MONTROSE – In the wake of the Nov. 6 election, the City of Montrose has joined a handful of other Colorado towns in drafting emergency moratoriums on retail marijuana distribution after state voters approved legalizing its cultivation and sale for recreational use.
Last week, two days after voters approved Amendment 64, Montrose City Council said it was preparing to draft a moratorium banning retail marijuana stores within city limits.
The moratorium will likely be voted on at the Nov. 20 regular session of the City Council, according to City Manager Bill Bell.
In Steamboat Springs, where Amendment 64 passed with 69 percent of the vote, the city council is considering a similar moratorium.
In Pagosa Springs, city council is considering extending its moratorium on medical marijuana dispensaries to include all marijuana retail stores.
Amendment 64, which allows persons age 21 and older to possess up to an ounce of marijuana, and grow up to six plants in their homes, also allows for marijuana to be taxed, as is alcohol, passed statewide with 54.82 percent to 45.18 percent in the Nov. 6 election.
With 1.28 million votes in favor of marijuana legalization, Amendment 64 drew more support than President Barack Obama, who won in Colorado.
In Montrose County, voters rejected the amendment by nearly 2,600 votes, with a vote of 10,574 against, 7,976 in favor. "I think since our constituents voted against it, we should honor the constituents' wishes," Mayor Kathy Ellis said of the pending moratorium.
Amendment 64 also allows local municipalities to prohibit retail businesses where marijuana could be sold to adults 21 and older.
Both Colorado and Washington State passed marijuana legalization amendments this year. The individual liberties association with the Colorado amendment could take effect as soon as Gov. John Hickenlooper certifies the amendment. That verification is expected to come before the end of the year.
The state's \\establishment of a framework for retail businesses to operate in Colorado is likely to take another year. The conflict between Colorado's amendment and U.S. federal drug laws will likely end up in court, as legal challenges begin to be drafted.
The results from pending legal challenges will play a huge role in the state’s issuance of licenses to future recreational pot shops.
"We have the authority immediately to adopt a moratorium or to prohibit it," said City Attorney Russ Duree, "or just to do nothing and wait, and then it becomes that unfunded mandate, where the state will require that we adopt some sort of regulatory mandate or regulatory scheme to issue local licenses."
Two years ago the city and county of Montrose banned medical marijuana dispensaries, although two dispensaries were grandfathered in. The language used in that moratorium will likely be used in the upcoming recreational-marijuana amendment.
After “what we went through with the medical marijuana," said Ellis, "and I just think it would behoove us to report to our constituents and say, 'We will honor your wishes.’
"I think it makes sense to have a moratorium until we know more about it," Ellis said.
The day after 64's approval, Colorado Attorney General John Suthers pronounced marijuana legalization "very bad public policy.
“Despite my strongly held belief that the ‘legalization’ of marijuana on a state level is very bad public policy, voters can be assured that the Attorney General’s Office will move forward in assisting the pertinent executive branch agencies to implement this new provision in the Colorado Constitution," Suthers said in a statement.
Suther's office has been in contact with the United States Department of Justice to gauge its intentions regarding prosecution.
"Coloradans should be cognizant of two caveats,” Suthers said.
“First the ability of the federal government to criminally sanction possession, use and distribution of marijuana, even if grown, distributed and used in a single state, was recognized by the U.S. Supreme Court in Gonzales v. Raich (545 US.1,2005). Therefore, absent action by Congress, Coloradans should not expect to see successful legal challenges to the ability of the federal government to enforce its marijuana laws in Colorado.”
Through advertising, Colorado voters were told that a surtax of up to 15 percent on marijuana sales would generate up to $40 million for K-12 school funding in the state each year.
Suthers said Amendment 64 did not comply with language in the Taxpayers Bill of Rights and that no such tax would be imposed.
"Therefore, such revenue is speculative and will not be forthcoming when Amendment 64 begins to be implemented," Suthers said.
The remaining issues still to be debated are the taxation of marijuana, and whether the state can in fact opt out of federal regulation and enforcement. Those constitutional questions will have to be answered in the coming months and years, if the state legislature passes enabling regulations that allow the federal enforcement and prosecution of marijuana retail stores and those who own them.
The state has until July 1, 2013, to adopt regulations for the implementation of marijuana businesses, and the Department of Revenue will begin accepting and processing applications for marijuana businesses on Oct. 1, 2013.
Locally, Amendment 64 passed in Ouray county by just over 700 votes and in San Miguel County with 3,264 in favor to just 858 against.