Open Letter to the City of Pueblo Regarding Proposed Ban on Cultivation of Marijuana

October 29, 2014

October 29, 2014

City of Pueblo Planning and Zoning Commission
211 East D Street
Pueblo, CO 81003

City of Pueblo City Council
1 City Hall Place
Pueblo, CO 81003

Re: Proposed Ban on Cultivation of Marijuana; Text Amendment TA-14-04; Ordinance Amending Chapters 2 & 15 of Title XVII

Dear Planning and Zoning Commission and City Council members:

On behalf of our Pueblo members and law-abiding Colorado consumers and patients, the Colorado chapter of the National Organization for the Reform of Marijuana Laws (NORML) urges the City of Pueblo to abandon this proposed ordinance that would effectively outlaw most marijuana cultivation and other constitutional guarantees of Pueblo citizens.

Founded in 1970, NORML’s mission is to repeal marijuana prohibition so responsible recreational and medicinal use and cultivation is no longer subject to criminal sanction. We support the full and fair implementation of Colorado Constitutional Amendments 20 and 64, both which were supported by a majority of Pueblo County voters.

Pueblo citizens have voiced their opposition to TA-14-04, as the Commission heard in testimony on October 15, 2014. As we detail below, the proposed amendment would violate the Colorado Constitution, and is discriminatory and unreasonable.

Text Amendment 14-04 was proposed to the City Planning and Zoning Commission by Commission staff in October, and will again be considered on November 12. It would amend Chapters 2 and 15 of Title XVII of the Municipal Code relating to Medical and Retail Marijuana, specifically cultivation by qualified patients, caregivers, and adults, as well as limit “the sale, transfer, gift or other distribution” of marijuana.

If enacted, it would unconstitutionally prohibit lawful conduct specifically guaranteed by Articles XVIII, Sections 14 and 16 of the Colorado Constitution.1 Particularly problematic are Sections 3 and 4 of TA-14-04, which unconstitutionally and unreasonably infringes on freedom, and the privacy and property rights of Pueblo citizens. We also question the City’s ability to enforce these prohibitions without interfering with a person’s right to privacy and the right to be free from unlawful search and seizure in one’s own home.

1. The amendment seeks to change the City Marijuana Code by requiring the cultivation of medical and recreational marijuana to be conducted on a “detached accessory structure” that meets all building codes. A structure is limited to 100 cubic feet, which is a measure of volume, not space, and makes no sense. Greenhouses are not an approved accessory structure. No indoor cultivation of any kind would be permitted, even for those with existing growing systems that fully comply with the Constitution.

Indoor marijuana growing is a guaranteed right under the Constitution. The Governor’s Amendment 64 Implementation Task Force thoughtfully considered a definition of the constitution’s requirement for an “enclosed, locked space” for the purposes of personal cultivation of marijuana. The Task Force recommended a definition of “enclosed” to be “a permanent or semi-permanent area covered and surrounded on all sides.”2 The examples noted in the Task Force’s recommendation included “a shed, a greenhouse, a trailer, a residence, a building, or a room inside a building” (Emphasis added). Notably, “an indoor area can include any enclosed area or portion thereof.” 3

The claimed justification for this proposed indoor growing ban is, “rooted in recent scientific research that said houses with grow rooms have higher risks of mold and other health hazards,” according to a Pueblo Chieftain story about the October 15 Commission meeting. This makes little sense, as was pointed out by members of the public at the Commission meeting on October 15. As a matter of public policy, possible mold issues in private residences are matters of personal responsibility and should not be regulated by the City in a manner that interferes with Constitutional rights.

Requiring a code-compliant and climate-controlled detached structure in order to cultivate marijuana plants would not be an option for people who live in apartments, condominiums, people with disabilities or limited mobility, and people with limited financial resources. The City should not discriminate against law-abiding citizens who want to grow marijuana based upon their living situation, financial means, or disabilities.

We also do not understand why the City would seek to prohibit the use of a greenhouse for the growing of plants. Greenhouses can easily meet the requirement of the Constitution and the statutory definition of “locked and enclosed”, and are more sustainable and energy-efficient than indoor grows. This measure forces citizens to forego environmentally friendly alternatives to growing that is not in the best interest of Colorado or the planet.

2. The proposed amendment unreasonably seeks to prohibit the growing of marijuana in multi-family and single-family attached dwellings. This restriction is unconstitutional. It seeks to prohibit what is lawful conduct under the Colorado Constitution. The Constitution defines the location and limitations of cultivation; it says nothing about limiting growing to a specific type of dwelling. Pueblo’s proposal directly and unreasonably infringes on the privacy and property rights of its citizens, without a legitimate basis.

3. The amendment unreasonably would only permit medical marijuana growing “for a patient that lives on the property,” which would effectively deny a medical marijuana patient’s right to name a caregiver of his or her choice to be a patient’s medical marijuana provider. It unjustly and unfairly allows the City to interfere with the patient-caregiver relationship.

4. Sections 3 and 4 unreasonably seek to prohibit “any sale, transfer, gift, or other distribution” of medical or retail marijuana by unlicensed persons. This would re-criminalize conduct made lawful by the voters of Colorado and the Colorado Constitution Article XVIII, Sections 14 and 16. The Colorado Constitution explicitly makes lawful the “transfer of one ounce or less of marijuana without remuneration to a person who is twenty-one years of age or older.” (Colo. Const. Art. XVIII, Section 16(3)(c) (2014). The City has no authority to prohibit conduct which the Constitution explicitly allows.

Similarly, under the Colorado Medical Marijuana Code and associated regulations, a primary caregiver may lawfully transfer marijuana to his or her patient and may “charge a patient no more than the cost of cultivating or purchasing the medical marijuana.” (5 CCR 1006-2, Regulation 9(K)). Pueblo’s proposal effectively removes the right to a caregiver, as the caregiver must transfer the marijuana to his/her patient. Many patients would have no safe access to medicinal marijuana if not for provision by their caregiver. Similarly, many patients need specific strains or products that are only provided by their caregiver. It seems unusually cruel to unnecessarily deny a patient access to medical marijuana in this manner.

5. Sections 3 and 4 also would limit the total number of plants that can be grown on the property to 6 regardless of the number of patients or adults residing on the property. Again, the City is unconstitutionally overreaching by seeking to prohibit lawful conduct authorized by the Colorado Constitution. We fail to find the reasonableness in such a restriction, especially in light of the fact that the voters of Colorado sought to allow each adult over 21 to cultivate up to six plants, if they so choose.

6. Section 5 of Sec.17-15-8 of the proposed ordinance is also in direct violation of the plain language of the Colorado Constitution and in violation of state law. The City cannot legally require patients or primary caregivers to register with local police or any government agency in order to lawfully cultivate. Amendment 20 and the enabling legislation passed by the Colorado legislature states that patient or caregiver information is private. The CDPHE is the only agency that is allowed to pro-actively acquire access to any information about a person’s status as a patient or primary caregiver.

The Constitutional text and enabling legislation outlines the only legal process that law enforcement can use to go about obtaining patient and caregiver information. The plain text of the Constitution says that law enforcement would only be entitled to information about a citizen’s patient or caregiver status if they have “have stopped or arrested a person who claims to be engaged in the medical use of marijuana.” Even then, law enforcement is only entitled to check the state medical marijuana registry and only for the purpose of verifying that the person is lawfully in possession of a card or growing for patients with a card.

The proposed ordinance directly contradicts the plain text of the Constitution. In addition, the City of Pueblo does not have the authority to define criminal conduct in violation of our state Constitution.

In sum, where else, but within the confines or curtilage of one’s home, should an adult or a qualified medical marijuana patient be free to engage in lawful conduct under the Colorado Constitution?

Colorado NORML opposes the Text Amendment 14-04, as it seeks to unconstitutionally prohibit lawful conduct under the Colorado Constitution and state law, and because the restrictions proposed therein are unreasonable and unnecessarily burdensome.

We urge you to abandon this ill-considered proposal. If we can be of further assistance, do not hesitate to contact us.

Sincerely,

The Colorado NORML Board of Directors

Rachel K. Gillette, Esq., Executive Director; Teri Robnett; Jason Savela, Esq.; Craig Small, Esq.; Lauren Davis, Esq.; Jeri Shepherd, Esq.; Judd Golden, Esq.; Leonard Frieling, Esq., Sean McAllister, Esq.; Lauren Maytin, Esq.; Chris Chiari; Chad Jasnau; Brian Schowalter; Esq., Seth Gustin; Lynda Spangler; Rebel Saffold; Edison P. McDaniels III; and Ashley Weber.

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1 Section 14(4) of the Constitution provides:
(a) A patient's medical use of marijuana, within the following limits, is lawful:
(I) No more than two ounces of a usable form of marijuana; and
(II) 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.

Section 16 (3) provides: PERSONAL USE OF MARIJUANA. Notwithstanding any other provision of law, the following acts are not unlawful and shall not be an offense under Colorado law or the law of any locality within Colorado or be a basis for seizure or forfeiture of assets under Colorado law for persons twenty-one years of age or older:
(a) Possessing, using, displaying, purchasing, or transporting marijuana accessories or one ounce or less of marijuana.
(b) Possessing, growing, processing, or transporting no more than six marijuana plants, with three or fewer being mature, flowering plants, and possession of the marijuana produced by the plants on the premises where the plants were grown, provided that the growing takes place in an enclosed, locked space, is not conducted openly or publicly, and is not made available for sale.

2 Beyond the Task Force, in the last legislative session, "locked and enclosed" was put into statute in HB14-1122.

3 Task Force Report on the Implementation of Amendment 64, March 13, 2013, Recommendation 14.1, pg. 95.

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