Q&A: Pitkin County attorney John Ely talks marijuana

With the Pitkin Board of County Commissioners halfway through its discussion on the proposed regulation for recreational marijuana licensing, The Aspen Times asked County Attorney John Ely to clarify a few of the issues.

Aspen Times: Is there a statewide set tax rate for selling retail or medical marijuana yet, and will the state of Colorado make as much money tax-wise on retail marijuana as it does on medical marijuana?

John Ely: Right now, both are subject to the 2.9 percent state sales tax, plus any additional local taxes. The Nov. 5 statewide ballot has Proposition AA on it that proposes a 15 percent retail marijuana excise tax — grower to retail — that would go toward school construction and a 10 percent retail marijuana sales tax — retail to customer — to pay for the retail regulatory structure. If AA passes, I’m pretty sure the state will make a lot more money through the retail marijuana taxes. There’s no plan to change the current medical marijuana taxes at this point.

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AT: Why wouldn’t the cultivation of marijuana be considered an agricultural activity?

JE: Right now, it is considered agricultural, as determined by the Pitkin County Community Development Department. The county can establish a zoning regulation as they see fit. They determined that growing marijuana is the same as growing anything else.

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AT: Odor impacts — has that ever been an issue for any other businesses other than a landfill?

JE: Not that I know of. When you grow a large amount of marijuana in one area, the odor of the plants is a very sweet, strong herbal smell. It’s really a courtesy because we don’t want to OK something that might be obnoxious to someone else.

AT: What about the lighting regulations? Are there current regulations in place?

JE: Yes. You can’t have outwardly facing lights on pretty much any building. You can have safety lighting, but you can’t have light pollution. The issue with indoor growing lights is more to contain them, as they often need to be on for 24-hour periods.

AT: Will any establishment be able to apply for a license to sell marijuana? For example, will a supermarket be able to apply for a retail marijuana license? What about a large chain like Wal-Mart?

JE: Up to this point, the board hasn’t officially decided. But the dialogue has been if you sell retail marijuana, it’s going to be the sole selling item. In other words, only marijuana and marijuana-based products will be sold from a licensed location.

AT: Why is a public hearing necessary to apply for a retail marijuana license?

JE: The state allows it to happen with or without a public hearing. The county is leaning towards a required public hearing so neighborhoods will know if a license if being considered. They can then participate in the public hearing.

AT: How much official sway does a caucus vote have concerning applying for any type of marijuana license?

JE: Officially, none — a caucus can give recommendations to elected officials. But as it sits now, the board is considering listening to and implementing caucus recommendations from anywhere between a year to a year-and-a-half period concerning marijuana licensing.

AT: One of the criteria to be considered when applying for a retail marijuana license is security. Are there any other businesses where security issues are considered as part of application criteria?

JE: No, but the board has heard enough people express concerns that retail marijuana could attract crime.

AT: What are the rules concerning a designated marijuana public smoking/consumption area, like a tavern for alcohol or a cigar bar?

JE: Something like that doesn’t need a license, depending on how the application is worded. But as of now, that type of establishment doesn’t need a retail marijuana license.

AT: How much retail marijuana will someone who lives outside of Colorado be able to buy in a 24-hour period, and with so many tobacco-smoking restrictions in place already, where would visitors be expected to smoke the marijuana?

JE: State law says out-of-towners will be able to purchase no more than 7 grams per transaction. As far as where they can smoke it, I’m not really sure. It won’t be allowed publicly, and most hotel and ski areas have strong no-smoking restrictions.

AT: Will mobile retail marijuana vehicles be permitted, similar to a food truck? Why or why not?

JE: No, because all retail licenses will be fixed to one location. You won’t be able to have anything moving around.

AT: What purpose would a time limitation of when retail marijuana can be sold serve?

JE: There are still a lot of people that have concerns with marijuana going from a completely illegal activity to a retail item. This is just a way to limit the initial activity.