Gunnison County moves to ban all medical marijuana

Prohibition to be in place until legal issues are resolved

Gunnison County’s moratorium on medical marijuana (MMJ) operations has turned into an all-out ban until the dust settles around the state’s rulemaking process, which is supposed to conclude March 1.

The Gunnison Board of County Commissioners made the prohibition official with a resolution passed unanimously on Tuesday, February 15.
The state’s formal rulemaking process got under way this month. County attorney David Baumgarten read from the relevant statute to inform the Board of County Commissioners that they had better move before being moved by the state.
The statute says, “the operation of this article, which is the article about medical marijuana, shall be statewide unless a local government… votes to prohibit the operation of medical marijuana centers…”
Baumgarten told the commissioners, “A fair reading of the sentence says that you have to act to choose to prohibit and if you don’t, the operation of the statute is statewide and therefore affirmatively folks can operate.”
And act is just what the commissioners did Tuesday, passing a resolution to prohibit the “establishment or operation of medical marijuana centers, medical marijuana optional premises cultivation operations and medical marijuana infused products manufacturing in unincorporated Gunnison County…”
The prohibition leaves room for the county to amend the resolution whenever it chooses; it’s been suggested that the MMJ matter could be put to a vote in November.
The statute also allows local governments to adopt rules and regulations more stringent than the state’s, but Baumgarten thinks that caveat could cause problems if grow and infused product operations are allowed to open under state rules and then later forced to abide by stricter, local rules. “That, I think, is going to be subject to a legal challenge,” he said.
Over a year ago the county imposed a moratorium on the operation of medical marijuana dispensaries as well as on grow and infused product operations because of what Baumgarten and the commissioners saw as uncertainty in the way the state constitution dealt with the MMJ issue.
Six months later, with a lot of lingering questions, the commissioners extended the moratorium until the state had finished its rulemaking.
The county never planned on aiming its rules at limiting the number of caregiver-patient relationships operated in the unincorporated county, as they were originally written into the state’s constitution.
Taking the position that marijuana dispensaries are akin to retail operations and better suited to the municipalities, the Board of County Commissioners has suggested opening the door only in unincorporated parts of the county to grow and infused product operations.
The city of Gunnison had, and still has, a moratorium in place and is moving toward a prohibition until the MMJ issue can be put to a vote. Mt. Crested Butte has also said it has no interest in hosting any part of the MMJ industry. So the town of Crested Butte remains the last stronghold, where only dispensaries have been allowed to open, while grow operations have been sent elsewhere.
With state law requiring that the location of grow operations not be made public, the county is in a bind, since it has a process of approving such land use changes that involves a public hearing.
And there are still inconsistencies, according to Baumgarten, in the orders handed down by the state. He said there could be the potential for a gap between the effective date of the state’s rules, March 1, and the July 1 deadline given to local governments for enacting a prohibition. Seeing a shift in either date to take care of the problem is doubtful, he said.
But the corrective Massey-Steadman bill (HB 11-1043) could fix a few of the problems that are being pointed out in the Colorado Medical Marijuana Code, including the requirement that the location of grow operations be kept confidential.
Commissioner Hap Channell also heard recently at a Colorado Counties Incorporated (CCI) briefing on the bill that, if adopted, it would fix the lag in time brought up by Baumgarten by requiring that people wait until July 1 to get a license, even though the rules go out in March.
Baumgarten also told the commissioners the move at the state level to strike the old legislation and replace it with new language was successful, even if it didn’t fix all of the problems. But it did take the law from a confusing 45 pages to a less confusing 10 pages.
And, as Baumgarten pointed out, until any new bill is adopted by the state legislature, privacy and inconsistent timelines prevail.
Commissioner Paula Swenson moved toward prohibiting MMJ operations in the county for fear of being swept up in the state’s rules. “It seems like if we don’t act to keep our moratorium in place and act to prohibit then we can fall into the new state rules and not have a clue of what we’re supposed to be doing,” she said.
Baumgarten said, “The real question is, what do you do if you want to adopt rules of your own that are more strict and then try to apply them to a then-existing operation?”
Those aren’t questions the county will have to take up until it’s ready, with the prohibition firmly in place.