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HomeMy WebLinkAbout08369ORDINANCE NO. 8369 AN ORDINANCE AMENDING CHAPTER 10 OF TITLE 11, AND CHAPTER 15 OF TITLE 17, PUEBLO MUNICIPAL CODE, TO SUSPEND FURTHER ACTION ON ZONING AND LICENSING APPLICATIONS INVOLVING MEDICAL MARIJUANA AND TO HARMONIZE CERTAIN PROVISIONS OF PUEBLO CITY CODE WITH STATE STATUTES BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: (brackets indicate matter being deleted, underscoring indicates new matter being added) SECTION 1. Section 11-10-105 of Chapter 10 of Title 11 the Pueblo Municipal Code, as amended, is hereby amended to read as follows: Sec. 11-10-105. Certain confidential matters not public records. (a) The following matters contained in the files and records of the Authority and the City shall be confidential and shall not be public records: [] (1) The location of any optional premises cultivation operation; [] (1) (2)The records described in Section 11-10-319(a)(b), Pueblo Municipal Code; [] (2) (3) The results of the inspection of books, records and audits conducted under Section 11-10-320, Pueblo Municipal Code; [] (3) (4) The results of inspections conducted under Section 11- 10-321, Pueblo Municipal Code; [] (4) (5) Responses to requests for information made under Section 11-10-322, Pueblo Municipal Code; [] (5) (6)The names of patients and primary caregivers and any record of the products they order or purchase from licensees. (b) The confidentiality of the matters described in Subsection (a) of this Section shall not prevent any City or State employee from accessing and reviewing such records if necessary or desirable as part of their assigned duties. SECTION 2. Section 11-10-201 of Chapter 10 of Title 11 of the Pueblo Municipal Code, as amended, is hereby amended to read as follows: Sec. 11-10-201. Licensing authority. (a) City Council may by resolution appoint as the Medical Marijuana Licensing Authority either an individual hearing officer or a Board. (b) As to any application for a medical marijuana license submitted before May 1, 2012, the application shall be suspended and shall not be processed until May 1, 2012 or thereafter, but shall not be granted or approved before July 1, 2012. An application submitted between May 1, 2012 and July 1, 2012 may be processed, but shall not be granted or approved before July 1, 2012. Nothing contained in this subsection shall be construed as infringing upon any of the constitutional rights granted under Article XVIII § Colorado Constitution. SECTION 3. Section 11-10-308 of Chapter 10 of Title 11 of the Pueblo Municipal Code, as amended, is 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: [ (1) Requirements for licensesinthe transition period between July 1, 2010 and July 1, 2011. a. As to any application for a license accepted before August 1, 2010, whether or not the applicant was established on or before July 1, 2010 as defined in Section 12-43.3-103(1)(a), C.R.S., the applicant has completed and submitted the forms and paid the fees to the State Department of Revenue required under Section 12-43.3-103(1)(b), C.R.S., by August 1, 2010. b. As to any application accepted after August 1, 2010, but before July 1, 2011, whether or not the applicant was established on or before July 1, 2010 as defined in Section 12-43.3-103 (1)(a), C.R.S., the applicant demonstrates that it has completed the forms and is prepared to submit the forms and pay the fees to the State Department of Revenue within thirty (30) days, as required under Section 12-43.3-103(1)(b), C.R.S. c. As to any application for a license accepted before September 1, 2010, whether or not the applicant was established on or before July 1, 2010 as defined in Section 12-43.3-103 (1)(a), C.R.S., the applicant demonstrates that it is prepared to certify to the State Department of Revenue, on or before September 1, 2010, that it is cultivating at least seventy percent (70%) of the medical marijuana necessary for its operation, as required in Section 12-43.3-103(2)(b), C.R.S. d. As to any application accepted after September 1, 2010, but before July 1, 2011, whether or not the applicant was established on or before July 1, 2010, as defined in Section 12-43.3-103 (1)(a), C.R.S., the applicant demonstrates that it is prepared to certify to the State Department of Revenue, by no later than August 1, 2011, that it is cultivating at least seventy percent (70%) of the medical marijuana necessary for its operation, as required in Section 12-43.3-103(2)(b), C.R.S. The applications for these City licenses may be approved by the ] Authority, but shall not be issued until July 1, 2011. [] (1) (2) General requirements. a. The applicant has obtained a limited use permit from the City for the location of the proposed licensed premises; b. The applicant has obtained a City sales and use tax license; c. The applicant has obtained a State sales and use tax license; d. The applicant has obtained a City license for any other business activity that will be operated on the licensed premises; e. The applicant has submitted an application for a license that the Clerk to the Authority has determined is complete; and f. The applicant has paid all fees required under this Chapter. [] (2) (3) Personal requirements for the licensee, principals, registered manager and employees. a. The applicant, principals, registered manager, and employees meet all requirements for issuance of a State license. b. The applicant, principals, registered manager, and employees are all over the age of twenty-one (21). c. The applicant, principals, registered manager, and employees have not been determined by any medical marijuana licensing authority, any other licensing board within the State, or the Colorado Department of Revenue to not be persons of good character and record within the preceding three (3) years. d. The applicant, principals, registered manager and employees have not discharged a sentence for any felony in the five (5) years immediately preceding the application. This shall constitute a per se and complete disqualification. Rehabilitation shall not be considered. e. The applicant, principals, registered manager and employees have never been convicted of a felony pursuant to state or federal law regarding the possession, distribution, or use of a controlled except that this provision shall not apply as to employees substance, if the crime the employee was convicted of is no longer a felony. This shall constitute a per se and complete disqualification. Rehabilitation shall not be considered. [] (3) (4) Location and other licensing of premises. a. The proposed licensed premises and adjacent grounds meet all requirements for issuance of a State license. b. The proposed licensed premises are located in a fixed, non- portable building. c. The premises are not licensed or operated as an establishment for the sale or service of alcohol beverages as defined in Section 12-47-103(2), C.R.S., or as a massage parlor, a dance hall or an amusement establishment as defined in Chapter 2, Title IX, Pueblo Municipal Code. d. The premises are not licensed or operated as a retail food establishment or wholesale food registrant. e. No medical marijuana license of the same class has been denied at the location of the proposed licensed premises or at another location within one thousand (1,000) feet of the proposed licensed premises, as measured from any wall of the two (2) proposed licensed premises, within the preceding two (2) years due to the nature of the use or other concern related to the location. [] (4) (5) Control, security and code compliance of premises. a. The applicant has sole legal control of the proposed licensed premises at the time the application is submitted, under a lease that is presently in effect or through present ownership of the proposed licensed premises. b. The proposed licensed premises have a suitable limited access area where the cultivation, display, storage, processing, weighing, handling and packaging of medical marijuana and marijuana infused products occurs, which is posted "employees only," and is separated from the areas accessible to the public by a wall, counter or some other substantial barrier designed to keep the public from entering the area. c. The applicant has submitted a security plan for the proposed licensed premises, which has been inspected and approved by the Police Department, showing at least the following security measures: 1. All doors, windows and other points of entry have secure and functioning locks; 2. A locking safe or enclosed metallic storage vault located inside the proposed licensed premises in which any harvested medical marijuana and medical marijuana infused products will be secured when the licensed premises are not open to the public; 3. If the licensed premises are connected by any passage or entryway to any other premises, there is a door between the two premises that can be locked from the licensee side and cannot be opened from the other side; 4. A professionally monitored burglar alarm system that detects unauthorized entry of all doors, windows and other points of entry to the proposed licensed; and 5. Windows facing the adjacent grounds and lighting of the adjacent grounds sufficient to ensure that customers entering and leaving the licensed premises, entering and exiting parked cars on the adjacent grounds, and walking across the adjacent grounds can be observed by employees from inside the licensed premises. d. The proposed licensed premises and adjacent grounds comply with all zoning, health, building, plumbing, mechanical, fire and other codes, statutes and ordinances, as shown by completed inspections and approvals from the Pueblo Zoning Department, Regional Building Department, Pueblo Fire Department and Regional Health Department. e. There is sufficient parking available on the proposed adjacent grounds given the size of the licensed premises and the number of employees and customers that can reasonably be expected to be present at any given time. f. The proposed licensed premises and adjacent grounds of the licensed premises will be operated in a manner that does not cause any substantial harm to public health, safety and welfare. [] (5) (6) Requirements specific to a medical marijuana center license. a. The applicant also obtains an optional premises cultivation license, which is either contiguous to the licensed premises of the medical marijuana center or located outside the City of Pueblo. b. The applicant will cultivate at least seventy percent (70%) of the marijuana sold or exchanged on the licensed premises. [] (6) (7) Requirements specific to optional premises cultivation license. a. The applicant also holds a medical marijuana center license or a medical marijuana infused products manufacturer's license. b. The proposed licensed premises are either contiguous to the licensee's licensed premises for a licensed medical marijuana center or a marijuana infused products manufacturer's operation or are located outside the City of Pueblo. c. The area of the proposed licensed premises utilized for cultivation is equipped with a ventilation system with carbon filters sufficient in type and capacity to eliminate marijuana odors emanating from the interior to the exterior discernible by a reasonable person. The ventilation system must be inspected and approved by the Pueblo Regional Building Department. d. The proposed licensed premises are located 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. e. Walls, barriers, locks, signs and other means are in place to prevent the public from entering the area of the proposed licensed premises utilized for cultivation. f. No portion of the building in which the proposed licensed premises are located is utilized as a residence. [] (7) (8) Requirements specific to a marijuana infused product manufacturer's license: a. The applicant has a contract with a medical marijuana center, stating the type and quantity of medical marijuana infused product that the medical marijuana center will buy from the licensee; b. The applicant also obtains an optional premises cultivation license, which is either contiguous to the licensed premises of the medical marijuana center or located outside the City of Pueblo; c. The applicant cultivates at least seventy percent (70%) of the marijuana necessary for its operation; and d. The applicant will use marijuana from no more than five marijuana providers, including its own optional premises cultivation operation to manufacture its marijuana infused products. [] (8) (9) Requirements for premises that are not completed. a. If the proposed licensed premises have not been completed, inspected, and approved as required in this Chapter at the time of the hearing for a new license or a hearing on transfer of an existing license to a new location, the applicant shall submit to the Authority: 1. A recorded deed to the licensee showing ownership of the proposed licensed premises or a lease showing a right to occupy the proposed licensed premises; and 2. Plans, specifications, drawings and other documents showing that the proposed licensed premises and adjacent grounds will probably comply with the requirements of this Chapter when completed and inspected. b. The Authority may approve the license before the proposed licensed premises are completed, inspected and approved, but shall not issue the license until the licensed premises have been completed and all inspections and approvals required under this Chapter have been obtained and submitted to the Authority. c. In the event that the license is approved, but the premises are not completed, inspected and approved as required in this Chapter within one hundred twenty (120) days of approval, the approval shall lapse and the license shall not be issued. [] (9) (10) Requirements of this Section also apply to licensees; continuing duty. a. The requirements of this Section imposed on any applicant shall also apply to any licensee. The requirements of this Section imposed on any proposed licensed premises, proposed adjacent grounds, or proposed location shall also apply to licensed premises, adjacent grounds, and actual locations, respectively. b. Every licensee and its principals, registered manager, and employees has a continuing duty to ensure that the requirements of this Section continue to be met after the license is issued and at all times that the license remains in effect. SECTION 4. Section 11-10-318 of Chapter 10 of Title 11of the Pueblo Municipal Code, as amended, is hereby amended to read as follows: Sec. 11-10-318. Trade names, trademarks, logos, labels, packaging and advertising. (a) It shall be unlawful for any licensee to use any logo, trademark, [] sign trade name, label, packaging or advertising using the word "marijuana," "cannabis," any alternative spelling or abbreviation of the same, any slang term for the same commonly understood as referring to marijuana, any image of a cannabis leaf, or any depiction of any paraphernalia or other image commonly understood as referring to marijuana, except that the complete phrase "medical marijuana" may be used, so long as both words are the same size, style and font. (b) Nothing contained in this Section shall be construed as creating a prior restraint on speech or press. The Authority shall not require an applicant or licensee to obtain any approval or license from the Authority before using any [] sign logo, trademark, trade name, label, packaging or advertising. Nothing contained in this Subsection shall prevent the City from taking civil, administrative or criminal action against any person or license after any logo, trademark, trade [] sign name, label, packaging or advertising has been used. (c) Any court of competent jurisdiction construing or applying this Section shall seek a saving construction and application that makes the Section constitutional. In the event that any court of competent jurisdiction determines that any provision in this Section violates any right that any person may have to free speech or press, despite the court's saving construction and application, the Court shall strike this Section only and sever the same from the remainder of this Chapter, which shall remain valid and effective without this Section. SECTION 5. Section 11-10-501 of Chapter 10 of Title 11 of the Pueblo Municipal Code, as amended, is hereby amended to read as follows: Sec. 11-10-501. Notice of hearings; setting of hearings. (a) Notice for hearings on applications for new licenses, denial of a new license, renewals of licenses, and approval of major changes shall be given to the public in the manner prescribed by State law by posting the proposed premises and publishing a notice in a newspaper of general circulation at least fifteen (15) days before the hearing, stating the name of the applicant, the address of the proposed licensed premises, and the type of license applied for. (b) All notices shall state the date, time and place of the hearing, the name of the applicant or licensee, the address of the proposed or licensed premises, the date, time and place of the hearing, and the issue before the Authority. [ (c) Notwithstanding any other provision regarding public notice, posting of notice on premises, publication of notice, agendas of the Authority, notices of hearing or any other document made available to the public, contained in this Chapter or any other provision of the Pueblo Municipal Code, which pertains or may be applied to any application for an optional premises cultivation license or a licensed optional premises cultivation operation: (1) No public notice or publication of notice of any hearing shall be given concerning such a license or an application for the same; (2) No notice of a hearing shall be posted at the proposed or licensed premises or adjacent grounds; (3) No agenda, notice or other document available to or released to the public shall contain the address of the proposed or licensed premises; (4) The address of the proposed or licensed premises shall not be disclosed by the Authority or City staff in any hearing or statement concerning such application or license; and (5) The address of the licensed premises or proposed licensed premises shall not be a matter of public record and shall not be released ] to the public. [] (c) (d) The applicant shall have the responsibility to set the matter with the Clerk of the Authority for a hearing, publish notices, provide a publisher's affidavit of publication, post the premises with notice as required by this Chapter and State law, and provide an affidavit of posting. [ ] (d) (e) Failure of an applicant to properly publish notice of the hearing, post the premises with notice of the hearing as provided in this Chapter, and provide proper affidavits of the same shall deprive the Authority of jurisdiction to hold a hearing on the application. [] (e) (f) Applicants for a new license seeking a hearing under Section 11-10-311 of this Chapter shall have the sole responsibility to: (1) Conduct the setting of the hearing with the Clerk of the Authority within the time limits prescribed in Section 11-10-310(c)(d); (2) Select a date for the hearing that is not less than thirty (30) and no more than ninety (90) days from the day of the setting; (3) Publish and post the proposed premises with notice as required in this Chapter. [] (f) (g) Failure of an applicant to successfully bring an application for a new license or any major change to a hearing in compliance with every requirement of this Section shall constitute withdrawal of the application. Withdrawal of an application under this Section shall not constitute a denial of the application under Section 11-10-308(d)(5) and shall not prevent the applicant from re-submitting its application upon payment of a new application fee. SECTION 6. Section 11-10-703 of Chapter 10 of Title 11 of the Pueblo Municipal Code, as amended, is hereby amended by deleting subsections (15) and (19): 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: … [ (15) To fail, neglect or refuse to package and label any medical marijuana plant, harvested marijuana or medical marijuana infused product produced, sold or exchanged on the licensed premises with the following statements in clear and legible type in at least a 12-point font: THIS PRODUCT CONTAINS MEDICAL MARIJUANA. THIS PRODUCT IS CULTIVATED, MANUFACTURED AND PROCESSED WITHOUT ANY GOVERNMENTAL OVERSIGHT AS TO ITS HEALTH, SAFETY OR EFFICACY. THERE MAY BE HEALTH RISKS ASSOCIATED WITH THE CONSUMPTION OF THIS PRODUCT. THE CHEMICALS, ADDITIVES, PESTICIDES, HERBICIDES AND FERTILIZERS, ARTIFICIAL AND NATURAL, USED IN THE CULTIVATION, PROCESSING, PRODUCTION AND STORAGE ] OF THE PRODUCT ARE AS FOLLOWS: (STATE EACH HERE). … [ (19) 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 7. Section 17-15-5 of Chapter 15 of Title 17 of the Pueblo Municipal Code, as amended, is hereby amended by the addition of a new subsection (l), which shall read as follows: Sec. 17-15-5 Review and Approval Procedures. … (l) During the period preceding March 1, 2012, all applications, approvals, reviews, location determinations, limited use permits, and modifications or changes of Planned Unit Developments concerning any site, zone, location, or use involving medical marijuana shall be suspended and no further action to process, review, or evaluate the same shall be taken on the same until March 1, 2012 or thereafter. No approval or limited use permit shall be granted before May 1, 2012. Nothing contained in this subsection shall be construed as infringing on any of the constitutional rights granted under Article XVIII § Colorado Constitution. SECTION 8. This Ordinance shall become effective upon final passage and approval. INTRODUCED June 27, 2011 BY: Larry Atencio COUNCILPERSON PASSED AND APPROVED: July 11, 2011 Background Paper for Proposed ORDINANCE DATE:AGENDA ITEM # R-6 June 27, 2011 DEPARTMENT: Law Department Thomas J. Florczak, City Attorney TITLE AN ORDINANCE AMENDING CHAPTER 10 OF TITLE 11, AND CHAPTER 15 OF TITLE 17, PUEBLO MUNICIPAL CODE, TO SUSPEND FURTHER ACTION ON ZONING AND LICENSING APPLICATIONS INVOLVING MEDICAL MARIJUANA AND TO HARMONIZE CERTAIN PROVISIONS OF PUEBLO CITY CODE WITH STATE STATUTES ISSUE Should the City Ordinances regulating licensing and zoning of medical marijuana be amended to harmonize with state statute? RECOMMENDATION Approve the Ordinance BACKGROUND On May 23, 2011 the Colorado General Assembly passed HB 11-1043 and on June 2, 2011 the Governor signed the bill into law. HB 11-1043 places a hold on issuance of all new medical marijuana licenses until July 1, 2012; and On April 26, 2011, John Walsh, U.S. Attorney for the District of Colorado, sent a letter to John Suthers, Attorney General for Colorado, indicating that while federal authorities will not prosecute seriously ill persons who use medical marijuana in compliance with state law, federal authorities may prosecute persons who operate commercial medical marijuana facilities and others who aid and abet such activities. On April 26, 2011, Attorney General John Suthers sent a letter to Governor Hickenlooper and the Colorado General Assembly stating, among other things, that the U.S. Attorneys do not consider state employees who conduct activities under the state law (such as licensing) to be immune from liability under federal marijuana laws for activities that aid or abet commercial medical marijuana facilities. City officials may also find themselves criminally liable under federal law for issuing medical marijuana licenses or zoning approvals which aid or abet commercial medical marijuana operations; and Waiting until March 1, 2012 to process zoning requests, until May 1, 2012 to grant same, until May 1, 2012 to process, and until July 1, 2012 before issuing licenses involving medical marijuana will give the City an opportunity to assess the federal government's intentions regarding the criminal liability of commercial medical marijuana operations and the criminal liability of government officials who issue zoning approvals or licenses for such activities. FINANCIAL IMPACT None.