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.