Pitkin County drops medical marijuana regs
June 9, 2011
ASPEN – Acting on advice from their attorney, who said adopting medical marijuana regulations would put county employees in the position of abetting the violation of federal drug laws, Pitkin County commissioners voted 4-0 Wednesday to reject the proposed rules.
With that action, the county will have no zoning regulations specifically aimed at the medical marijuana industry, including grow sites, dispensaries and manufacturing facilities for pot-infused products. The omission left Commissioner George Newman puzzled.
“You know, we don’t have zoning regulations for a variety of different illegal activities,” Ely assured him.
The county and other local jurisdictions in Colorado have until July 1 to establish their own regulations and licensing procedures for the medical marijuana industry, or to prohibit such facilities altogether. In jurisdictions that take no action, state standards will apply.
“The conduct that is contemplated in the statutes of Colorado is illegal,” Ely told commissioners. “I don’t think the county should be in the position of abetting the violation of federal law.”
While commissioners could adopt the regulations in order to further the national debate about whether marijuana should be illegal, asking county employees to issue licenses to marijuana businesses and enforce zoning laws related to medical marijuana puts them in a position of potential criminal liability, Ely said.
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“It’s a tough position to put an employee in,” he said.
“This is a fairly rare occurrence – that he tells us we might be doing something illegal,” said Commissioner Michael Owsley, urging his colleagues to follow Ely’s advice. Commissioner Jack Hatfield, attending a Colorado Counties Inc. meeting, was absent.
A state moratorium will prevent any new medical marijuana operations from opening until July 1, 2012, noted Lance Clarke, deputy director of community development for the county.
It’s difficult to know what will happen between now and then, but Ely predicted a “push-back” from the state over the county’s refusal to regulate the industry. The Colorado Department of Revenue wants local jurisdictions to issue licenses to the dispensaries and associated businesses, he said.
The county doesn’t currently issue business licenses of any kind, but in Aspen, where most of the local dispensaries are located, the city does license businesses.
The state had intended to license medical marijuana businesses after they received a license from a local jurisdiction, according to Clarke.
“I think the state is going to have to come up with a different system than they had planned,” he said, predicting other counties will also decline to get involved.
Commissioner Rob Ittner called for a follow-up discussion, though, on just what it will mean to let the state’s rules apply to the industry in Pitkin County.
“Where does that leave people? Where does that leave Pitkin County?” asked Commissioner Rachel Richards.
Though county zoning won’t specifically address medical marijuana, the zoning code does set restrictions on what sorts of businesses in general can operate in various places, Clarke said.
“You can’t run a restaurant in your single-family home on Red Mountain,” he said.
Existing businesses would be allowed to continue, according to Ely.
“We aren’t involved with enforcement of federal law,” he said before the meeting.
Though the state of Colorado has enacted laws to regulate medical marijuana, U.S. attorneys have warned that everyone from licensed growers to government entities that regulate the industry could face prosecution.
Individuals who are striving to comply with Colorado’s evolving laws in the operation of marijuana businesses could be exposed to prosecution, said Ely, noting raids that have occurred in other states.
“Quite simply, they are open to prosecution,” he said.
Whether the feds act is a matter of resources and inclination, Ely added.
Contacted after the county discussion, Billy Miller, a co-owner of local dispensary L.E.A.F. Aspen, said he is well aware of the predicament.
“I do worry about it,” he said. “It’s definitely a fear. It’s a discussion among anybody who’s in the business. The federal law could still bite us in the ass.”