HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 11/17/2009 - EMERGENCY ORDINANCE NO. 128, 2009, IMPOSING A MORA DATE: November 17, 2009
STAFF: Darin Atteberry
Steve Roy
Emergency Ordinance No. 128, 2009, Imposing a Moratorium on the Acceptance of Applications for the Issuance of
Licenses or Permits Related to Businesses That Seek to Dispense Medical Marijuana and on the Establishment of
Such Businesses in the City.
EXECUTIVE SUMMARY
The City has recently seen a proliferation of medical marijuana dispensaries ("MMDs")within its boundaries, some
of which are operated as "home occupations" in zone districts that are primarily residential in character. As of
November 9, 2009, twenty-six such businesses had been issued sales tax licenses by the City, twelve of which have
been issued in the last month, and City staff continues to receive inquiries from persons interested in establishing
additional such businesses at the rate of approximately ten per week.
Fort Collins Police Services has serious concerns about the secondary effects of MMDs. Staff has held a number of
meetings to discuss this issue and, on November 5, 2009, the City Manager, City Attorney, Chief of Police, Planning
Director and members of their respective staffs met with their counterparts from Larimer County and the City of
Loveland to discuss a coordinated approach to dealing with MMDs. Because court rulings and regulations at the state
level are rapidly changing with regard to MMDs and because there is a strong possibility that the state legislature will
address this subject during its upcoming legislative session,City staff recommends that the City Council impose a ten-
month moratorium on MMDs, by means of this emergency ordinance,until the laws and regulations that govern MMDs
are clarified and until the City has had an opportunity to determine how best to deal with them at the local level in the
event that statewide regulations prove to be inadequate.
This moratorium would maintain the status quo in that those MMDs that have been established would be allowed to
continue to operate unless, under current law, they are illegal.
BACKGROUND/ DISCUSSION
The origin of MMDs in Colorado.
The reason that MMDs have come into existence is that, in November of 2000, the voters of the state of Colorado
approved a constitutional amendment(the Amendment)that created an exception and an affirmative defense to the
state's criminal laws so that patients and their "primary care-givers" who are in lawful possession of a registry
identification card can possess and use a certain amount of marijuana for medical purposes. The presumptive amount
which is, by definition, "lawful" under the Amendment, is two ounces or six plants per patient. However, as an
affirmative defense to any prosecution, a person charged under state law may assert and prove that greater amounts
were"medically necessary."
The Amendment states that no person shall be entitled to the protection of the Amendment for acquisition,possession,
manufacture, production, use, sale distribution, dispensing or transportation of marijuana for any use other than
medical use.
The Department of Public Health and Environment (the "Department") is required and authorized under the
Amendment to maintain a confidential registry of patients who have applied for and are entitled to receive a registry
identification card. Local law enforcement officers can access the registry only if they have"stopped or arrested a
person who claims to be engaged in the medical use of marijuana and is in possession of a registry identification card
or its functional equivalent"and only for the purpose of verifying that the individual is lawfully in possession of the card.
The Amendment sets forth in detail the criteria and procedures for obtaining such a card. Patients may, but are not
required to, designate a primary care-giver.
November 17, 2009 -2- ITEM 21
The Amendment defines a primary care-giver as a person other than the patient and the patient's physician who is
eighteen years of age or older and who has a "significant responsibility for managing the well-being of a patient who
has a debilitating medical condition." However, the Amendment does not define the term "significant responsibility
for managing the well-being of a patient."
A combination of factors have led to an insurgence of MMDs in Colorado municipalities.
In the absence of a constitutional definition of this term, the rules made by the Department have largely determined
the extent to which the Amendment has provided a"safe harbor"for MMDs. Initially,there was limited growth on the
medical marijuana registry and in 2004,the Department created an administrative guideline that a primary care-giver
could provide for only five registered patients. In 2007, however, a Denver District Judge overturned this limitation
because of process concerns with the way the guideline had been adopted, including the fact that no public hearings
were conducted by the Department.After this ruling, more MMDs began to open in communities throughout the state.
In July of this year, the Department, through formal action of its Board following a public hearing, adopted a rule
defining the term significant responsibility for managing the well-being of a patient who has a debilitating medical
condition" that further opened the door to MMDs. It defined the term to mean "assisting a patient with daily
activities,including but not limited to transportation or housekeeping or meal preparation or shopping or making any
necessary arrangement for access to medical care or services or provision of medical marijuana." (Emphasis
added.)
This rule adopted by the Board suggested that MMDs that have little, if any,actual responsibility for managing the well-
being of patients could claim entitlement to the protection of the Amendment as primary care-givers. At its July
hearing, the Board not only revised the definition to include the provision of marijuana as a way of assisting a patient
with daily activities, but it also declined to limit primary.care-givers to a certain number of patients.
In addition, shortly after the Board hearing, the Obama administration announced that,even though the manufacture,
distribution, possession and use of marijuana is prohibited by federal law, federal law enforcement agencies should
not seek to prosecute marijuana cases in which the defendant is in compliance with states' medical marijuana
programs. This reduced the risk that a MMD would be raided by the Drug Enforcement Administration.
Finally, the state legislature has not tried to clarify or limit the extent to which MMDs fall within the protection of the
Amendment, which has led to an even larger influx of MMDs in Colorado.
In combination,these factors have created a huge growth in number of patients on the medical marijuana registry and
a blossoming industry for producing and distributing the drug.
In Fort Collins, the first sales tax license for a MMD was issued by the City on February 5, 2008,with a second issued
on July 28, 2008. There have been 24 more issued to date in 2009 (12 in the last month). It also appears that more
physicians have begun recommending marijuana to their patients and the number of written recommendations of
medical marijuana issued by those physicians has increased dramatically.As of August 17, 2009, 732 of the 17,142
physicians licensed in Colorado(4.3%)had made recommendations for medical marijuana. Two of those physicians
have written 38%of the recommendations, and the top 15 have made 76% of the recommendations.
Recent rulings are more limiting.
The Colorado Court of Appeals ruled in late October that"the act of supplying marijuana for medical use, by itself, is
insufficient to constitute significant management responsibility for a patient's well-being, and consequently is
insufficient to constitutionally qualify a person doing so as a"primary care-giver." People v. Stacy Clendenin,Colorado
Court of Appeals, announced October 29, 2009. However, the court did not address the question of whether the
Board's regulatory definition of the term"significant responsibility for manage the well-being of a patient"would have
changed its ruling because that definition was not in effect at the time of the defendant's trial and conviction in the case
before the court. On the heels of the Court of Appeals decision, the Board repealed its definition of "significant
responsibility for managing the well being of a patient" so as to be consistent with the court ruling. That decision of
the Board, like the 2004 administrative guideline, was subsequently overturned by the Denver District Court.
Therefore, at the present time, because of the conflict between the Court of Appeals decision and the Department
regulations, it is unclear whether MMDs must provide daily assistance to patients beyond just providing marijuana to
them. Hopefully,the courts,the Board or the state legislature will soon clarify what MMDs need to do in order to qualify
November 17, 2009 -3- ITEM 21
as "primary care-givers". In the meantime, City staff continues to have serious concerns about the unregulated
proliferation of MMDs in the City.
The health and safety problems presented by MMDs.
Police Services has identified a number of specific health and safety problems associated with MMDs. They include
the following:
1. Thousands of people who do not meet the intended definition of"debilitating medical condition"are receiving
certificates for medical marijuana. The number is growing too fast to obtain current statistics, but the number
may be approaching 20,000 registered patients. About 10% of the certificate holders reside in Larimer_
County.
2. There are no regulations regarding MMDs. The term"dispensary"is not defined at the state level. There are
no rules limiting the location, hours of operation, use on site, or criminal background of people who operate
MMDs. At least six of the MMDs in Fort Collins are in residential areas. In Loveland, there is a MMD
immediately next to a high school. Several of the Fort Collins MMD operators have arrest records for drugs
and other serious crimes, criminal histories, including felony convictions for marijuana cultivation and
distribution.
3. Due to the unregulated nature of MMDs and marijuana growing operations, and the quantity of money and
drugs involved, there is serious crime associated with them. There have been several violent robberies and
burglaries of MMDs and growers in Fort Collins. Many associated crimes go unreported because of the
potentially illegal actions of the victims.
4. A large amount of marijuana is being grown in residential houses and being imported from other areas to meet
this demand. There is no provision in the Amendment for third party producers; however, this is the manner
in which many MMDs obtain their supply to meet the recent demand. There has been damage to rental
properties and disruption to neighborhoods caused by these marijuana growing operations. There are also
hazards associated with electrical wiring coupled with high electrical demand of indoor growing operations,
air quality issues and mold and fungus that develops in these indoor grows. There are also no controls to
ensure that the marijuana grown and distributed underthe protective umbrella of the Amendment is consumed
by registered users. There have been local cases where medical marijuana has been distributed on the illegal
market and even to high school students.
5. There is no requirement that a business disclose that it is providing medical marijuana on its sales tax
application. While there are 23 businesses that have specifically listed it, Police Services believes that there
are other businesses that are dispensing marijuana under licenses listing products like horticulture supply,
paraphernalia and herbal medicine. Some MMDs may not have sales tax licenses at all. There is no way to
determine how many MMDs are actually operating in the City.
6. Investigating unregulated MMD's for possible criminal violations is extremely difficult. For example, there is
no requirement,as exists at liquor licensed establishments, that MMD operators allow police into their facility
to ensure that applicable laws are being followed. Some MMDs advertise popular music, game rooms and
smoking rooms where young users can"medicate"together. These look more like bars than medical facilities
with none of the regulatory framework.
7. The laws and regulations concerning MMDs at the state and federal levels are unsettled at best,with several
changes in the past few months.This makes it very difficult for Police Services to differentiate between legal
and illegal marijuana activity. There are also liability risks if perceived errors are made in this uncertain
environment. It is very difficult to create an enforcement strategy until these issues are resolved. In addition,
Police Services does not have adequate staffing to devote to these investigations. This contributes to the
completely unregulated nature of the marijuana business in the Fort Collins area. Depending on actions taken
at the state level,further regulation may be necessary at the local level to regulate this industry in accordance
with local values.
Possible Regulatory Approaches.
November 17, 2009 -4- ITEM 21
Colorado municipalities have taken a variety of approaches to addressing MMDs. Many have enacted ordinances
establishing a moratorium on MMDs pending further study. Long-term approaches range from adopting no local
regulations to imposing a total ban. Regulations include locational requirements (e.g., minimum distances from
schools or particular zone districts)as well as regulations limiting on-site quantities,signage,hours of operation,on-site
consumption etc. Some municipalities issue permits to MMDs and make the permits subject to suspension or
revocation much like a liquor license. Each of these approaches reflects a particular policy position with regard to
MMDs and each is designed to address certain perceived problems, such as their proximity to facilities that are
occupied or frequented by school age children, or the possibility that MMDs will serve as "fronts" for illegal drug
trafficking, etc.
Before City staff can make an informed recommendation to the City Council as to how to deal with MMDs,much needs
to be determined. First and foremost, the law needs to be clarified as to just what the Amendment allows and does
not allow. This clarification can come from eitherthe Board orthe state legislature or both. In addition,City staff needs
to investigate the most reasonable approach to dealing with MMDs at the local level. Finally, the City needs to
coordinate its efforts with Larimer County, Loveland and other neighboring municipalities so that the approach it adopts
takes into consideration the impact of the City's regulations on neighboring communities.
The recommended ten-month period of time should be sufficient to allow for the formulation of recommended
amendments to the City Code to deal with MMDs in the City. In the interim, staff believes that an adequate number
of MMDs already exist in the City to meet the intent of the Amendment at the local level.
FINANCIAL IMPACTS
• Potential sales tax and licensing revenues associated with MMD's during the Moratorium.
• Staff time and resources associated with research and potential code changes to address the use.
SUSTAINABILITY: ECONOMIC, ENVIRONMENTAL AND SOCIAL IMPACTS
Part of the purpose of this proposed moratorium is to understand the economic, environmental and social impacts
associated with MMD's. It is unclear as to the impacts MMD's as allowed by State Law would have on our community.
The economic impacts associated with regulating and enforcement is unknown as well as the impacts of not regulating
or enforcing them as a complete and unfettered allowance of the use may have economic impacts associated with
safety issues as the use and potential negative impacts enter into residential neighborhoods. The environmental
impacts are also unclear as there are potential issues associated with the varying scales of the MMDs. Finally, the
social impacts are also unclear as the absence of any regulatory criteria may.cause the residential character of
neighborhoods to decline and sensitive uses such as schools, places of worship, daycare facilities, etc could also be
impacted. The proposed moratorium will allow the City to review potential impacts and provide the City Council with
information to make an informed decision regarding the appropriate regulatory methods to address MMD's
STAFF RECOMMENDATION
For the foregoing reasons, City staff recommends that the City Council immediately adopt a ten-month moratorium
on the issuance of sales tax licenses for MMDs and on the establishment of such businesses in any zone district in
the City. On or before the termination date of the moratorium, staff will provide recommendations and proposed
legislation to the Council for dealing with MMDs.
ATTACHMENTS
1. Amendment 20
Statute 0-4-287 Page 1 of 5
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0-4-287 - ARTICLE XVIII - Miscellaneous Art. XVIII - Miscellaneous
0-4-287 -ARTICLE XVIII-Miscellaneous Art. XVIII - Miscellaneous
Section 14. Medical use of marijuana for persons suffering from debilitating medical conditions. (1)As used in
this section, these terms are defined as follows:
(a)"Debilitating medical condition"means:
(1) Cancer, glaucoma, positive status for human immunodeficiency virus, or acquired immune deficiency
syndrome, or treatment for such conditions;
(II)A chronic or debilitating disease or medical condition, or treatment for such conditions, which produces, for
a specific patient, one or more of the following, and for which, in the professional opinion of the patient's
physician, such condition or conditions reasonably may be alleviated by the medical use of marijuana:
cachexia;severe pain; severe nausea;seizures, including those that are characteristic of epilepsy;or
persistent muscle spasms,including those that are characteristic of multiple sclerosis;or
(III)Any other medical condition,or treatment for such condition, approved by the state health agency,
pursuant to its rule making authority or its approval of any petition submitted by a patient or physician as
provided in this section.
(b)"Medical use"means the acquisition, possession, production, use, or transportation of marijuana or
paraphernalia related to the administration of such marijuana to address the symptoms or effects of a patient's
debilitating medical condition,which may be authorized only after a diagnosis of the patient's debilitating
medical condition by a physician or physicians, as provided by this section.
(c)"Parent" means a custodial mother or father of a patient under the age of eighteen years, any person
having custody of a patient under the age of eighteen years,or any person serving as a legal guardian for a
patient under the age of eighteen years.
(d)"Patient" means a person who has a debilitating medical condition.
(e)"Physician" means a doctor of medicine who maintains, in good standing, a license to practice medicine
issued by the state of Colorado.
(f)"Primary care-giver"means a person, other than the patient and the patient's physician,who is eighteen
years of age or older and has significant responsibility for managing the well-being of a patient who has a
debilitating medical condition.
(g)"Registry identification card" means that document, issued by the state health agency,which identifies a
patient authorized to engage in the medical use of marijuana and such patient's primary care-giver, if any has
been designated.
(h)"State health agency"means that public health related entity of state government designated by the
governor to establish and maintain a confidential registry of patients authorized to engage in the medical use
of marijuana and enact rules to administer this program.
(i)"Usable form of marijuana"means the seeds, leaves, buds, and flowers of the plant (genus)cannabis,and
any mixture or preparation thereof, which are appropriate for medical use as provided in this section, but.
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Statute 0-4-287 Page 2 of 5
excludes the plant's stalks, stems, and roots.
0)"Written documentation"means a statement signed by a patient's physician or copies of the patient's
pertinent medical records.
(2) (a)Except as otherwise provided in subsections(5), (6), and (8)of this section, a patient or primary care-
giver charged with a violation of the state's criminal laws related to the patient's medical use of marijuana will
be deemed to have established an affirmative defense to such allegation where:
(1)The patient was previously diagnosed by a physician as having a debilitating medical condition;
(II)The patient was advised by his or her physician, in the context of a bona fide physician-patient
relationship, that the patient might benefit from the medical use of marijuana in connection with a debilitating
medical condition;and
(III)The patient and his or her primary care-giver were collectively in possession of amounts of marijuana only
as permitted under this section.
This affirmative defense shall not exclude the assertion of any other defense where a patient or primary care-
giver is charged with a violation of state law related to the patient's medical use of marijuana.
(b)Effective June 1, 2001,it shall be an exception from the state's criminal laws for any patient or primary
care-giver in lawful possession of a registry identification card to engage or assist in the medical use of
marijuana, except as otherwise provided in subsections (5)and (8)of this section.
(c) It shall be an exception from the state's criminal laws for any physician to:
(1)Advise a patient whom the physician has diagnosed as having a debilitating medical condition, about the
risks and benefits of medical use of marijuana or that he or she might benefit from the medical use of
marijuana, provided that such advice is based upon the physician's contemporaneous assessment of the
patient's medical history and current medical condition and a bona fide physician-patient relationship; or
(11) Provide a patient with written documentation, based upon the physician's contemporaneous assessment
of the patient's medical history and current medical condition and a bona fide physician-patient relationship,
stating that the patient has a debilitating medical condition and might benefit from the medical use of
marijuana.
No physician shall be denied any rights or privileges for the acts authorized by this subsection.
(d)Notwithstanding the foregoing provisions, no person, including a patient or primary care-giver, shall be
entitled to the protection of this section for his or her acquisition, possession, manufacture, production, use,
sale,distribution, dispensing,or transportation of marijuana for any use other than medical use.
(e)Any property interest that is possessed, owned,or used in connection with the medical use of marijuana or
acts incidental to such use, shall not be harmed, neglected, injured, or destroyed while in the possession of
state or local law enforcement officials where such property has been seized in connection with the claimed
medical use of marijuana.Any such property interest shall not be forfeited under any provision of state law
providing for the forfeiture of property other than as a sentence imposed after conviction of a criminal offense
or entry of a plea of guilty to such offense. Marijuana and paraphernalia seized by state or local law
enforcement officials from a patient or primary care-giver in connection with the claimed medical use of
marijuana shall be returned immediately upon the determination of the district attorney or his or her designee
that the patient or primary care-giver is entitled to the protection contained in this section as may be
evidenced, for example,by a decision not to prosecute, the dismissal of charges,or acquittal.
(3)The state health agency shall create and maintain a confidential registry of patients who have applied for
and are entitled to receive a registry identification card according to the criteria set forth in this subsection,
effective June 1,2001.
(a) No person shall be permitted to gain access to any information about patients in the state health agency's
confidential registry,or any information otherwise maintained by the state health agency about physicians and
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Statute 0-4-287 Page 3 of 5
primary care-givers, except for authorized employees of the state health agency in the course of their official
duties and authorized employees of state or local law enforcement agencies which have stopped or arrested
a person who claims to be engaged in the medical use of marijuana and in possession of a registry
identification card or its functional equivalent, pursuant to paragraph (e)of this subsection (3). Authorized
employees of state or local law enforcement agencies shall be granted access to the information contained
within the state health agency's confidential registry only for the purpose of verifying that an individual who
has presented a registry identification card to a state or local law enforcement official is lawfully in possession
of such card.
(b) In order to be placed on the state's confidential registry for the medical use of marijuana, a patient must
reside in Colorado and submit the completed application form adopted by the state health agency, including
the following information, to the state health agency:
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(1)The original or a copy of written documentation stating that the patient has been diagnosed with a
debilitating medical condition and the physician's conclusion that the patient might benefit from the medical
use of marijuana;
(11)The name, address, date of birth, and social security number of the patient;
(111)The name, address, and telephone number of the patient's physician; and
(IV)The name and address of the patient's primary care-giver, if one is designated at the time of application.
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(c)Within thirty days of receiving the information referred to in subparagraphs (3)(b)(I)-(IV), the state health
agency shall verify medical information contained in the patient's written documentation. The agency shall
notify the applicant that his or her application for a registry identification card has been denied if the agency's
.review of such documentation discloses that:the information required pursuant.to paragraph (3) (b)of this
section has not been provided or has been falsified; the documentation fails to state that the patient has a
debilitating medical condition specified in this section or by state health agency rule; or the physician does not
have a license to practice medicine issued by the state of Colorado. Otherwise, not more than five days after
verifying such information,the state health agency shall issue one serially numbered registry identification
card to the patient, stating:
(I)The patient's name, address, date of birth, and social security number;
(11)That the patient's name has been certified to the state health agency as a person who has a debilitating
medical condition,whereby the patient may address such condition with the medical use of marijuana;
(111)The date of issuance of the registry identification card and the date of expiration of such card,which shall
be one year from the date of issuance; and
(IV)The name and address of the patient's primary care-giver, if any is designated at the time of application.
(d) Except for patients applying pursuant to subsection (6)of this section,where the state health agency,
within thirty-five days of receipt of an application,fails to issue a registry identification card or fails to issue
verbal or written notice of denial of such application, the patient's application for such card will be deemed to
have been approved. Receipt shall be deemed to have occurred upon delivery to the state health agency, or
deposit in the United States mails. Notwithstanding the foregoing, no application shall be deemed received
prior to June 1, 1999.A patient who is questioned by any state or local law enforcement official about his or
her medical use of marijuana shall provide a copy of the application submitted to the state health agency,
including the written documentation and proof of the date of mailing or other transmission of the written
documentation for delivery to the state health agency,which shall be accorded the same legal effect as a
registry identification card, until such time as the patient receives notice that the application has been denied.
(e)A patient whose application has been denied by the state health agency may not reapply during the six
months following the date of the denial and may not use an application for a registry identification card as
provided in paragraph (3) (d)of this section.The denial of a registry identification card shall be considered a
final agency action.Only the patient whose application has been denied shall have standing to contest the
agency action.
(f)When there has been a change in the name, address, physician, or primary care-giver of a patient who
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Statute 0-4-287 Page 4 of 5
has qualified for a registry identification card,that patient must notify the state health agency of any such
change within ten days.A patient who has not designated a primary care-giver at the time of application to the
state health agency may do so in writing at any time during the effective period of the registry identification
card, and the primary care-giver may act in this capacity after such designation. To maintain an effective
registry identification card,a patient must annually resubmit, at least thirty days prior to the expiration date
stated on the registry identification card, updated written documentation to the state health agency, as well as
the name and address of the patient's primary care-giver, if any is designated at such time.
(g)'Authorized employees of state or local law enforcement agencies shall immediately notify the state health
agency when any person in possession of a registry identification card has been determined by a court of law
to have willfully violated the provisions of this section or its implementing legislation, or has pled guilty to such
offense.
(h)A patient who no longer has a debilitating medical condition shall return his or her.registry identification
card to the state health agency within twenty-four hours of receiving such diagnosis by his or her physician.
(i)The state health agency may determine and levy reasonable fees to,pay for any direct or indirect•
administrative costs associated with its role in this program.
(4) (a)A patient may engage in the medical use of marijuana,with no more marijuana than is medically
necessary to address a debilitating medical condition.A patient's medical use of marijuana, within the
following limits, is lawful:
(1)No more than two ounces of a usable form of marijuana;.and
(11) No more than six marijuana plants,with three or fewer being mature, flowering plants that are producing a
usable form of marijuana.
(b) For quantities of marijuana in excess of these amounts, a patient or his or her primary care-giver may
raise as an affirmative defense to charges of violation of state law that such greater amounts were medically
necessary to address the patient's debilitating medical condition.
(5) (a)No patient shall:
(1)Engage in the medical use of marijuana in a way that endangers the health or well-being of any person; or
(11) Engage in the medical use of marijuana in plain view of,or in a place open to,the general public.
(b) In addition to any other penalties provided by law,the state health agency shall revoke for a period of one
year the registry identification card of any patient found to have willfully violated the provisions of this section
or the implementing legislation adopted by the general assembly.
(6) Notwithstanding paragraphs (2) (a)and (3) (d) of this section, no patient under eighteen years of age shall
engage in the medical use of marijuana unless:
(a)Two physicians have diagnosed the patient as having a debilitating medical condition;
(b) One of the physicians referred to in paragraph (6)(a) has explained the possible risks and benefits of
medical use of marijuana to the patient and each of the patient's parents residing in Colorado;
(c)The physicians referred to in paragraph (6) (b) has provided the patient with the written documentation,
specified in subparagraph (3) (b)(1);
(d) Each of the patient's parents residing in Colorado consent in writing to the state health agency to permit
the patient to engage in the medical use of marijuana;
(e)A parent residing in Colorado consents in writing to serve as a patient's primary care-giver;
(f)A parent serving as a primary care-giver completes and submits an application for a registry identification
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card as provided in subparagraph (3)(b)of this section and the written consents referred to in paragraph (6)
(d)to the state health agency;
(g)The state health agency approves the patient's application and transmits the patient's registry identification
card to the parent designated as a primary care-giver;
(h)The patient and primary care-giver collectively possess amounts of marijuana no greater than those
specified in subparagraph (4)(a) (1)and (II); and
(i)The primary care-giver controls the acquisition of such marijuana and the dosage and frequency of its use
by the patient.
(7) Not later than March 1, 2001,the governor shall designate, by executive order,the state health agency as
defined in paragraph (1) (g)of this section.
(8) Not later than-April 30, 2001, the General Assembly shall define such terms and enact such legislation as
may be necessary for implementation of this section, as well as determine and enact criminal penalties for:
(a) Fraudulent representation of a medical condition by a patient to a physician,state health agency, or state
or local law enforcement official for the purpose of falsely obtaining a registry identification card or avoiding
arrest and prosecution;
(b) Fraudulent use or theft of any person's registry identification card to acquire, possess, produce, use, sell,
distribute,or transport marijuana, including but not limited to cards that are required to be returned where
patients are no longer diagnosed as having a debilitating medical condition;
(c) Fraudulent production or counterfeiting of,or tampering with,one or more registry identification cards; or
(d) Breach of confidentiality of information provided to or by the state health agency.
(9) Not later than June.1, 2001, the state health agency shall develop and make available to residents of
Colorado an application form for persons seeking to be listed on the confidential registry of patients. By such
date,the state health agency shall also enact rules of administration, including but not limited to rules
governing the establishment and confidentiality of the registry, the verification of medical information, the
issuance and form of registry identification cards, communications with law enforcement officials about
registry identification cards that have been suspended where a patient is no longer diagnosed as having a
debilitating medical condition, and the manner in which the agency may consider adding debilitating medical
conditions to the list provided in this section. Beginning June 1, 2001,the state health agency shall accept
physician or patient initiated petitions to add debilitating medical conditions to the list provided in this section
and, after such hearing as the state health agency deems appropriate, shall approve or deny such petitions
within one hundred eighty days of submission.The decision to approve or deny a petition shall be considered
a final agency action.
(10) (a) No governmental, private, or any other health insurance provider shall be required to be liable for any
claim for reimbursement for the medical use of marijuana.
(b) Nothing in this section shall require any employer to accommodate the medical use of marijuana in any
work place.
(11)Unless otherwise provided by this section, all provisions of this section shall become effective upon
official declaration of the vote hereon by proclamation of the governor, pursuant to article V, section (1)(4),
and shall apply to acts or offenses committed on or after that date.
Enacted by the People November 7, 2000-- Effective upon proclamation of the Governor.
httt�://vv�r��°.cdohe.state.co.uslhs/Viedicalmariivana/miamenrlmenl.html G/I (I A()
REVISED 11/17/09
EMERGENCY ORDINANCE NO . 1289 2009
OF THE COUNCIL OF THE CITY OF FORT COLLINS
IMPOSING A MORATORIUM ON THE ACCEPTANCE OF APPLICATIONS
FOR THE ISSUANCE OF LICENSES OR PERMITS RELATED TO BUSINESSES
THAT SEEK TO DISPENSE MEDICAL MARIJUANA AND ON THE
ESTABLISHMENT OF SUCH BUSINESSES IN THE CITY
WHEREAS , at the general election held in November, 2000, the voters of the State of
Colorado adopted Amendment 20 to the Colorado Constitution (the "Amendment") adding Article
XVIII to the Constitution; and
WHEREAS , the Amendment creates an affirmative defense to, and exception from, state
criminal laws pertaining to the possession and use of marijuana when such possession or use is for
the treatment of debilitating medical conditions and when certain conditions specified in the
Amendment are met; and
WHEREAS , over recent months, 26 businesses offering medical marijuana for sale or other
distribution have obtained sales tax licenses in the City, and the City is receiving inquiries on a daily
basis from persons interested in establishing additional such businesses in the City; and
WHEREAS , under the general zoning laws of the City, these businesses, referred to herein
as medical marijuana dispensaries or "MMDs," likely constitute retail sales operations or clinics that
are permitted uses in a wide variety of zone districts, including those that are primarily intended for
residential use ; and
WHEREAS , the City currently has no land use or business regulation concerning the
operation of MMDs; and
WHEREAS , the unregulated operation of MMDs in the City presents serious health and
safety concerns to the citizens of Fort Collins, including the following:
• operators of MMDs are subject to a greater risk of violent burglaries and
robberies than the operators of most other businesses because of the presence
of marijuana and substantial amounts of cash on the premises ;
• it is very hard to determine which MMDs are lawful and which are not since
there are no licensing or permit requirements for such businesses, no
requirement that records be kept of the number of patients served, no
limitations on quantities or on-site consumption, and no other regulations that
could help investigating officers make such determination;
• the on-site production of marijuana can create unsafe conditions on the
business premises such as excessive electrical connections that create fire
hazards and mold and fungus in the areas used to grow the marijuana;
• in the absence of licensing requirements such as those associated with liquor
establishments, there is no way to limit the ownership and operation of
MMDs to persons of good moral character, so as to minimize the illegal
activity that can be associated with such businesses; and
WHEREAS , ambiguities in the wording of the Amendment have created uncertainty as to
which MMDs may properly be considered "primary care-givers " under the Amendment for the
purpose of providing medical marijuana to patients suffering debilitating medical conditions; and
WHEREAS , the Colorado Department of Public Health and Environment (the
"Department"), which is responsible for the administration of the medical marijuana program
established by the Amendment, is continuing to consider changes in its administrative regulations
that govern MMDs as care-givers ; and
WHEREAS , the same question about MMDs as care-givers is currently under review by the
Colorado appellate courts and may also be the subject of proposed legislation in the upcoming
session of the state legislature; and
WHEREAS , municipalities throughout Colorado are struggling to gain control over the
recent proliferation of MMDs and have enacted various kinds of local regulations in an attempt to
curtail abuses of the medical marijuana exception created by the Amendment; and
WHEREAS , a significant period of time will be required in order for the City Manager and
City Attorney and their respective staffs to clarify the evolving state of the law with regard to
MMDs, and to formulate recommended amendments to the City Code to deal with the subject; and
WHEREAS , with the influx of MMDs, the City Council is concerned about its ability to
protect the public welfare and preserve the character of the City's neighborhoods and commercial
areas where MMDs might be located; and
WHEREAS , the imposition of a ten-month moratorium on the submission, acceptance,
consideration, and approval of all applications for City licenses and permits related to the operation
of MMDs, and on the establishment of MMDs in the City, will allow City staff and the City Council
to investigate the City's ability to regulate such businesses and develop and implement appropriate
regulations ; and
WHEREAS , ten months is a reasonable period of time and no longer than necessary for the
City to determine the extent to which MMDs will be regulated on a statewide basis and to properly
investigate, develop, and, if appropriate, adopt and implement any local regulations related to
MMDs ; and
WHEREAS , neither the proprietors of existing and proposed MMDs nor the patients they
serve or intend to serve will be unduly prejudiced by the imposition of such a moratorium, since the
number of existing MMDs in the City should be adequate to meet the medical marijuana needs of
such patients for said period of time; and
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WHEREAS , Article II, Section 6 of the Charter of the City of Fort Collins authorizes the
City Council to adopt emergency ordinances, which shall be finally passed on first reading by the
affirmative vote of at least five members of the Council and which shall contain the specific
statement of the nature of the emergency.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS as follows :
Section 1 . That the recitals contained in this Ordinance are hereby adopted and
incorporated as findings of fact of the City Council .
Section 2 . That the proliferation of unregulated MMDs in the City creates an emergency
situation because of the risk that such businesses will cause :
(a) serious deterioration of the residential and commercial areas in which they
are located;
(b) bodily injury to the occupants and patrons of MMDs, either by reason of
violent crimes committed against such persons or because of the health and
safety hazards created by the condition and use of the buildings in which they
are located;
(c) widespread violation of federal and state criminal laws that prohibit the
manufacture and distribution of illegal drugs;
(d) increased exposure of the youth of the community to a culture of illegal drug
use; and
(e) an influx of persons from other communities who are involved in the
manufacture and distribution of illegal drugs.
Section 3 . That, for the purposes of this Ordinance, the following definitions shall
apply:
a. Medical mary*uana dispensary or MAID shall mean a property or structure
used to sell, distribute, transmit, give, dispense or otherwise provide
marijuana in any manner to patients or primary care-givers pursuant to the
authority contained in Amendment 20 to the Colorado Constitution and the
implementing state statutes and administrative regulations, except those
properties or structures that are used by an individual primary care-giver to
provide marijuana to a single patient.
b. Patient shall mean a person who has a debilitating medical condition.
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Section 4 . That it is necessary for the immediate preservation of the public safety, health,
and welfare to delay the processing of applications for City licenses and permits related to the
establishment and operation of medical marijuana dispensaries in the City until the City has had a
reasonable opportunity to determine the extent of the City' s regulatory authority over such
businesses and to further determine what regulations, if any, should be imposed by the City upon
these businesses .
applications for the approval of eity ticenses or permits related to the establishment or operation of
medical mar natia dispensaries in the eity and no inedical mar tiana di I her than those
that have heretofore been issued a safes tax ficense by ttie eity and that CLIC III Cuturliance Wiflill
thin the eity during this moratorin
Section 5 .
a. That a moratorium is hereby imposed, as of the effective date of this
Ordinance (the "Effective Date "), on the acceptance of any applications to the City
for the approval of licenses or permits related to the establishment or operation of
medical marijuana dispensaries , and on the processing of any pending applications
for such licenses or permits .
b . No medical marijuana dispensaries shall be established or operate
within the City after the Effective Date and until the expiration of this moratorium,
as provided in Section 10 below, except those medical marijuana dispensaries that:
(i) have been issued a sales tax license pursuant to an application filed with the City
prior to the Effective Date, and (ii) are in compliance with all zoning requirements
for the property on which they are located.
C . Notwithstanding the provisions of paragraph (a) and (b) above, any
person who has , prior to the Effective Date, submitted an application for the
approval of such a license or permit and has not yet been issued such license or
permit, may, on or before November 30, 2009, submit to the Office of the City
Manager evidence that such person has, prior to the Effective Date, made substantial,
nonrecoverable, good-faith investments in real or personal property for the sole
purpose of establishing and operating a medical marijuana dispensary at the location
shown on said application. The City Manager or his designee shall review such
evidence and, no later than December 14, 2009, shall determine, according to
administrative criteria established for the purpose of such review, whether said
application should be granted. The City Manager's decision in that regard shall be
final.
Section 6 . That no license or permit related to the establishment or operation of a
medical marijuana dispensary that was issued by the City prior to the Effective Date, or after the
Effective Date pursuant to Section 5 (c) above, of this ordinance may be amended during the term
of this moratorium.
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Section 67 . That all persons applying to the City for the issuance or amendment of a sales
and use tax license during the term of this moratorium shall indicate, on a form approved by the
City, whether any part of the business that is the subject of the application involves the provision
of medical marijuana to patients with debilitating medical conditions or their primary care-givers .
Section -78 . That the failure of any person to provide the information required under
Section 5 of this ordinance, or the provision of any false information to the City related to a sales
tax application, or the establishment or operation of a medical marijuana dispensary contrary to the
provisions of Section 4 of this Ordinance during the term of this moratorium shall constitute a
misdemeanor criminal offense punishable as provided in Section 1 - 15 of the Code of the City of Fort
Collins .
Section 99 . That, during the term of this moratorium, the City Manager and City Attorney
are hereby directed to analyze the following issues and develop for City Council consideration
regulations as they may deem necessary and appropriate to address said issues :
a. the extent to which MMDs are legally protected under the Amendment;
b, the impact of MMDs on the character of residential neighborhoods and
commercial areas where they may be located; and
C . any increase that will likely occur in vehicular traffic or in nuisance or
criminal activities in areas where MMDs are located.
Section H 10 . That this moratorium shall continue in effect until the 16th day of September,
2010, or such earlier date as may be determined by the City Council by ordinance .
Section 1-611 . That nothing herein shall be construed as decriminalizing or making lawful
in the City any MMD or other business involved in the acquisition, possession, manufacture,
production, use, sale, distribution, dispensing, or transportation of marijuana or related paraphernalia
that is not lawful under state criminal laws .
Section ++ 12 . That the City Clerk is hereby directed to cause the publication of this
Ordinance in the Fort Collins Coloradoan no later than November 24, 2009 .
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Introduced, considered favorably by five (5 ) members of the Council of the City of Fort
Collins and finally passed as an emergency ordinance and ordered published this 17th day of
November, A.D . 2009 ,
Mayor
ATTEST :
City Clerk
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