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HomeMy WebLinkAbout08265ORDINANCE NO. 8265 AN ORDINANCE AMENDING CHAPTER 10, TITLE XI OF THE PUEBLO MUNICIPAL CODE PERTAINING TO THE LICENSING AND REGULATION OF MEDICAL MARIJUANA FACILITIES AND PROVIDING PENALTIES FOR THE VIOLATION THEREOF WHEREAS, on July 26, 2010, City Council adopted Ordinance No. 8244 licensing and regulating medical marijuana facilities, establishing the medical marijuana authority, and providing penalties for the violation thereof; and WHEREAS, various changes to the ordinance licensing and regulating medical marijuana have been proposed to improve the regulatory system for medical marijuana facilities. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: (brackets indicate matter being deleted; underscoring indicates new matter being added) SECTION 1. Subsection (e) of Section 11-10-103, of Article I, Chapter 10, Title XI, Pueblo Municipal Code, as amended, is hereby amended to read as follows: Sec. 11-10-103. Definitions. The following definitions shall apply throughout this Chapter: … (e) Character and Record: includes all aspects of a person's character and record, including but not limited to moral character, criminal record, serious traffic offenses, record of previous sanctions against liquor licenses, gambling licenses, or medical marijuana licenses, which the person owned, in whole or in part, or in which the person served as a principal, manager, or employee; education, training, experience, civil judgments, truthfulness, honesty, and financial responsibility. The conviction of any person for any offense, shall not, in itself, be grounds for a finding of bad character and record if such person , but rehabilitation shall not be demonstrates that he has been rehabilitated considered if a provision in this Chapter declares that the offense is a per se disqualification . … SECTION 2. Section 11-10-306 of Article III, Chapter 10, Title XI, Pueblo Municipal Code, as amended, is hereby amended to read as follows: Sec. 11-10-306. Coordination with State Medical Marijuana Licensing Authority and State requirements. (a) The Authority shall inform the State Medical Marijuana Licensing Authority of its investigations, inspections, and all decisions approving new licenses, issuing new licenses, imposing conditions on licenses, renewing licenses, approving major changes in licenses, information regarding minor changes, and sanctions imposed on licenses. (b) To the extent that such coordination is reasonably feasible and efficient, the Authority shall coordinate its investigations and actions with the State Department of Revenue, but the Authority reserves the right to act independently and to reach its own findings of fact, findings of law, and conclusions regarding approvals, issuance, denials, conditions, renewals, major changes, sanctions of licenses, and any other matter related to licenses, without regard to the findings of fact, findings of law, and conclusions that the State may reach regarding the same licenses based on the same incident or conduct. [ (c) In the event that this Chapter requires an applicant or licensee to obtain a State license, certification, registration or approval, or to meet some other State requirement that State law or regulations have created, but under State law or regulations such State license, certification, registration, approval or requirement is not yet in effect, then the applicant or licensee may obtain any license provided under this Chapter without first obtaining the State license, certification, registration or approval, and without meeting the State requirement, but the applicant or licensee shall obtain the State license, certification, registration, approval, or meet the State requirement within thirty (30) days of the date that the same becomes effective. Failure to obtain any State license, certification, registration, approval, or meet any State requirement within thirty (30) days of the date that the State requirement becomes effective under State ] law or regulations shall constitute grounds for sanctions, including revocation. [] (c) d The approval or issuance of a license under this Chapter shall not constitute a representation by the Authority that the licensee is qualified for or will receive a State medical marijuana license. SECTION 3. Subsections (c)(4), (c)(5), (c)(6), (c)(11), (f)(1), (g)(2), (g)(4) (g)(5), and (h)(2) of Section 11-10-308 of Article III, Chapter 10, Title XI, Pueblo Municipal Code, as amended, are hereby amended to read as follows: Sec. 11-10-308. Requirements to obtain and retain a medical marijuana license. In order to obtain a license the applicant shall demonstrate by a preponderance of the evidence to the Authority that the following requirements are satisfied: … (c) Personal Requirements for the Licensee, Principals, Registered Manager and Employees. … (4) The applicant, principals, registered manager and employees have not discharged a sentence for any felony in the five (5) This shall constitute a per years immediately preceding the application. se and complete disqualification. Rehabilitation shall not be considered. (5) The applicant, principals, registered manager and employees have never been convicted of a felony pursuant to state or federal law regarding the possession, distribution, of use of a controlled This shall constitute a per se and complete substance. disqualification. Rehabilitation shall not be considered. (6) The applicant, the applicant's creditors, principals, registered manager, and employees are persons of good character and record. When making any determination as to good character and record, the Authority may consider whether an applicant, principal, registered manager, or employee has rehabilitated himself after committing a crime or other act or omission tending to indicate that such person is not a person of good character, but rehabilitation shall not be considered when the crime or other disqualifying act or omission is declared a per se disqualification under this Chapter. Notwithstanding any other burden for proof stated in this Chapter, the burden of proof to show that a person has been rehabilitated shall be beyond a reasonable doubt and shall be on the individual whose character is at issue. When evaluating claims of rehabilitation, the Authority shall consider the following factors: (a) The facts of the specific crime or other act tending to show bad character and record; (b) Whether the specific crime or other act tending to show bad character and record involved controlled substances, dishonesty, fraud, bad faith, moral turpitude, or violence; (c) Whether the specific crime or other act tending to show bad character and record involved a felony, misdemeanor, municipal offense, a civil wrong, or other wrongful conduct; (d) Whether the specific crime or act caused injury or harm to other persons or entities and the extent of such harm or injury; (e) The length of time that has expired since the act or omission was committed; (f) Whether the person has led a law abiding life and has demonstrated good character since the act or omission was committed; (g) Whether the person has committed other acts tending to indicate bad character since the act or omission was committed; (h) Restitution, damages and compensation that the person has paid to persons victimized by the act or omission; (i) Fines, jail sentences, probation, community service and other penalties paid or served since the act was committed; and (j) Any other factor tending to show that the person has or has not rehabilitated his or her character and conduct. … (11) The applicant, principals, and employees are trained or experienced in, and able to comply with, the requirements of this Chapter In determining and State law pertaining to medical marijuana facilities. whether an applicant, principal, or employee has shown sufficient training or experience, the Authority shall consider, among other things, the following factors: (a) The role that the individual will play in operating the facility; (b) Previous experience operating medical marijuana facilities; (c) Completion of state or industry approved courses on how to comply with Colorado laws and regulations regarding medical marijuana facilities; and (d) The individual's understanding of state law and city ordinances regulating medical marijuana as shown under questioning by the authority at the hearing. … (f) Requirements Specific to a Medical Marijuana Center License. (1) The applicant also obtains an optional premises cultivation either license, which is contiguous to the licensed premises of the medical or located outside the City of Pueblo marijuana center. … (g) Requirements Specific to Optional Premises Cultivation License. … either (2) The proposed licensed premises are contiguous to the licensee's licensed premises for a licensed medical marijuana center or are located or a marijuana infused products manufacturer's operation outside the City of Pueblo . … [] are located (4) The area of the proposed licensed premises in a separate building that does not share any doors, windows, air passages, vents, ducts or any heating, ventilation, air conditioning, or air handling equipment or structures with any other building or premises whatsoever, including but not limited to a medical marijuana center or medical marijuana infused products [ manufacturing center utilized for cultivation, is sufficiently separated from the area of the premises open to the public, or a negative air pressure system has been installed, to prevent pesticides, fertilizers, and other chemicals, artificial and natural, from moving into the ambient air in the area open to the public or any adjacent building, and the separation or negative air pressure system is approved by the Fire Department, ] Regional Health Department, and Regional Building Department. [ (5) If carbon dioxide will be used in the cultivation area in the proposed licensed premises, sufficient physical barriers or a negative air pressure system is in place to prevent carbon dioxide from moving into the ambient air in any area open to the public or in any adjacent building in a concentration that would be harmful to any person, including persons with respiratory disease, as shown by inspection and approval by the Fire ] Department and Regional Building Department. … (h) Requirements Specific to a Marijuana Infused Product Manufacturer's License: … (2) The applicant also obtains an optional premises cultivation either license, which is contiguous to the licensed premises of the medical or located outside the City of Pueblo marijuana center. … SECTION 4. Subsection (a)(1) of Section 11-10-319, of Article III, Chapter 10, Title XI, Pueblo Municipal Code, as amended, is hereby amended to read as follows: Sec. 11-10-319. Books and records. (a) Every licensee shall maintain on the licensed premises at any time that any person is present on the licensed premises, accurate and up to date books and records of the business operations of the licensee, or an authentic copy of the same, including but not limited to the following: (1) Lists, manifests, orders, invoices, and receipts for all marijuana, marijuana plants, and marijuana infused products cultivated, harvested, processed, produced, delivered, purchased, stored, sold, and exchanged during the preceding two (2) years, by each transaction or and time of each transaction event, including the date, source, strain, and whether each transaction type, quantity, weight, and purchaser involved harvested marijuana, live plants, marijuana infused products, or seeds ; … SECTION 5. Subsection (d) of Section 11-10-401, of Article IV, Chapter 10, Title XI, Pueblo Municipal Code, as amended, is hereby amended to read as follows: Sec. 11-10-401. General. … (d) The Authority may impose sanctions against a licensee based on [] s any of the grounds Stated in Section 11-10-309, Pueblo Municipal Code, as amended. SECTION 6. Subsection (a) of Section 11-10-702, of Article VII, Chapter 10, Title XI, Pueblo Municipal Code, as amended, is hereby amended to read as follows: Sec. 11-10-702. Unlawful acts--patients and primary caregivers. It shall be unlawful for any patient or primary caregiver to: or identification (a) give, lend, or sell a medical marijuana card to any , except that a homebound patient who has received a waiver other person from the State permitting his or her primary caregiver to transport medical marijuana to him or her may lend his or her medical marijuana card and identification to his or her primary caregiver for the purpose of purchasing and transporting medical marijuana to the homebound patient ; … SECTION 7. Section 11-10-703 of Article VII, Chapter 10, Title XI, Pueblo Municipal Code, as amended, is hereby modified by amendment of subsection (d) and by addition of new subsections (p), (q), (r), (s) and (t), to read as follows: Sec. 11-10-703. Unlawful acts--licensees, principals, registered managers, and employees. It shall be unlawful for any licensee, principal, registered manager, or employee of a licensee to commit any of the following acts: … (d) To sell, dispense or give away any medical marijuana, marijuana plants, or medical marijuana infused product to any person except: (1) another medical marijuana licensee, to the extent and in the manner permitted by law; (2) a medical marijuana patient who presents at the time and place of each sale or gift, his or her own valid medical marijuana card along with his or her own government-issued photographic identification which matches the name shown on the medical marijuana card ; or [ (3) a registered primary caregiver who presents the medical marijuana card of a homebound patient and a waiver from the State of Colorado authorizing the primary caregiver to purchase medical marijuana for the homebound medical marijuana patient and ] transport the same to the homebound medical marijuana patient. a primary caregiver purchasing or receiving medical marijuana or medical marijuana infused products on behalf of a homebound patient who presents at the time and place of each sale or gift: (a) his or her own medical marijuana card along with his or her own government-issued photographic identification, which matches the name shown on the medical marijuana card; (b) the waiver from the State of Colorado authorizing the primary caregiver to purchase medical marijuana for the homebound medical marijuana patient and transport the same to the homebound patient; and (c) the homebound patient's medical marijuana card along with the homebound patient's government-issued photographic identification, which matches the name shown on the medical marijuana card. … (p) Violation of Patient Confidentiality. (1) It shall be unlawful to intentionally, knowingly, recklessly, or negligently disclose any of the following information, in any form, concerning any medical marijuana patient, or to conduct any discussion, assessment, or evaluation of the patient or the patient's records where any person may overhear or observe any of the following information: (a) the fact that the patient possesses, cultivates, or uses medical marijuana or medical marijuana infused products or utilizes the services of a medical marijuana center; (b) the patient's diagnosis, prognosis, or other information concerning the patient's physical, emotional, or psychological condition; (c) the fact that the patient has a medical marijuana recommendation or the contents of the medical marijuana recommendation; (d) the form, type, quantity, and frequency in which the patient purchases and uses medical marijuana or medical marijuana infused products; and (e) the efficacy of the medical marijuana or medical marijuana infused products in treating the patient's condition. (2) It shall not be a violation of this section to disclose such information to: (a) employees of the medical marijuana center with whom the patient has registered as a patient; (b) the physician who wrote the medical marijuana recommendation; (c) a law enforcement officer conducting an investigation concerning the violation of any law; (d) an employee of the state department of revenue, medical marijuana enforcement division or an employee of the city conducting an investigation of violations of C.R.S. §12- 43.1-101 et seq. or this Chapter; (e) any person to whom the patient has signed a release directing the release of the information; or (f) a court or an attorney conducting a deposition when compelled to testify or produce documents pursuant to a subpoena or other court order. … (q) To sell, give away or provide to any patient, or to any primary caregiver obtaining harvested medical marijuana or medical marijuana infused products on behalf of a homebound patient, more than the following quantities of harvested medical marijuana or medical marijuana infused products, or any combination thereof, within any 24 hour period: (1) two ounces of medical marijuana, whether in the form of harvested medical marijuana, marijuana contained within a marijuana infused product, or both; or (2) the quantity of harvested medical marijuana, marijuana contained within a marijuana infused product, or any combination thereof, in excess of two ounces specifically recommended in the physician's recommendation for medical marijuana obtained from a physician licensed to practice medicine in Colorado, when the person providing the same views and retains a copy of the physician recommendation for marijuana. (r) To sell, give away, or provide to any patient, or to any primary caregiver obtaining medical marijuana on behalf of a homebound patient, more than the following quantities of live medical marijuana plants within any 30 day period: (1) six plants; or (2) the quantity of live marijuana plants in excess of six plants specifically recommended in the physician's recommendation for medical marijuana obtained from a physician licensed to practice medicine in Colorado when the person providing the same views and retains a copy of the physician recommendation for marijuana. (s) To transport any quantity of medical marijuana without carrying with the medical marijuana a written manifest showing the following information, or to refuse to provide to any law enforcement officer upon demand a written manifest showing the following information: (1) the weight and volume of marijuana carried; (2) a description of the make, model, and VIN number of the vehicle carrying the medical marijuana; (3) the name and address of the driver of the vehicle; (4) the name and address of the licensed medical marijuana facility from which the medical marijuana originated; (5) the name and address of the licensed medical marijuana facility to which the medical marijuana is being delivered; (6) the date and time that the marijuana departed the licensed medical marijuana facility where the marijuana originated; and (7) the intended route from source to the destination. (t) to fail to label a marijuana infused product with the quantity of marijuana contained in the product by weight or to offer for sale or give away any product not so labeled. SECTION 8. Section 11-10-704 of Article VII, Chapter 10, Title XI, Pueblo Municipal Code, as amended, is hereby readopted without changes to read as follows: Sec. 11-10-704. Penalties. Any person who violates any provision of this Chapter or fails, neglects or refuses to perform any act required under this Chapter, shall upon conviction therefor, be punished by a fine of not more than One Thousand Dollars ($1,000) or imprisonment for not more than one (1) year, or both such fine and imprisonment. SECTION 9. This Ordinance shall become effective immediately upon final passage and approval. INTRODUCED: September 13, 2010 BY: Judy Weaver COUNCILPERSON PASSED AND APPROVED: September 27, 2010 Background Paper for Proposed ORDINANCE DATE: AGENDA ITEM # R-4 September 13, 2010 DEPARTMENT: Law Department Thomas J. Florczak, City Attorney TITLE: AN ORDINANCE AMENDING CHAPTER 10, TITLE XI OF THE PUEBLO MUNICIPAL CODE PERTAINING TO THE LICENSING AND REGULATION OF MEDICAL MARIJUANA FACILITIES AND PROVIDING PENALTIES FOR THE VIOLATION THEREOF ISSUE: Should the ordinances licensing and regulating medical marijuana facilities be amended to reflect suggestions made by members of City Council? RECOMMENDATION: The proposed ordinance should be approved. BACKGROUND: On July 26, 2010, City Council adopted Ordinance No. 8244 licensing and regulating medical marijuana facilities. At that time, members of City Council made several suggestions for changes to improve the ordinance. The proposed ordinance incorporates the following suggested changes: (1) Certain crimes are made per se disqualifications for obtaining a license that cannot be overcome by showing rehabilitation; (2) The burden of proving rehabilitation is increased to the "beyond a reasonable doubt" standard; (3) Certain factors that the Authority should consider in determining whether a person has been rehabilitated are set forth; (4) Factors that the Authority should consider in determining whether a principal, registered manager, or employee has sufficient experience and training in the law regulating medical marijuana facilities are set forth; (5) Optional premises cultivation premises do not have to be contiguous with a medical marijuana center or medical marijuana infused products manufacturing operation if the cultivation center is located outside the City of Pueblo; (6) An optional premises cultivation premises located within the City of Pueblo must be located in a completely separate building that does not share any door, windows, air passages or air handling equipment with any other building or premises; (7) The requirements in the original ordinance for separation of air between cultivation premises and customer areas by means of physical separations or negative air systems is deleted as unnecessary given the new requirement that cultivation premises be located in a completely separate building or premises that does not share air with any other premises; (8) Persons purchasing medical marijuana must present a government-issued photographic identification along with their medial marijuana card; (9) A primary caregiver purchasing medical marijuana on behalf of a homebound patient must present both sets of medical marijuana cards, photo IDs, and a waiver from the State permitting the primary caregiver to purchase and transport medical marijuana on behalf of a homebound patient; (10) It is unlawful for any licensee or its employees to disclose medical information concerning patients to third persons, with certain exceptions; (11) It is unlawful for any licensee or its employees to sell more than two (2) ounces of medical marijuana, whether in the form of harvested marijuana or a marijuana infused product, or more than the specific amount in excess of two ounces authorized in the physician's recommendation, to a patient or primary caregiver within 24 hours; (12) It is unlawful for any licensee or its employees to sell more than six (6) marijuana plants, or more than the specific number of plants authorized in the physician's recommendation, to a patient or primary caregiver within 24 hours; (13) It is unlawful for any licensee or its employees to transport marijuana without carrying a manifest describing the quantity of marijuana, its point of origin, its destination, the name of the driver, and other pertinent facts; and (14) It is unlawful for any licensee or its employees to fail to label medical marijuana infused products with the quantity of marijuana contained in the product, by weight, or to offer for sale or give away any product not so labeled. The proposed ordinance also makes the following changes: (1) Section 11-10-306(c) is deleted as unnecessary now that it is clear that there are no medical marijuana facilities located within the City of Pueblo who will be entitled to operate before July 1, 2011; and (2) Section 11-10-702 (a) is amended to comply with state law, which requires a primary caregiver purchasing medical marijuana on behalf of a homebound patient to carry the homebound patient's medical marijuana card when purchasing medical marijuana for the homebound patient. FINANCIAL IMPACT: Unknown.