COUNTY EXTENDS MEDICAL MARIJUANA MORATORIUM AGAIN

A moratorium prohibiting new medical marijuana dispensaries from
opening in Park County was extended for the third time on June 10 by
Park County's Board of County Commissioners.

The moratorium that began in November 2009 was extended for another
30 days.

Park County Development Services Coordinator Tom Eisenman said that
House Bill 1284 had been signed by Governor Bill Ritter and that a
one-year state moratorium will begin on July 1 under that new law.
That means the county moratorium will be in effect up until the state
moratorium kicks in for a year.

Three choices

Eisenman said that County Attorney Lee Phillips, who was absent from
the meeting, had written a memo to the commissioners stating that the
county had three choices under HB 1284.

It could adopt the state requirements of HB 1284 and any forthcoming
regulations, ban dispensaries that are now being called medical
marijuana centers in HB 1284, or develop county regulations and a
licensing procedure.

"We don't have a licensing mechanism in the county," Eisenman said.
He recommended not lifting the county moratorium before the state
moratorium begins.

Eisenman said if the county chose to regulate the industry, it would
need to develop regulations for three different licenses allowed
under HB 1284. Those are a medical marijuana center license; an
optional premises cultivation license; and a medical
marijuana-infused products manufacturer license.

He also said that the incorporated towns were better- equipped to
have dispensaries because they have business license
requirements.

Alma has developed regulations, and dispensaries are being approved.
Fairplay has a moratorium in effect.

Commissioner Mark Dowaliby said HB 1284 was discussed at the recent
County Commissioners Inc. Conference. He said the general consensus
was that if counties banned dispensaries, it would probably lead to
lawsuits.

Under state law, individuals with medical marijuana cards can legally
grow up to six plants. Dowaliby said that if a couple both had
licenses, 12 plants could legally be grown.

"If we don't allow dispensaries, we could be creating a black market
and have also lost the ability to tax the sale of medical marijuana,"
Dowaliby said.

He said he had checked the voter outcome in Park County on the state
constitutional amendment that was passed in 2000 allowing medical
marijuana. He said the amendment had passed in Park County as well as
at the state level.

"I don't want to go against the will of the people," Dowaliby
said.

Eisenman said HB 1284 required that local governments adopt an
ordinance to allow medical marijuana operations and that ordinances
take at least 60 days.

HB 1284 Section 12-43.3-103(2)(a) states, "Prior to July 1, 2011, a
county, city and county or municipality may adopt and enforce a
resolution or ordinance licensing, regulating or prohibiting the
cultivation or sale of medical marijuana." County resolutions can be
adopted with 24 hours notice.

Health care provider

Eisenman also said that under the current land-use regulations, a
dispensary would be considered a health care provider, which by the
LURs definition includes alternative medicine, such as herbal
remedies and tinctures.

He said health care providers are an allowed use in only a Mixed Use
zoning district. With a few exceptions, the only places zoned Mixed
Use in unincorporated Park County are Guffey, Como and Jefferson.

Dowaliby said that he preferred amending the LURs to allow health
care providers in a Commercial Zone district. He said he did not
think the Mixed Use zone was appropriate.

The Mixed Use zone allows a variety of uses on the same parcel of
land, such as both commercial and residential.

Eisenman said it would take at least 70 days to amend the
LURs.

Later, The Flume asked Eisenman if businesses currently selling
herbal remedies were operating in violation of the LURs if they were
not in a Mixed Use zone district. Eisenman said yes.

The Flume also asked Eisenman how current dispensaries operating in
the county would be affected by the state moratorium.

Eisenman said that HB 1284 allows anyone currently operating a
locally approved dispensary to continue operating by applying to the
state and paying a fee by Aug. 1. The necessary forms can be obtained
from the Colorado Department of Revenue.

He said current operating dispensaries in the unincorporated parts of
the county could ask the Planning Department for a letter stating
they were "locally approved."

But the only issues Eisenman could address in such a letter would be
whether the operation was operating before the county moratorium, was
located in the Mixed Use zone district, and was meeting all the use
standards of the zone district, such as lighting, parking and signage.

Eisenman wasn't sure if the state would accept that as being a
"locally approved business."

Commissioner Dick Hodges asked whether, if the county developed a
licensing process during the state moratorium and issued licenses,
businesses would be able to open.

Eisenman said no because any business would also need a state
license. He said until the state process has been developed, no new
medical marijuana centers could open.

HB 1284 Section 12-43.3-103(1)(a) states that on July 1, 2010, a
person who is operating an established, locally approved business, or
a person who has applied to a local government to operate one that is
subsequently granted, may continue to operate in accordance with
state and local laws.

Section 12-43.3-103(1)(b) requires current operating businesses to
complete forms with the Department of Revenue by Aug. 1 and pay a fee
to continue operating.

The same paragraph also states: "An owner issued a local license
after August 1, 2010, shall complete the forms and pay the fee ...
within 30 days of issuance of the local license."

Extending moratorium

Commissioner John Tighe said he preferred extending the county
moratorium until the state moratorium took effect on July 1. "That
would give us a year to explore what the county wants to do," he
said. He also said he liked the idea of taxing the industry.

Tighe said he preferred putting the issue of medical marijuana
centers on November's ballot, asking for an additional sales tax on
medical marijuana, and asking voters to "de-Bruce" that new tax,
meaning that tax revenue wouldn't be counted in the limits under the
Taxpayer Bill of Rights, a constitutional amendment authored by
Douglas Bruce.

Tighe said he had heard from residents on both sides of the issue,
but all of them said if allowed, the sale of medical marijuana should
be taxed heavily.

He said controlling medical marijuana should pay for itself and not
be a burden on property taxpayers if the Sheriff's Office or
Environmental Health Department must get involved.

Hodges said he was concerned about the impacts of lifting the county
moratorium now without any limitations on the number and location of
dispensaries when they are only allowed in the Mixed Use zone.

Several persons at the June 10 hearing testified in favor of allowing
medical marijuana centers in unincorporated Park County, changing the
LURs to allow centers in more zone districts than Mixed Use, and
lifting the moratorium before the state moratorium is effective on
July 1.

Small window

Meeting attendee John Roberts said if it was lifted, people would
have a small window to open a business before the state moratorium
took effect. He said jobs would be created and the county would have
more sales tax revenue.

Roberts said marijuana is much better for a person than alcohol and
it has been used for medicinal purposes for more than 10,000 years
with minimal risks and side effects.

Roberts said that many businesses, including liquor stores, aren't
restricted to the Mixed Use zone. He supported changing the
regulations to allow medical marijuana centers in more zone
districts. He also questioned how dispensaries could be interpreted
as a medical facility under the LURs.

Roberts said HB 1284 favors businesses that are already operating by
giving them a year to grow in a market without new
competition.

Josh Grady, owner of Sunrise Solutions in Bailey, asked the
commissioners how many work sessions they had held on regulations
since the county moratorium took affect on Nov. 18. He questioned why
nothing had been done in the seven months since the first moratorium
in November.

Waiting on state

The commissioners responded that they were waiting until state
regulations were passed so county regulations would comply with state
law.

The language of all four moratorium resolutions state the reason for
the moratorium was to develop and adopt regulations, that appropriate
regulations would be presented to the commissioners before the end of
the moratorium, that 90 days was a reasonable time frame (30 days in
the May and June resolutions), and that the moratorium would not
unduly harm anyone wishing to operate a dispensary.

None of the resolutions state the moratorium was put into effect
because the county was waiting on the state to pass a bill.

Grady said that other governments had adopted regulations that could
be used as a beginning point for Park County regulations. He said it
should not take this long to develop regulations.

The commissioners and the Sheriff's Office started discussing the
issue in September 2009. The final version of HB 1284 was passed by
both arms of the legislature on May 11.

Grady also questioned Eisenman's interpretation that a dispensary is
a health care provider. Grady said the LURs definition of a retail
store included pharmacies and liquor stores. He said dispensaries fit
into that category more than into a health care-giver category.

Grady said he had planned on opening a dispensary on May 18, but he
had received a call from Eisenman, who said Grady's location was in
the wrong zone district and that the second moratorium extension was
approved on May 13.

"I'd have an easier time opening up a gun store," Grady said. He said
no one seemed concerned that a gun store had been located next to a
liquor store in the business complex where he planned to open.

There was also some discussion and disagreement on whether marijuana
cultivation was an agricultural business and if property would be
taxed as such.

After the vote to extend the county moratorium, Roberts asked the
commissioners to reconsider their decision the following week.

"With the economic decline in the building industry, allow us to make
a living," he added.

Other BOCC actions

In addition, the commissioners adopted an amendment to the Unlawful
Grazing of Livestock Ordinance that was adopted in 2003. The
amendment added buffalo and cattalo to the definition of livestock.

Dowaliby said he would like to revisit the ordinance because it is
stricter than state law and places the financial burden of
enforcement on the county.

A $10,200 contract was approved with Dr. Susan Bender to prepare a
National Register of Historic Places nomination for an archeological
district in the county. The location is being withheld to prevent
vandalism and theft of artifacts.

A resolution establishing a board of directors of the South Park
National Heritage Area was approved. The board will consist of seven
members who will serve three-year terms.

Changes were approved for an ongoing federal homeland security grant
received in 2007. Radios will be purchased that operate on both VHS
and 800 megahertz radio frequencies. An extension was also approved
to purchase equipment to integrate the communications systems of
Park County and the state.

A memorandum of understanding for homeland security equipment sharing
with other agencies was postponed until June 17.