown are faultily re-wired to accommodate huge banks of lights and are ready to burst into flames at any moment, and raising the spectre of clouds of deadly mold spores from infected cannabis -- there is simply no factual basis for any of these claims. Caregivers and patients' grows are relatively small-scale and cannabis is, after all, just a plant -- Many people grow large numbers of house plants, some using extensive systems of lights for the purpose, without their houses exploding or their health being impaired. Denver does have an interest in ensuring that its building code be obeyed. At what point and to what extent need the City become involved?

Article XVIII, Section 14 provides that patients (and by extension, caregivers) may have as much cannabis "as is medically necessary." Attempts to convict people who had more than the two ounces or six plants also mentioned in the Constitution have consistently failed. The entire issue of imposing a limit on the number of plants that caregivers or patients may grow is constitutionally fraught, and there is no good reason for Denver to become embroiled in it. Other localities have bulled ahead and set absolute limits to the number of (cannabis) plants which a caregiver may keep inside their own home - The CCPC believes this is an unwise and unwarranted intrusion into the caregiver-patient relationship as well as into patients and caregivers' homes. Some localities have set plant limits which are clearly inconsistent with the prevailing interpretation of the Constitution and HB1284; this invites litigation and is unnecessary to achieve the reasonable aim of ensuring public safety.

When people decide to grow other sorts of plants in their home, we do not perceive any need for the City to regulate them. Because caregivers may legally grow an indeterminate but substantial number of plants and because of the concerns raised by illicit large-scale farms in residences, it is appropriate that when caregivers devote a significant amount of their home's living space to growing, the public be assured that fire, electrical, and other safety requirements are met. Instead of setting arbitrary and illegal limitations on the number of plants caregivers and patients may grow, allow them to grow cannabis within no more than eighty (80) square feet of total area within any enclosed structure(s) on their property without requiring that they obtain a permit. This is a small fraction of even a small apartment's floor space, and does not require so much illumination that categorical concerns about electrical service and lighting should be raised.

Caregivers and patients requiring more than eighty square feet to cultivate canabis should be required to undergo such inspections of the grow-area and enclosing structure as the building inspector determines are necessary to ensure compliance with fire, electrical, and building codes. There is no likelihood that commercial growers would attempt to abuse such a permit system to skirt other laws because of the verification of patients' status with the CDPHE. Given HB1284's limitation of caregivers to five patients, most will not need to seek a permit, and few if any should require more than 240 square feet; a cap on total area devoted to the cultivation of cannabis within any residence approximately equal to that of one room is not excessive, and the number of applicants requesting such a permit (with its attendant fees and required documentation) may be so few as to be numbered on the fingers of one hand.

Although there is no impending threat of conflagration from residential grows, valid concerns have been raised in particular regarding code violations related to the lights used to grow cannabis indoors. By limiting grows to no more than eighty square feet without a permit, requiring inspections to grow even so much as a room of cannabis, and proscribing entirely larger residential grows, the City directly addresses the scale of grow operations and, consequently, diminishes the likelihood of dangerous violations of the electrical code; this is all it may reasonably do by ordinance to ensure safety. Inspectors are concerned about widespread violation of the proscription against the use of 220V lighting systems in residences. The proper way to address concerns about improper lighting arrangements (beyond the real limitations implied by the proposed restriction of grow-area) is by means of an educational rather than a regulatory approach. The CCPC would be glad to work with Denver building inspectors to develop a single webpage and equivalent informational broadsheet to inform those engaged in intensive horticulture in their homes how to light and ventilate their plants safely, with particular reference to the above proposed requirements for caregivers and patients who plan to grow cannabis.

The Council must re-think C.B. 10-0607's restrictions on patients' (and de facto ban on caregivers') grows, especially in light of the fact that HB1284's limitation of five patients per caregiver precludes commercial operations masquerading as personal cultivation. Caregivers are providing for some of our neediest patients, and it would be both wrong and illegal to impede their mission of mercy by seeking unconstitutionally to prevent them from growing the medicine which their patients require, or to interfere with patients able to grow their own medicine at home. Other City Councils have unwisely promulgated heavy-handed regulations which pit City governments against the express will of their own constituents regarding medical cannabis. By instituting a reasonable and measured ordinance regulating residential cultivation of cannabis, Denver can prevent any problem which might arise from caregivers and patients growing at home, without abrogating their rights under our Constitution.

Sincerely,

Robert D. Chase,

Colorado Coalition for Patients and Caregivers