County places a moratorium on medical marijuana dispensaries

Commissioners wait for direction from state

Medical marijuana regulation in Colorado has fallen into a pattern: some counties and municipalities allow medical marijuana dispensaries as a ready source of revenue, and others issue a moratorium on the operations, either indefinitely or until further research can be done.

With a vote of the Board of County Commissioners on Tuesday, December 15, Gunnison County joined the latter camp, approving a “temporary prohibition on the construction, alteration, or use of any building [in unincorporated Gunnison County] for medical marijuana dispensaries and/or growing operations for a period not to exceed six months.”
But this wasn’t a statement about the county’s feelings about the merits of medical marijuana.
“I asked it be put on the agenda,” County Attorney David Baumgarten said. “But I wanted to make it clear that there is a reason I’m asking for it and there is not a reason I’m asking for it. This is not a discussion about the efficacy of medical marijuana. There is plenty of evidence to indicate that marijuana is a totally appropriate solution for some people with chronic or acute pain.”
Instead Baumgarten wrote the resolution ordering the moratorium because, in his interpretation of the law, the current Colorado constitution contains two statutes that allow and restrict medical marijuana.
But neither of the statutes addresses, let alone legalizes, medical marijuana dispensaries.
Baumgarten reinforced his position with a quote from an appeals court judge, written in a minority opinion from a court case involving a medical marijuana care provider in Boulder County from October 2009.
It reads, “The practical problem… is that the medical marijuana constitutional amendment adopted by the voters almost 10 years ago, essentially closes its eyes to the reality that qualified patients, along with his or her primary caregiver, must somehow engage in the initial transaction to acquire the marijuana from someone who is not protected from criminal prosecution.”
Baumgarten said he agrees with the judge’s conclusion that the amendment poses “a bizarre practical anomaly” by allowing people who need marijuana to possess and even grow it. But in order to get their medicine, patients have to get their marijuana from a long chain that starts with an illegal supplier.
“To me, the crux of the issue is that the caregiver or someone who has a medical marijuana card are okay, but there is nothing in the amendment that decriminalizes the obtaining of the marijuana,” he said.
The county attorney’s office was inundated several weeks ago with calls from people wondering how the county was going to approach the medical marijuana issue. Before making a decision on the matter, Baumgarten hopes to get some direction from the state.
State Senator Chris Romer is currently looking for sponsors for a bill that could clear up the confusion created by Amendment 20—the Medical Use of Marijuana Act—passed by voters in 2000 by asking legislators to clarify the intention of voters when they passed the law. That bill could be taken up by the state legislature in the next session, which closes in May 2010.
The moratorium passed by the BOCC will run concurrently with the state’s legislative session. Commissioner Hap Channell said that’s no coincidence.
“I think the moratorium is appropriate,” he said. “Really, what we’re asking for in a moratorium is time—time to educate, time to clarify. It seems to me that we have some hopes attached to the upcoming legislative session and I think that should be in the resolution.”
Commission chairperson Paula Swenson said while some direction from the state would be nice, many of the solutions for dealing with medical marijuana dispensaries that counties are using involve limiting their location to certain areas.
“It would be nice if we could do that,” she said. “But there is no zoning mechanism in the [county’s] Land Use Resolution at this point.”
The moratorium, however, doesn’t address medical marijuana care-giving operations that are currently operating in the county. One anonymous caregiver attended Tuesday’s meeting to ask the county attorney what the moratorium meant for her.
“What about things that have been set up prior to today?” she asked. “I’m a current business owner and have been operating in Gunnison County and I’ve placed ads for an event this Friday. How does that affect my situation?”
Baumgarten responded, saying, “I would be very cautious about identifying who you are and what’s going on, because in my opinion dispensaries are currently illegal.”
The anonymous caregiver later said she would consider changing the nature and name of her business to something more ambiguous or that would remove her from legal liability. But the moratorium that prohibits her current business from operating took effect immediately.