Mt. Crested Butte close to pot shop ban

Large-scale cultivation to be addressed next

The Mt. Crested Butte Town Council is moving toward the prohibition of pot shops, with broad agreement among the council that the sale of recreational marijuana doesn’t fit in a resort town.

The matter of the recently voter-approved Colorado Amendment 64, which allows people 21 years old and older to possess and grow recreational marijuana—as opposed to the medical variety—was discussed at a work session Wednesday, December 19. The council gravitated toward adopting a revised version of the ordinance that passed two years ago, banning medical marijuana dispensaries in town.
“We’re sort of in the same spot we were in with medical marijuana,” councilman Gary Keiser said. “The selling of marijuana, whether it’s medical or non-medical, is not very consistent with a resort town. So I think it makes sense to move forward with adoption of the draft ordinance.”
Town attorney Kathy Fogo told the council there were three main challenges facing the town related to Amendment 64, which was passed by Colorado voters in November but won’t have any legislative backing until the middle of next year.
The first challenge is the enforcement of the provision in the bill, which will eventually become law, that allows people 21 years or older to possess up to an ounce of marijuana or to cultivate as many as six plants, with no more than three mature plants.
Councilman Chris Morgan was quick to point out that, despite the passage of state law, the federal government still considers marijuana to be a Schedule I Controlled Substance, akin to heroin or MDMA. “What might the federal government do?”
Fogo acknowledged that the feds still consider marijuana to be a Schedule I substance, but added, regarding Amendment 64, “You can’t be in violation of state law as a municipality but you can definitely be in violation of federal law as it stands right now. But prohibiting the retail and commercial aspects is not in violation of either state law or federal law.”
When asked about enforcing Amendment 64, Mt. Crested Butte police chief Hank Smith told the council, “I’ll offer you some perspective on federal enforcement: there is none.” He said his department knew a local person who was driving 20 kilos of medical marijuana to Alabama.
In trying to enlist the help of the feds, Smith found out that there isn’t any money to support the enforcement some people want.
But Smith noted his officers would be more of a presence in the Crested Butte Mountain Resort base area, ensuring people aren’t smoking pot in public, which is still illegal under the new law.
“In some respects this amendment makes it a little easier for us, because in the past any amount of marijuana was illegal. So we would seize it, write them a ticket, put it in the evidence locker, if somebody contested it we would have to go to court and then at some point we would have to destroy all of it,” Smith said. “It’s just a pain in the neck for us. In that respect it’s going to be easier for us. If they’ve got less than an ounce on them we can just tell them to go home and smoke it.”
People driving under the influence of marijuana are more of a concern for Smith, who is eager for the state to come up with actionable parameters for marijuana intoxication, so if his officers pull over someone who’s stoned, they can actually treat them as if they are driving under the influence.
“One of the biggest concerns I have with all of this … they did not pass a driving test while under the influence of marijuana,” Smith said. “It’s impossible to enforce right now and we know you can establish an objective test for that just like you have with alcohol … If you’re going to put a lot of energy into marijuana enforcement, that’s the first place it should be put, because that’s a threat to society generally.”
The second challenge presented by the bill is the commercial aspect of marijuana and whether or not to allow storefront retail shops or coffee shop-style establishments that want to offer a place for people to smoke or otherwise consume marijuana.
“There is specific authorization in the bill that allows municipalities to prohibit the retail or commercial aspects,” Fogo said.
One resident of the town asked the council if they would ever consider allowing “a private club kind of environment.” Fogo explained that there could be a club that catered to marijuana smokers in Colorado after the passage of Amendment 64, but that the council was considering an ordinance that would prohibit that from happening in Mt. Crested Butte.
On the topic of retail outlets, Smith said, “I can tell you that just about every officer I know would much rather deal with somebody who was stoned than somebody who was drunk, whether it’s driving or domestic disputes or whatever. Those people are much less aggressive than someone who is drunk. In that respect, I don’t want to advocate it, but it doesn’t create the problems for us that bars do, for instance. They’re a much worse environment for us.”
However the council felt retail marijuana establishments weren’t a good fit for town.
The final challenge facing the town, “and maybe the hardest one,” Fogo said, is related to private cultivation of marijuana that grows beyond just one person with a few plants at home. “What do you do if you have a residence with eight or 10 guys living there and all of a sudden you have 60 marijuana plants growing there?” Fogo asked.
To tackle that concern, Town manager Joe Fitzpatrick, Fogo and community development director Carlos Velado will continue meeting to discuss ways the town’s zoning code might be changed to address cultivation operations that might be bigger than the law anticipates.
“We don’t know how to control it yet. We’ve found some successful ordinances from other municipalities and it’s just a question of whether or not we want to go there and write the criminal code to go along with it so Hank [Smith] has a tool to use should we have problems,” Fitzpatrick told the council. “It just a question of how far you want to go, because it’s going to take time and money to create these ordinances.”
As Fitzpatrick pointed out, the issue isn’t an easy one and the council will have to direct staff on how they should proceed. Slowly, the state will start offering some direction, as the amendment requires the legislature to start drafting legislation in January 2013. The Department of Revenue has to adopt their rules related to marijuana by July 1 and then start processing business applications by October. By January of next year, the state will have to start issuing business licenses.
The last of the legislation related to the amendment won’t need to be enacted until July 2014. Until then, the closest thing to a law related to marijuana is on the medical side of the issue.
“There have been ways that municipalities have been successful in regulating medical marijuana, which is relatively similar to these rules,” Fogo said.
Fitzpatrick added, “We prohibited the medical marijuana stores, but we didn’t really get into the criminal aspects in town. So we have the opportunity to work on both things at the same time. While we’re drafting controls on your six plants we can also add controls on the medical marijuana side if the council is interested in going in that direction.”
He said the staff is looking at dealing with the potential impacts of Amendment 64 in two ways: first through the possible prohibition if retail or commercial establishments that sell marijuana, and second, through zoning changes that would address the concern that several people will grow marijuana in a house, leading to an unsafe situation.
“If you want to prohibit the commercial/retail side as a council, we can deal with that and we’ve got that ordinance ready to go,” Fitzpatrick said, pointing to the proposed ordinance in the council packet of materials. “If you want to delve into that next tier to address the criminal and zoning aspects,” that will be a more involved process, he said.
The council will consider adopting the ordinance banning marijuana retail and commercial establishments early next month and then will start exploring ways of safeguarding people and property against irresponsible or excessive marijuana cultivation, possibly through changes to the zoning code.