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Where The Grass is Getting Greener

State approval of the use of marijuana for reducing nausea in chemotherapy patients and other medical applications is spreading like, well, marijuana.

Fourteen states now have approved the possession of up to six ounces of pot for medical purposes, the latest being New Jersey, which passed a medical marijuana bill early last month that was signed into law by outgoing Gov. Jon Corzine. Numerous other states have medical marijuana bills pending.

California, the first state to legalize medical marijuana in 1996, has seen an explosion of marijuana “clinics” in recent years, hundreds of outlets that dispense weed for everything from cancer treatment to “stress” as long as a doctor is willing to write a prescription. With the nation’s largest state teetering on the brink of fiscal collapse, a growing movement in California has been promoting outright legalization or at least taxation of the state’s burgeoning pot crop as a means of generating revenue. Unofficial estimates suggest that marijuana is the largest harvested crop in the Golden State. Much bigger than broccoli without a doubt.

So perhaps it is only inevitable that the focus of the medical marijuana debate is shifting from the virtues of using the plant for medical purposes to the economic potency of weed as a cash crop. This is the case in Colorado, which legalized medical marijuana in 2000. State legislators are now grappling with the issues surrounding the state’s growing number of marijuana delivery outlets.

This prompted one Denver city councilwoman, Carol Boignon, to write an op-ed column in the Colorado Statesman warning about the dangers of treating pot as an economic development tool. Here are Ms. Boignon’s comments:

“More than 400 medical marijuana dispensaries have applied for use permits in Denver, most of them in the last two and a half months. Constituents on all sides of the issue have contacted me: patients depending on marijuana to ease their illnesses, caregivers seeking to provide a service, and deeply concerned residents trying to protect their neighborhoods from crime and their children from harm.

How did Denver get here? A little history:

In 2000, Colorado voters authorized the use of medical marijuana for adults suffering from certain illnesses, including cancer, and for pain. Denver voters were strong supporters of the initiative.

In 2007, Denver voters by 57 percent to 43 percent authorized the City to make enforcement of possession of less than 1 ounce of marijuana a low priority, despite federal laws making possession a felony.

In 2007, Denver District Judge Larry Naves ruled that the state had adopted its rules regulating medical marijuana by procedures that violated state law.

In July of 2009, the State Board of Health, the proper authority to adopt those rules, refused by a series of divided votes to adopt new state rules to regulate medical marijuana.

In October 2009, the U.S. Department of Justice issued a memorandum saying that it would not be prosecuting marijuana users who were “in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”

In November 2009, the City of Denver announced its intention to regulate through licensing, zoning and taxation the sale of medical marijuana within the City and County of Denver.

Since the Naves decision, the City has received more than 400 applications for medical marijuana dispensaries, where the product can be grown, manufactured, packaged, sold and used in business, industrial, mixed use and agricultural/open space zone districts throughout the City.

I believe Denver voters said clearly that sick adults whose health would benefit from marijuana should have it. They did NOT authorize creating a new industry in medical marijuana for economic development. They did NOT authorize a delivery system through freestanding medical marijuana dispensaries. They did NOT authorize agricultural and manufacturing facilities for marijuana in every neighborhood in the City. They did NOT guarantee a profit to everyone who chooses to be a medical marijuana grower or seller.

As a Denver policy maker, I believe our challenge is to help the City find a good fit between voter direction and the needs of children and families.

In December 2009, Denver began taxing medical marijuana sales. On Jan. 11, 2010, we passed by a vote of 13 to 0 a Denver ordinance, developed by Councilman Charlie Brown, to license medical marijuana dispensaries and set standards for operation.

The new law limits hours from 7 a.m. to 9 p.m., spaces them 1,000 feet from each other and 1,000 feet from schools and licensed child care centers that existed before the medical marijuana licenses were issued. It does NOT allow using marijuana on site. Dispensaries that applied for a City business license after Dec. 15, 2009, are subject to the new spacing requirements. Approximately 230 dispensaries hold business licenses issued on or before Dec. 15, 2009. By contrast, 128 actively registered pharmacies operate in Denver, according to state pharmacy regulators.

Existing zoning requirements will control the amount of marijuana that can be grown in a dispensary. Currently, in a business district, 10 percent of retail space can qualify for growing (the zoning term is “husbandry”) as an accessory use.

In industrial and agricultural/open space districts up to 100 percent of space can be used for growing. However, the state law requires that medical marijuana can only be supplied and sold by a “caregiver.” A grow house in an industrial zone must, therefore, be a ‘caregiver’ with patients and have a retail component on site. This retail activity also is considered an accessory use in agricultural/open space districts. Plant growing will be limited to less than 100 percent of space. No retail, agriculture or manufacturing may occur in residential zones. So far, the vast majority of applications in Denver are in retail districts, usually in storefront space.

The state Legislature is now attempting to close the regulatory gaps at the state with bills by Sen. Chris Romer, D-Denver and Rep. Tom Massey, R-Poncha Springs. It will look at grow sites and requirements, patient eligibility, caregiver responsibilities and definition, patient-caregiver ratios, doctor qualifications standards of care, and more.

For the most part, I support the City ordinance. It will help Denver manage this new industry. However, in California, medical marijuana services created many difficulties in Los Angeles, Oakland, San Diego, San Francisco and Marin County. I thought we could better contain the problems with a few changes. I proposed several amendments. One limited the amount of growing, drying and packaging to the Colorado standard of 2000-2007 for 15 plants drying and 15 plants growing per caregiver/dispensary. It failed by a 6-7 vote on first reading. It would have forced large scale growing and manufacturing of marijuana out of Denver.

Few council members were interested in the other amendments so I did not introduce them. One applied the new rules to all dispensaries that applied for a license after Dec. 1, 2009. My goal was to protect the spacing requirements from schools and childcare centers and to avoid clustering of dispensaries into “club” districts. But I agree that Dec. 15 was a decent compromise; fewer than 50 sites were “grandfathered’ in those two weeks and it is much better than the first Jan. 1, 2010, proposal.

Another of my amendments added City libraries, recreation centers and parks containing city-permitted athletic fields to facilities for 1,000-foot distancing. I hoped to shield unattended children, usually grades 4-9, from marijuana solicitation that has occurred in California and in Denver. The City operates those facilities to attract children during out-of-school hours and therefore, I believe, we have a duty to make sure those facilities are suitable for children.

I also proposed we add safety hardware and safety planning requirements to delivery services, because of the value and portability of the product and because of the likelihood, based on the California experience, that this will be a cash business. Once we eliminated consumption on-site—a very good change proposed by Councilwoman Jeanne Robb— and we failed to limit the amount of growing, I thought the likelihood of delivery services would increase. Denver then should set security requirements for delivery as it has for business sites.

I also asked Denver Health doctors to look into safety packaging and warnings because, so far as I know, medical marijuana is the only medicine that can come packed as a regular food treat, such as cookies and brownies. We already are seeing some cases in the emergency room where little children have eaten marijuana-laced treats. If the hospital determines that such steps could be effective, I will introduce safety legislation later.

This ordinance is an attempt to bring some order to the wild growth of the medical marijuana industry. We have little precedent to rely upon, but have done the best we can, based on emerging trends from other states and the industry here in Denver. As this industry develops we need to make sure that we are meeting the needs of patients in need and protecting the children and families of Denver.”

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