City and County of Broomfield, Colorado CITY COUNCIL STUDY SESSION MEMORANDUM To: From: Prepared by: Mayor and City Council Charles Ozaki, City and County Manager William A. Tuthill III, City and County Attorney Meeting Date Agenda Item # March 15, 2016 4 Agenda Title Discussion of Marijuana Regulation Summary On November 6, 2012, voters approved Amendment 64 to the Colorado Constitution authorizing the personal possession and use of less than one ounce of marijuana and related accessories for persons twenty-one years of age or more. Amendment 64 also provided for the creation of a regulatory scheme by the Department of Revenue for the licensing and regulation of marijuana establishments which include marijuana cultivation facilities, marijuana testing facilities, marijuana product manufacturing facilities, and retail marijuana stores. The Amendment included a provision whereby a local government was given authority to regulate the time, place, manner, and number of marijuana establishments, or to completely prohibit marijuana establishments within its jurisdiction by ordinance or by an initiated or referred ballot measure. However, any ballot measure to ban the operation of marijuana businesses must be placed on the general election ballot in an even-numbered year. For historical perspective, 53.7% of Broomfield voters voted in the statewide election to approve the use of medical marijuana in 2000. In 2010, 58.54% of Broomfield voters approved an ordinance banning medical marijuana businesses in Broomfield. In November 2012, Amendment 64 allowing retail sales of marijuana was supported by 53.14% of Broomfield voters. In February 2013, Council adopted Ordinance No. 1966, prohibiting the operation of all marijuana establishments in the City and County of Broomfield until January 31, 2015. In September 2014, Council adopted Ordinance No. 2002, effectively extending the prohibition on marijuana establishments until January 31, 2017. Additional action would be required by Council to extend the prohibition. The current prohibition does not affect the rights of individuals over 21 to possess, grow, or use marijuana in Broomfield as otherwise permitted under either Amendment 64 or the constitutional amendment authorizing medical marijuana. Staff seeks direction from Council as to whether Council would like to pursue a permanent ban on marijuana businesses in Broomfield by means of either additional legislative action or a ballot question in the November 2016 election, or would prefer to adopt a regulatory and licensing scheme to allow for some level of marijuana business in Broomfield. Prior Council Action February 9, 2010 Council adopted Ordinance No. 1922 imposing a 180 day moratorium on medical marijuana uses. July 27, 2010 Council adopted Ordinance No. 1928 prohibiting the operation of medical marijuana businesses in Broomfield. This Ordinance was later referred to the voters by Resolution No. 2010-129 adopted August 31, 2010, and approved by voters. February 26, 2013 Council adopted Ordinance No. 1966 on second reading prohibiting the operation of marijuana establishments through January 31, 2015. September 9, 2014 Council adopted Ordinance 2002 on second reading extending the prohibition on the operation of marijuana establishments through January 31, 2017. Financial Considerations There is no impact on Broomfield s Long Range Financial Plan as there are no current revenues from marijuana establishments. Proposed Actions/Recommendations Staff is requesting direction as to what approach Council would like to have staff work on. Item 4 - Page 1
Continued Discussion of Marijuana Pursuant to Amendment 64 Page 2 BACKGROUND On November 6, 2012, voters in the state of Colorado approved Amendment 64 which allows both the personal use of marijuana for individuals 21 years of age or older and the lawful operation of marijuana related facilities. Amendment 64 added a new section to Article XVIII of the Constitution of the state of Colorado. Part three thereof establishes that the personal use of marijuana by a person 21 years of age or older shall not be an offense under Colorado law or the law of any locality within Colorado. Specifically, this allows for the possession, use, display, purchase or transport of marijuana accessories, up to one ounce of marijuana, no more than six marijuana plants with three or less being mature, flowering plants, and the marijuana produced by the plants on the premises where the plants were grown, provided that the growing takes place in an enclosed locked space, is not conducted openly or publicly, and is not made available for sale. The personal use provision expressly provides that nothing therein shall permit consumption that is conducted openly and publicly or in a manner that endangers others. Though federal law still prohibits both the medicinal and recreational use of marijuana, there is no opt-out provision available to local governments with regard to the personal use provisions of Amendment 64. Amendment 64 made it lawful to operate a marijuana establishment, which is defined to include a marijuana cultivation facility, marijuana product manufacturing facility, marijuana testing facility, or retail marijuana store. However, Section 5(f) of Section 16, Article XVIII of the Constitution of the state of Colorado provides in relevant parts as follows: A locality may enact ordinances or regulations, not in conflict with this section or with regulations or legislation enacted pursuant to this section, governing the time, place, manner and number of marijuana establishment operations. A locality may prohibit the operation of marijuana cultivation facilities, marijuana product manufacturing facilities, marijuana testing facilities, or retail marijuana stores through the enactment of an ordinance or through an initiated or referred measure; provided, any initiated or referred measure to prohibit the operation of marijuana cultivation facilities, marijuana product manufacturing facilities, marijuana testing facilities, or retail marijuana stores must appear on a general election ballot during an even numbered year. Amendment 64 required the Colorado Department of Revenue to adopt regulations for the taxation, licensure, and safe operation and use of marijuana and marijuana establishments. To this end the Colorado General Assembly enacted the Colorado Retail Marijuana Code, C.R.S. 12-43.4-101 et seq., effective May 28, 2013. In addition, the Colorado Department of Revenue has adopted lengthy Retail Marijuana Rules which have been codified at 1 CCR 212-2. Pursuant to Amendment 64 and the Colorado Retail Marijuana Code, any local jurisdiction may enact ordinances or regulations governing the time, place, manner, and number of retail marijuana Item 4 - Page 2
Continued Discussion of Marijuana Pursuant to Amendment 64 Page 3 establishments, which may include a local licensing requirement, or may prohibit the operation of retail marijuana establishments through the enactment of an ordinance or through a referred or initiated measure. C.R.S. 12-43.4-104(3). In November of 2012, voters in Broomfield approved Amendment 64 in roughly the same proportion that they approved the use of medical marijuana in 2000. Amendment 64 passed among Broomfield residents by 53.14%. City Council first considered alternatives for addressing Amendment 64 at a study session on December 4, 2012. After discussion, Council directed staff to prepare a draft ordinance that would prohibit all marijuana establishments in the City and County of Broomfield, subject to a sunset provision. Ordinance No. 1966, approved on February 26, 2013, temporarily prohibited all marijuana establishments in Broomfield, including marijuana cultivation and testing facilities, marijuana product manufacturing facilities, and retail marijuana stores. The Ordinance included a sunset provision that would have caused the Ordinance to expire on January 31, 2015, unless other legislative action was taken to extend the prohibition. On September 9, 2014, Council adopted Ordinance No. 2002, which effectively extended the prohibition to January 31, 2017. Prior to the legalization of recreational marijuana in Colorado, medical marijuana was made legal in 2000. At that time 53.7% of Broomfield voters voted in the statewide election to approve the use of medical marijuana. In 2010, Council first adopted a temporary moratorium on medical marijuana businesses and later an ordinance prohibiting the operation of medical marijuana businesses in Broomfield. This prohibition was referred to the voters in the November 2010 election and 58.54% of Broomfield voters approved the ordinance banning medical marijuana businesses. On a related note, the Colorado Department of Revenue statistics indicate that there are currently 1,049 patients in Broomfield on the medical marijuana registry. The language of the Broomfield Municipal Code prohibiting medical marijuana businesses specifically prohibits medical marijuana centers, optional premises cultivation operations, and marijuana-infused products manufacturing operations. The Department of Revenue regulations provide for testing of medical marijuana and medical marijuana infused products through retail marijuana testing facilities that hold an occupational license for medical marijuana testing and research. This is the only manner by which testing of medical marijuana is provided for in the regulations. Unfortunately, the regulations do not define research, nor do the regulations refer to medical testing and research as they relate to potential benefits or side effects of marijuana. Rather, the regulations regarding testing focus on testing for toxins and other impurities, to measure and identify potency, and to ensure adequate labelling. The state legislature has approved a Medical Marijuana Research Grant Program. A listing of current grants for medical research is Attachment 1. Department of Revenue regulations are consistent in prohibiting any on-premises use of marijuana or marijuana products for all types of licensees. By this prohibition, the regulations prohibit controlled medical testing where patients are provided marijuana or Item 4 - Page 3
Continued Discussion of Marijuana Pursuant to Amendment 64 Page 4 related products from the testing facility or other marijuana business. As research is not defined or described in the regulations, it is not entirely clear whether retail testing facilities that hold an occupational license for medical testing and research are permitted to complete medical testing related to the effects of marijuana on animal subjects, but it does not appear to be prohibited. OPTIONS REGARDING MARIJUANA ESTABLISHMENTS Current options include the following: One Allow the current ban to expire. Do not adopt any local regulations. Two - Allow the current ban to expire. Adopt local regulations which could include a licensing scheme and any restrictions Council desires regarding the number of facilities to be located in the City and County and any location restrictions such as distance from schools, child care facilities, or certain business areas within the city. State regulations governing medical marijuana businesses require buffers between such businesses and schools, child care facilities, or other types of uses. However, the State regulations for recreational marijuana establishments do not include those restrictions. As such, the City and County would need to determine and implement any such desired regulations on a local level. Three Amend the current prohibitions to allow certain types of marijuana businesses. For example, Council could allow testing facilities and manufacturing, but not retail sales or grow operations. Again, if some businesses are allowed, consideration should be given to whether a local regulatory or licensing scheme is desired. Four Extend the current ban, or make it permanent. Five Place a question on the November ballot as to whether the ban should be extended. Item 4 - Page 4
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