by Jim Mimiaga | January 3, 2013 4:44 pm
This is the first article in a two-part series examining the impact of the recent passage of Amendment 64 in Colorado.
“Legalize It,” said reggae artist Peter Tosh in his classic anthem, and on Nov. 6, residents of Colorado and Washington did just that, becoming the first states to allow recreational use of marijuana for adults.
It appears that the formerly forbidden foliage is entering the mainstream as 18 states have legalized cannabis for medicinal purposes. And on Nov. 6, voters in two of those states erased criminal offenses for limited use, possession and cultivation by anyone over 21, while also allowing for regulated commercial sales.
Several other states are on the verge of proposing similar legalization measures, a tipping point some experts predict will bring permanent acceptance of the popular drug into American culture.
But before pot-heads puff-puff and pass, proceeding with caution is an advisable approach during the fledgling days of legal pot. Here are some key facts on Colorado Amendment 64, known as The Regulate Marijuana Like Alcohol Act of 2012.
• Possession up to one ounce of marijuana is legal for adults ages 21 and over.
• Selling marijuana without a state-issued license is prohibited.
• The new law has no effect on employer rules prohibiting drug use on the job.
• Smoking or consuming marijuana “openly and publicly” is prohibited.
• Driving a motor vehicle under the influence of marijuana is prohibited.
• Cultivation of up to six plants, with no more than three in mature flowering stage, is allowed for adults 21 and over.
• Cultivation must be in an enclosed and locked location and not be done publicly or openly.
• Retail outlets for marijuana are allowed, but the state must come up with regulations and licensing provisions first. Submitting applications for commercial operations begins October 1, 2013 with the Department of Revenue and/or local government.
• The amendment has no effect on established, licensed medical-marijuana centers. Also, medical marijuana stores do not become open to non-registered marijuana users.
• Counties, towns and cities can decide to ban retail outlets, but can do nothing about personal possession, use, and cultivation as long as it is done following the law.
• As of press time the passage of the amendment had not been certified by Colorado Secretary of State, but it is expected. Gov. John Hickenlooper then has until Jan 5, 2013, to add it to the state constitution, at which point the law takes effect. Therefore, some law-enforcement might continue to issue tickets for marijuana possession until the amendment is added to the constitution.
• Amendment 64 does not specifically prohibit private marijuana lounges or socalled “coffee shops” for marijuana use; however, selling marijuana at such an establishment would not be allowed.
• Use and possession of marijuana is still illegal federally, and federal agencies do not recognize legal marijuana in any state, even for medicinal purposes. Therefore, there is always a risk for marijuana users, growers and licensed sellers of intervention by federal authorities. (e.g., the Drug Enforcement Agency, FBI, TSA, public-land and national-park rangers, federal housing, U.S. military, Veterans Affairs, Bureau of Indian Affairs, federal benefit programs, federal institutions, etc.) Also many Native American tribes operate as sovereign nations and do not recognize the legal use of marijuana.
‘Not the worst thing’
While the euphoria for potheads is reaching its zenith in celebration of Amendment 64, the earth-bound reality is that there are uncertainties with marijuana legalization in Colorado as well as opportunities.
One glaring problem is the unchanged conflict with the federal government, which considers marijuana illegal (including for medicinal use), categorizing it (along with heroin) as a Schedule 1 substance having no known medical use, the most-prohibited drug group.
The U.S. Justice Department has not revealed what its policy will be toward states that legalize recreational marijuana. It has the power to sue states that violate federal law in order to bring them into compliance, but so far has been silent on the issue.
Locally, law officers say they will accept the will of the people on the state’s legalization of the drug, although they don’t agree with it.
“We don’t like the drug; however it is not the worst thing that can ever happen,” responded Montezuma County Sheriff Dennis Spruell.
Because the amendment has not yet officially become law, Spruell said he is still enforcing the pot laws on the books. Once it becomes law, he said, officers will stop issuing tickets for it.
“Absolutely. That is the law, that is what the voters say they want, and that is exactly what we will do,” he said, adding there are limits to legalization.
“Marijuana is on the back burner [in terms of enforcement] but if it slaps us in the face like possessing two or three or five pounds that will still be illegal.”
Spruell pointed out that marijuana use has not been a big priority for his department, and marijuana use has been decriminalized in Colorado for some time.
“It is a petty offense, like jaywalking, and there is no jail time,” he said.
“We’ve got bigger problems with methamphetamine.”
Reaction among district attorneys have been mixed, with some dismissing all minor pot charges and others taking them on a case-by-case basis.
Newly elected 22nd Judicial District Attorney Will Furse, representing Montezuma and Dolores counties, said he is not comfortable giving blanket amnesty to pending pot charges or charges issued after Nov. 6, but before the amendment’s certification.
“There are too many variables to just dismiss the charges because drug use can be tied to probation requirements and have social- services implications,” Furse explained.
He said pot charges are usually accompanied by other offenses and those cases after Nov. 6 would be dealt with on a case-by-case basis once he takes office Jan. 1.
“Generally marijuana charges are part of other crimes so it’s hard to speculate, but if the only charge is marijuana possession then it will likely be dismissed.”
One of Furse’s concerns is the federal government’s reaction to Colorado’s new law legalizing marijuana.
“They could intervene aggressively or defer to state law, as we’ve generally seen with medical marijuana. If I had to guess I would predict that so long as there is substantial compliance with state law, the federal government will not prosecute users. The real issue, however is how the feds will treat large retail operations.”
The new law is poorly written, Furse said, and has unintended consequences.
“I do see safety concerns with the new law. It is potentially dangerous for children and families, it will have an impact on social services, and it is a public-safety concern on our roads. As government intervention recedes, we as a community need to ramp up our education efforts on the dangerous effects of marijuana use.”
The state has 30 days to certify Amendment 64, and Secretary of State Scott Gessler is expected to do so by Dec. 6. Then Gov. Hickenlooper has until Jan. 5 to add it to the state constitution. After that the state is obligated to provide a regulatory framework for licensing retail and commercial growing operations as well as distribution rules by July 1, 2013. The Department of Revenue and/ or local governments are expected to begin accepting applications for retail or commercial licenses on Oct. 1 2013. There can be no retail operations in the state until then, but some cities such as Montrose are already putting moratoriums on retail marijuana shops.
Cities, towns and counties have the option to ban retail centers for legal marijuana. However, they can do nothing to prohibit people from cultivation, use and possession within the limits set in the amendment.
“At this point, our council has not made any decisions on it,” reported Cortez City Manager Shane Hale. “We want to first tighten up our laws so that our police have the tools to make sure people are not using marijuana in parks and public places.”
He said he doesn’t expect a moratorium on retail centers in Cortez, saying it is unnecessary until the state comes out with the regulations.
“At that point we want to have a conversation with the community to determine if citizens want this to be sold commercially in Cortez. We took our time on regulating the medical-marijuana centers and feel like we got it right. In some ways this feels like the same conversation.”
Ryan Mahoney, Dolores town manager, is also taking a wait-and-see approach.
“Being such a small town with a limited budget, we don’t have to go out there and fight the big fight. We want to wait until the bigger municipalities deal with the issue and everything shakes out so we can then make an educated policy decision.”
Municipal officials are also concerned that the law conflicts with federal law and are waiting for a response from the Obama administration. A possible hint about national policy on legal marijuana is the Ogden Memo distributed by the Justice Department in 2009 at the request of the President. The memo told federal prosecutors to back off medical-marijuana users and suppliers as long as they complied with the laws in their own states. Large grow operations, such as clandestine pot farms on federal lands, are being prosecuted as well as drug cartels within the country.
Rob Corry, a Denver marijuana attorney and co-author of Amendment 64, told the Free Press that he does not see the federal government intervening.
“I believe Obama supports the amendment on the merits of it and on the political reality. More people voted for Amendment 64 than for him in the election [in Colorado] so in this case good policy and good politics converge,” Corry said.
“The best indication is the complete and utter silence from the Justice Department on the issue during the year-long campaign before the election. A crackdown on marijuana was never brought up.”
When asked if he thought the Colorado legislature would be fair in implementing Amendment 64, Corry had his doubts, but hopes lessons were learned from what he sees as an overregulated medical-marijuana industry. “They made it a less-viable business opportunity and that was a mistake,” he said.
Corry is critical of the ban on out-of-state money to fund medical marijuana centers and added that the requirement to grow 70 percent of the product on site was unreasonable.
“Is King Soopers required to provide 70 percent of their apples from their own orchards? The urge for government to micromanage is always there and we will work hard to make sure the same mistakes are not made.”
Dan Hotsenpiller, district attorney for the 7th Judicial District, which represent several counties including San Miguel, Montrose and Gunnison, sees a conflict within the allowable amount described in the new law.
According to the language of Amendment 64, anyone 21 or older can be “Possessing, using, purchasing or transporting . . . . one ounce or less of marijuana.”
But the amendment also states anyone 21 years and older can be “Possessing, growing, processing or transporting no more than six marijuana plants . . . . and possession of the marijuana produced by the plants on the premises where the plants were grown providing the growing takes place in an enclosed, locked space, is not conduced openly or publicly and is not made available for sale.”
The problem is that six plants can easily produce more than one ounce, so during harvest time a person could be interpreted as being out of compliance with the law.
“That is a risk growers will have to take, and they should avoid such a scenario,” advised Hotsenpiller.
“Prosecutors could interpret that very literally: if it is on the plant then OK, but if the harvest is there and it is over one ounce, that could be interpreted to be a violation,” he said. Hotsenpiller recommends people growing for personal use grow fewer plants to avoid the Catch-22 of the new law.
He added that he has dismissed marijuana cases in his district since the passage of 64.
Colorado now has the most-liberal marijuana laws in the world, surpassing even Amsterdam, Holland, which “tolerates” the use and sale of marijuana even though the drug is officially prohibited by law. Will the famous coffee shops of Amsterdam come to Colorado?
Corry said they could, depending on state regulations, but they would take on a different form, not unlike the old Utah liquor laws.
“They could not be open to the general public, so they would be membership-only type establishments,” he explained. “The other catch is that under Amendment 64 the private clubs could not sell the marijuana. They would have to give it away or members could bring in their own.”
Pot tourism is seen as a boon for the Colorado economy by A64 proponents, and they feel regulations should reflect that.
“I think there should be a strong policy that allows for coffee shops where people can go and consume marijuana out of public view,” said Josh Kappel, associate director for Sensible Colorado, which lobbied for legalization.
“People will want to travel here who want to use marijuana and that is a plus of the amendment. But if there is no place for them to use it, then they are going to use it in their hotel rooms, which can be offensive to other tourists,” Kappel said.
The world is watching how Colorado and Washington handle legalized marijuana, so common sense is paramount.
“My counsel is that people be respectful. For example, smoking on the porch in Durango is different than doing so in a very conservative town,” Corry said. “But I am not advocating shyness or shame. People should be proud to consume marijuana because the voters legalized it.”
The sleeping giant within the language of Amendment 64 is the legalization of industrial hemp, Corry added.
“Amendment 64 blows away any restrictions on growing industrial hemp and this could save the Colorado economy,” he said. “There are no limitations on growing it like any other crop.”
In Part 2 of the series in January, the Free Press will examine futher impacts of the amendment. Jim Mimiaga can be contacted at email@example.com.
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