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:
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(1) The location of any optional premises cultivation operation;
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(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;
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(4)
(5) Responses to requests for information made under
Section 11-10-322, Pueblo Municipal Code;
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(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.
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(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.
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(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.
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(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.
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(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.
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(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.
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(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.
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(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.
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(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.
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(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,
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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
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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
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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.
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(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.
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(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.
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(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.