Did the Boulder City Council accidentally define illegal weed dealers as medical-marijuana businesses?

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Update below:

Last night, the Boulder City Council considered imposing a temporary moratorium on new medical-marijuana operations -- and while members stopped short of putting an outright ban into place, they did establish a slew of restrictions. Through March 31, 2010, new dispensaries that didn't file before November 6 can't open in residential areas, or within 500 feet of primary or secondary schools or licensed daycare centers. Likewise, three dispensaries can't be 500 feet or less from each other.

Cannabis Therapy Institute outreach director Laura Kriho, who was at the marathon session, calls these restrictions "an effective moratorium on dispensaries in Boulder. With the retail and rental situation in the city being what it is, people were having a hard enough time finding a landlord to rent to them as it was. Now it will be effectively impossible because of the way the ordinance is written."

The haste with which these rules were assembled -- in "emergency" fashion, just like the Board of Health ruling about the description of caregivers that Denver District Court Judge Larry Naves threw out yesterday -- may have had other unintended consequences, too. Kriho thinks language adopted by the council might have established that anyone selling marijuana in the city, whether for medical purposes or not, now qualifies as a medical-marijuana business.

According to Kriho, the council-validated passage describes a medical-marijuana business as "(a) any establishment that makes available marijuana in any form to any other person in exchange for money, goods or services, or (b) possession of more than six marijuana plants or more than two ounces of a usable form of marijuana, unless the possession is by a patient or primary caregiver as defined in Article XVIII, Section 14 of the Colorado Constitution."

The first part of this text uses the word "marijuana," not "medical marijuana," as well as the phrase "any other person" as opposed to "patient" or something along those lines. "To me, it seems like they made all marijuana dealers in the city legitimate medical-marijuana businesses," Kriho says. As for the second part of the definition, she says, "Who has six plants who's not a patient or a medical-marijuana business? A drug dealer."

Another potential difficulty: What happens to the 500 feet restriction if a husband and a wife are caregivers for each other? Wouldn't that now be illegal, at least through March 31? Kriho pigeonholed councilmember Angelique Espinoza after the meeting broke up to ask that question and claims to have been told the measure wouldn't be enforced in such an instance -- a thin reed to cling to for a couple in such a situation.

Other potential problems, in Kriho's view, involve the 500-foot dispensary saturation limit. "That will effectively eliminate any kind of wellness center, where one or more caregivers want to get together or people want to incorporate medical cannabis into their holistic practice. This is something we were going to give a seminar on. Now, if you're a message therapist and you want to incorporate medical cannabis into your practice, you might not be able to do it if someone else in your building already is doing it. These are ridiculous standards.

"This is what they've done by ramming this through as an emergency measure," Kriho continues. "And why was it such an emergency? There's a new city council coming in. It was the last meeting of at least one of the council members. Why couldn't they wait for the new city council to address a law that's been on the books for nine years? Why they felt compelled to deal with it in a lame-duck session is beyond me."

By Kriho's estimate, nearly 200 people attended the council meeting, which lasted until well after midnight, with approximately 43 of 45 people who spoke supporting medical marijuana and dispensaries in general. Nonetheless, the council made its move by a 4-2 vote, and there wasn't a big hubbub about it because, in Kriho's opinion, most people didn't understand that the regulations were something of a stealth moratorium.

Then again, there may have been some things the council didn't understand, either.

Update: 10:52 a.m.: Just had a conversation with medical-marijuana attorney Jeffrey Gard, and while he believes the definition of a medical-marijuana business in Boulder printed above was perhaps inelegantly written, and would have been clearer had the term "medical marijuana" been used in lieu of plain ol' garden-variety "marijuana," the City Council has a safety net. A passage in the document reads: "Nothing herein is intended to legalize any medical-marijuana business that is not legal under existing applicable Colorado law."

In addition, Gard offers praise for council language that appears to differentiate between a medical-marijuana business and a primary caregiver. The way he reads it, primary caregivers will not be burdened by the 500-feet restrictions involving schools and residential areas the way a business would.

As for Boulder District Attorney Stan Garnett, he hasn't had a chance to study the passage in question. However, he says, "I can't imagine anything the Boulder City Council did would make non-medical marijuana any more or less legal than it already is. So whatever they're trying to do is fine. It's not going to change anything about state law and what can be prosecuted."

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