Pitkin County marijuana shops question sales restrictions

Michael McLaughlin
The Aspen Times
Aspen Roaring Fork Wellness employee Greg Gissler and shop manager Kerry Weber prepare some medical marijuana for a patient on Friday. The business also offers yoga classes and massages, but can't sell products for those services because of county marijuana regulations.
Michael McLaughlin/The Aspen Times |

On July 9, Pitkin County commissioners adopted new medical marijuana licensing regulations into the county code. Before the adoption, Kerry Weber, a certified yoga instructor and manager at Aspen Roaring Fork Wellness in Basalt, asked the board to reconsider a section addressing facilities requirements.

Weber said she’s concerned about the regulation restricting the sales of any products other than marijuana or marijuana-infused products at a medical pot dispensary. The same regulation applies toward recreational marijuana sales in the county. In other words, the county forbids the sale of paraphernalia, T-shirts and other retail items at medical and recreational marijuana stores.

“We’re a full wellness center,” Weber told the commissioners. “We offer yoga, massage, aromatherapy and different services. We focus on the whole wellness of our patients. This article would inhibit that. It would impose an inconvenience on our patients because they won’t be able to get the services we provide in addition to the medical marijuana.”

The board then clarified that the Wellness Center could offer services, but not retail items such as oils, yoga mats or pot paraphernalia.

Weber’s clarification highlighted a dilemma the county marijuana shops currently face. The county wording does not allow for the sale of any products other than marijuana, so both the Aspen Roaring Fork Wellness Center in Basalt, and Stash, located in the Aspen Business Center, can’t sell any paraphernalia that could allow their customers to smoke what they buy, or any other retail products.

During the July 9 meeting, Commissioner Rob Ittner said the county regulation was put in place so there wouldn’t be all sorts of paraphernalia that brought kids and other people into those shops. The board agreed they didn’t want to see other products driving traffic to marijuana outlets.

Commissioner Rachel Richards said she’s been wondering if the board is being too unduly restrictive. Commissioner Michael Owsley then reminded the board that he brought up the idea of having strictly marijuana being sold at these shops.

Owsley pointed out that selling only marijuana is analogous to liquor stores in other states that just sell liquor. He said those liquor stores don’t sell cigars or T-shirts because the sale of liquor is regarded as a very serious business and it has negative effects on the community.

“In this case, marijuana is new to this state,” he said. “Some people have grave doubts whether marijuana should be for sale, but it is. I don’t think, personally, it should be confused with T-shirts, with oils, with balloons, with games, with anything. It’s a serious business that has serious consequences for adults, for law enforcement, for children. By keeping it separate we make the statement about how serious we take the sale of marijuana. I would be strongly in favor of leaving (the section in question) as is to show people we’re serious about the sale of marijuana. Make no mistake, you’re not going to walk out of there with knick-knacks and some dope.”

The commissioners decided to leave the section as it is.

In the city of Aspen, paraphernalia sales are allowed as long as they’re kept separate from marijuana sales.

Lance Clarke, the assistant director of Pitkin County Community Development, said the Wellness Center in Basalt is in an area that is zoned residential, but the business is in an existing legal, non-conforming use. Clarke said that since the previous types of uses that had been in that building had offered various wellness services, the county interpreted that medical marijuana would be a continuation of a legal, non-conforming use and therefore would be allowed there.

“We also told (Wellness Center) that they needed to be doing more than just selling weed,” Clarke said. “We told them they should try to maintain the continuation of the similar non-conforming uses that were in there before and make available other types of wellness activities. To my knowledge, they’re not selling bongs and T-shirts and things like that, and I don’t think they don’t want to, but my answer would be they couldn’t under the existing regulations.”

There had been some paraphernalia available at the Wellness Center. But after the July 9 commissioners meeting, Weber removed all paraphernalia from the Aspen Wellness shop until she hears back from the county.

Weber said she’s sending a letter to the commissioners seeking clarity on the selling of items other than marijuana.

“It’s challenging to tell my patients I can’t help them get a pipe or something to use their medicine with,” she said. “It would be nice to be able to supply them with everything they need because a big value of our medical patients is privacy. They don’t want to have to show their face in a smoke shop. At the very least, I’d like a grace period to sell whatever products we have in stock. That would be nice.”

Stash, located at the Aspen Business Center, is also a county-regulated business. Stash has been at the business center for three years and had offered marijuana paraphernalia to its customers. After the shop changed from a medical outlet to a full recreational marijuana shop, Garrett Patrick, the owner, stopped selling all items other than marijuana products. He’s now waiting to see if the county commissioners offer any options to possibly allow county shops to sell paraphernalia again.

Patrick has discussed the paraphernalia issue with County Attorney John Ely and was under the impression that if a shop keeps the sale of marijuana separate from the sale of other items, that would be compliant.

“It’s not explicit,” Ely said. “In the course of the licensing of the facility there would a requirement that there’s a separation. The degree of the separation is not specifically described so that the licensing authority, which is the Clerk’s Office and the BOCC, can determine what’s appropriate on a site-by-site basis.”

Patrick said he heard what the commissioners said about keeping minors away from pot sales, but he doesn’t understand the concern since nobody can enter Stash without proper identification proving they’re at least 21 years old.

“I also went to a local liquor store to see what they sell,” Patrick said. “They had cigarettes, coolers, mixers, water. They sell a lot more than just alcohol.”

Clarke said the business center does not allow retail sales of products. It allows marijuana sales because the county interpretation is that marijuana is more closely associated with a drug or liquor store and both are allowed in the business center.

“You can’t have a Walgreens or a Gap store in ABC,” he said. “Retail sales are not an allowed use. Even if the sales of T-shirts or bongs were separate and distinct, it really would not be allowed in that zoned district. It’s up to the board to determine what level of ancillary sales to a marijuana establishment constitutes a separate use that would or would not be allowed based in the zoning district.

It’s a little bit of a conundrum because if it is, as Ely says, separate and distinct, it isn’t an allowed use because retail sales are not allowed in the ABC. If it’s totally ancillary to the allowed use, then it might be allowed if the board thinks the level is appropriate. It seems to me at some point the board is going to have to deal with some of these gray areas,” Clarke said.

Weber said she understands the laws are new and there’s going to be some adjustments with them as time goes by.

“The laws are changing all the time, and there’s a lot of bureaucracy we’re dealing with,” Weber said. “If these are the hoops we have to jump through to prove to the rest of the world that cannabis is something that’s safe to use and regulate, then it’ll all be worth it in the end.