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Home My WebLink About09572 City Clerk’s Office Item # R-11 Background Paper for Proposed Ordinance COUNCIL MEETING DATE: September 23, 2019 TO: President Dennis E. Flores and Members of City Council CC: Mayor Nicholas A. Gradisar VIA: Brenda Armijo, City Clerk FROM: Trevor D. Gloss, Assistant City Attorney SUBJECT: AN ORDINANCE AMENDING CHAPTER 10 OF TITLE XI AND CHAPTER 11 OF TITLE XI OF THE PUEBLO MUNICIPAL CODE RELATING TO ADVERTISING FOR MEDICAL AND RETAIL MARIJUANA LICENSES SUMMARY: Attached for consideration is a text amendment that will amend Chapter 10 of Title XI and Chapter 11 of Title XI of the Pueblo Municipal Code relating to advertising for Medical Marijuana and Retail Marijuana Licenses. PREVIOUS COUNCIL ACTION: None. BACKGROUND: Sections 11-10-318 and 11-11-318 of the Pueblo Municipal Code currently prohibit Medical and Retail Marijuana businesses from using the words “marijuana” and “cannabis” on outdoor advertising, except when using the phrases “medical marijuana,” “retail marijuana,” and “recreational marijuana.” The same provisions also prohibit using images of cannabis leaves for advertising. This ordinance will amend the municipal code to allow marijuana licensees to use the words “marijuana” and “cannabis,” without them being included as part of a phrase, and use images of cannabis leaves for advertising. FINANCIAL IMPLICATIONS: None. BOARD/COMMISSION RECOMMENDATION: None. STAKEHOLDER PROCESS: None. ALTERNATIVES: If City Council does not approve this Ordinance, Chapter 10 of Title XI and Chapter 11 of Title XI of the Pueblo Municipal Code will not be amended, and the current advertising restrictions for Medical and Retail Marijuana Licenses will not change. RECOMMENDATION: Not applicable. Attachments: Proposed Ordinance ORDINANCE NO. 9572 AN ORDINANCE AMENDING CHAPTER 10 OF TITLE XI AND CHAPTER 11 OF TITLE XI OF THE PUEBLO MUNICIPAL CODE RELATING TO ADVERTISING FOR MEDICAL AND RETAIL MARIJUANA LICENSES WHEREAS, on November 6, 2012, the voters of the State of Colorado approved Amendment 64. Amendment 64 added §16 of Article XVIII to the Colorado Constitution, which authorized a system of state and local licensing of businesses engaged in the cultivating, testing, manufacturing, and selling of marijuana; and WHEREAS, Subsection 16(5)(f) of Article XVIII allows governmental entities, within their respective jurisdictions: to prohibit the operation of marijuana establishments; to regulate the time, place, and manner under which marijuana establishments may operate; and to limit the total number of establishments within their jurisdictions, including the authority to engage in local licensing of marijuana establishments; NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: (brackets indicate matter being deleted, underscoring indicating matter being added) SECTION 1. Section 11-10-318 of Chapter 10 of Title XI of the Pueblo Municipal Code is hereby amended to read as follows: Sec. 11-10-318. - Trade names, trademarks, logos, labels, packaging and advertising. (a) With regards to a licensee’s building façade, signs, and other outdoor advertising, \[\]\[\] may a a licensee shall not use any logo, trademark, trade name, sign or advertising using \[\] orbut not 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 \[ as referring to marijuana, except that the complete phrase "medical marijuana" may be used, so \] A licensee may use images of a cannabis long as both words are the same size, style and font. leaf, which shall be considered a commercial message, not art, and which must comply with Chapter 10 of Title XVII of the Pueblo Municipal Code. This prohibition shall not apply to any advertisement contained within a newspaper, magazine or other periodical of general circulation within the City or on the internet, which may include coupons, or that is purely incidental to sponsorship of a charitable event by a medical marijuana establishment. Such signage and advertising must not be misleading, false, or infringe upon any state or federal trademark. (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 logo, trademark, trade name, sign or advertising. Nothing contained in this Section shall prevent the City from taking civil, administrative or criminal action against any person or license after any logo, trademark, trade name, sign or advertising has been used. An applicant or licensee may request the Authority make an administrative determination as to whether a logo, trademark, trade name, sign, or advertising would be prohibited under this Section, but the Authority shall not be required to make such a determination. (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 2. Section 11-11-318 of Chapter 11 of Title XI of the Pueblo Municipal Code is hereby amended to read as follows: Sec. 11-11-318. - Trade names, trademarks, logos, labels, packaging and advertising. (a) With regards to a licensee’s building façade, signs, and other outdoor advertising, \[\]\[\] may a a licensee shall not use any logo, trademark, trade name, sign or advertising using the \[\] , orbut not 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 \[ referring to marijuana, except that the complete phrases “retail marijuana” or “recreational \] A licensee marijuana” may be used, so long as both words are the same size, style and font. may use images of a cannabis leaf, which shall be considered a commercial message, not art, and which must comply with Chapter 10 of Title XVII of the Pueblo Municipal Code. This prohibition shall not apply to any advertisement contained within a newspaper, magazine or other periodical of general circulation within the City or on the internet, which may include coupons, or that is purely incidental to sponsorship of a charitable event by a retail marijuana establishment. Such signage and advertising must not be misleading, false, or infringe upon any state or federal trademark. (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 logo, trademark, trade name, sign 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 name, sign or advertising has been used. An applicant or licensee may request the Authority make an administrative determination as to whether a logo, trademark, trade name, sign, or advertising would be prohibited under this Section, but the Authority shall not be required to make such a determination. (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 3. The officers and staff of the City are directed and authorized to perform any and all acts consistent with the intent of the Ordinance to effectuate the policies and procedures described herein. SECTION 4. This Ordinance shall become effective thirty (30) days after the date of final action by the Mayor and City Council. Action by City Council: Introduced and initial adoption of Ordinance by City council on September 23, 2019 . Final adoption of Ordinance by City Council on October 15, 2019 . President of City Council Action by the Mayor: ☒ Approved on October 17, 2019 . □ Disapproved on based on the following objections: Mayor Action by City Council After Disapproval by the Mayor : □ Council did not act to override the Mayor’s veto. □ Ordinance re-adopted on a vote of , on □ Council action on failed to override the Mayor’s veto. President of City Council ATTEST City Clerk