Regulation of pot one step closer

The Colorado Statesman

Gov. John Hickenlooper put his signature this week on a package of bills that establish a regulated marijuana market for adults, but implementation of the new rules and regulations has barely begun.

The legislature’s job was to craft a regulatory framework for Amendment 64, which voters passed last November by over 55 percent. Hickenlooper on Tuesday signed the majority of those bills related to its implementation.

Those measures include two that regulate the burgeoning industry and another bill that asks voters this November to back a 15 percent excise tax and a separate 10 percent special sales tax. Those dollars would go towards enforcement costs, with the first $40 million of the excise tax ear-marked for capital school construction.

Gov. John Hickenlooper on Tuesday at the Capitol signed several pieces of legislation implementing the legalization of marijuana. Standing behind the governor from left to right, Sen. Randy Baumgardner and Reps. Dan Pabon and Mark Waller.
Photo by Peter Marcus/The Colorado Statesman

The governor also signed House Bill 1325, which sets a 5-nanogram limit of tetrahydrocannabinol (THC), the psychoactive ingredient in marijuana, at the time of a suspected driving offense. Essentially, it creates a separate DUID limit for marijuana.

Finally, the governor also signed Senate Bill 241, which establishes development of a regulatory framework for the commercial cultivation, processing and distribution of industrial hemp.

To the surprise of many, Hickenlooper held a signing ceremony for the legislation at the Capitol on Tuesday, where just weeks earlier the legislature worked furiously into long nights in order to pioneer a framework for legalization. Only Washington joins Colorado in having legalized recreational marijuana and retail sales.

The governor and his administration had fought Amendment 64. When it passed, he made a joke, telling Coloradans, “Don’t break out the Cheetos or Goldfish too quickly.” To have a signing ceremony indicated just how far the discussion has come.

“Clearly we are charting new territory, other states haven’t been through this process… recreational marijuana is really a completely new entity, but really the bills we’re signing today really do lay out this new territory,” Hickenlooper attested at the ceremony.

His chief legal counsel, Jack Finlaw — who oversaw an implementation task force that worked to make recommendations to the legislature — was careful to remind citizens that the administration is still opposed to legalization.

“As you know, as an administration we opposed the passage of Amendment 64, but on the day after the election, we woke up and saw that 55 percent of the voters supported the amendment and we immediately rolled up our sleeves…” explained Finlaw.

Assistant House Majority Leader Dan Pabon, D-Denver, who took the lead in the legislature crafting and pushing through the bills that will implement the new marijuana marketplace, said public safety remained the paramount goal.

“When you’re in uncharted territory, you need a North Star, and the North Star that we used was public safety and making sure that we kept this out of the hands of kids and cartels and criminals,” declared Pabon.

Sen. Randy Baumgardner, R-Cowdrey, who was appointed in the Senate along with Sen. Cheri Jahn, D-Wheat Ridge, to take the lead on implementation bills, pointed out that lawmakers really did not want the duty of crafting that legislation. But he said they heard the call.

“This is something that we all had to grapple with at one point or another… But it was voted for by the people of the state of Colorado, it was in our constitution and it was put upon us as legislators of the state of Colorado to come up with a good combined piece of legislation that would move the industry forward and make marijuana safe for the citizens of the state of Colorado,” added Baumgardner.

Reality sets in

But with the ceremony in the rearview mirror, the reality now falls on the shoulders of local governments. Amendment 64 simply legalized possession of up to an ounce for Colorado residents and personal cultivation up to six plants. It also legalized industrial hemp.

But the amendment did not extend the constitutional right to retail sales. And nothing in the state legislation usurped local control; jurisdictions are completely in control of their own destiny when it comes to marijuana-related businesses.

The vast majority of municipalities and counties have already implemented, or are currently considering, a moratorium on retail sales as they begin discussions on how to implement their own rules and regulations.

For example, Broomfield has temporarily banned marijuana businesses through January 2015. There is expected to be a ballot question in 2014 in which local residents would be able to decide whether to permit retail sales. Many local jurisdictions could decide to follow that lead.

More poignant is that at least 18 municipalities have already passed, or are expected to pass, outright bans on retail sales. Noteworthy communities include Castle Rock, Cherry Hills Village, Cripple Creek, Englewood, Lone Tree, Longmont, Montrose, Monument, Parker, Superior, Thornton and Westminster.

At least 10 counties have also passed, or are expected to pass, outright bans, including Delta, Douglas, El Paso, Gunnison, Grand, Logan, Mineral, Rio Grande, Teller and Weld.

Many eyes are on major cities and towns like Aurora, Denver, Boulder and Pueblo, which are in the process of considering their own rules and regulations. If those communities allow retail sales, it could inspire other jurisdictions to follow suit.

Aurora had originally wanted to have a city-run system in which it would cultivate and sell marijuana, but lawmakers prohibited that in state legislation, fearful that it could send the wrong message to the federal government, which has yet to say how it will react to legalization. Instead, Aurora has moved forward with a one-year moratorium while it works on an ordinance covering marijuana-related businesses.

Denver is also tackling an ordinance. The City Council on Monday will hold a straw poll of its 13 members to determine whether it should proceed with drafting regulations for recreational sales. Denver is expected, however, to opt in.

Boulder and Pueblo are also considering rules and regulations. Boulder has passed a temporary ban on retail businesses until 2014 while it considers proposed ordinances, and Pueblo has passed a moratorium until March 2014.

Impact on state brand?

Meanwhile, Hickenlooper has acknowledged that the new industry can create jobs and be a boon to tourism. But he has expressed a fear that many local jurisdictions have expressed, which is that legalization could hurt the state’s image.

“Amendment 64 is hotly debated whether that’s good for business and jobs in Colorado,” remarked the governor. “Certainly this industry will create jobs. Whether it’s good for the brand of the state in terms of our economy is still up in the air.”

Loren Furman, senior vice president of state and federal relations for the Colorado Association of Commerce and Industry, said the business community hasn’t really taken much of a look at what legalization might mean to the state’s brand. They were more concerned with whether they would be able to still control things like having drug-free work zones, which remains in their control.

But Furman holds out hope that Amendment 64 won’t negatively impact the state or its business community.

“It’s certainly created a buzz in other states as to what Colorado has done going forward,” she said. “We’re hoping that the way this legislation has been crafted that it doesn’t put a black mark on Colorado and can continue to find ways to create some jobs for folks and small businesses.”

Christine O’Donnell, president of the Colorado Hotel and Lodging Association, pointed out that her organization opposed Amendment 64, mostly because it was written into the constitution. But she said its impact is most likely a Catch-22 in that while some people may want to travel to Colorado for its marijuana, others — such as families — may be wearier.

“The biggest problem is going to be educating the consumer,” she said. “We’ve had a lot of people saying, ‘We can’t wait to come to Colorado and lie down in a park and smoke pot.’”

O’Donnell said she’s heard reports from member hotels of people lighting up in the middle of the restaurant. Public consumption is illegal under the laws signed by the governor, as is public indoor smoking.

John Ricks, spokesman and associate director of the Colorado Tourism Office, did not return multiple requests by The Colorado Statesman seeking comment on how marijuana could impact tourism in the state.

Lawsuit over ‘bud porn’ ensues

Just as uncertain as the impact on Colorado’s image and economic climate are the rules and regulations themselves. Lawmakers acknowledge that the framework is imperfect and that it will take years of tweaking.

One of the first examples of this uncertainty is a lawsuit filed by prominent Denver attorney David Lane this week challenging an amendment to one of the regulatory bills that essentially requires marijuana-related magazines to be treated like pornography.

Magazines like High Times can only be sold in marijuana-related stores, or, if they are sold in other stores, they must be placed behind the counter under the law. The amendment was nicknamed “bud porn.”

Lane called the lawsuit a “slam dunk,” suggesting that the amendment walks all over the First Amendment.

“Anybody who has finished one semester of law school knows that what they did was unconstitutional,” exclaimed Lane. “I can’t believe that there’s nobody in the legislature smart enough to put the brakes on this harebrained idea from its inception.

“There are very stringent limits on what the government can do with speech, and the main concept is that the government can’t pick and choose which speech it likes and which speech it doesn’t like,” he continued.

Rep. Bob Gardner, R-Colorado Springs, who pushed the bud porn amendment, said he isn’t married to the idea. He suggested there could be other ways around it if the courts strike it down.

“There may be further refinements,” acknowledged Gardner. “For instance, we can certainly control how things are in terms of the licenses themselves. We could then seek to control in some more restrictive way the advertisers themselves…

“I’m not wedded to this approach,” he continued. “I just simply think that… any substance that can be held to be illegal, certainly we can control the advertising.”

Implementing DUID

One other area that could be open to court challenges is with the DUID bill signed by the governor. The 5-nanogram limit was debated for years. In fact, it took six attempts to pass the limit because lawmakers questioned how accurate the science is behind it.

Many argue — especially medical marijuana patients — that habitual users could have a reading of 5 nanograms even if they’re not stoned at the time of the traffic stop.

Colorado has express consent, which requires drivers to consent to a chemical test if a police officer has reasonable grounds to believe the person is driving under the influence. If an officer suspects that a driver is stoned, then the driver could be asked to take a blood test.

If a blood test is refused, then the driver would still likely be charged and they would automatically forfeit their license for a year. If they agree to the test, then the officer would take them to a nearby hospital to have their blood drawn. Results would not be immediate like it is with a breathalyzer. Instead, the officer would likely still charge the driver as the jurisdiction waits for the results to come in.

The driver would not be allowed to drive their car away after the test, despite a presumption of innocence.

Someone would have to pick them up at the hospital, or they would have to find some other means of transportation. Driving is a privilege, so there is no presumed right to drive.

House Minority Leader Mark Waller, R-Colorado Springs, who sponsored the DUID bill, was unsure how much those tests would cost. Current alcohol blood draws cost about $50, he said. The local jurisdiction would eat the cost of that test. If the driver were found to be guilty, then they would be required to pay the cost of the test as part of restitution.

Waller acknowledged that the ordeal could be timely. But he said it is a necessary step in anticipation of a proliferation of marijuana use. He also pointed out that most hospitals have arrangements worked out with police departments to do the tests, and that many police departments have specific DUI units to handle such cases.

“You don’t have to have a chemical test to prove that somebody is under the influence. It’s just very helpful,” explained Waller, a former prosecutor. “I can’t tell you how many cases I prosecuted in this state where I didn’t have a chemical test and I just had to rely on other manifestations of intoxication.”

He does not expect the testing to be a burden on departments and hospitals, noting that such tests are done for alcohol all the time.

“I don’t see a huge issue related to backlogs…” opined Waller. “That’s already a part of the job.”

Peter@coloradostatesman.com