Meeting Date: July 10, 2018 COUNCIL COMMUNICATION Agenda Item: Agenda Location: Consent Calendar Goal(s): Legal Review: X 1 st Reading 2 nd Reading Subject: An ordinance amending Sections 38-297 and 38-298 of the Thornton City Code by clarifying enforcement of marijuana regulations for cultivation of marijuana. Recommended by: Randy Nelson Approved by: Kevin S. Woods Ordinance previously Presenter(s): Randy Nelson, Police Chief introduced by: Michelle Kline, Assistant City Attorney SYNOPSIS: In July 2015, City Code Section 38-298 was amended to address enforcement of cultivation of marijuana in the City due to the passage of Amendments 20 and 64 of the Colorado Constitution. Limitations were placed on the location of cultivation and number of plants allowed. Since the adoption of the cultivation amendments, there have been changes both locally and at the state level affecting marijuana regulation in the City. Namely, the 2016 passage of Retail/Medical marijuana sales in the City, and state changes to definitions related to marijuana plants and cultivation location restrictions. In addition to these legislative changes, the Thornton Police Department has seen a large increase in the number of illegal home cultivations, and believes some minor changes to the ordinance would enhance the Department s law enforcement efforts. One of these changes includes a change to the definition of marijuana to include the entire genus cannabis rather than the limitation of the species of cannabis sativa L. This is necessary to address the new strains that are being developed, and which are still of the genus cannabis, but may not be of the same species. RECOMMENDATION: Staff recommends Alternative No. 1, approval of the ordinance amending Sections 38-297 and 38-298 to provide clear lines of enforcement as it pertains to the cultivation of marijuana and to address legislative changes made in the last two years. BUDGET/STAFF IMPLICATIONS: None. ALTERNATIVES: 1. Approve the ordinance amending the code to change the definitions of marijuana and cultivation to include all possible strains/varieties of marijuana, amend the marijuana cultivation section to incorporate legislative changes, and reorganize the section into subsections to make it more understandable. 2. Make no changes to the Code.
COUNCIL COMMUNICATION PAGE 2 BACKGROUND (ANALYSIS/NEXT STEPS/HISTORY): (includes previous City Council action) In November 2000, voters of the State of Colorado passed Amendment 20 to the State s constitution allowing patients and/or primary caregivers to possess, use, and cultivate medical marijuana with some restrictions. Under Amendment 20, local government may choose to allow or not allow retail medical marijuana establishments within the City. The City determined that no suitable locations exist in the City for these establishments and passed Ordinance 2138. In November 2012, voters of the State of Colorado passed Amendment 64 to the State s constitution allowing recreational marijuana for persons 21 years of age and older. Individuals 21 years old and over may possess, use, and cultivate marijuana with some restrictions. Under Amendment 64, local government may choose to allow or not allow retail marijuana establishments within the City. The City determined that no suitable locations exist in the City for these establishments and passed Ordinance 2329. In 2015, the City passed Ordinance 3341 pertaining to the regulations of cultivation of marijuana. Specifically, the Ordinance defined the term Cultivation as all growing stages of the marijuana plant and specified the number of marijuana plants along with defining a plant as a plant of any size. In 2016, the Colorado Code of Regulations pertaining to the cultivation and sale of medical and retail marijuana enacted 1 CCR 212-2 and defined an immature marijuana plant as a plant that is no taller than eight inches and no wider than eight inches In 2016, the City passed Ordinance 3400, authorizing the operation of a maximum of four Retail or Retail/Medical Marijuana Stores in the City. The Ordinance did not specifically address the sale of immature marijuana plants, and no exclusion for such sales was made to the cultivation prohibitions in Section 38-298. In 2018, changes were made by the state legislature pertaining to criminal marijuana cultivation, and a new definition of marijuana plant was enacted, which defines it as a plant in a cultivating medium which is more than four inches wide and four inches high The state also adopted new statues placing restrictions on marijuana cultivation locations and number of plants. In order to clarify any ambiguity, and to come into alignment with state prohibitions and allowances, some amendments to the City Code would be appropriate. Council discussed this item at a Planning Session on May 29, 2018 and gave direction to prepare the attached City Code amendments. These changes include a modification to the definitions of cultivation and marijuana and an addition of definitions for enclosed locked space and flowering. The definition of cultivation will be modified to clarify that the sale of plants under 8 inches tall and 8 inches wide in a lawfully licensed marijuana store shall not be considered cultivation. The definition of marijuana will be modified to apply to the Article, rather than the Section, and to encompass all types of marijuana, not just the species cannabis sativa L. Section 38-298 should be amended to reflect State law changes in regard to cultivation and to create ease of enforcement for officers encountering illegal marijuana home cultivations. These changes include a reorganization of the cultivation location prohibitions (no substantive changes) including an affirmative defense for a single person to have up to a maximum of 12 marijuana plants if the person has a valid medical marijuana registry card.
INTRODUCED BY: AN ORDINANCE AMENDING SECTIONS 38-297 AND 38-298 OF THE THORNTON CITY CODE BY CLARIFYING ENFORCEMENT OF MARIJUANA REGULATIONS FOR CULTIVATION OF MARIJUANA. WHEREAS, in the November 2000 General Election, the voters of the State of Colorado adopted Amendment 20 to the Colorado Constitution (Amendment 20) which authorizes the use of marijuana in the treatment of debilitating medical conditions; and WHEREAS, in the November 2012 General Election, the voters of the State of Colorado adopted Amendment 64 to the Colorado Constitution (Amendment 64) which authorizes the use, display, purchase, transport, and transfer of one ounce or less of marijuana by a person of 21 years of age or older; and WHEREAS, the City is a home-rule municipality organized and existing under the provisions of the Colorado Constitution Article 20 Section 6 and is thereby authorized to exercise all powers necessary for operation of a local government; and WHEREAS, State law, including but not limited to, Sections 31-15-401 and 31-23- 301 the Colorado Revised Statutes, further authorizes a municipality to exercise its police powers in a manner that will protect the public health, safety, and welfare of its citizens; and WHEREAS, pursuant to Amendment 64, any person who is 21 years of age or older may possess, grow, or transport no more than six marijuana plants provided that the growing takes place in an enclosed locked space, is not conducted publicly and openly, and is not made available for sale; and WHEREAS, Amendment 20 protects patients and primary care givers from criminal liability for possession and cultivation of marijuana in amounts authorized by Amendment 20 for the patient's medical use; and WHEREAS, on August 23, 2016, the City Council adopted Chapter 42 Article X approving the operation of four lawfully licensed Marijuana Stores; and WHEREAS, State rules and regulations related to the operation of marijuana stores, including 1 CCR 212-1 and 1 CCR 212-2, exclude from the definition of cultivation, and allow for the sale of, immature plants not exceeding certain size limitations; and and WHEREAS, the City has experienced an increase in home cultivation of marijuana; WHEREAS, the City s current definition of marijuana excludes all species of marijuana other than cannabis sativa L; and
WHEREAS, the City Council has carefully considered the provisions of Amendment 20 and Amendment 64 and various aspects of the impacts marijuana possession and use by cultivation in residential structures will have on the health, safety, and welfare of the residents of the City and has determined that it is necessary and appropriate as an exercise of its local police power and land use authority to regulate marijuana cultivation in residential and non-residential structures located within the City; and WHEREAS, certain amendments are included in Section 38-297 to reflect the changes to the development of new species of the genus cannabis; and WHEREAS, certain amendments are included in Section 38-298 to reflect the City s adoption of Chapter 42 Article X and to aid in ease of law enforcement efforts; and WHEREAS, the City finds these code amendments are necessary to promote the public health, safety, and welfare. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF THORNTON, COLORADO, AS FOLLOWS: 1. Section 38-297 is hereby amended by the addition of the words doubleunderlined and the deletion of the words stricken and re-lettering as applicable alphabetically the sections to read as follows: Sec. 38-297. - Possession unlawful; violations and penalties. (a) (b) (c) (d) It shall be unlawful for any person to openly and publicly display, consume, or use two ounces or less of marijuana or marijuana product, as defined herein, anywhere within the city, or to consume or use two ounces or less of marijuana or marijuana product in a manner that endangers others. It shall be unlawful for any person aged 21 or older to possess more than one ounce, but less than two ounces, of marijuana or marijuana product anywhere within the city except in the person s primary residence on the premises where the plants were grown or sold. This section shall not apply to any owner, manager or employee of a marijuana establishment as defined in and that is properly licensed pursuant to Section 42-701 et al, while such owner, manager or employee is on the licensed premises. It shall be unlawful for any person, under the age of 21 at the time of the alleged offense, to possess, consume, ingest, display or use any amount of marijuana, marijuana accessories, or marijuana products, as defined herein, anywhere in the city. It shall be unlawful to sell, transfer, or convey, for any form of remuneration, any amount of marijuana or marijuana product within the city. This section shall not 2
apply to any owner, manager or employee of a marijuana establishment as defined in and that is properly licensed pursuant to Section 42-701 et al, while such owner, manager or employee is on the licensed premises. (e) (f) (g) (h) (i) (j) (k) (l) It shall be unlawful for any person to purchase marijuana or marijuana products in the city from any person not properly licensed to sell marijuana or marijuana products pursuant to Section 42-701 et al. Consumption shall be deemed possession thereof, and violations shall be punished as provided for in subsection (n) of this section. As used in this section Article, the term "marijuana" or "marihuana" means all parts of the plant Cannabis sativa L, of the genus cannabis whether growing or not, the seeds thereof, the resin extracted from any part of the plant and every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds, or its resin, including marihuana concentrate without regard for cannabinoid concentration levels. The term marijuana shall not include fiber produced from the stalks, oil or cake made from the seeds of the plant, or sterilized seed of the plant which is incapable of germination, if these items exist apart from any other item defined as "marijuana" in this subsection. As used in this section Article, the term "marijuana concentrate" or "concentrated marijuana products" means hashish, tetrahydrocannabinols, or any alkaloid, salt, derivative, preparation, compound, or mixture, whether natural or synthesized, of tetrahydrocannabinols. As used in this section Article, the term "marijuana products" mean concentrated marijuana products and marijuana products that are comprised of marijuana and other ingredients and are intended for use or consumption, such as, but not limited to, edible products, ointments, and tinctures, as defined in Article XVIII, Section 16, subsection (2)(f) of the Colorado Constitution. As used in this section, the term "openly" means occurring or existing in a manner that is unconcealed, undisguised, or obvious. As used in this section, the term "publicly" means occurring or existing in a public place, or occurring or existing in any outdoor location where the consumption of marijuana or marijuana product is clearly observable from a public place. As used in this section, the term "public place" means a place to which the public or a substantial number of the public has access, and includes, but is not limited to places of amusement, parks, playgrounds, and parking lots, all of which are open for use by the general public, and streets, highways, roads, alleys, sidewalks and walkways when open for use by the general public or when adjacent to publicly-owned land, and the common areas of privately-owned land including, but not limited to, plazas, schools, hospitals, apartments or condominiums, office 3
buildings, shops or business complexes, and transportation facilities. The term "public place" includes any private property accessible to the public such as a trail, bike path, alley, hiking path or shopping center parking lot, as well as in or upon those portions of any private property upon which the public has an express or implied license to enter or remain. If such express or implied license is subject to time or conduct restrictions, display, consumption or use of marijuana or marijuana product shall be deemed to be done "publicly" even if the entry or remaining on the property is in violation of the time or conduct restrictions. (m) In addition to any other competent evidence identifying a substance as marijuana or marijuana products, as defined herein: (1) Results of the field test known as the "Duquenois-Levine reagent system" shall be admissible in evidence and shall be prima facie evidence of whether or not the substance tested was marijuana. (2) The qualitative result of a marijuana test or tests performed by a drug recognition expert ("DRE"), certified as such, or by persons otherwise certified under a drug(s) that impair certification, shall be admissible at the trial of any person charged with a violation of subsection (b) of this section and shall be prima facie evidence of whether the person charged has consumed, ingested or used marijuana. (3) Laboratory test of marijuana shall be admitted in evidence pursuant to C.R.S. 16-3-309, as amended. (n) Any person found guilty of a violation of this section shall be punished as follows: (1) For a violation of subsections (a), (b) and (d), concerning the display, consumption, or use of not more than two ounces of marijuana or marijuana product, or the sale, transfer, or conveyance of any amount of marijuana or marijuana product, and upon conviction thereof, shall be penalized as provided in Section 1-8(b) of this Code. However, a person who has not yet reached 18 years of age as of the date of the violation shall not be subject to a jail sentence except for contempt of court or failure to obey a lawful court order, as specified by state statute. (2) For a violation of subsection (c) for persons under the age of 21, at the time of the alleged offense, concerning possession, consumption, ingestion or use of any amount of marijuana or marijuana product, there is a penalty as provided in Section 1-8(b) of this Code. However, a person who has not yet reached 18 years of age as of the date of the violation shall not be subject to a jail sentence except for contempt of court or failure to obey a lawful court order, as specified by state statute. 4
(o) Medical marijuana affirmative defenses/exemptions. (1) It shall be an affirmative defense to prosecution under subsection (b) of this section that a person is in possession of a valid registry identification card authorizing the medical use of marijuana at the time of the alleged offense, issued by the Colorado Department of Public Health and Environment. The presentation of a registry card valid on the date of the offense at arraignment shall result in dismissal of the charge. (2) It shall be an affirmative defense to prosecution under subsections (b) and (c) of this section that a person is a medical marijuana patient or primary care-giver and is in possession of marijuana, for medical use, as the terms primary care-giver and medical use of marijuana are defined in the Colorado Constitution. The presentation of a valid registry identification card or primary care-giver license issued by or other verification of care-giver status provided by the Colorado Department of Public Health and Environment at arraignment confirming that the defendant was a medical marijuana patient or primary care-giver at the time of the alleged offense shall result in dismissal of the charge. (3) It shall be an exemption to prosecution under subsections (b) and (c) of this section that a person is in possession of a valid medical marijuana transport manifest approved by the state medical marijuana enforcement division at the time of the alleged offense, in accordance with rules allowing transport promulgated by the Colorado Department of Revenue. 2. Section 38-298 is hereby amended by the addition of the words doubleunderlined and the deletion of the words stricken and re-lettering as applicable alphabetically the sections to read as follows. Section 38-298. Prohibitions regarding marijuana cultivation for medicinal or recreational use. (a) Definitions. The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning: Cultivate or cultivation means all growing stages of the marijuana plant. Unless otherwise stated, it shall also include all stages of cultivating, processing or preparing the plant material including, but not limited to, cutting, trimming and clipping, drying, curing, and storing the marijuana plant materials. Cultivation shall not include the storage, display, or sale of nonflowering marijuana plants that are no taller than eight inches and no wider than eight inches by a Marijuana Store lawfully licensed to sell retail and/or medical marijuana in the City pursuant to Chapter 42 Article X. 5
Enclosed locked space means an area having walls and a roof constructed of solid materials, able to be locked either by combination lock or lock and key, so as to prevent unauthorized entry. A hoop house or green house shall not be considered an enclosed locked space. Flowering means the reproductive state of the cannabis plant in which there are physical signs of flower budding out of the nodes of the stem. Primary residence means the place that a person by custom and practice, makes his or her principle domicile, and the address to which the person intends to return, following any temporary absence, such as a vacation. Residence is evidenced by actual daily physical presence, use and occupancy of the primary residence, and the use of the residential address for domestic purposes, such as, but not limited to, slumber, preparation of meals, package delivery, vehicle and voter registration, or credit and utility billings. For purposes of this Section, a person shall have only one primary residence. (b) Cultivation restrictions. It shall be unlawful for any person to cultivate, attempt to cultivate, or in any way cause, allow, or permit the cultivation of marijuana in violation of any of the following: plants for either medical or recreational purposes or to engage in any activity in violation of the following restrictions: (1) Marijuana establishments. It shall be unlawful for any person to operate, cause to be operated, or permit to be operated within the city a marijuana establishment, as defined in Section 42-702, without a valid license(s) issued by the city pursuant to Chapter 42, Article X, or any of the following as defined in Section 18-901: marijuana cultivation facility, marijuana product manufacturing facility, medical marijuana-infused products manufacturing, or medical marijuana optional premises cultivation operation. (2) Marijuana use facilities. It shall be unlawful for any person to operate, cause to be operated, or permit to be operated within the city a marijuana use facility or medical marijuana use facility, as defined in Section 18-901, whether or not for profit, and regardless of organizational or ownership structure, a primary or significant purpose or characteristic of which is permitting or facilitating on-premises consumption or preparation of medical marijuana or medical marijuana products or on-premises cultivation or processing of medical marijuana. (13) Cultivation location. Primary residence. Marijuana plants shall be cultivated, produced, processed and possessed only within the responsible person s primary residence or within a detached accessory structure on the lot where the primary residence is located. It shall be unlawful for any person to cultivate, produce, process or possess marijuana plants on any property other than a lot developed with a single-family detached dwelling 6
unit or manufactured home.subject to all other restrictions in this Article, marijuana may only be cultivated within a person s primary residence or detached accessory structure on the lot where the primary residence is located, and only on a lot developed with a single-family detached dwelling unit or manufactured home. Marijuana shall not be cultivated in any garage, whether attached or detached, any kitchen, bathroom, or any room concurrently used for the purpose of sleeping. Marijuana shall not be cultivated outdoors. (4) Restrictions on cultivation locations. No garage, whether attached or detached, shall be used for the cultivation, production, processing or possession of marijuana plants. A kitchen, bathroom, or room concurrently used for the purpose of sleeping shall not be used for indoor marijuana cultivation. (25) Maximum number of plants. A person who may lawfully cultivate marijuana within his or her primary residence or detached accessory structure on a lot developed with a single-family detached dwelling unit or manufactured home shall not cultivate more than six marijuana plants anywhere on the lot. In no event shall more than twelve marijuana plants of any size, or six mature, flowering plants, be cultivated anywhere on the lot regardless of the number of persons over the age of 21 or qualified patients or care-givers who reside at the primary residence. or kept within a single-family detached dwelling unit or manufactured home or upon the same lot as the singlefamily detached dwelling unit or manufactured home. The limits in this subsection (4) apply regardless of the number of qualified patients or caregivers or persons otherwise allowed to possess or grow marijuana for medical or personal use who reside in the dwelling unit. (36) Maximum area for cultivation. a. No person shall cultivate marijuana inside any authorized primary residence in an area exceeding 32 square-feet or exceeding a height of ten feet. b. No person shall cultivate marijuana in a detached accessory structure in an area exceeding 50 square-feet or exceeding a height of ten feet. (47) Secure area required. Marijuana shall only be cultivatedthe cultivation area for personal or medical marijuana shall be in an enclosed locked space within the primary residence or detached accessory structure, and must not be accessiblethat is inaccessible to anyone under the age of 21. No marijuana shall be grown outside. For purposes of this subsection (47), a hoop house or greenhouse shall not be considered an enclosed, locked space. An enclosed locked space shall mean an area having walls and a 7
roof constructed of solid materials, able to be locked either combination lock or lock and key, so as to prevent unauthorized entry. (58) Lighting. No person shall use lighting for the indoor cultivation of marijuana other than light emitting diodes (LED), compact fluorescent lamps (CFL) or fluorescent lighting. All high intensity discharge (HID) lighting, including but not limited to, mercury-vapor lamps, metal-halide (MH) lamps, ceramic MH lamps, sodium-vapor lamps, high-pressure sodium (HPS) lamps and xenon short-arc lamps are prohibited. (6) Chemicals. No person shall store chemicals of any kind used in the cultivation of marijuana inside any dwelling unit. (79) Extractions and solvents. No person licensed pursuant to Article 43.3 or 43.4 of Title 12, C.R.S. shall use any compressed, flammable gas as a solvent or use any flammable or any combustible liquid for the extraction of tetrahydrocannabinol (THC), or tetrahydrocannabinolic acid (THCA), or any other cannabinoid from marijuana anywhere in the city. All persons not licensed pursuant to Article 43.3 or 43.4 of Title 12, C.R.S. shall be subject to state law regarding the manufacture of marijuana concentrate using an inherently hazardous substance. No person shall store chemicals used for marijuana cultivation inside any dwelling unit. (810) Ventilation and sensory impact. Any indoor marijuana cultivation area shall include a ventilation and filtration system designed to ensure that odors from the cultivation are not detectible beyond the property line. Marijuana growth shall not result in odors, smells, fragrances or other olfactory stimuli or result in light pollution, glare or brightness which interferes with the use and enjoyment of another person's home or other private property. (9) Sensory impact. Marijuana growth shall not result in odors, smells, fragrances or other olfactory stimuli or result in light pollution, glare or brightness which interferes with the use and enjoyment of another person s home or other private property. (1011) Compliance with other codes required. No person shall cultivate marijuana in any primary or accessory structure authorized to cultivate any type of marijuana without complying with applicable building, fire, plumbing, electrical, or mechanical codes as adopted and amended by the city and all applicable zoning codes, including but not limited to, lot coverage, set-back, and height requirements. (c) Affirmative defenses (1) It shall be an affirmative defense to prosecution under subsection (b)(2) if a person is cultivating up to a maximum of twelve marijuana plants and the 8
person is in possession of a valid registry identification card issued by the Colorado Department of Public Health and Environment authorizing the medical use of marijuana at the time of the alleged offense. (2) It shall be an affirmative defense to prosecution under subsection (b)(47) that the cultivation area for medical marijuana is accessible to a person under the age of 21 if such person is a primary care-giver, as defined in the Colorado Constitution, or if such person is in possession of a valid registry identification card issued by the Colorado Department of Public Health and Environment authorizing the medical use of marijuana at the time of the alleged offense, issued by the Colorado Department of Public Health and Environment. 3. If any portion of this ordinance is held to be unconstitutional or invalid for any reason, such decision shall not affect the constitutionality or validity of the remaining portions of this ordinance. City Council hereby declares that it would have passed this ordinance and each part hereof irrespective of the fact that any one part be declared unconstitutional or invalid. 4. All other ordinances or portions thereof inconsistent or conflicting with this ordinance or any portions hereof are hereby repealed to the extent of such inconsistency or conflict. 5. The repeal or amendment of any provision of the Code by this ordinance shall not release, extinguish, alter, modify, or change in whole or in part any penalty, forfeiture, or liability, either civil or criminal, which shall have been incurred under such provision, and each provision shall be treated and held as still remaining in force for the purpose of sustaining any and all proper actions, suits, proceedings, and prosecutions for the enforcement of the penalty, forfeiture, or liability, as well as for the purpose of sustaining any judgment, decree, or order which can or may be rendered, entered, or made in such actions, suits, proceedings, or prosecutions. 6. This ordinance shall take effect upon final passage. INTRODUCED, READ, PASSED on first reading, ordered posted in full, and title ordered published by the City Council of the City of Thornton, Colorado, on, 2018. PASSED AND ADOPTED on second and final reading on, 2018. 9
CITY OF THORNTON, COLORADO Heidi K. Williams, Mayor ATTEST: Kristen N. Rosenbaum, City Clerk THIS ORDINANCE IS ON FILE IN THE CITY CLERK S OFFICE FOR PUBLIC INSPECTION. APPROVED AS TO LEGAL FORM: Luis A. Corchado, City Attorney PUBLICATION: Posted at City Hall, Margaret W. Carpenter Recreation Center, and Thornton Active Adult Center after first and second readings. Published on the City s official website after first reading on, 2018, and after second and final reading on, 2018. 10