Most people in the City of Boulder believe they can grow as many marijuana plants as authorized by their medical marijuana doctor. They believe they can grow 6 plants per person in the residence. They believe they can have as much marijuana as their plants produce. Guess what, the Boulder Municipal Code makes these things criminal with penalties of up to $5000 fine and one year of jail.
The Boulder Municipal Code differentiates between Marijuana for recreational purposes and for medical purposes. The differences are not significant as the medical code was used as the basis for the recreational code. Some of the code may violate the Colorado Constitutional Amendments that authorize medical and recreational marijuana. The Colorado Constitution should override any state or municipal code that does not agree, but there are savings clauses in the Constitution allowing state and local codes to set stricter standards.
Recreational Marijuana Code can be found in Chapter 6-16
Medical Marijuana Code can be found in Chapter 6-14
If you are going to possess, use and/or grow marijuana in the city of Boulder, you better be well versed in the ever changing laws created by our city council. You should vote and be prepared to contact your council members to lobby regarding changes to the code. There are people on the council and working in Boulder enforcement that wish marijuana was still illegal. These people have the power to write the municipal code, set enforcement priorities and plea bargains if prosecuted by the city attorney. Get involved.
Act like you have something to hide because you probably do. The Boulder Municipal Code on Marijuana is lengthy and must be understood as a whole. No specific part necessarily means what you think it means. The City has a codified zero tolerance policy. Keep your activities private because you probably do not know the code well enough to follow it completely. If you violate any one portion of it, you face a $5000 fine and one year in jail. Do I have your attention?
The council says that its code is to be construed to protect the public over marijuana business interests. (6-14-1(a)(5)). As an individual grower, you might think that is enough to save you. Nope, depending on how many plants you have growing, you are a marijuana business. The city restricts each household to 3 mature and flowering plants. You may only have another 3 immature plants. You are only allowed to have a total of two ounces of marijuana at any time. Do you feel like you are being protected as a member of the public or do you feel like a highly regulated industry?
You are safer as a medical marijuana patient or caregiver provided you have followed all the rules. There is an exclusion in 6-14-1(b)(11). But, I would still keep private things private. This means no tours to friends and neighbors, or cops or other government agents. All marijuana grows should be kept hidden behind locked doors. Failure to keep it private and locked violates the code.
Some definitions from the code to help you understand:
- Cultivation or cultivate means: (i) all phases of growth of marijuana from seed to harvest; or (ii) preparing, packaging or repackaging, labeling or relabeling of a usable form of marijuana.
- Distribute or distribution means the actual, constructive or attempted transfer, delivery, sale or dispensing to another, with or without remuneration.
- Marijuana business means a recreational marijuana business or a medical marijuana business.
- Medical marijuana means any marijuana intended for medical use which meets all requirements for medical marijuana contained in this chapter, the Medical Marijuana Amendment and any other applicable law.
- Recreational marijuana means any marijuana intended for recreational use which meets all requirements for recreational marijuana contained in this chapter, the Recreational Marijuana Amendment, and any other applicable law.
- Medical marijuana business means (i) any person that cultivates, produces, sells, distributes, possesses, transports or makes available more than six marijuana plants or two ounces of a useable form of marijuana for medical use, or (ii) any person that produces any amount of medical marijuana. The term medical marijuana business shall not include the private possession, production or medical use of no more than six plants or two ounces of a useable form of marijuana by a patient or caregiver in the residence of the patient or caregiver.
- Medical marijuana plant means a marijuana seed that is germinated and all parts of the growth therefrom including, without limitation, roots, stalks and leaves. For purposes of this chapter, the portion of a medical marijuana plant harvested from the plant or converted to a usable form of medical marijuana for medical use is not considered part of the plant upon harvesting.
- Recreational marijuana plant means a marijuana seed and all parts of the growth therefrom, including, without limitation, roots, stalks, and leaves, so long as the flowers, roots, stalks, and leaves are all connected and in a growing medium. For purposes of this chapter, any part of the plant removed is considered harvested and no longer part of a recreational marijuana plant, but marijuana.
- Place open to the general public means any property owned, leased, or used by a public entity, and any place on private property open to the public, common area of buildings, private clubs, vehicles, those portions of any private property upon which the public has an express or implied license to enter or remain, and any place visible from such places. Place open to the general public shall not include any fenced area of a private residence regardless of whether it can be seen from a place open to the public.
- Possess or possession means having physical control of an object, or control of the premises in which an object is located, or having the power and intent to control an object, without regard to whether the one in possession has ownership of the object. Possession may be held by more than one person at a time. Use of the object is not required for possession.
- Private club means any location, other than a residence of a person at the residence, or a marijuana establishment.
If you operate a marijuana business, according to the Boulder Municipal Code, but have not obtained a Boulder license, then you are in violation of the law. The penalty is up to a $5000 fine and one year in jail. This is up to the judge.
Your landlord may be pressured to provide access to your grow. The code makes it a crime for a landlord to deny access to if the City has an articulable reason to believe that a marijuana business is being operated in the landlord’s building. They will threaten the landlord with a violation of Boulder Municipal Code, a criminal violation. This appears to apply to the owner of a building that is not leasing it, say your own home. This portion of the statute seems to violate the Colorado and United States Constitution rights to be free from unreasonable search and seizure requiring probable cause of a criminal law violation found by a neutral and detached magistrate. This portion of the code is ripe for challenge. But, do not expect your landlord to be willing to spend thousands of dollars to protect your rights. As tenant, you may also challenge this part of the code. Violation of your Constitutional rights may cause all the evidence in a case to be suppressed, effectively leaving the prosecution with no evidence at all. Be sure to know how to assert your rights.
A common way that people get suspected of running a marijuana business is that a neighbor can smell a strange odor. It is often described as skunky. Many people like the odor of this flower, but others do not. If it offends a neighbor or passer-by, they may call the police starting the investigation. The Code says:
“A medical marijuana business shall be ventilated so that the odor of marijuana cannot be detected by a person with a normal sense of smell at the exterior of the medical marijuana business or at any adjoining use or property.” 6-14-8(h)
This is why proper ventilation must be used. It is a good idea to have non-marijuana users to sniff around to see if they can smell anything. Remember, when your plants are in flower, their smell is the most pungent.
Some violations of Boulder Municipal Code that you might not know about (It shall be unlawful for any person to):
- Cultivate, distribute, possess, produce, smoke use, or ingest marijuana openly or publicly in a place open to the general public.
- Possess or use medical marijuana on the grounds of a school, university, school bus, OR IN A VEHICLE, AIRCRAFT OR MOTORBOAT.
- Possess or consume medical marijuana that is not in a sealed package in a location where the possessor is not authorized to possess or consume medical marijuana.
- Possess more than 6 marijuana plants without a business license. Affirmative defense available for medical patients.
- Possess more than 2 ounces of a useable form of medical marijuana without a business license. Affirmative defense available for medical patients.
- Possess more than one ounce of a useable form of marijuana without a business license.
- Obtain medical marijuana from a person without a business licensed.
- Obtain marijuana for remuneration (money or other payment) from a person without a business license.
- Distribute medical marijuana without a license.
- Distribute marijuana for remuneration (money or other payment) without a business license.
- Distribute a marijuana plant to any person.
- Permit another person to violate the code.
- Operate a private club where marijuana is possessed or used by any person at the private club.
Evidence of impairment so the police can bother you according to the Code:
Prima facie indicia of impairment or being under the influence of marijuana includes bloodshot eyes, watery eyes, eyelid tremors, green particulate on tongue, dilated pupils, dry mouth or any other indicators of impairment.
If a citizen, the police or another government official observes any of these indicators, you may be charged with use where you are not allowed or a DUI investigation may ensue. Be prepared to assert rights where appropriate and to face the DUI investigation if you are driving.
To best protect yourself, you need an experienced criminal defense lawyer to discuss your rights and risks. It is cheaper and easier to avoid these risks than to defend against them. Please contact meor another Colorado NORML lawyerto set up an appointment.
Laws change in different locations (jurisdictions) and over time. To have the most current information, you should hire an attorney. This information is not designed to be complete or current. Marijuana is illegal under federal law.