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5A - Consideration of options for for local regulation of medical marijuana sales, consultation/treatment services, and grow operations CITY OF BOULDER PLANNING BOARD MEMORANDUM TO: Planning Board FROM: David Driskell, Executive Director of Community Planning and Sustainability Charles Ferro, Acting Land Use Review Manager Brian Holmes, Zoning Administrator DATE: October 29, 2009 SUBJECT: Medical Marijuana Attached please find a copy of the Weekly Information Packet (WIP) memo (Attachment A) provided to City Council on October 29, 2009 regarding medical marijuana and potential regulatory options for consideration by Planning Board and City Council. The WIP provides background on the issue, and summarizes the various land use, police enforcement, tax/business licensing, and building code considerations. Regulatory options that have been explored or implemented by other municipalities are also included as a part of the memo. As indicated in the memo, staff will be meeting prior to the November 5°i Planning Board meeting to discuss regulatory options and to develop a draft recommendation for consideration. Additionally, because the circumstances surrounding medical marijuana continue to evolve, a copy of a recent Denver Post story (Attachment B) regarding a recent pertinent court decision is also provided for the Board's information. We will present additional information at the November 5"' meeting, particularly in regard to options for discussion and a preliminary recommendation for your consideration. ATTACHMENTS: A. Medical Marijuana WIP Memo to City Council, 10/29/09 B. "Appeals court `Caregiver' must do more than grow pot," 10/29/09 - The Denver Post p6wxja ltaerfa - #--L, Attachment A W EF,KLY INI~ORMATION PACKET MEMORANDUM To: Mayor Applebaum and City Council From: Jane S. Brautigam, City Manager Paul Fetherston, Deputy City Manager Jerry Gordon, City Attorney David Driskell, Executive Director of Community Planning and Sustainability Maureen Rait, Executive Director of Public Works Mark Beckner, Chief of Police Bob F.ichem, Finance Director/Acting Executive Director of Administrative Services Kathy Haddock, Senior Assistant City Attorney Brian Holmes, Zoning Administrator Date: October 29, 2009 Subject: Information Item: Medical Marijuana Dispensaries EXECUTIVE SUMMARY: The purpose of this memorandum is to inform City Council of activity for operations that directly or indirectly involve the growing, selling, and dispensing of medical marijuana. The issue of medical marijuana has been around at least since the approval of Amendment 20 in November 2000. However, during the last week of February 2009, United States Attorney General Eric Holder announced that the Drug Enforcement Administration (DEA) would end its raids on state-approved medical marijuana dispensaries. Since that artnouncement and through Sept. 30, 2009, there have been 35 dispensaries that either opened, applied for a business license, or advertised to be open in Boulder. At present, there are no regulations that specifically address how medical marijuana may be grown, marketed, or sold within the city. This memo provides an overview of issues that council may wish to consider in relation to medical marijuana cultivation and dispensing in the City of Boulder, including zoning and land use considerations; police enforcement considerations; building code considerations; and tax and business licensing considerations. The memo also provides an overview of regulations being enacted or considered in other cities, and summarizes regulatory options utilized by other communities that council may want to consider in response to the issues raised. As directed by council during its Oct. 27 meeting, staff will further analyze and develop options along with a preliminary recommendation for council consideration at a future council meeting. These options include the following: Ada I -,7. 6A paw • Amend the existing sales tax license process to require business owners to certify that the business is legal at the federal, state and local level, effectively prohibiting the operation of dispensaries or growers in Boulder. • Adopt an ordinance as an amendment to Titles 4 and 6 of the Boulder Revised Code to impose some or all of the operating conditions described on page 9 of this memo. • Adopt an amendment to Title 9 regarding location of dispensaries and growers. • Adopt a moratorium to prevent opening of any additional dispensaries or growers in Boulder until City Council determines if it wants to regulate medical marijuana. • Establish a maximum number of locations for dispensaries or growers and the procedure by which the right to such locations could be obtained. • Take no action. • A combination of any of the above. In addition, a public hearing will be held on the topic as part of the Nov. 5 Planning Board meeting. BACKGROUND: The Colorado Medical Marijuana Amendment (Article XVIII, Section 14 of the Colorado Constitution) (the "Amendment"), approved by Colorado voters in November 2000, authorizes the use of marijuana to alleviate certain debilitating medical conditions: cancer; glaucoma; IIIV/AIDS; eachexia; severe pain; severe nausea; seizures (including those that are characteristic of epilepsy); and, persistent muscle spasms (including those that are characteristic of multiple sclerosis). In addition, patients and physicians may submit petitions to the Colorado Department of Public Health and Enviromnent (CDPHE) to include other medical conditions that may be alleviated by the medical use of marijuana. A "patient" is defined by the Amendment to be a person who has a debilitating medical condition. The Amendment requires CDPHE to maintain a confidential registry of patients who are entitled to receive a registry identification card. CDPHE could also maintain a list of identified caregivers for each registered patient or issue registry identification cards to caregivers, but has advised that it will not do so. Patients without a registry identification card receive all of the protections of the Amendment by having written advice by a doctor that the patient has been diagnosed as having a debilitating medical condition and that the patient may "benefit from the medical use of marijuana in connection with a debilitating medical condition." If an alleged patient is in possession of a registry identification card and is stopped or arrested, the police officer can check with the registry to determine whether the person is, in fact, registered. If registered, the patient is to be released by the police. If this person doesn't have a registry identification card, the patient could be arrested or issued a summons and assert the affirmative defense when they appear in court. Not all patients are registering with the CDPHE because of a lack of trust regarding confidentiality of the registry. Aowida Wn qL-Pap A Patients (with or without a registry identification card) are entitled to have the amount of medical marijuana medically necessary to address a debilitating medical condition. The Amendment specifies that a patient may have up to two ounces of a usable fonn of marijuana and six marijuana plants, with three or fewer being mature, flowering plants that are producing a usable form of marijuana. If a patient has more than this amount, it is an affirmative defense that the excess amount was medically necessary to address the patient's debilitating medical condition. A Boulder County jury recently found that 34 mature plants were not in excess of the amount medically necessary for a patient. The Amendment also provides an affirmative defense to possession of medical marijuana to a primary caregiver of a patient. A "primary care-giver" is defined as a person that "has significant responsibility for managing the well being of a patient who has a debilitating medical condition." CDPHE has added a regulation that "significant responsibility for managing the well-being of a patient means assisting a patient with daily activities, including but not limited to transportation or housekeeping or meal preparation or shopping or making any necessary arrangement for access to medical care or services or provision of medical marijuana." (CDPHE 5 CCR 1006-2). The affirmative defense for a primary caregiver extends to possession of the amount of medical marijuana in the amount medically necessary for the patient of the caregiver. The Amendment is drafted as if a primary caregiver will have only one patient. Neither the Amendment nor CDPHE, provide a definition of "dispensary," nor do they describe a legal way to obtain inedical marijuana other than for each patient or the patient's caregiver to grow it for the patient's personal use. As a result, the argument has been made that the same caregiver can serve many patients. Although CDPHE was asked to impose a limit of five patients for each caregiver in its regulations, it did not include any limit in the regulations adopted; therefore, there is no limit on the number of patients a caregiver can provide for. This opens the way for caregivers to possess larger amounts of marijuana and has lead to the opening of marijuana "dispensaries" (the name used for retail establishments that sell medical marijuana). The dispensaries establish their legitimacy by being designated as a primary caregiver by one or more patients. Growers of marijuana establish their legitimacy by having the dispensary extend its primary caregiver role to the grower, or have "subcontracts" with the dispensary to maintain a "legal chain of custody" between the patient and the source of the medical marijuana. Medical marijuana is subject to City of Boulder sales tax. Some dispensaries are obtaining the business license required of all sales tax collectors, while others are not and are presumably not collecting sales tax. Attorneys representing medical marijuana businesses have contacted the City Attorney's Office (CAO) asking for regulations to help legitimize the business of dispensaries and growers of medical marijuana. These representatives recognize the need for regulation to ensure patients receive high quality marijuana in a safe environment. Apwds it= The statewide and Boulder County statistics from the CDPHE Medical Marijuana Registry through July 30, 2009 for those that have obtained registry identification cards are attached as Attachment A. ANALYSIS: Rep,ulatinjZ Medical Marijuana A. Zoning and Land Use Considerations: Currently there are no specific regulations within the Boulder Revised Code (B.R.C.) that directly relate to the sale, consultation/treatment of patients, or cultivation/processing of medical marijuana. Without specific adopted regulations, it is unclear how current zoning regulations apply to medical marijuana. As a result, until such time as there are specific regulations to address the issue, the position adopted by planning staff is as follows: Sales When reviewing sale/business license applications for the sale of medical marijuana, requests are treated as being most similar to retail operations consistent with the "retail sales" use category as defined per section 9-16 B.R.C. 1981. This is a position consistent with the treatment of retail sales of other goods such as alcohol, pharmaceuticals, vitamins, etc. Retail sale activities are possible through the use review process in all but the lowest density residential zones (RR-1, RR-2, RE, RL 1), where it is prohibited as a principal use. For those residential zones that allow for retail sales requests through the use review process, the proposal would be reviewed by staff and then sent to Planning Board for final action. City Council may call up any Planning Board decision. Retail sales are permitted as a matter of right throughout business and downtown zones. There also exists within the B.R.C. a variation of the "retail sales" use category called "personal service" that allows for a variety of retail oriented businesses that are intended for the convenience of the neighborhood. As a broader category, "personal services" includes pharniacies as a specific example of what is permitted. Personal service operations are possible through the use review process in most of the medium- and high-density residential zones (RM-2, RM-3, RMX, R11-1, RH-3, RH-4). As a non-residential use in a residential zone, the request would be reviewed by staff and sent to Planning Board for final action, with the potential for call up by council. Personal services are also permitted as a matter of right throughout the business, mixed use and downtown zones, and within the RH-5 and RH-7 high-density residential zones. Agar4aftA#- LI-FaM Consultation/Treatment There have also been inquiries regarding operations that may include the sale of medical marijuana, but focus on the consultation and treatment of patients seeking a medical marijuana recommendation or that have already been issued a Medical Marijuana Registry Identification Card. Identified by applicants as healing arts facilities or centers, they may offer a range of health treatments or therapy generally not performed by a medical doctor or physician. When reviewing sales/business license applications for operations that include a non-medical treatment or therapy focus as their stated principal activity (with associated "accessory sales"), the requests are currently considered most similar to other non-medical therapy services consistent with the "office, professional" use category as defined per section 9-16 B.R.C. 1981. Professional office uses are possible through the use review process in all but the lowest density residential zones (RR-1, RR-2, RE, RL-1), where it is prohibited as a principal use. For those residential zones that allow for professional offices through the use review process, the proposal would be reviewed by staff and then sent on to the Planning Board for final action, with the potential for call up by council. Professional offices are permitted as a matter of right throughout the business and downtown zones. They are also permitted, with some limitations (minimum residential use floor area and maximum non-residential use floor area), within the mixed use zones and the RH-7 high density residential zone. Cultivation and Processing With regard to the cultivation and processing of medical marijuana as a commercial activity, the planning staff's position is that the activity of growing medical marijuana plants is most consistent with the "greenhouse and plant nursery" (as defined per section 9-16 .B.R.C. 1981) use category. This use is permitted as a matter of right in all industrial zones, as well as in public and agricultural zones. At this time it is unclear if medical marijuana cultivation could be permitted as "crop production." This has potential for serious neighborhood impacts as it is an allowed use in all residential and mixed-use zoning districts. One request by medical marijuana industry representatives is that the city clarify whether growers of medical marijuana are considered wholesalers and retailers (commercial uses) or agricultural uses. Based on staff s understanding of the provisions of the Amendment, a patient is presumed to be able to possess a minimum of'six marijuana plants, with three or fewer being mature, flowering plants that are producing a usable form of marijuana. There is no specific regulation that prohibits a private garden where flowers, shrubbery, vegetables, trees and other horticultural and floricultural products are grown and propagated as an "accessory use" (as defined per 9-16 B.R.C. 1981) to a residential use. Relevant definitions from section 9-16 B.R.C. 1981 are included in Attachment B _Pap #tiL, B. Police Enforcement Considerations The combination of lack ofregulation of medical marijuana, its street value, and the amount of money involved in the sale of marijuana raise additional issues R)r police enforcement. Some of the specific issues include the following: • Because the street value of one ounce of medical marijuana (about $400, depending on quality) is high, dispensaries can attract a criminal element. In the past year in Boulder, crimes related to dispensaries have included a robbery during daylight hours and a kidnapping, aggravated robbery and aggravated assault. 'T'hese are significantly more serious crimes than those related to the goods sold by other businesses. • Due to security concerns, some operators carry firearms, both legally and illegally. • Dispensaries may currently open without regard to location of schools, daycare centers, parks, or residential areas. • Some caregivers sell or grow marijuana out of their home in residential areas, creating makeshift nurseries or greenhouses. • Dispensaries and marijuana grow operations could be of unlimited size. There have been reports fi-om local realtors that potential businesses are inquiring about renting warehouse space of a few thousand square feet to grow or sell marijuana. • Unlike banks and liquor sales, hours of operation are not limited under existing regulations. • Marijuana plants emit noxious odors, and potentially toxins that are classified as hazardous materials. No local regulations exist to control odors or to require proper ventilation • Sales locations are not required to be permanent and transport of medical marijuana is not addressed in the Amendment, so marijuana could be sold from vehicles or mobile carts, or transported between a dispensary and a patient by a delivery person. On Oct. 19, 2009, the U.S. Attorney General Eric Holder issued a clarification of his February 2009 statement that the federal government would not continue raids in states that allowed the medical use of marijuana. The October 2009 clarification, quoted below, serves to narrow the February 2009 statement related to the federal government's enforcement of marijuana laws in states that have allowed the medical use of marijuana: Congress has determined that marijuana is a dangerous drug, and the illegal distribution and sale of marijuana is a serious crime and provides a significant source of revenue to large-scale criminal enterprises, gangs, and cartels One timely example underscores the importance of our efforts to prosecute significant marijuana traffickers: marijuana distribution in the U.S. remains the single largest source of revenue for the Mexican cartels... Prosecution of commercial enterprises that unlawfully market and sell marijuana for profit continues to be an enforcement priority of the Department [U.S. Department of Justice]. The clarification states that the federal government does not intend to prosecute individuals that are in "clear and unambiguous compliance with existing state laws" regarding medical use of marijuana. Ilowever, federal law enforcement agencies recognize that claims of compliance with state laws are used to mask illegal activities including drug sales, money laundering, and excessive amounts of cash, all of which are inconsistent with attempts to comply with state laws regarding medical use. The clarification specifies some of the types of activities the department is most concerned about: • Unlawful possession or unlawful use of firearms • Violence • Sales of marijuana to minors • Financial and marketing activities inconsistent with the purposes of state law • Amounts of marijuana inconsistent with purported compliance with state law • Illegal possession or sale of other controlled substances • 'l'ies to other criminal enterprises. The full memo from the U.S. Attorney General can be viewed at: http://www.4ustice.g_ov/opa/documents/medical-marijuana.pdf C. Tax/Business LieensinL, Considerations Based on the current definitions of eity code, medical marijuana is subject to the city's sales tax. Each business that collects sales tax is required by the code to obtain a city business license. However, the business license is a reporting document rather than the type of license that allows the city to approve or deny the license based on whether the business meets certain criteria. As of Sept. 30, 2009, there are 20 dispensaries in the city with business licenses, an additional 13 applications are pending, and two additional dispensaries that advertise a Boulder location, but have not opened or applied for a business license. Other businesses may be selling medical marijuana, but have not disclosed it on the business license application. Although the city does not have records for a long enough period of time to provide real averages, reporting dispensaries are paying about $2,400-$3,000 per month of sales tax. D. Building Code Considerations One of the building variables that must be detennined for applying International Building Code (IBC) requirements is establishing the use or occupancy of a building. IBC sec. 302.1 states: "Where a structure is proposed for a purpose that is not specifically provided for in this code, such structure shall be classified in the group that the occupancy most nearly resembles, according to the fire safety and relative hazard involved." In the case of medical marijuana, the dispensary areas would be classified as business occupancy areas. Grow operations would be classified similar to greenhouses and agricultural buildings. The building code issues for establishing a dispensary would be similar to the requirements enforced for the tenant finish of an offiec space. The code issues for a grow operation would involve verifying adequate capacity of the electrical system for serving lighting and ventilation loads. Inspecting for adequate exits may also be important from the standpoint of verifying that minimum required exits have not been blocked or locked for security concerns. In regard to energy code compliance, dispensaries would have to meet the city's 30 percent above-code energy efficiency requirements for elements of the building being changed. However, the energy use related to grow lights, ventilation and heating of grow operations would be considered process loads and would not be regulated by the energy code. E. State Action CDPHE has adopted regulations as required by the Amendment. Governor Bill Ritter and State Attorney General John Suthers have formed a working group of police chiefs, district attorneys and city attorneys to draft legislation for the 2010 session to provide clarity on the issues not addressed by the Amendment, including dispensaries and grow operations. The CAO has been asked to consult with the working group. F. Regulations in Other Cities As regulation of the growth and sale of medical marijuana has been left to local governments, cities around the state are responding in a variety of ways. Several of these regulations are recommended by some of the organizations supporting medical marijuana because of the desire for sellers and growers to be high-quality, reliable, reputable establishments rather than fringe businesses. Regulations recommended by the industry or adopted by other municipalities include: • Moratorium. Some cities have adopted ordinances prohibiting the establishment of stores or growers of medical marijuana for three to six months to give their City Council time to study the options and adopt regulations before growers or retail sellers can locate within that city (Breckenridge, Brighton, Craig, Dillon, Durango, Eric, Fort Lupton, Fraser, Granby, Grand Lake, Greeley, Idaho Springs, Lafayette, Longmont, Louisville, Silverthorne, Steamboat Springs, "Thornton, Winter Park). • Require all business to be legal under federal, state and local laws. Several cities have changed their business license requirements or other code provisions to require a business to certify its operations are legal at the national, state and local level. Since neither the sale nor the growing of marijuana is legal at the federal level, this prevents location of such establishments in those cities (Aurora, Broomfield, Centennial, Greeley, Greenwood Village, Superior). • Impose operating requirements on retail and wholesale sales. "I1iere area wide variety of operating requirements suggested by medical marijuana supporters and adopted by cities in California and Colorado. Grouped into general categories, they include: o Regulations regarding security, location and hours. ■ Require a minimum distance (500-1,000 feet) between other medical marijuana establishments and schools, parks, day care centers, residences, half-way houses, correctional facilities and areas Frequented by minors. ■ Require security measures including secondary locking of inventory, security systems, silent alarms, lighting, uncovered windows. ■ Limit hours of operation similar to liquor stores or adjacent businesses. Impose reporting requirements, including of any criminal activity, theft attempts, assaults. ■ Require background checks of owners and employees. ■ Require dispensaries to establish permanent locations so they are not operated from moveable, mobile or transitory locations. Require good neighbor policies requiring a contact person for neighbors that have complaints and quarterly to annual meetings with neighbors. ■ Require a separate area for medical marijuana sales apart from any other sales or services provided by a dispensary. ■ Prohibit the sale of medical marijuana in a business holding a liquor license. ■ Require dispensaries and growers to maintain lists of patients for whom they serve as caregiver to determine whether quantity complies with the Amendment. ■ Define the legal manner in which to transport medical marijuana from grower to dispensary. ■ Require ventilation of operations to prohibit emission of noxious odors. o Regulations of use and advertisement of medical marijuana ■ Prohibit use of medical marijuana within a dispensary or other specific locations (the Amendment only prohibits.the medical use of marijuana "in plain view of, or in a place open to, the general public"). Prohibit signs, banners or other advertisement at the location of the dispensary or grower. ■ Require posting of warnings at the dispensary notifying patrons that: • Use of medical marijuana is a violation of f`edcral law, • Use for non-medical purposes is a violation of state law, • Smoking or ingesting marijuana impairs a person's ability to drive a vehicle or operate machinery and that it is a violation of state law to do either under the influence of marijuana. ,'mom,: _y b o Licensing Requirements ■ Prohibit persons convicted of a felony or violation of a law regarding controlled substances from operating or working in a dispensary or operate a growing establishment. ■ Require that licenses must be renewed yearly. ■ Require disclosure of the sale of medical marijuana as part of the business on all business license applications. • Require permit fees to cover the increased cost of law enforcement and oversight of dispensaries so that the businesses pay for themselves. o Land Use Regulations ■ Declare dispensaries and growers as a nuisance in zone districts where they are not permitted by right or through use review. • Adopt a definition of the difference between wholesale and personal grower (usually six plants per patient with valid registry identification card living at residence - any more is presumed commercial or industrial). ■ Require ventilation of any growing operations so that smell is not discernable to neighbors or the public. ■ Require that group dispensaries be located with uses such as doctor offices and pharmacies. Exclude growers for sale from the category of home occupations ■ Prohibit "grandfathering" of dispensaries or growers that exist in violation of any ordinances adopted regarding location of such facilities. • Oakland, California (approximate population of 420,000) and Santa Barbara, California (approximate population of 90,000) have both adopted ordinances limiting the number of dispensaries in the respective cities to four. When a location opens, potential dispensaries compete for the right to use the location. Cities report that this has resulted in high quality, responsible business operators that address the needs of neighbors as well as patients and other users of the non-medical marijuana services and goods. NEXT STEPS: With regard to City Council's interest in providing a safe experience for patients and caregivers in connection with medical marijuana, as well as ensuring public safety in our neighborhoods and minimizing conflicts, through a `head nod of five' during the Oct. 27, 2009 meeting, the following direction was given to staff: • Present the council with options including, but not limited to zoning changes that would limit the number of [medical marijuana] dispensaries in certain areas including the [[.lniversity] Hill and Downtown; and • Ask the Planning Board to promptly make specific recommendations on this subject. As a result, staff will continue to further analyze and outline in detail potential options for council consideration at a time determined through the Council Agenda Committee (CAC) process. In addition, as noted previously, the topic will be discussed during a public hearing held as part of the Nov. 5 Planning Board meeting ATTACHMENTS: A: Statistics through July 31, 2009 from the Colorado Medical Marijuana Registry for registry identification cards issued statewide and in Boulder County B: Relevant Definitions from 9-16 B.R.C. # ,p4& 1 Attachment A The Colorado Medical Marijuana Registry Statistics Medical Marijuana Registry Program Update (as of July 31, 2009) In the November 2000 general election, Coloradoans passed Amendment 20, and the Colorado Department of Public Health and Environment (CDPHE) was tasked with implementing and administering the Medical Marijuana Registry program. In March of 2001, the State of Colorado Board of I leallh approved the Rules and Regulations pertaining to the administration of the program, and on June 1st, 2001, the Registry began accepting and processing applications for Registry Identification cards. Statistics of the registry include: • 13,102 new patient applications have been received to date since the registry began operating in June 2001. Twenty-nine (29) applications have been denied, 18 cards have been revoked, 210 patients have died, and 1,751 cards have expired, bringing the total number of patients who currently possess valid Registry ID cards to 11,094. • Seventy-three percent of approved applicants are male. • The average age of all patients is 41. Currently six patients are minors (under the age of 18). • Fifty-five percent of patients reside in the Denver-metro and Boulder area, with the remainder of patients found in counties throughout Colorado. • Patients on the Registry represent all the debilitating conditions covered under Amendment 20. Severe pain is a reported condition for 90% of all registrants; muscle spasms are the second-most reported condition at 27%. • Sixty-seven percent of patients have designated a primary care-giver (someone who has significant responsibility for managing the patient's care). • Over 800 different physicians have signed for patients in Colorado. Please see the tables below for a complete listing of all statistical information. As of June 14, 2004 care-givers are no longer issued cards. As of January 25, 2008 only a portion of the patient's social security number appears on their registration card. As of October 27, 2008 all applications, renewal and changes to the Registry must be submitted via mail and include a legible photo copy of the patient's Colorado Identification. Faxes and ernails will no longer be accepted. As of December 1, 2008 all changes to the Registry must be signed by the patient making the change in blue ink. In addition to administering the Registry, CDF'HE has been charged with accepting and reviewing petitions to add conditions to the current list of debilitating medical conditions/symptoms. To date, four petitions have been received, one for Parkinson's disease, one for Asthma, one for Anxiety and another for Si-Polar Disorder. All petitions were subsequently denied due to lack of scientific evidence that treatment with marijuana might have a beneficial effect. C'Documcnt,-mtd Setun1T.shachcpl~L0ca1 Sell mgsTcmperity InteillcI I dus,0in(cnt_Oulluok%ll3(1GLlllMAuachntenl A- MM Statistics from CDPI II: 7 31 09 doc ilea ce.ftv# There have been three marijuana-related convictions of patients on the Registry, and no physicians have experienced federal reprisals. However, reluctance to participate due to the inconsistencies between state and federal marijuana laws has been expressed by doctors and patients alike. No general funds have been designated for this program, and the Amendment allows CDPHE to collect fees to cover the administrative costs of administering the program. Currently the fee is $90, and is evaluated annually by CDPHE. The fee was lowered from $110 on June 1, 2007. Numerous questions have arisen regarding interpretation of statutory language. The law does not clearly state where marijuana plants may be grown or if two or more patients and/or care-givers may share one growing space. Statutory language also places certain burdens upon local and state law enforcement officers, such as the requirement of keeping alive plants that are confiscated until a resolution is reached (i.e. a decision not to prosecute, the dismissal of charges, an acquittal, etc.). Table I: County Information r- County Number of Patients Percent of Patients d ms - I 739 7% - Alamosa I - 15-<1% Arapahoe 959 f]% Archuleta 25 <1% Baca 11 <1% - :1 Sent - 5 <1% IBoulder 1,166 11% Broomfield 107 <1 Chaffee 43 <1% Cheyenne 4 <1 % i _ t - [Clear Creek 37 <1% Conejos I ' Costilla 4 <1% [Crowley 13 <1 (Custer 11 <1% Delta 85 T <1°l° Denver 1,518 14% Dolores 8 <1% Douglas 339 3% Eagle 85 <1% El Paso - - 1,157 10% FIbert 39 <1% Fremont - - 95 <1% IG if'litlcf 1C1ri <1 (Gilpin 55 <1% (Grand 48 - - <1% - Gunnison 57 <1% ~I-finsdale - f 4 I - - <1 olo - - - - Huerfano 47 <1% C' Mocumenis and 5eltinkslwebepI\Loci l Scunws\ Iempuruy Internet F Ies\Content OutlookV['30GZDUT%Attachment A- MM Statistics faun CI PFIF7-3I-09_doc /~l Aamde Item it on Pam# Jackson - <1% - % Jefferson 1,272 11 IKiowa Fit Carson 3 <1% La Plate 111 1% f Lake 34 <1% IlLarimer 1,013 9% Las Animas - 22 F Lincoln 5 <1 % Logan 15 <1% Mesa 393 F 4% Mineral IMoffal 17 <1% (Montezuma 31 <1% (Montrose I 82 <1% (Morgan 15 <1% 1Otero 50 <1% Ouray 11 F <1% Park 91 <1% Phillips 8 F <1% Pitkin I- 61 <1 % Prowers 5 <1% (Pueblo - - 190 2% I Rio Blanco I 6 <1% Rio Grande 8 Routt 47 I- <1 Saguache 27 I <1% San Juan ' San Miguel 20 <1% 5edgwick - 3 - < 1'% Summit 149 1% I"cller 122 - F 1% ,Washington 3 - <1% Weld 489 4% I Yuma - - 4 ' Indicates fewer than three patients in each category Table II: Conditions Reported Condition Number of Patients Reporting - Percent of Patients Condition Reporting Condition- C:ADocume~tti and Servings\we~cpl\l,cal Seningsl7-eni~x~rary IutC~iet I ileslCnntcnt-Outlook)'13(i(i`!:[)U1'Att,xhmenl /1 MM Si.uistics liin CDPI 11 7-; i -09_doc Agenda MM 0_ S PW IS Cachexia ' 251 2% Cancer 359 I 3% Glaucoma 149 1% I iIVlAIDS 150 1% Muscle Spasms F- 3,033 - 27% Seizures 365 3% Severe Pain 9,948 90% Severe Nausea ! 2,506 23% **Does not add to 100% as some patients report using medical marijuana for more than one debilitating medical condition. Table III: User Characteristics Sex I Percent on Registry f Average Age" Male -73% - 40 Female 27% 43 " The overall average age of all patients is 41 years old. C'\Documents and Scuings\webeh RLocal Scttinl;s\"femroiaty Inlenio hics\Content Outlook%'110Ci7DM'\Anacbincw A- MNt Statistics Oum CDPHE 7-31-09.dac Attachment B Relevant Definitions From 9-16 R.R.C. 1981. "Retail sales" means the selling ofgoods or merchandise directly to the ultimate consumer. "Personal service use" means an establishment that provides personal .services for the convenience of the neighborhood, including, without limitation, barber and beauty .shops, shoe repair shops, bicycle repair shops, dry cleaners, laundries, self-service laundries, bakeries, travel agencies, newsstands, pharmacies, photographic studios, duplicating services, automatic teller machines and the healing arts (health treatments or therapy generally not performed by a medical doctor or physician such as physical therapy, massage, acupuncture, aromatherapy, yoga, audiology, and homeopathy). "Office, professional" means offices offirms or organizations providing professional service to individuals and businesses, including, without limitation, accountants, architects, attorneys, insurance brokers, realtors, investment counselors, and therapists, where a majority of client contact occurs at the of/ ice, but not including technical, medical, dental, or administrative offices. "Accessory sales" means incidental retail sales in a nonresidential zone where retail sales are not otherwise permitted. Sales not exceeding fifteen percent (twenty-we percent in an IS zone) of the gross floor area are permitted if the products sold are directly related to the principal use. Examples, art work sold at an artist's studio, convenience goods in a hotel or motel, health-care products sold by a healing arts practitioner, or a factory outlet store selling products manufactured on the site. "Greenhouse and plant nursery" means an establishment where flowers, shrubbery, vegetables, trees and other horticultural and floricultural products are grown, propagated, and may be .sold. "Crop production" paeans the commercial growing ofhorticultural materials such as vegetables, f-uit trees, flowers, ornamental plants, and sod for wholesale sales. Attachment B Appeals court: "Caregiver" must do more than grow pot The Denver Post Posted: 10/29/2009 09:47:44 AM MDT Updated: 10/29/2009 01:49:37 PM MDT The Colorado Court of Appeals has upheld the marijuana cultivation conviction of a Longmont woman, ruling that a person designated as a medical marijuana "caregiver" must do more than just supply the drug to patients. In a special concurring opinion, Judge Alan Loeb wrote that Colorado's consitutional amendment legalizing medical marijuana "cries out for legislative action." The case involved a woman named Stacy Clendenin, who in 2006 was charged with cultivating marijuana in a Longmont home. Clendenin argued that the marijuana she grew in the home was then distributed to authorized patients through marijuana dispensaries. But the appeals court ruled that simply knowing that the end user of marijuana is a patient is not enough. Instead, the court said, a care-giver authorized to grow marijuana must actually know the patients who use it. "We conclude that to qualify as a'primary care-giver' a person must do more than merely supply a patient who has a debilitating medical condition with marijuana," the court ruled. The riling, if upheld on appeal, could change the process now in place to supply the burgeoning medical marijuana industry in Colorado - if the Colorado Legislature doesn't restrict it first. Attorney General John Suthers applauded the decision. "I am pleased to see the Court of Appeals' has provided legal support for our case that a caregiver, under Amendment 20, must do more than simply provide marijuana to a patient," Suthcrs said- "I also was pleased to see the assertion in the special concurrence that Amendment 20 'cries out for legislative action.' I could not agree more. I hope the legislature will act and create a regulatory framework that gives substance to the Court of Appeals' findings." Clendenin's attorney, Robert Corry, says he plans to appeal the ruling to the Colorado Supreme Court. "This decision is quite limited and only applies to Stacy Clendenin and only applies to those who went to trial before July when the state board agreed that caregivers could simply provide marijuana," Corry said. "I am concerned that the court super-imposed California law on Colorado and I don't think California (medical marijuana) law is a shining star of success." State Sen. Chris Romer has said he plans to introduce some medical marijuana restrictions when the legislature convenes in January. But House Speaker Terrance Carroll has said he does not believe further regulation is a pressing issue in the state.