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SR 03-07-2017 4A Ci ty Council Report City Council Meeting : March 7, 2017 Agenda Item: 4.A 1 of 18 To: Mayor and City Council From: David Martin, Director , Administration Subject: Study Session on Cannabis Regulations Recommended Action Staff recommends that the City Council: 1. Direct staff to draft an ordinance to create a regulatory permit and sel ection process for medical cannabis dispensaries; 2. Direct staff to draft an ordinance prohibiting commercial cannabis related business activities; and 3. Direct staff to draft an ordinance to amend the Santa Monica Municipal Code to address changes in S tate law related to cannabis regulations . Executive Summary In 2015, two medical cannabis dispensaries were authorized by the Zoning Ordinance (ZO). Due to the rapid changes in State law governing cannabis regulations, the City has not accepted applicat ions to operate a medical cannabis dispensary. Staff recommends that Council direct staff to establish a regulatory permit and selection process with objective criteria for the two dispensaries envisioned by the ZO, in addition to the required Conditional Use Permit (CUP). Due to current Planning and Community Development priorities and the uncertainties around how recreational marijuana legalization will play out , staff also recommends that Council direct staff to draft an ordinance prohibiting commerc ial cannabis related business activities and to update the Zoning Ordinance to address changes in State law related to cannabis regulations. The Council could revisit this in the future based on experience in other communities. Background In 1996 Califor nia voters passed the California Compassionate Use Act (CUA), which appeared on the ballot as Proposition 215, creating a limited immunity for individuals who used cannabis for medical purposes to use in court if they get arrested and calling on the legisl ature to regulate distribution. The legislature cannot change this immunity. In 2003 the State adopted Senate Bill 420, also known as the Medical Marijuana Program Act (MMPA), broadened the CUA to certain transportation related and other 2 of 18 offences, provided limited immunity for groups of patients who form “collectives” or “cooperatives”, and created a voluntary state ID card program to identify qualified patients who register with the program. Of course, despite the limited California State legalization, ma rijuana remains a Schedule I Controlled Substance under Federal law. This means that private possession, use, or distribution of marijuana remains, and continues to remain, illegal for all purposes, including medical purposes. In 2013 the United States At torney General’s Office issued what is referred to as the “Cole Memo 1 ” that it will not interfere with state laws that include “robustly enforced” “strict regulations” On June 23, 2015, City Council adopted an update to the Comprehensive Zoning Ordinance (ZO) which authorized two medical cannabis dispensaries no larger than 2,500 square feet with the issuance of a Conditional Use Permit (CUP). Distancing requirements from certain sensitive uses such as schools and day care facilities were established amon g other regulations. The two dispensaries were also limited to the following Mixed -Use and Commercial District locations:  Mixed -Use Boulevard District along Wilshire Boulevard between Lincoln Boulevard and Centinela Avenue;  General Commercial District al ong Santa Monica Boulevard between Lincoln Boulevard and 20th Street; and  Mixed -Use Boulevard Low District along Santa Monica Boulevard between 23rd Street and Centinela Avenue. The ZO defines “Medical Marijuana Dispensary” as: Any facility, building, str ucture, or fixed location where one or more qualified patients and/or persons with identification cards and/or primary caregivers cultivate, distribute, sell, dispense, transmit, process, exchange, give away, or otherwise make available marijuana for medic al purposes. The terms “primary caregiver”, “qualified patient”, and “person 1 The status of the Cole Memo is unclear as the current administration could choose to revoke the memo at any time. 3 of 18 with an identification card” shall be as defined in California Health and Safety Code Section 11362.5 et seq. Medical Cannabis Regulation and Safety Act In October 2015, the Cali fornia State Legislature passed and the Governor signed the Medical Cannabis Regulation and Safety Act 2 (MCRSA) which was comprised of three bills (Assembly Bills 243 and 266, and Senate Bill 643). This Act created for the first time a comprehensive regul atory framework for medical cannabis, including cultivation, distribution, manufacturing, testing, and sale. The regulation of this full supply chain of activities for cannabis is commonly referred to as “seed to sale” regulations by the industry. MCRSA is more far reaching than the CUA and MMPA, which merely provided state law immunity to qualified patients and primary caregivers, but did not regulate the cannabis market itself. MCRSA mandates that state agencies set up extensive rules and systems to r egulate and control the cannabis market. MCRSA establishes the Bureau of Medical Cannabis Control (BMCC) under the Department of Consumer Affairs, which is responsible for administering and enforcing MCRSA, including the writing of rules that will govern the medical cannabis marketplace. MCRSA grants licensing authority to the Department of Food and Agriculture and the Department of Public Health. It ends the current collective/cooperative model by sunsetting SB 420 one year after the Bureau of Medical C annabis Control posts a notice on its website that licenses are being issued. After that date, all medical cannabis collectives will have to be licensed. The League of California Cities’ Medical Marijuana – Revisited After New State Laws , which was del ivered on May 4, 2016 at the League’s City Attorney Spring Conference is provided as Attachment A. 2 The Medical Cannabis Regulation and Safety Act (MCRSA) was originally titled Medical Ma ri juana Regulation and Safety Act . On June 27, 2016, Senate Bill 837 was adopted to amend certain areas of the MCRSA, including changing the name of the Medical Marijuana Regulation and Safety Act, to the Medical Cannabis Regulation and Safety Act. All r eferences to medical marijuana or marijuana throughout the bill are also changed to medical cannabis or cannabis. These changes reflect the legislature’s recognition of the industry’s preference for the term “cannabis” over “marijuana” or “marihuana” 4 of 18 Adult Use of Marijuana Act (AUMA) / Proposition 64 On November 8, 2016, California voters approved Proposition 64, known as the Adult Use of Marijuana Act , with 57.13% of voters supporting the initiative. Within Los Angeles County 59.54% supported the initiative, and in Santa Monica, the initiative was supported by 71% of voters. The AUMA took effect November 9, 2016, immediately following the election. Under AUMA a person 21 years of age or older may now possess, process, transport, purchase or give away (to persons 21 years of age or older) not more than 28.5 grams 3 of cannabis in the non -concentrated form and not more than 8 grams of cannabis in a conc entrated form including cannabis products like edibles and extracts. Smoking is allowed in a private home or at a business licensed for on -site cannabis consumption, and also allows legal possession of cannabis accessories. AUMA does not allow for comm ercial sales without both a state and local permit, and clearly provides that local jurisdictions continue to have full authority to regulate or prohibit any business establishment selling recreational cannabis. Although AUMA authorizes adults in Californ ia to legally possess, use, and transport recreational cannabis, there is currently no legal business in the state to purchase recreational cannabis, since licensed medical dispensaries are not allowed to sell recreational cannabis (i.e. to persons who do not have the required physician’s recommendation to purchase medical cannabis). Though out -of -state residents can legally purchase recreational cannabis under AUMA, they too may not do so until state and local licensing begins, as currently licensed medica l dispensaries may only dispense medical cannabis to California residents for medical use. At this point in time a person may use it, give it, and grow it; but they may not sell it. Under AUMA, a person may not:  Consume cannabis in a business establishme nt unlicensed for such use; 3 28 .5 grams is the equivalent of 1 ounce. 5 of 18  Smoke cannabis anywhere smoking tobacco is prohibited;  Smoke cannabis within 1,000 feet of a school, day care, or youth center while children are present (except in a private residence);  Possess cannabis on the grounds of a scho ol, day care center, or youth center while children are present;  Possess an open container while driving or riding in a car, boat, or other vehicle; or  Consume cannabis while driving or riding in a vehicle (except where local ordinances allow it). AUMA pr ovides that local jurisdictions may impose additional "reasonable regulations" on personal cultivation outdoors. Under AUMA, however, local jurisdictions may not prohibit indoor personal grows of up to 6 plants in a private residence or inside an "accesso ry structure" on the grounds of a private residence that is "fully enclosed and secure." AUMA’s stated purpose and intent is to “take nonmedical cannabis production and sales out of the hands of the illegal market and bring them under a regulatory struc ture that prevents access by minors and protects public safety, public health, and the environment”, and control cultivation, processing, manufacture, distribution, testing and sale of nonmedical cannabis…” including requiring state agencies to establish a program that is nearly identical to MCRSA. The League of California Cities issued a memorandum dated September 26, 2016, titled The Control, Regulate, and Tax Adult Use of Marijuana Act (Attachment B). It is important to note that the document was iss ued prior to the passage of AUMA by the voters. The League of California Cities also published a document on frequently asked questions regarding AUMA which was issued on November 16, 2016, after the initiative was passed by the voters (Attachment C). Ke y Licensing Provisions of Cannabis Regulations under AUMA and MCRSA 6 of 18 Both MCRSA and AUMA establish six nearly identical license categories. Some of the differences include:  Under MCRSA the retail sales permit is called “Dispensary” and under AUMA it is called “Retailer”;  AUMA did not create a separate “Transporting” permit as MCRSA does, instead this activity is covered under the “Distribution” license;  MCRSA contains a “Specialty Cottage” cultivation license to accommodate “micro farmers”.  AUMA crea ted a category of cannabis businesses called “microbusinesses” which is not included under MCRSA. A “microbusiness” is defined as a small operator with cultivation space not exceeding 10,000 square feet. A microbusiness license would allow holders to cul tivate cannabis and act as a licensed distributor, Level 1 manufacture (using either nonvolatile solvents or no solvents), and retailer all under one license. Following are the license categories that currently exist: MCRSA AUMA Category Type Category Type Cultivation 1 -4 Cultivation 1 -5 Manufacturing 6 -7 Manufacturing 6 -7 Testing 8 Testing 8 Dispensary 10 Retailer 10 Distribution 11 Distribution 11 Transporting 12 7 of 18 N/A N/A Microbusiness 12 Within the categories, MCRSA established a total of 1 7 license types and AUMA established a total of 19 license types. Attachment D provides a detailed comparison of the various licenses. Both medical and recreational cannabis business activities will require permitting and licensing by both the relevant s tate authorities and the local jurisdiction. Taxes MCRSA did not create any new taxes for cannabis businesses, however the tax scheme created by AUMA will apply to medical cannabis in addition to recreational cannabis. All businesses (for -profit and no nprofit) operating pursuant to MCRSA are required to have a seller’s permit with the State Board of Equalization. The following graph provides an outline of the taxes under both MCRSA and AUMA. Tax Medical Cannabis (Licensed under MCRSA) Recreational Cannabis (Licensed under AUMA) Sales and Use Tax * Effective November 9, 2016 Exempt 10.5% (Santa Monica) Excise Tax Effective January 1, 2018 15% Excise tax on gross receipts for both medical and recreational cannabis. The excise tax would be imposed on purchasers of cannabis or cannabis products sold in California. Cultivation Tax Effective January 1, 2018 Tax on all harvested medical and recreational cannabis that enters the commercial market. Tax does not apply to cannabis cultivated for perso nal use or cultivated by a qualified patient or primary caregiver. Tax is calculated as follows:  Cannabis flowers: $9.25 per dry -weight ounce  Cannabis leaves: $2.75 per dry -weight ounce *AUMA requires that a study be conducted by January 1, 2018, to de termine whether nonprofit 8 of 18 recreational cannabis businesses should also be exempt from the state taxes and fees. Any cannabis b usinesses operating within Santa Monica would also be subject to all Business License requirements outlined in Article 6 of the S anta Monica Municipal Code. As such, a for -profit cannabis retailer, whether for medical or commercial uses, would be classified as Tax Rate Group 1 Retail business under Section 6.08.140 of the Santa Monica Municipal Code and would therefore be required to pay $1.25 for each $1,000 or fraction thereof of gross receipts in excess of $60,000 in addition to a $75 minimum tax on receipts up to $60,000. For example, a business that report $1,000,000 in gross receipts for the tax year would be required to pay $1,255 in business license tax. Local governments can impose additional taxes on cannabis businesses, however, imposing any new taxes would require voter approval. The State also adopted several other bills to augment MCRSA and AUMA and new legisla tion has been introduced that is currently pending in the legislature. (Attachment E). Discussion For the purpose of this report the term cannabis is used interchangeably with marijuana. It is also intended to mean cannabis in raw plant form (i.e. flower , bud) and processed forms (e.g. edibles, beverages, extracts, topicals, etc.). The laws regarding cannabis are complicated and conflicting. Laws differ dramatically from state to state, between states and the federal government, and between the MCRSA an d AUMA within California. Most importantly, cannabis remains illegal under federal law. Recently, federal officials have made statements to indicate that they may view state authorized medical marijuana use differently than recreational marijuana use for enforcement purposes. As of November 9, 2016, the use of both recreational and medical cannabis has been 9 of 18 entirely legalized in Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon and Washington. The District of Columbia has also fully l egalized recreational and medical cannabis, but the sale of cannabis for recreational use is currently blocked by Congress. For the remaining states, laws vary widely with some states only legalizing the non -psychoactive form of cannabis (i.e. CBD). Medi cal cannabis has been distributed in a “retail” setting through dispensaries in California since the voters adopted the Compassionate Use Act (i.e. Proposition 215) in 1996. A person must demonstrate that they have a physician recommendation 4 to use canna bis due to a medical condition. The Department of Consumer Affairs (DCA) is currently in the process of establishing the Bureau of Medical Cannabis Regulation (bmcr.ca.gov ) which will regulate various aspects of the c annabis market for both medical and recreational cannabis businesses, including cultivation, transporting, distribution, manufacturing, packaging, labeling, testing, and retail sales. The California Department of Food and Agriculture (CDFA) has begun esta blishing the Medical Cannabis Cultivation Program (MCCP) to develop regulations for cultivation. The California Department of Public Health (CDPH) has begun establishing the Office of Manufactured Cannabis Safety (OMCS) but has not produced any publicatio ns to date. The following chart provides a high level summary of the administrative structure for establishing the regulatory scheme: Bureau of Cannabis Regulation (Lead Agency)  Distributors  Dispensaries  Transporters Department of Food and Agriculture  C ultivation  Track and Trace 4 A physician may recommend marijuana, however, federal law prohibits a physician from issuing a “prescription”. 10 of 18 Department of Public Health  Manufacturing  Testing State agencies are also currently establishing rules to govern the market which means the state of cannabis regulations for both medical and recreational businesses are far from settled and will likely continue to develop for the next several years. Enforcement Challenges and Compliance Regardless of the action taken by Council on recreational cannabis related business activities within Santa Monica, enforcement and re gulatory staff will still need to be prepared for the unfolding impacts of legalization statewide. The legalization of cannabis has brought increased challenges and costs for law enforcement. Particularly since Los Angeles borders Santa Monica, cannabis related tourism will also likely grow. In preparation for this study session, staff attended the 2016 Marijuana Management Symposium, a gathering of regulators, law enforcement personnel, elected officials, public health officials, and tourism staff. Den ver has seen a decrease in arrests but an increase in demands on police. The most common cannabis industry related crime in Denver is burglary, accounting for 63% of cannabis industry related crime in 2015. Law enforcement representatives at the sympos ium emphasize a need to provide adequate and appropriate staffing for administration, inspections, and enforcement. For example, training of law enforcement personnel around issues related to driving while under the influence (THC or THC -Combination w/Alc ohol); no reliable THC field -testing for sobriety exists currently as with alcohol 5 . 5 The detection of any THC in blood is not an indicator of impairment but only indicates presence in the system. Detection of delta -9 THC, one of the psychoactive properties of marijuana, may be an indicator of impairment (source: Colorado Department of Public Safety Division of Criminal Justice Office of Research and Statistics ). In 2016 SB1462 was in troduced to a l low the use of an oral fluid screening test to determine the p resence or concentration of drug s, to assist an officer in making a determination that a person was driving under the influence of drugs. The Senate Committee Appropriations staff report also notes that “there is currently no per se level at which a person is presumed intoxicated due to a controlled substance, and a standard level has not been established at which a person is presumed to be impa i red.” 11 of 18 Law enforcement representatives at the symposium also encouraged cities to obtain clear guidance from policy makers on the prioritization of enforcement. The Police Foun dation and the Colorado Association of Chiefs of Police issued Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcemen t, which is provided as Attachment F. If Council directs staff to move forward with th e selection of the two medical dispensaries and due to the legalization of cannabis statewide, it will be critical for the City to establish:  Procedures for monitoring compliance for any Medical Cannabis dispensaries that are approved to operate in Santa Monica;  Training programs for police officers and other enforcement staff;  Enforcement priorities Additional staffing may be required to ensure that the cannabis program compliance and education programs in Santa Monica are being addressed. Staff will m ake any necessary proposals for staffing or resources related to regulating the two medical cannabis dispensaries with any future staff report that may be submitted to create a regulatory permit and selection process. The Legalization of Marijuana in Colo rado – The Impact (Volume 4), published in September 2016 by the Rocky Mountain High Intensity Drug Trafficking Area, Investigative Intelligence Unit 6 is also provided as Attachment G for additional information. Licensing Options The Zoning Ordinance c urrently requires that a medical cannabis dispensary obtain a 6 The High Intensity Drug Traf ficking Area Program (HIDTA) is a component of former President Obama’s National Drug Control Strategy which provides federal resources help eliminate or reduce drug trafficking. Law enforcement organizations within HIDTAs assess drug trafficking problems and design specific initiatives to reduce or eliminate the production, manufacture, transportation, distribution and chronic use of illegal drugs and money laundering. 12 of 18 Conditional Use Permit. The following chart outlines several options to regulate and permit cannabis dispensaries. A Conditional Use Permit (CUP) only Existing local law currently requires a Medical Cannabis Dispensary to obtain a CUP. CUP is approved by the Planning Commission. A CUP may be appealed to or by City Council. A CUP runs with the land, and does not allow for a vetting process to select each successive business operator. It only allows the City to grant or deny the CUP as a land use entitlement to the property based on objective factors . Would only allow for either a “first come, first served” or lottery selection process. B Conditional Use Permit w/Regulatory Permit Existing local law currently requires a Medical Cannabis Dispensary to obtain a CUP. CUP is approved by the Planning Commission. A CUP may be appealed to or by City Council. A regulatory permit is approved by City Staff and appealable to a Hearing Examin er. In addition to the CUPs discretionary entitlement process, a regulatory permit would allow the City to vet and approve each successive operator based on objective factors. The City could create a selection process or rely on a “first come, first se rved” or lottery system process. A regulatory permit provides staff with effective means for enforcement of regulatory requirements. C Development Agreement (DA) The law currently does not require a Medical Cannabis Dispensary to obtain a DA. A change to the Zoning Ordinance would be required to implement this option. DA s are approved by City Council which receives recommendations form the Planning Commission . Similar to a CUP, a DA runs with the land and does not allow for a vetting process to select each successive business operator. . The DA process is time consuming . Additionally, Das are somewhat more difficult to enforce through administrative enforcement or police 13 of 18 enforcement means. Staff recommends that Council direct staff to impl ement option B and draft an ordinance to create the regulatory permit for medical cannabis dispensaries with an objective selection process for an operator to obtain a Medical Cannabis Dispensary operating permit. Staff recommends that the Medical Cannabi s dispensaries be required to obtain the Medical Cannabis Dispensary permit prior to submitting a CUP application. Staff recommends that the selection process include a defined application period where the City would accept applications. Those applicatio ns would be reviewed based on objective permit criteria related to the proposed operator’s business experience, proposed operations, and reputations of the applicants. Land Use and related location /size considerations would be addressed as part of the CUP application process . The Regulatory Permit application and criteria envisioned would likely include:  Names and addresses of any person with a financial interest in the dispensary, including but not limited to all principals, officers, or managers.  Names and address of any person responsible for the dispensary activities, including employees, if any.  Authorization to conduct background check on all individuals associated with the dispensary as determined by the Police Department 7 .  A description of the intended business plan, including intent to operate as non - profit or for -profit business, any plans for including cultivation on site .  A description, of any proposals that would benefit the community .  Detailed financial information, including information on existing and proposed loans and lenders.  Names and addresses of current and proposed suppliers for cannabis products 7 MCRSA does require that applicants obtain a local permit and proof of their legal righ t to occupy the proposed location. Applicants are required to submit to a Department of Justice fingerprint background check. Applicants may be denied for convictions such as violent or serious felonies, felonies involving fraud, deceit or embezzlement, any sanctions by a local licensing jurisdiction in the prior 3 years, or felony drug offences. 14 of 18 proposed to be sold.  Names and addresses of current and proposed testing facilities to be used to ensure quality and potency and a ful l description of the quality control/testing protocols to be followed and labeling to be used. (note: this provision is conditional on when the state begins issuing licenses for testing facilities and standards for such testing and quality control)  Copie s of articles of organization or incorporation.  A listing of all other cannabis related business locations owned and/or operated by applicant, including any person with a financial interest in the dispensary, along with copies of any operating permits for each of the locations  A description of the proposed security plan . (Note: The Zoning Ordinance currently requires an applicant to submit a security plan, however, staff recommends moving this requirement to be part of the regulatory permit for more effec tive enforcement. The dispensary would also be required to update the security plan once a location was identified and updated periodically throughout the time the dispensary is permitted.) Applicants would likely be disqualified if:  Any person associat ed with the application has made one or more false or misleading statements, or omissions on the application or during the application process;  If any person associated with the application has been convicted of a felony, or convicted of a misdemeanor inv olving moral turpitude, or the illegal use, possession, transportation, distribution or similar activities related to controlled substances, with the exception of marijuana related offenses for which the conviction occurred prior to passage of the Compassi onate Use Act. A conviction would include a plea or verdict of guilty or a conviction following a plea of nolo contendere (i.e. “no contest”)  If any person with a financial interest, principals, officers, managers, or any person responsible for the dispens ary activities has been convicted of any 15 of 18 unlawful, fraudulent, unfair, or deceptive business acts or practices. A conviction would include a plea or verdict of guilty or a conviction following a plea of nolo contendere (i.e. “no contest”);  If any person wi th a financial interest, principals, officers, managers, or any person responsible for the dispensary activities has operated a marijuana dispensary, cooperative, or collective without a permit issued or approved by the governing jurisdiction and/or has re fused or failed to comply with any order or instruction any jurisdiction to cease such operation. Staff recommends that the Director of Planning and Community Development, or designee, make the decision to grant or deny the Medical Dispensary Permit based on the recommendations of an evaluation committee, created by the Director of Planning and Community Development. The committee is proposed to be made up of representatives from various City departments such as Planning and Finance, as well as enforcemen t staff and individuals with expertise within the cannabis industry. The Director’s decision would be appealable to a City Hearing Officer, consistent with existing law. Following the issuance of the Medical Cannabis Dispensary Permit, the applicant wou ld then be required to apply for a Conditional Use Permit for the specific location proposed, Santa Monica Business License, and any necessary state permits. Staff also recommends that all employees of the dispensary be required to undergo a California De partment of Justice criminal fingerprinting LiveScan background check prior to being able to begin working within the dispensary, and throughout the time the dispensary is permitted. Commercial Recreational Cannabis and State Law Changes The City has not been accepting applications for medical cannabis dispensaries pending the establishment of a selection process and a regulatory framework, and in anticipation of changes to State law. Subsequent to the adoption of the ZO, new state laws regulating ca nnabis were adopted, including the Medical Cannabis Regulation and Safety Act (MCRSA) and the Adult Use of Marijuana Act (AUMA). These new laws have significantly changed the legal landscape since the ZO was adopted in June 2015, which necessitates update s to the ZO to conform to state law. 16 of 18 The state is required by AUMA to begin issuing operating licenses to cannabis business es by January 1, 2018. Although there have been some suggestions that there could be delays, until the state law is changed, this is the expected date for the state to begin issuing permits. Both MCRSA and AUMA allow local jurisdictions to ban or regulate any type of medical or recreational cannabis business licensed under the laws. This includes banning all cannabis sales or bann ing just recreational cannabis businesses but allowing medical cannabis. MCRSA requires medical cannabis businesses to obtain both a state license and a permit from their local government; however, while the AUMA does not explicitly require a local permit , it does reserve to local jurisdictions the right to regulate, license or prohibit commercial recreational marijuana related uses. Due to the difficulty in expressly prohibiting or permitting every possible unlawful or lawful use, the Santa Monica ZO i s established under the principles of permissive zoning, meaning that the ZO expressly lists permitted uses and prohibited uses. Any other uses not listed are presumed to be prohibited. The AUMA does not contain the same protective language as MCRSA with respect to permissive zoning , and to provide greater certainty , if Council desires ban commercial recreational cannabis activities (including commercial deliveries of recreational cannabis) or may consider allowing but regulating such activities in the fu ture , staff recommends that Council adopt an express prohibition. Due to the current work plan of the Planning and Community Development Department and to allow time for staff to implement the changes needed to implement the two medical dispensaries envi sioned by the ZO, staff recommend s that Council direct staff to draft an ordinance prohibiting all recreational commercial cannabis business activities (including commercial deliver ie s of recreational cannabis). Staff also recommends that Council direct s taff to amend the Zoning Ordinance to align with recent changes in State law. 17 of 18 Alternative Options Staff recommends that Council direct staff to prepare an ordinance prohibiting commercial cannabis related business activities, however, Council could choose to direct staff to: 1. Return with a more comprehensive study session on potential cannabis related business activities and land uses for both recreational and medical operations; or 2. Return with a limited review to consider authorizing certain additional low impact cannabis related business activities, such as testing and manufacturing that does not include volatile solvents, since the current definition of Medical Marijuana Dispensary arguably allows for testing and manufacturing currently, and changes to th e definitions will be necessary to align with state law. Next Steps Depending on the guidance and direction provided by Council on key areas noted above, staff will initiate specific projects to implement that direction and return with any necessary ordin ance and/or resolutions. Should Council direct staff to draft an ordinance banning recreational sales of cannabis, various amendments to the ZO would still be proposed to reconcile local law with state law for the purpose of licensing medical cannabis b usiness, including the two dispensaries currently envisioned. Prepared By: Salvador Valles, Assistant Director of PCD Approved Forwarded to Council 18 of 18 Attachments: A. League of California Cities Medical -Marijuana -Revisited -May 2016 B. League of Californ ia Cities AUMA -Memo September 26 2016 C. League of California Cities AUMA -FAQ_Updated -on -November -22 D. Cannabis License Types E. Other Relevant Legislation F. Legalized Marijuana Practical Guide for Law Enforcement G. 2016 FINAL Legalization of Marijuana in Colorado The Impact H. Written Comments I. Powerpoint Presentation League of California Cities ® 2016 Spring Conference Marriott, Newport Beach Medical Marijuana – Revisited After New State Laws Wednesday, May 4, 2016 Opening General Session; 1:00 – 3:00 p .m. Ste phen A. McEwen, City Attorney, Buellton, Assistant City Attorney, Atascadero and Hemet DISCLAIMER: These materials are not offered as or intended to be legal advice. Readers should seek the advice of an attorney when confronted with legal issues. Attorneys should perform an independent evaluation of the issues raised in these materials. Co pyright © 201 6 , League of California Cities®. All rights reserved. Th is paper, or parts thereof, may not be reproduced in any form without express written permission from the League of California Cities®. For further information, contact the League of California Cities® at 1400 K Street, 4 th Floor, Sacramento, CA 95814. Telephone: (916) 658 -8200. Attachment A League of California Cities ® 2016 Spring Conference Marriott, Newport Beach Notes:______________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ ____________________________________________________ I. INTRODUCTION Since the passage of Proposition 215 in 1996, medical marijuana has presented perplexing and challenging land use issues for city attorneys. Proposition 215, known as the Compassionate Use Act (“CUA”), and Senate Bill 420, known as the Medical Marijuana P rogram Act (“MMP”), offered cities little guidance on how to address medical marijuana land uses, resulting in a patchwork regulatory approach across the state and costly litigation. On October 9, 2015, Governor Brown signed Assembly Bills 243 and 266 a nd Senate Bill 643 (collectively, the “Medical Marijuana Regulation and Safety Act” or “MMRSA”), which together create a state regulatory and licensing system governing the cultivation, testing, and distribution of medical marijuana, the manufacturing of m edical marijuana products, and physician recommendations for medical marijuana. MMRSA recognizes a range of medical marijuana businesses referred to as “commercial cannabis activities,” including cultivation businesses, marijuana product manufacturers, ma rijuana distributors and transporters, marijuana testing laboratories, and dispensaries, and provides immunity to marijuana businesses operating with both a state license and a local permit. MMRSA, combined with several important court victories, will hel p cities tremendously in dealing with medical marijuana land uses. It is now clear under both statutory and case law that cities can ban medical marijuana activities completely or choose to allow them subject to local permitting requirements. Despite thi s regulatory flexibility, there are still difficult and uncertain issues that remain. The goal of this paper is to provide an overview of the state’s medical marijuana laws and address the special issues that will likely pose continuing challenges for loc al jurisdictions. This paper will also briefly summarize the Control, Regulate and Tax Adult Use of Marijuana Act, which will likely appear on the November 2016 general election ballot. II. OVERVIEW OF FEDERAL AND STATE MARIJUANA LAWS In order to unde rstand what MMRSA accomplishes and how it works, it is important to place it in the context of existing federal and state marijuana laws. All marijuana activities remain illegal under federal law, which classifies marijuana as a Schedule I controlled subs tance with no medical value. In general, state law prohibits marijuana activities, but the CUA and MMP provide limited exceptions from these prohibitions for qualified patients and primary caregivers to engage in specified marijuana activities for medical use only. MMRSA supplements the CUA and MMP by providing a regulatory framework for the cultivation, manufacturing, and distribution of medical marijuana and medical marijuana products. A. Federal Controlled Substances Act In 1970, Congress enacted t he Comprehensive Drug Abuse Prevention and Control Act. Title II of that Act, the Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq., imposes a “comprehensive regime to conquer drug abuse and to control the legitimate and illegitimate traffic in con trolled substances.” To effectuate these goals, Congress devised a regulatory system making it unlawful to manufacture, distribute, dispense, or possess any controlled substance except in a manner authorized by the CSA. (Gonzales v. Raich (2005) 545 U.S. 1; 21 U.S.C. §§ 841(a)(1), 844(a).) The CSA created five categories, or schedules, of controlled substances, each with its own set of restrictions and requirements. (21 U.S.C. § 812) From its inception, the CSA has classified marijuana as a Schedule I drug. (21 U.S.C. § 812(c).) A Schedule I controlled substance is one that has a “high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment.” (Gonzales v. Raich , supra , 545 U.S. at p. 14; 21 U.S.C. § 812(b)(1).) It is illegal, therefore, to import, manufacture, distribute, possess or use marijuana in the United States. (21 U.S.C. §§ 823(f), 841(a)(1), 844(a). There is no medical necessity defense to the CSA’s prohibitions. (United States v. Oakland Cannabis Buyers’ Coop . (2001) 532 U.S. 483, 491.) Accordingly, the operation of any marijuana facility violates federal law. B. California Uniform Controlled Substances Act California first made marijuana illegal in 1913. (1 913 Cal.Stats. ch. 342, § 8a.) In 1972, the Legislature consolidated the state’s narcotics laws under the California Uniform Controlled Substances Act (“UCSA”), commencing at Health and Safety Code section 11000. Chapter 6 of the UCSA, entitled “Offenses and Penalties” and commencing at Health and Safety Code section 11350, established the state’s prohibition, penalties, and punishments for controlled substances. (Health & Safety Code §§ 11350 et seq.) Within Chapter 6, Article 2 is entitled “Marijuana” and sets forth general prohibitions and punishments for the possession, cultivation, transportation, and distribution of marijuana. (Health & Safety Code §§ 11357 et seq.) C. Compassionate Use Act Against this backdrop of longstanding federal and sta te prohibitions and punishments for marijuana, California voters approved the CUA in 1996. The primary purpose of the CUA, which was codified at Health and Safety Code section 11362.5, was “[t]o ensure that seriously ill Californians have the right to obt ain and use marijuana for medical purposes.” The scope of the CUA, however, was very limited. Health and Safety Code section 11362.5(d) provides that: “Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.” Section 11362.5(c ) protected physicians from punishment for recommending marijuana to a patient for medical purposes. Following the CUA, many medical marijuana dispensaries opened throughout the state. However, contrary to what many marijuana advocates believed at the time, the CUA did not “legalize” medical marijuana or authorize the establishment of dispensaries. (Ross v. Raging Wire Telecommunications (2008) 42 Cal.4 th 920, 926.) California courts held consistently that the Act only created a limited exception from criminal liability under the state UCSA for seriously ill persons who are in need of medical marijuana for specified medical purposes and who obtain and use medical marijuana under limited, specified circumstances. (People v. Mower (2002) 28 Cal.4 th 457, 480; People v. Kelly (2010) 47 Cal.4th 1008, 1014.) D. Medical Marijuana Program Act In 2003 the Legislature enacted the MMP, adding sections 11362.7 through 11362.83 to the Health & Safety Code. (People v. Wright (2006) 40 Cal.4 th 81, 93.) The purpose of the MMP was to clarify the scope of the CUA. The MMP established a voluntary program for identification cards issued by counties for qualified patients and primary caregivers, and provided criminal immunity to qualified patients and primary caregivers for certain activities involving medical marijuana. Of particular importance and concern to cities, Health and Safety Code section 11362.775 created immunities for the collective or cooperative cultivation of medical marijuana: “Q ualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357 [possession of marijuana], 11358 [cultivation of marijuana], 11359 [possession for sale], 11360 [transportation], 11366 [m aintaining a place for the sale, giving away or use of marijuana], 11366.5 [making available premises for the manufacture, storage or distribution of controlled substances], or 11570 [abatement of nuisance created by premises used for manufacture, storage or distribution of controlled substance].” Many marijuana advocates argued that this immunity from state criminal sanctions also preempted local zoning prohibitions against medical marijuana establishments. This resulted in numerous court battles between local agencies and medical marijuana dispensaries, as well as a split among the courts of appeal on this issue. On May 6, 2013, the California Supreme Court resolved the issue, ruling unanimously in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4 th 729 (“Inland Empire ”), that the CUA and the MMP did not preempt local ordinances that completely and permanently banned medical marijuana facilities In reaching this conclusion, the Supreme Court recognized that a c ity’s “inherent local police power includes broad authority to determine, for purposes of public health, safety, and welfare, the appropriate uses of land within a local jurisdiction’s borders, and preemption by state law is not lightly presumed.” (Inland Empire , supra , 56 Cal.App.4th at p. 738.) After examining state medical marijuana laws, the Court concluded that “[n]othing in the CUA or the MMP expressly or impliedly limits the inherent authority of a local jurisdiction, by its own ordinances, to regu late the use of its land, including the authority to provide that facilities for the distribution of medical marijuana will not be permitted to operate within its borders.” (Ibid .) The Court reasoned that Health and Safety Code section 11362.775 only imm unized “the cooperative or collective cultivation and distribution of medical marijuana by and to qualified patients and their designated caregivers from prohibitions that would otherwise apply under state law. The state statute does not thereby mandate t hat local governments authorize, allow, or accommodate the existence of such facilities.” (Id . at p. 759 [emphasis in original].) The Court summarized its analysis of the CUA and MMP as follows: “As we have noted, the CUA and MMP are careful and limited forays into the subject of medical marijuana, aimed at striking a delicate balance in an area that remains controversial, and involves sensitivity in federal -state relations. We must take these laws as we find them, and their purposes and provisions are modest. They remove state -level criminal and civil sanctions from specified medical marijuana activities, but they do not establish a comprehensive state system of legalized medical marijuana; or grant a ‘right’ of convenient access to marijuana for medic inal use; or override the zoning, licensing, and police powers of local jurisdictions; or mandate local accommodation of medical marijuana cooperatives, collectives, or dispensaries.” (Id. at pp. 762 -763.) Inland Empire ’s broad holding in favor of local control not only resolved issues related to medical marijuana dispensaries, cooperatives, and collectives, but also applied to other medical marijuana activities, such as cultivation. In Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, 984, the Thir d District Court of Appeal held, based on Inland Empire , that there was no right to cultivate medical marijuana and that a city could implement and enforce a complete ban on this activity, including a ban on cultivation by individual qualified patients for their own personal medical use. More recent appellate decisions reached the same conclusion regarding local control over medical marijuana cultivation and affirmed local agencies’ ability to ban such activities completely. (See Kirby v. County of Fresno (2015) 242 Cal.App.4 th 940, 969 -970 [holding that the CUA and MMP did not preempt a local ban on all cultivation activities]; Safe Life Caregivers v. City of Los Angeles (2016) 243 Cal.App.4 th 1029, 1032 [affirming that “there is no constitutional or stat utory right to possess, cultivate, distribute, or transport marijuana for medical purposes.”].) Inland Empire and Maral were important decisions for local control and provided long - awaited clarification on the meaning of the CUA and MMP. Inland Empire re cognized, however, that “nothing prevents future efforts by the Legislature, or by the People, to adopt a different approach.” (Inland Empire , supra , 56 Cal.4 th at p. 763.) Not surprisingly, medical marijuana proponents soon shifted their focus to the st ate legislature in an attempt to amend the MMP. In 2013 alone, there were four medical marijuana bills introduced in the legislature that would have weakened local control over and undermined the victories in Inland Empire and related cases. In September 2013, AB 604, which would have preempted local prohibitions of medical marijuana establishments, was defeated on State Senate Floor by only two votes. Based on these near misses, and faced with the prospect of additional legislative amendments sponsored by medical marijuana advocates that could preempt local control, the League of California Cities and California Police Chiefs Association decided in 2014 to take a proactive approach to medical marijuana and put together their own medical marijuana regula tory proposal. Senate Bill 1162 was designed to create a state regulatory framework for medical marijuana while expressly preserving Inland Empire and the ability of local agencies to ban medical marijuana completely. While SB 1262 was unsuccessful, it l aid the groundwork for future legislative efforts by bringing together a powerful coalition consisting of local governments, law enforcement agencies, and labor organizations, who all recognized that the public supported broadening medical marijuana access and that it was important to provide a workable regulatory framework for the industry. In 2015, the League and Police Chiefs Association continued to work together on medical marijuana legislation and found multiple legislators who were eager to sponsor a new proposal. This renewed lobbying effort culminated in the emergence of three bills – Assembly Bills 243 and 266 and Senate Bill 643. III. THE 2015 LEGISLATION – AB 243, AB 266, AND SB 643 Taken together, AB 243, AB 266, and SB 643 create a compreh ensive state regulatory and licensing system governing the cultivation, testing, and distribution of medical marijuana, as well as physician recommendations for medical marijuana. There are three major components to the legislation: ● MMRSA. Each bill c ontains various provisions of MMRSA, which commences at Business and Professions Code section 19300. MMRSA is intended to govern all commercial cannabis activities, which are defined as “cultivation, possession, manufacture, processing, storing, laborator y testing, labeling, transporting, distribution, or sale of medical cannabis or a medical cannabis product.” Under Business and Professsions Code section 19320(a), “no person shall engage in commercial cannabis activity without possessing both a state lic ense and a local permit, license, or other authorization.” ● AB 243 and AB 266 amend the MMP by (1) deleting Health and Safety Code section 11362.775(a), which provided state criminal law immunity for the collective and cooperative cultivation of medica l marijuana, and (2) adding Health and Safety Code section 11362.777, which regulates medical marijuana cultivation. ● SB 643 (1) directs the California Medical Board to prioritize the investigation of clearly excessive medical marijuana recommendations b y physicians or repeated acts of recommending medical marijuana without a good faith prior examination and a medical reason for the recommendation; (2) imposes fines against doctors who make recommendations to licensed dispensaries in which they have a fin ancial interest; (3) categorizes medical marijuana recommendations without an appropriate prior examination and a medical indication as unprofessional conduct; and (4) imposes restrictions on advertising for physician recommendations for medical marijuana. A. MMRSA - Overview Under MMRSA, California will have, for the first time, a comprehensive state regulatory system for medical marijuana that governs the industry from “seed to sale.” This is a significant leap forward from the CUA and MMP, which merely provided state law im munity to qualified patients and primary caregivers, but did not regulate the mechanics of medical marijuana cultivation, processing, and distribution. (See City of Monterrey v. Caarnshimba (2013) 215 Cal.App.4 th 1068, 1092 [analyzing the CUA and MMP and observing that “the precise parameters of a Dispensary operating lawfully under California law remain undefined by case law or statute”].) The newly -created Bureau of Medical Marijuana Regulation, which is within the Department of Consumer Affairs, will h ave primary responsibility for administering and enforcing MMRSA. MMRSA divides state licensing and enforcement responsibilities among three agencies: ● The Department of Food and Agriculture will issue medical marijuana cultivation licenses. ● The De partment of Consumer Affairs will issue licenses for medical marijuana dispensaries, distributors, and transporters. ● The Department of Public Health will issue licenses for medical marijuana manufacturers and testing laboratories. A state cannabis lic ense will be valid for only one year. (Bus. & Prof. Code § 19321(b).) A separate state license is required for each commercial cannabis business location. (Bus. & Prof. Code § 19320(c).) Each of these state licensing authorities is responsible for crea ting regulations governing their respective areas of responsibility. (Bus. & Prof. Code § 19321(a).) Once MMRSA’s regulatory scheme is in operation, which the state anticipates will be January 2018, the medical marijuana industry will operate in the fo llowing way: ● Step One: Medical marijuana cultivators cultivate marijuana and medical marijuana manufacturers produce medical marijuana products in accordance with state and local regulations. ● Step Two: Medical marijuana cultivators and manufacturer s deliver their products to a medical marijuana distributor. ● Step Three: The distributor confirms the identity and quality of the products and sends them to a medical marijuana testing laboratory. ● Step Four: The testing laboratory performs batch test ing on a random sample of the product. If the product meets the safety standards to be established by the state, the testing laboratory issues a certificate of analysis and returns the product to the distributor. ● Step Five: The distributor performs a f inal quality assurance review and then delivers the product to a medical marijuana dispensary. ● Step Six: The dispensary distributes the medical marijuana to qualified patients and primary caregivers. (Bus. & Prof. Code § 19326.) As noted above, all medical marijuana businesses, or commercial cannabis activities, must have both a state license and local permit in order to operate lawfully within California. (Bus. & Prof. Code § 19320(a).) A person cannot commence any commercial cannabis activity und er a state license until the “applicant” has obtained a “local permit, license or other authorization.” (Bus. & Prof. Code § 19320(a).) In fact, a person or entity cannot even apply for a state license “unless that person or entity has received a license , permit, or authorization by a local jurisdiction.” (Bus. & Prof. Code § 19322(a).) With regard to medical marijuana cultivation, newly -added Health and Safety Code section 11362.777(b)(2) is equally explicit: a cultivator cannot apply for a state culti vation license unless the applicant “has received a license, permit, or other entitlement, specifically permitting cultivation pursuant to these provisions, from” the local jurisdiction. In addition, Health and Safety Code section 11362.777(b)(3) states t hat a cultivator cannot apply for a state cultivation license if the proposed cultivation will violate any local ordinance or regulation, or if medical marijuana is prohibited by the local jurisdiction, either expressly or through permissive zoning. This dual licensing scheme is the basis for a new state law immunity for medical marijuana establishments. Under Business and Professions Code section 19317, any person operating a commercial cannabis business under both a state license and a local permit is i mmune from arrest, prosecution, or other sanction under state law, and cannot be subject to a civil fine or seizure or forfeiture of assets. This new dual licensing immunity represents a much more objective standard than the existing immunity for collecti ve and cooperative cultivation under Health and Safety Code section 11362.775 and should make it easier for both local authorities and law enforcement to determine which medical marijuana establishments are operating lawfully. Rather than have to determin e whether an establishment is a bona fide collective or cooperative, which can be difficult to do when dealing with all -cash businesses that often do not maintain accurate records, local officials will only need to confirm that the establishment has a stat e license and local permit. The immunity for collective and cooperative cultivation under Health and Safety Code section 11362.775 will remain in effect only until one year after the Bureau posts a notice on its website that the state licensing authoritie s have commenced issuing licenses under MMRSA and will be repealed upon issuance of licenses. The new state licensing requirements for commercial cannabis activities do not apply to qualified patients and primary caregivers provided that they meet certain requirements and remain within certain specified limits. ● Qualified Patients - Business and Professions Code section 19319(a) – no state license is required for a qualified patient who cultivates, possesses, stores, manufactures, or transports cannabi s exclusively for his or her personal medical use and does not distribute to anyone else. - Health and Safety Code section 11362.777(g) – no state cultivation license is required for a qualified patient if the cultivation area is 100 square feet or less, the cultivation is for the patient’s personal medical use only, and the patient does not distribute the marijuana to any other person. ●Primary Caregivers - Business and Professions Code section 19319(b) – no state license is required for a primary care giver who cultivates, possesses, stores, manufactures, transports, donates, or provides cannabis for no more than five qualified patients and who does not receive payment except for reimbursement of actual costs. - Health and Safety Code section 11362.777 (g) – no state cultivation license is required for a primary caregiver if his or her cultivation area is 500 square feet or less, the cultivation is for no more than five qualified patients, and the caregiver does not receive payment except for reimburseme nt of actual costs In addition to these licensing exceptions under MMRSA, existing criminal law immunities under the CUA and MMP for qualified patients and primary caregivers, with the exception of those set forth in Health and Safety Code section 11362.7 75, will remain in effect: ● Health and Safety Code § 11362.5(d): “Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.” ● Health and Safety Code § 11362.765(a): A qualified patient or a person with an identification card wh o transports or processes marijuana for his or her own personal medical use or designated primary caregiver who transports, processes, administers, delivers, or gives away marijuana for medical purposes, in amounts not exceeding those established in subdiv ision (a) of Section 11362.77, only to the qualified patient of the primary caregiver, or to the person with an identification card who has designated the individual as a primary caregiver, shall not be subject, on that sole basis, to criminal liability un der Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570. Health and Safety Code section 11362.77(a) provides a safe harbor for qualified patients and primary caregivers “as to the amount of marijuana they may possess and the number of plants they may maintain.” (Kirby v. County of Fresno , supra , 242 Cal.App.4 th at p. 953.) Under this provision, qualified patients and primary caregivers may possess up to eight ounces of dried marijuana per qualified patient and maintain up to six mature or 12 imm ature marijuana plants per qualified patient. Upon a doctor’s recommendation, a qualified patient or primary caregiver may possess a greater amount consistent with a patient’s medical needs. (Health & Safety Code § 11362(b).) Please note that the licensing exceptions and state criminal law immunities for qualified patients and primary caregivers do not preempt local land use ordinances which prohibit medical marijuana activities completely. (Maral v. City of Live Oak , supra , 221 Cal.App.4th at p. 984; Kirby v. County of Fresno , supra , 242 Cal.App.4 th at pp. 969 -970.) B. Local Regulatory Options The League’s and Police Chiefs Association’s primary objective in pushing for new medical marijuana regulations was to preserve broad local control over medical marijuana land uses against repeated legislative attacks by marijuana advocates. Inland Empire emphatically affirmed local government’s “inherent, constitutionally recognized power to determine the appropriate use of land within its borders.” Inl and Empire also recognized “that neither the CUA nor the MMP expressly or impliedly preempts the authority of California cities and counties, under their traditional land use and police powers, to allow, restrict, limit, or entirely exclude facilities that distribute medical marijuana.” (Inland Empire , supra , 56 Cal.4 th at p. 762.) In order to ensure that cities and counties would continue to have this full range of regulatory options available, MMRSA included three separate provisions that protect local police power authority over medical marijuana establishments: ● Business and Professions Code § 19315(a): “Nothing in this chapter shall be interpreted to supersede or limit existing local authority for law enforcement activity, enforcement of local zonin g requirements or local ordinances, or enforcement of local permit or licensing requirements.” ● Business and Professions Code § 19316(a): “Pursuant to Section 7 of Article XI of the California Constitution, a city, county, or city and county may adopt or dinances that establish additional standards, requirements, and regulations for local licenses and permits for commercial cannabis activity. Any standards, requirements, and regulations regarding health and safety, testing, security, and worker protections established by the state shall be the minimum standards for all licensees statewide.” ● Business and Professions Code § 19316(c): “Nothing in this chapter, or any regulations promulgated thereunder, shall be deemed to limit the authority or remedies of a city, county, or city and county under any provision of law, including, but not limited to, Section 7 of Article XI of the California Constitution.” These local control provisions demonstrate that MMRSA does not preempt local medical marijuana ordinances . Cities, therefore, have a wide range of regulatory options to deal with medical marijuana land uses: ● Express bans. The great majority of California cities have prohibited medical marijuana dispensaries and related activities. Under Inland Empire , Maral , Kirby , and Safe Life Carevigers , as well as the local control provisions in MMRSA, such bans will be enforceable absent a drastic change in state law. In adopting prohibitions on medical marijuana, or reviewing existing bans, cities must decide how extensive the ban should be. In the past, most medical marijuana ordinances focused on dispensaries, collectives, and cooperatives. MMRSA recognizes a range of new businesses, including cultivators, medical marijuana manufacturers, distributors, transpo rters, and testing laboratories. Cities may opt to ban each of these activities under MMRSA. ● Regulatory schemes. Now that MMRSA establishes a state framework for regulating all aspects of the medical marijuana industry, more cities are exploring th e option of allowing such businesses through some form of a local regulatory permit system. The only minimum requirement for those local agencies that want to allow commercial cannabis activities is that they issue a “local permit, license, or other autho rization.” (Bus. & Prof. Code § 19320(a).) For cultivation businesses, the language is slightly different: in order to obtain a state license, the cultivator must receive a “license, permit, or other entitlement” from the local jurisdiction. (Health & S afety Code § 11362.777(b)(1)(A).) Typically, medical marijuana ordinances involve locational restrictions, the issuance of a regulatory permit that is subject to annual renewal, and the imposition of various safety - related operating requirements. Locat ional restrictions may include the designation of certain zoning districts as permissible locations and separation requirements to avoid clustering of medical marijuana land uses. Some cities have limited the number of medical marijuana establishment perm its that they are willing to issue. Operating requirements can be extensive and include the following: the use of licensed security guards, designated hours of operation, prohibition against sales of alcohol and/or tobacco and on -site alcohol and/or tobac co consumption, installation of adequate odor control devices and ventilation systems, and limitations on access to minors. Cities that issue permits for medical marijuana businesses should expect to be inundated with permit inquiries and/or applications . With the amount of money that is at stake, unsuccessful applicants will likely look for potential ways to attack the city’s selection and evaluation process. Those cities, therefore, should give careful consideration to how they are going to process app lications for medical marijuana businesses. Local ordinances should provide clear guidelines as to what information is required in the application, what grounds constitute a basis for denial of a permit, the type of permit to be issued (CUP or renewable r egulatory permit), and who is responsible for making the decision on issuing the permit. Some cities vest the decision making authority in the city manager, police chief, or other staff member. Others leave the ultimate decision to the city council. W ith regard to processing applications and issuing permits, there are a number of possible approaches: - First come, first serve. A city can accept and review applications in the order they are received, subject to applicable zoning requirements and separ ation restrictions. The reviewer will ensure that the applicant meets the applicable standards for a medical marijuana business and on that basis either grant or deny the permit. - Lottery. Cities that expect to receive a large number of applications may want to consider a lottery system for issuing permits. The advantage of the lottery system is that it provides a degree of neutrality in the selection process. The disadvantage, of course, is that a lottery can deprive a city of control over who gets a permit, which can be a significant problem given the number of suspicious actors and former felons who are involved in the medical marijuana industry. Many medical marijuana lotte ries, therefore, are combined with staff -level screening of applicants either before or after the lottery, or both. For example, in Santa Ana, which conducted a lottery in 2015, medical marijuana dispensary applicants had to first register with the direct or of planning and building. The director then reviewed the registration application to determine if the applicant complied with the city’s medical marijuana regulations. Applicants who made it on to the qualified registration list were then entered into a lottery, which was administered by an independent accounting firm. The lottery was used to select 20 applicants who could then apply to the city for a regulatory safety permit from the police department, which required another level of staff review. - Scoring system. As an alternative to a lottery system, a city could implement a subjective evaluation process to review medical marijuana applicants. Applicants would receive a score based on a review of their applications and, in some instances, an i nterview. Those applicants who receive the highest scores would then be recommended for approval to the decision making authority. If this selection method is used, it may be preferable to use a neutral outside consultant to review the applications, cond uct interviews, and make recommendations. ● Permissive zoning. Most, if not all, zoning codes in California are permissive in nature. Under permissive zoning principles, the omission of any particular land use from local zoning regulations is the equ ivalent of an express ban unless the planning director or other designated official finds that the proposed use is substantially the same in character and intensity as those land uses listed in the code. (See City of Corona v. Naulls (2008) 166 Cal.App.4 t h 418, 433 -436.) If the city can make this finding, such a use is subject to the permit process and zoning requirements which govern the land use category in which it falls. Permissive zoning provides cities with some flexibility in dealing with medica l marijuana activities. Cities can rely on permissive zoning to prohibit medical marijuana uses if they so choose. The new legislation, in fact, recognizes that such an approach is permissible. Newly -enacted Health and Safety Code section 11362.777(b)(3 ), which addresses medical marijuana cultivation, states that a “person or entity shall not submit an application for a state license . . . if the proposed cultivation of marijuana will violate the provisions of any local ordinance or regulation, or if me dical marijuana is prohibited by the city, county, or city and county in which the cultivation is proposed to occur, either expressly or otherwise under principles of permissive zoning.” In the past, medical marijuana establishments have argued that the y fall within various land use categories and descriptions, such as pharmacies, retail sales, nurseries, and agriculture. Based on the unique nature of most medical marijuana activities and the potential for negative secondary effects, cities have general ly been successful in defeating such similar use arguments. For example, in County of Los Angeles v. Hill (2011) 192 Cal.App.4th 861, the court held that “medical marijuana dispensaries and pharmacie s are not ‘similarly situated’ for public health and safety purposes and therefore need not be treated equally.” (Id . at p. 871.) In reaching this conclusion, the court observed that the presence of la rge amounts of cash and marijuana at medical marijuana dispensaries makes them attractive targets for crime. (Ibid .) In County of Tulare v. Nunes (2013) 215 Cal.App.4 th 1188, the court concluded that a medical ma rijuana collective did not qualify as an “agricultural” land use because “marijuana is a controlled substance and is not treated as a mere crop or horticultural product under the law.” (Id . at p. 1205.) In City of Monterey v. Carrnshimba , supra , 215 Cal.App.4 th 1068, the court rejected a similar argument that a medical marijuana dispensary was substantially similar to the listed commercial use classifications for personal services, retail sales, pharmacies and medical supplies. (Id . at p. 1091.) The court concluded that a medical marijuana dispensary did not fit within the definition of these land use classifications and observed that the city had consistently interpreted its zoning code as prohibiting medical marijuana dispensaries. (Ibid .) Citie s, however, should be cautious in relying on permissive zoning to prohibit any medical marijuana land use. As more people try to enter the lucrative medical marijuana industry, cities relying on the permissive zoning approach could see repeated requests f or similar use determinations. These case -by -case requests could result in time -consuming administrative hearings and costly and uncertain litigation. There is potential for marijuana advocates to challenge similar use determinations depending on the wor ding of individual municipal codes. For these reasons, cities that want to ban all or some medical marijuana activities may want to consider adopting express prohibitions. Cities that want to permit medical marijuana businesses under permissive zoning pr inciples should also be cautious. By allowing a medical marijuana business to proceed under permissive zoning principles, a city is setting a precedent for future land use interpretations. (See City of Monterrey v. Carrnshimba , supra , 215 Cal.App.4 th at p. 1091.) In addition, a city should evaluate whether the applicable land use regulations are sufficient to address the potentially negative secondary effects that are commonly associated with medical marijuana land uses, such as unsafe construction and e lectrical wiring, noxious fumes and odors, and increased crime in and around marijuana establishments. The potential loss of local control over marijuana cultivation land uses could hinder the city’s ability to protect the public health, safety, and welfa re. C. Local Enforcement Against Commercial Cannabis Activities MMRSA established a dual enforcement scheme for commercial cannabis activities that violate either state or local laws. The state licensing authorities will enforce state statutes and regu lations. State authorities can suspend or revoke state licenses (Bus. & Prof. Code § 19320(c)), pursue civil penalties against violating businesses in an amount equal to two times the applicable licensing fee per violation (Bus. & Prof. Code § 19318(a)), or may prosecute violators criminally (Bus. & Prof. Code § 19318(c)). Local authorities will be responsible for enforcing local ordinances and regulations. For state -licensed facilities operating within a city, a city may have authority to enforce state law and regulations “if delegated by the state.” (Bus. & Prof. Code § 19316(b).) Under their constitutional police power and statutory authority, cities will continue to have the full range of enforcement remedies. As Inland Empire explained, the CUA an d MMP “remove state -level criminal and civil sanctions from specified medical marijuana activities, but they do not . . . override the zoning, licensing, and police powers of local jurisdictions.” (Inland Empire , supra , 56 Cal.App.4 th at pp. 762 -763 [emph asis added].) Furthermore, as noted above, Business and Professions Code section 19316(c) provides that nothing in MMRSA or its implementing regulations “shall be deemed to limit the authority or remedies of a city, county, or city and county under any pr ovision of law, including, but not limited to, Section 7 of Article XI of the California Constitution.” (Emphasis added.) Similarly, Business and Professions Code section 19315(a) states that nothing in MMRSA “shall be interpreted to supersede or limit e xisting local authority for law enforcement activity, enforcement of local zoning requirements or local ordinances, or enforcement of local permit or licensing requirements.” (Emphasis added.) The police power of local jurisdictions authorizes the follow ing remedies: ● Civil action for injunctive relief. (Inland Empire , supra , 56 Cal.4 th at p. 762 [finding that neither the CUA nor the MMP preempts the authority of California cities and counties “to allow, restrict, limit, or entirely exclude facilities that distribute medical marijuana, and to enforce such policies by nuisance actions”]; City & County of San Francisco v. City Inv. Corp . (1971) 15 Cal.App.3d 1031, 1041 [holding that a city can abate a violation of a local ordinance through an injunction].) ● Administrative abatement proceedings. (Govt. Code §§ 36901, 38771, 38773.5.) ● Administrative citations. (Govt. Code § 53069.4.) ● License revocation. Business and Professions Code section 19320(b) states, “Revocation of a local license, permit, or other authorization shall terminate the ability of a medical cannabis business to operate within that local jurisdiction until the loca l jurisdiction reinstates or reissues the local license, permit, or other required authorization.” In order to utilize this valuable enforcement tool, cities should review their permit revocation procedures to ensure that they comply with due process requ irements. ● Criminal enforcement. In general, cities can criminally prosecute those who engage in unpermitted medical marijuana activities. The constitutional police power referenced in Inland Empire includes the authority to initiate criminal prosecu tions against those who violate local ordinances. (Govt. Code § 36900(a).) Furthermore, Health and Safety Code section 11362.83, which is part of the MMP, expressly recognizes this authority to criminally prosecute unpermitted medical marijuana cooperati ves and collectives. While the police power confers broad authority on cities to enforce local ordinances, the recent court of appeal decision in Kirby , supra , 242 Cal.App.4 th 940, casts uncertainty over a city’s ability to criminally prosecute certain medical marijuana -related offenses. Kirby dealt with a county medical marijuana ordinance that, among other restrictions, prohibited cultivation in all zones of the city, including cultivation by individual qualified patients for their own personal medica l use. The medical marijuana ordinance also contained a provision that made marijuana cultivation in violation of the ordinance a misdemeanor. The plaintiff challenged the ordinance provisions relating to cultivation and criminal prosecution. The trial court sustained the county’s demurrer. As noted above, the court of appeal upheld the county’s complete prohibition on medical marijuana cultivation, concluding that the CUA and MMP did not preempt the county’s zoning authority in this area. The court of appeal, however, concluded that Health and Safety Code section 11362.71(e) preempted a local ordinance that directly criminalized marijuana cultivation. (Id . at p. 961.) Section 11362.71(e) provides: “No person or designated primary caregiver in posses sion of a valid identification card shall be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in an amount established pursuant to this article, unless there is reasonable cause to believe that the information contained in the card is false or falsified, the card has been obtained by means of fraud, or the person is otherwise in violation of the provisions of this article.” According to Kirby , this provision does not merely protect individuals from arrest unde r state law, but also precludes criminal arrest under local ordinances. The court contrasted this provision with sections 11362.765 and 11362.775, which listed specific state laws for which immunity applied. (Id . at p. 960.) Since the immunity from arre st in section 11362.71 was not expressly limited to state laws, the court concluded that this section necessarily protected individuals from arrest and prosecution under local zoning ordinances. The court found additional support for its conclusion in the UCSA, which is a comprehensive scheme for defining drug crimes and penalties. In the court’s view, both “the USCA and MMP’s prohibition of arrests manifest the Legislature’s intent to fully occupy the area of criminalization and decriminalization of acti vity directly related to marijuana.” (Id . at pp. 960 -961.) Kirby , however, added a significant caveat to its ruling. The court noted that, while a local jurisdiction could not impose a direct criminal sanction on cultivation, it could impose an “indir ect criminal sanction . . . because the failure to abate a public nuisance after notice is recognized as a separate crime by the Legislature.” (Id . at p. 961 [citing Pen. Code § 373a and Health & Safety Code § 11362.83(b)] [emphasis added].) Therefore, a local agency could still prosecute someone for cultivating marijuana in violation of a local zoning ordinance under a general penalty provision that designates any code violation as a public nuisance and a misdemeanor. There may be additional cases in th e near future that address the issue of criminal prosecution under local medical marijuana regulations. Until the issue gets fully resolved, most likely by the Supreme Court, cities may want to review the enforcement provisions in their local ordinances. Under Kirby , local ordinances that specifically make the “possession, transportation, delivery, or cultivation of medical marijuana” a crime may be subject to challenge. III. SPECIAL ISSUES A. Cultivation Marijuana cultivation has long been a topic of concern for local agencies and law enforcement. It is well documented that marijuana cultivation is often associated with significant negative secondary effects such as hazardous electrical wiring, diversion of public waters, water pollution, noxious odors and fumes, and violent crime. Under MMRSA, the CUA, the MMP, and existing case law, local agencies can ban marijuana cultivation completely. As noted above, Maral and Kirby both held that neither the CUA nor the MMP preempted local bans on medica l marijuana cultivation, including cultivation by a qualified patient for his or her personal medical use. (Maral v. City of Live Oak , supra , 221 Cal.App.4th at p. 984; Kirby v. County of Fresno , supra , 242 Cal.App.4 th at pp. 969 -970.) The local control provisions in MMRSA reaffirmed this police power authority. (Bus. & Prof. Code §§ 19315(a), 19316(a), and 19316(c).) While these decisions and statutory provisions should support local cultivation bans, the fallout from a drafting error in AB 243 may enc ourage marijuana advocates to challenge such ordinances. Health and Safety Code section 11362.777(c)(4), which was part of AB 243, provided that if a city or county did not have a land use ordinance or regulation prohibiting medical marijuana cultivation, either expressly or otherwise under principles of permissive zoning, or chose not to implement a regulatory scheme, then commencing March 1, 2016, the state Department of Food and Agriculture would become the sole licensing authority for cultivation appli cants in that jurisdiction. As a result of this deadline, which was left in AB 243 inadvertently, cities and counties scrambled to adopt medical marijuana cultivation ordinances. Assembly Bill 21, signed by Governor Brown on February 3, 2016, deleted the March 1 st deadline. However, as part of a legislative compromise, AB 21 also deleted a sentence from Health and Safety Code section 11362.777(g) that expressly stated that cities and counties could ban cultivation by qualified patients and primary caregi vers and replaced it with the following: “Exemption from the requirements of this section [the dual licensing requirements for medical marijuana cultivation facilities] does not limit or prevent a city, county, or city and county from exercising its polic e authority under Section 7 of Article XI of the California Constitution.” There has been concern that deleting a provision that expressly recognized the ability of cities and counties to ban private medical marijuana cultivation could be interpreted as a concession that no such right existed and would undermine Maral and Kirby . However, in light of the new language which preserves the existing police power authority of cities and counties, such an interpretation is unlikely. Rather, the better interpretation is that the revised Health and Safety Code section 11362.777(g) preser ves the status quo for cities and counties with regard to local control over all marijuana cultivation activities and that, based on Inland Empire , Maral , and Kirby , cities and counties can still prohibit marijuana cultivation completely. B. Deliveries Based on a quick review of Weedmaps.com, it is safe to conclude that medical marijuana delivery services are likely operating in every California city. Most delivery services, however, do not advertise the location at which they either store or obtain th eir medical marijuana, which presents challenges for law enforcement in cities that prohibit such activities. As a result of MMRSA, this clandestine business model will change drastically. Business and Professions Code section 19340(a) provides that me dical marijuana deliveries can only be made by a state -licensed dispensary in a city, county, or city and county that does not explicitly prohibit it by local ordinance. Therefore, in order for a city or county to prohibit medical marijuana delivery servi ces by a state -licensed dispensary, it will need to enact an express ban. Business and Professions Code section 19300.5(m) defines “delivery” as follows” “[T]he commercial transfer of medical cannabis or medical cannabis products from a dispensary, up to an amount to be determined by the bureau to a primary caregiver or qualified patient as defined in Section 11362.7 of the Health and Safety Code, or a testing laboratory. ‘Delivery’ also means the use by a dispensary of any technology platform owned and controlled by the dispensary, or independently licensed under this chapter, that enables qualified patients or primary caregivers to arrange for or facilitate the commercial transfer by a licensed dispensary of medical cannabis or medical cannabis products .” For those cities that choose to ban medical marijuana deliveries, there is one exception: a local jurisdiction cannot prevent a delivery service from using public roads to simply pass through its jurisdiction from a licensed dispensary to a delivery lo cation outside of its boundaries. (Bus. & Prof. Code § 19340(f).) Cities can also choose to allow and regulate medical marijuana deliveries by licensed dispensaries. Business and Professions Code section 19316(a) provides that a local agency “may adopt ordinances that establish additional standards, requirements, and regulations for local licenses and permits for commercial cannabis activity.” This would include deliveries by a licensed dispensary. MMRSA currently imposes very basic requirements on del ivery services. Under MMRSA, a delivery person must carry a copy of the dispensary’s state -issued license, a government ID, and a copy of the delivery request. The patient or caregiver requesting a delivery must also maintain a copy of the delivery reque st (which suggests that each delivery request must generate a written record of some type). MMRSA does not require that the delivery person be a primary caregiver. Dispensaries and delivery people who comply with MMRSA will be immune from prosecution for marijuana transportation. (Bus. & Prof. Code § 19317(f).) Keep in mind, however, that the state is working on the implementing regulations, which may further explain how medical marijuana deliveries can occur. For instance, it will be up to the Departm ent of Consumer Affairs to determine how much marijuana can be transported during the delivery process. This is an important question because a small amount of marijuana can have a significant street value, making it an attractive criminal target. Any hea lth and safety regulations developed by the state for medical marijuana deliveries will represent the minimum state -wide standards. The Department of Consumer Affairs does not anticipate issuing any state dispensary licenses until January 2018. Until 20 18, local agencies can continue to rely on their constitutional police powers to regulate and/or prohibit medical marijuana delivery services. C. Federal Preemption In Inland Empire , the Court stated that “localities in California are left free to accom modate such conduct, if they choose, free of state interference.” (Inland Empire , supra , 56 Cal.4 th at p. 762.) The Court, however, did not address the extent to which local regulatory and permitting schemes would conflict with federal law. In City of Palm Springs v. Luna Crest, Inc. (Cal. Ct. App. March 17, 2016) 2016 WL 1056700, the court of appeal concluded the CSA did not preempt a local ordinance that allowed a certain number of dispensaries to operate subject to a local permit. Luna Crest opened a medical marijuana dispensary in Palm Springs without a permit, contending that the CSA preempted Palm Springs’ regulatory permitting scheme. First, the court concluded that there was no conflict between the CSA and Palm Springs’ ordinance. The court o bserved that the CSA did “‘not direct local governments to exercise their regulatory, licensing, zoning, or other power in any particular way,’ so exercise of those powers ‘with respect to the operation of medical marijuana dispensaries that meet state law requirements would not violate conflicting federal law.” (Id . at *3[quoting Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal.App.4 th 734, 759.) Second, the court held that the ordinance was not an obstacle to enforcement of the CSA because a s trong local regulatory program for medical marijuana “would tend to prevent” medical marijuana from contributing to recreational drug abuse and drug trafficking. (Id . at *4.) For now, Luna Crest should shield cities that allow medical marijuana land uses from federal preemption arguments. It is unlikely that a sensible marijuana advocate would want to make the federal preemption argument since the likely outcome of winning that argument is a com plete ban on medical marijuana facilities. IV. The Control, Regulate and Tax Adult Use of Marijuana Act It is widely anticipated that one or more recreational marijuana ballot measures will appear on the ballot in the November 2016 general election. There have been approximately 20 proposed recreational marijuana ballot measures circulated for signatures. Of these proposed initiatives, the most likely initiative to make it on the ballot is the Control, Regulate and Tax Adult Use of Marijuana Act. So me have referred to this as the Parker Initiative, because Sean Parker of Facebook has put his vast financial resources behind it. So far, it has garnered some high profile endorsements, including one from Lieutenant Governor Gavin Newsome. It is probabl e that marijuana advocates will consolidate their support behind this particular initiative rather than risk splitting the vote among competing measures. In summary, the Adult Use of Marijuana Act would legalize and regulate recreational marijuana in Cali fornia. Under the Act, individuals could possess up to one ounce of dried marijuana or grow up to six plants. The Act recognizes similar categories of marijuana businesses as MMRSA and requires these businesses to obtain a state license in a manner very similar to MMRSA. The Act does not contain a dual licensing requirement; marijuana businesses can apply for a state license without having to show proof of compliance with local regulations. However, the Act contains an express provision preserving local control and states that nothing in the Act shall limit or supersede the authority of local jurisdictions “to completely prohibit the establishment or operation of one or more types of businesses licensed under” the Act. With regard to personal cultivatio n, the Act provides that local agencies can completely prohibit outdoor grows at private residences and can reasonably regulate indoor grows at private residences. Cities and counties will need to keep a close eye on this initiative, as well as others tha t may qualify for the November election. The Act would clearly diminish local control, but not as much as some had feared from a ballot initiative sponsored by marijuana advocates. IV. CONCLUSION Court victories such as Inland Empire and the explicit l ocal control language in MMRSA and the revised MMP provide local governments with a strong hand to deal with medical marijuana. This is a significant and positive development. If there is one certainty on the issue of medical marijuana, it is that marijua na advocates will continue to develop creative arguments to expand access and limit local control. APPENDIX – SAMPLE ORDINANCE 9 -6.186 Medical Marijuana Facilities. (a) Purpose. The purpose and intent of this section is to prohibit medical marijua na dispensaries, marijuana cultivation facilities, commercial cannabis activities, and medical marijuana deliveries, as defined below, within the city limits. It is recognized that it is a Federal violation under the Controlled Substances Act to possess or distribute marijuana even if for medical purposes. Additionally, there is evidence of an increased incidence of crime -related secondary impacts in locations associated with marijuana cultivation facilities and medical marijuana dispensaries and in connect ion with medical marijuana deliveries, which is contrary to policies that are intended to promote and maintain the public’s health, safety, and welfare. (b) Definitions. (1) “Commercial cannabis activity” shall have the meaning set forth in Business and Professions Code section 19300.5(k). (2) “Cultivation” means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of marijuana. (3) "Marijuana" means all parts of the plant Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It includes marijuana infused in foodstuff, and concentrated cannabis and the s eparated resin, whether crude or petrified, obtained from marijuana. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixtur e, or preparation of the mature stalks (except resin extracted therefrom), fiber, oil, or cake, or the sterilized seeds of the plant that are incapable of germination. (4) "Medical marijuana" is marijuana used for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of acquired immune deficiency syndrome ("AIDS"), anorexia, arthritis, cancer, chronic pain, glaucoma, migraine, spasticity, or any other serious medical condition for which marijuana is deemed to provide relief as defined in subsection (h) of Health and Safety Code § 11362.7. (6) “Marijuana cultivation facility” means any business, facility, use, establishment, property, or location where the cultivation of marijuana occurs. (7) "Medical marijuana dispensary" means any business, facility, use, establishment, property, or location, whether fixed or mobile, where medical marijuana is sold, mad e available to, delivered to and/or distributed by or to three or more people. A "medical marijuana dispensary" does not include the following uses, as long as the location of such uses are otherwise regulated by this Code or applicable law: a clinic licen sed pursuant to Chapter 1 of Division 2 of the Health and Safety Code, a health care facility licensed pursuant to Chapter 2 of Division 2 of the Health and Safety Code, a residential care facility for persons with chronic life -threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the Health and Safety Code, a residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the Health and Safety Code, a residential hospice, or a home health agency licensed pursuan t to Chapter 8 of Division 2 of the Health and Safety Code, as long as any such use complies strictly with applicable law including, but not limited to, Health and Safety Code § 11362.5 and following. (c) Medical marijuana dispensaries, marijuana cultiv ation facilities, commercial cannabis activities, and medical marijuana deliveries prohibited. (1) Medical marijuana dispensaries are prohibited in all zones in the city and shall not be established or operated anywhere in the city. (2) Marijuana cul tivation facilities are prohibited in all zones in the city and shall not be established or operated anywhere in the city. This prohibition shall not apply to a qualified patient, as defined by Health and Safety Code section 11362.7(f), who cultivates med ical marijuana, either by himself or herself or with assistance from his or her primary caregiver, as defined by Health and Safety Code sections 11362.5(e) and 11362.7(d), provided that the qualified patient maintains no more than six mature or 12 immature marijuana plants and does not sell, distribute, donate, or provide marijuana to any other person or entity, and the property on which the qualified patient is cultivating marijuana/cannabis has no more than 100 square feet devoted to the cultivation of ma rijuana /cannabis by any qualified patient or combination of qualified patients (the area used to cultivate marijuana/cannabis shall be measured by the aggregate area of vegetative growth of live marijuana plants on the premises) (3) Commercial cannabis activities are prohibited in all zones in the city and shall not be established or operated anywhere in the city. (4) No person may own, establish, open, operate, conduct, or manage a medical marijuana dispensary, marijuana cultivation facility, or comme rcial cannabis activity in the city, or be the lessor of property where a medical marijuana dispensary, marijuana cultivation facility, or commercial cannabis activity is located. No person may participate as an employee, contractor, agent, volunteer, or i n any manner or capacity in any medical marijuana dispensary, marijuana cultivation facility, or commercial cannabis activity in the city. (5) No person and/or entity may deliver or transport medical marijuana from any fixed or mobile location, either inside or outside the city, to any person in the city, except that a person may deliver or transport medical marijuana to a qualified patient or person with an identification card, as those terms are defined in Health and Safety Code section 11362.7, for w hom he or she is the primary caregiver within the meaning of Health and Safety Code sections 11362.5 and 11362.7(d). (6) Nothing contained in this section shall be deemed to permit or authorize any use or activity which is otherwise prohibited by any sta te or federal law. (d) Enforcement. The city may enforce this section in any manner permitted by law. The violation of this section shall be and is hereby declared to be a public nuisance and contrary to the public interest and shall, at the discretion of the city, create a cause of action for injunctive relief. 1 MEMORANDUM 1 To: League of California Cities’ City Managers Department League of California Cities’ City Attorneys Department From: League Staff Date: September 26 , 2016 Re: The Control, Regulate and Tax Adult Use of Marijuana Act On November 8, 2016, the Control, Regulate, and Tax Adult Use of Marijuana Act (“AUMA” or “Act”) will come before California voters as Proposition 64. If passed, the AUMA will legalize the nonmedical use of marijuana by persons 21 years of age and over, and the personal cultivation of up to six marijuana plants. In addition, the AUMA will create a state regulatory and licensing system governing the commercial cultivation, testing, and distribution of nonmedical marijuana, and the manufacturing of nonmedical marijuana products. The regulatory system governing these commercial marijuana activities largely mirrors the Medical Marijuana Regulation and Safety Act (“MMRSA ”), but there are key differences. This memorandum will provide an overview of the AUMA, highlight the ways in which the AUMA differs from the MMRSA, and identify the issues that cities will need to take action on if the AUMA passes. I. Overview of the AUMA A. Personal Nonmedical Marijuana Use The AUMA makes it legal for persons 21 years of age or older to: (1) smoke or ingest marijuana or marijuana products; (2) possess , process, transport, purchase, obtain, or give away to persons 21 years of age or older, without any compensation, 28.5 grams of marijuana, or 8 grams of concentrated marijuana, including as contained in marijuana products; and (3) possess, plant, cultivate, harvest, dry or process up to six living marijuana plants for personal use.2 The AUMA requires that marijuana in excess of 28.5 grams that is produced by plants kept pursuant to the personal cultivation provision of the Act be kept in a locked space on the grounds of a private residence that is not visible from a public place.3 Although persons 21 years of age or older may use and possess nonmedical marijuana under the Act, their ability to engage in these activities is not unfettered. The AUMA prohibits the smoking 1 DISCLAIMER: These materials are not offered as or intended to be legal advice. Readers should seek the advice of an attorney when confronted with legal issues. Attorneys should perform an independent evaluation of the issues raised in these materials. 2 Health & Saf . Code § 11362.2(a). 3 Health & Saf . Code § 11362.2(a)(2). 1400 K Street, Suite 400  Sacramento, California 95814 Phone: 916.658.8200 Fax: 916.658.8240 www.cacities.org Attachment B 2 of marijuana: (1) in any public place, except where a local jurisdiction has authorized use on the premises of a retailer or microbusiness in accordance with B usiness and P rofessions C ode section 26200; (2) where smoking toba cco is prohibited; (3) within 1,000 feet of a school, day care center, or youth center while children are present; and (3) while driving, or riding in the passenger seat of, any vehicle used for transportation.4 Moreover , individuals cannot possess marijua na on school grounds, in day care centers , or in youth centers while children are present , or possess an open container of marijuana or marijuana products while driving, operating , or riding in any vehicle used for transportation.5 The AUMA further provides that cities may prohibit possession and smoking in buildings owned, leased , or occupied by the city , and that employer s , including cities , may maintain a drug and alcohol free workplace by prohibiting the use, consumption, possession, transfer, tr ansportation, sale, display or growth of marijuana in the workplace.6 1. Personal Cultivation T he AUMA provides that local governments can reaso nably regulate, but cannot ban , personal indoor cultivation of up to six living marijuana plants within the person’s private residence .7 The Act defines private residence as “a house, an apartment unit, a mobile home, or other similar dwelling unit.”8 This includes cultivation in a greenhouse on the same property as the residence that is not physically part of the home, as long as it is fully enclosed, secure, and not visible from a public space.9 The AUMA completely protects the ability of local government s to regulate, and to ban, personal outdoor cultivation operations.10 However, it purp orts to repeal an y ordinance that ban s outdoor cultivation upon the California Attorney General’s determination that nonmedical use of marijuana is lawful under federal law.11 B. Commercial Nonmedical Marijuana Activity Under the AUMA , California will have a comprehens ive state regulatory system for nonmedical marijuana that governs the industry from “seed to sale.” The Bureau of Marijuana Control, currently the Bureau of Medical Cannabis Regulation, which is within the Department of Consumer Affairs, will have primary respon sibility for administering and enforcing the AUMA .12 The AUMA divides state licensing and enforcement responsibilities among three agencies: (1) t he Department of Con sumer Affairs, which will issue licenses for marijuana the transportation, 4 Health & Saf . Code §§ 11362.3; 11362.4 . 5 Health & Saf . Code §§ 11362.3(3), 11362.3(4). 6 Health & Saf . Code § 11362.45 (f)-(g). 7 Health & Saf . Code §§ 11362.1(a)(3), 11362.2. 8 Health & Saf . Co de § 11362.2(5). 9 Health & Saf . Code § 11362.2(a)(2). 10 Health & Saf . Code § 11362.2(b)(3). 11 Health & Saf . Code § 11362.2(b)(4). 12 Bus . & Prof . Code § 26010. 3 storage, distribution, and sale of marijuana;13 (2) t he Department of Food and Agriculture will issue marijuana cultivation licenses , which will administer the provisions of the AUMA related to the cultivation of marijuana;14 and (3) t he Department of Public Health , which will issue licenses for marijuana manufacturers and testing laboratories.15 Each of these state licensing authorities is responsible for creating regulations governing their respective areas of responsibility , and must begin issuing licenses by January 1, 2018.16 A state marijuana license will be valid for one year.17 A separate state license is required for each commercial marijuana business location.18 With the exception of testing facilities, any person or entity licensed under the AUMA may apply for and be issued more than one type of state license.19 1. Local Control A ll non medical marijuana businesses must have a state license .20 A state license cannot issue to an applicant whose operations would violate the provisions of any local ordinance or regulation .21 However a state applicant need not provide documentation that the applicant has a local license or permit. T he AUMA does not li mit the authority of a local jurisdiction to adopt and enforce local ordinances regulating or completely prohibiting state -licensed marijuana businesses .22 L ocal jurisdictions may establish “standards, requirements , and regulations regarding health and safety, environmental protection, testing, security, food safety, and worker protections that exceed state standards.”23 2. Local Enforcement Like the MMRSA, t he AUMA establishe s a dual enforcement scheme for commercial marijuana activities that violate either state or local laws . The state licensing authorities will enforce state statutes and regulations . State authorities can suspend or revoke state licenses ,24 pursue civil penalties against violating businesses in an amount equal to three times the applicable licensing fee per violation,25 or may prosecute violators criminally .26 Local authorities will be responsible 13 Bus . & Prof . Code § 26012(a)(1). 14 Bus . & Prof . Code § 26012(a)(2). 15 Bus . & Prof . Code § 26012(3). 16 Bus . & Prof . Code §§ 26012(c), 26013 (a). 17 Bus . & Prof . Code § 26050(c). 18 Bus . & Prof . Code § 26055(c). 19 Bus . & Prof . Code § 26053. 20 Bus . & Prof . Code § 26038.) 21 Bus . & Prof . Code § 26055(e). 22 Bus . & Prof . Code § 26200(a). But see, Bus . & Prof . Code §§ 19340(f), 26080(b), 26090(c) [prohibiting cities from preventing the use of public roads to lawfully transport or deliver nonmedical marijuana]. 23 Bus . & Prof . Code § 26201. 24 Bus . & Prof . Code § 2603. 25 Bus . & Prof . Code § 26038(a) 26 Bus . & Prof . Code § 26038(c). 4 for enforcing local ordinances and regulations .27 For state -licensed facilities operating within a city, a city may have authority to enforce state law and regulations “if delegated the power to do so by the [B]ureau [of Marijuana Control] or a licensing authority.”28 II. Key Differences B etween the AUMA and MMRSA A. Licensing The MMRSA established dual licensing of medical marijuana businesses, requiring both local approval and a state license in order for a business to operate legally.29 Specifically, the MMRSA requires applicants to provide the relevant s tate licensing entity with documentation proving their compliance with local ordinances and regulations.30 The AUMA does not require an applicant to provide evidence of local permission prior to being issued a state license .31 Instead, the AUMA prohibits state licensing entities from approving licenses for activities that would violate local ordinances.32 Thus, s tate licensing officials bear the onus of evaluating local regulatory compliance . Under this system , the AUMA allows a nonmedical marijuana busin ess licensed by the state to operate within city limits unless the city’s municipal code prohibits the use. Cities that wish to regulate or prohibit nonmedical marijuana businesses will need to do so before t he State begins issuing licenses , either by enacting a nonmedical marijuana ordinance /regulation or by amending an existing medical marijuana ordinance /regulation to include nonmedical marijuana within its scope . B. License Revocation Under the MMRSA, revocation of a local license or permit unilaterally terminates the ability of the medical marijuana business to operate in the jurisdiction issuing the permit, until such time as the local permitting entity reinstates it.33 Under the AUMA, if a local jurisdiction revokes a local license , permit, or authorization for a licensee to engage in commercial marijuana activity within the local jurisdiction, the Bureau of Marijuana Control must initiate proceedings to determine whether the state license issued should be suspended or revoked withi n ten days of being notified by the local jurisdiction of the local revocation.34 Note, however, that, even if the state license is not suspended or revoked immediately , the business cannot operate within the local jurisdiction once local revocation occurs . 27 Bus . & Prof . Code § 26200 (b). 28 Bus . & Prof . Code § 23202(a). 29 Bus . & Prof . Code § 19320(b). 30 Bus . & Prof . Code § 19322(a). 31 Bus . & Prof . Code § 26056. 32 Bus . & Prof . Code § 26055(e). 33 Bus . & Prof . Code § 19320(d). 34 Bus . & Prof . Code § 26200(c). 5 C. Personal, Indoor Cultivation Under the MMRSA, local governments possess the power to regulate and completely ban personal, indoor cultivation.35 Under the AUMA local governments can “reasonably regulate” indoor cultivation of up to six marijuana plants for personal use, but cannot ban it.36 D. Personal Outdoor Cultivation Under the MMRSA local governments can prohibit all outdoor cultivation . Under the AUMA local governments can prohibit all outdoor cultivation, until such time as the Attorney General determines that the use of nonmedical marijuana is lawful in the State of California under federal law.37 Upon such determination, the AUMA purports to repeal all local bans on outdoor cultivation.38 E. Amendment Any portion of the MMRSA can be amended at any time, if there is sufficient political support within the Legislature for making substantive changes to the regulatory structure. Under some circumstances, an amendment to the MMRSA by the Legislature might arguably violate The Compassionate Use Act of 1996 (adopted by the voters as Proposition 21 5 ), which decriminalized the personal use of medical marijuana.39 Under the AUMA, t he Legislature may amend Sections 5 (relating to the use of medical marijuana for medical purposes) and 6 (relating to state licensing) and the provisions relating to penalties by majority vote . The Legislature may amend any other provision of the Act by a 2/3 vote . Any amendment must further the purposes and intent of the AUMA . The purpose and intent of the Act include allowing local governments to ban nonmedical marijuana businesses. F. Taxation The AUMA imposes new state taxes on medical and non medical marijuana in the following manner :  Effective January 1, 2018, the AUMA imposes an excise tax at the rate of 15% of gross retail sales receipts.40 o Th is tax will be in addition to existing state and local sales tax .41 G iven that state and local sales taxes can range from 7 -10%, the combined excise tax + sales tax at the retail le vel could approach 25%; 35 Health & Saf . Code § 11362.777(g); Maral v . City of Live Oak (2013) 221 Cal.App.4th 975, 984; Kirby v . County of Fresno (2015) 242 Cal.App.4th 940, 969 -970. 36 Bus . & Prof . Code § 11362.2(b)(1). 37 Bus . & Prof . Code § 11362.2(b)(4). 38 Bus . & Prof . Code § 11362.2(b)(4). 39 Health & Saf. Code § 11362.5 . 40 Rev. & Tax Code § 34011(a). 6  Effective January 1, 2018, the AUMA imposes a separate cultivation tax on all harvested marijuana as follows:42 o $9.25 per dry -weight ounce on all marijuana flowers; o $2.75 per dry -weight ounce on all marijuana leaves ;  The AUMA p rohibits imposition of state and local sales taxes on medical marijuana.43  The AUMA e xempts marijuana cultivated for personal use from taxation .44 The AUMA does not pre -empt local taxation .45 However, t he AUMA’s estimated cumulative tax rate of nearly 3 5% on the purchase of nonmedical marijuana has potentially troubling implications for local governments . A high state tax rate by itself may depress sales and stimulate the black market . Any local taxation of marijuana should be governed by an awareness that a high retail sales tax rate, imposed on an industry that , until recently , has not been regulated at all, might stimulate black market activity and compromise the anticipated yield of revenue . In order to avoid such a result, c ities might consider impos ing an excise tax on discrete commercial nonmedical marijuana activities rather than on retail sales . New taxes on marijuana require compliance with Proposition 218. 1. Allocation of State Tax Revenues After repaying certain state agencies for marijuana regulatory costs not covered by license fees, and making certain grants to universities for research and development and the Governor’s Office of Business and Economic Development, the AUMA distributes the remaining tax revenue as follows:  60% for youth p rograms, substance abuse education, prevention and treatment;  20% for environmental cleanup and remediation; and  20% for state and local programs that reduce DUI and grant programs designed to reduce negative health impacts resulting from marijuana legaliz ation G. Deliveries Under the MMRSA, medical marijuana deliveries can only be made from a state -licensed dispensary in a city, county, or city and county that does not explicitly prohibit it by local ordinance.46 A delivery person must carry a copy of the dispensary’s state -issued license, a government ID, and a copy of the delivery request.47 The pa tient or caregiver requesting the delivery must also maintain a copy of the delivery request .48 Dispensaries and deliver y people who comply with MMRSA are immune from prosecution for marijuana transportation.49 41 Rev. & Tax Code § 34011(d). 42 Rev. & Tax Code § 34012 . 43 Rev. & Tax Code § 34011(g). 44 Rev. & Tax Code § 34012(j). 45 Rev . & Tax Code § 34021 . 46 Bus . & Prof . Code § 19340(a). 47 Bus . & Prof . Code §§ 19340(b)(2), 19340(d). 48 Bus . & Prof . Code § 19340(e). 49 Bus . & Prof . Code § 19317(f). 7 Under the AUMA, deliveries can be made by a state -licensed retailer, microbusin ess, or nonprofit unless they are prohibited by local ordinance .50 Although the AUMA d oes require a customer requesting delivery to maintain a copy of the delivery request, t here is no express requirement that delivery people carry or maintain any records.51 Moreover, unlike the MMRSA, the AUMA does not require that deliveries come from a dispensary . Instead, it states that “Deliveries, as defined in this division, may only be made by a licensed retailer or microbusiness, or a licensed nonprofit under Section 26070.5 .”52 Thus, there is at least some question regarding whether deliveries m ay be made from non -retail locations by retail employees . Under both the MMRSA and the AUMA, local jurisdictions can ban or regulate d eliveries within their borders.53 However, local jurisdictions cannot prevent a delivery service from usi ng public roads to simply pass through its jurisdiction from a licensed dispensary to a de livery location outside of its boundaries.54 III. Local Regulatory Options 55 The AUMA preserve s the authority of a city to adopt business regulations and land use regulations for n onmedical marijuana activities.56 A. Personal Marijuana Cultivation Under the AUMA local governments can regulate or ban all personal, outdoor cultivation, until such time a s the Attorney General determines that the use of nonmedical marijuana is lawful in the State of California under federal law . In addition, local governments can “reasonab ly regulate ,” but cannot ban , personal, indoor cultivation . Nothing in the AUMA requires a city to enact an ordinance or regulation by a certain date . However, assuming that the AUMA passes , i f a city does not have a ban or regulatory scheme governing personal, outdoor cultivation or a regulatory scheme governing personal, indoor cultivation in place before November 9, 2016, a person may legally engage in personal cultivation of up to six marijuana plants at his or her private residence . 50 Bus . & Prof . Code §26090(a). 51 Bus . & Prof . Code §26090(b). 52 Bus . & Prof . Code § 26090(a). 53 Bus . & Prof . Code §§ 19340(a), 19316(a), 26200 . 54 Bus . & Prof . Code §§ 19340(f), 26080(b), 26090(c). 55 For a thorough discussion of the various marijuana regulatory options that a city may consider , see McEwen, Medical Marijuana -Revisited After New State Laws (Spring 2016) <http://www.cacities.org/Resources - Documents/Member -Engagement/Professional -Departments/City -Attorneys/Library/2016/Spring -2016/5 -2016 - Spring -Medical -Marijuana -%E2%80%93 -Revisited -After>. In addition, sample ordinances may be found on the League’s website, at: http://www.cacities.org/Policy -Advocacy/Hot -Issues/Medical -Marijuana . But note : the regulatory schemes discussed in the McEwen paper and posted on the League’s website pertain to medical marijuana businesses under the MMRSA and may need to be modified to comply with the requirements of the AUMA. 56 Health & Saf . Code § 11362.2; Bus . & Prof . Code §§ 26201, 26200(a). 8 B. Nonmedical Marijuana Businesses The AUMA recognizes a range of businesses, including dispensaries, cultivators, manufacturers, distributors, transporters, and testing laboratories . Cities may expressly ban , adopt business regulations , or adopt land use regulations pertaining to any or all of these businesses . Again, the AUMA does not require a city to enact a regulatory scheme or ban by a certain date . However, assuming that the AUMA passes in November, i f a city wishes to regulate or ban marijuana businesses before marijuana businesses may legally operate within the city, the regulations or ban will need to take effect before the state begins issuing nonmedical marijuana business licenses . The League anticipates that cities have until January 1, 2018 to enact bans or regulations relating to nonmedical marij uana businesses , because: (1) nonmedical marijuana businesses cannot operate in any city without a state license;57 (2) the state licensing agencies in charge of implementing the AUMA have stated that they anticipate that they will not begin issuing license s under the MMRSA until January 2018, and it is unlikely that said agencies will be able to begin issuing licenses under the AUMA before they begin issuing licenses under the MMRSA ; and (3) the AUMA does not require state agencies to issue licenses until J anuary 1, 2018.58 It is not the League’s position that state licensing agencies cannot issue licenses before January 1, 2018, just that it is unlikely that they will do so. C. Caution Against Use of Permissive Zoning Under a permissive zoning code , any use not enumerated in the code is presumptively prohibited, unless an authorized city official finds that the proposed us e is substantially the same in character and intensity as those land uses listed in the code.59 A lthough the MMRSA upheld a city’s authority to rely on permissive zoning to prohi bit medical marijuana land use s , i t is unlikely that cities will succeed in arguing that nonmedical marijuana land uses are prohibited by permissive zoning under the AUMA . This is so because : (1) the statutory language in the AUMA regarding local control seems to anticipate that a city will adopt an ordinance explicitly prohibiting and/or regulating nonmedical marijuana businesses (rather than relying on the silence of its Code to argue for a prohibite d use );60 (2) the AUMA does not contain the same protective language as the 57 Bus . & Prof . Code § 26038 . 58 Bus . & Prof . Code § 26012 (c). 59 See City of Corona v . Naulls (2008) 166 Cal.App.4th 418, 433 -436. See also C ounty of Los Angeles v . Hill (2011) 192 Cal.App.4th 861, 871 [holding that “medical marijuana dispensaries and pharmacies are not ‘similarly situated’ for public health and safety purposes”]; City of Monterey v . Carrnshimba (2013) 215 Cal.App.4th 1068, 109 1 [holding that a medical marijuana dispensary was not substantially similar to the listed commercial use classifications for personal services, retail sales, pharmacies and medical supplies]; County of Tulare v . Nunes (2013) 215 Cal.App.4th 1188, 1205 [ho lding that a medical marijuana collective did not qualify as an “agricultural” land use because “marijuana is a controlled substance and is not treated as a mere crop or horticultural product under the law”]. 60 Bus. & Prof Code § 26200 [“Nothing in this division shall be interpreted to supersede or limit the authority of a local jurisdiction to adopt and enforce local ordinances to regulate businesses licensed under this division, including, but not limited to, local zoning and land use requirements, business license requirements, and requirements related 9 MMRSA with respect to permissive zoning ;61 and (3) the AUMA explicitly designates nonmedical marijuana as an agricultural product —thus if a city’s permissive zoning code authorizes agricultural uses, the city may be precluded from arguing that marijuana is prohibited .62 Therefore , cities that wish to ban all or some nonmedical marijuana activities should adopt express prohibitions , even if they operate under a permissive zoning code . IV. What actions need to be taken? At this time city officials should: (1) review the city’s muni cipal code; (2) consider whether they wish to regulate the personal cultivation of nonmedical marijuana indoors ; (3) consider whether they wish to regulate or ban the personal cultivation of nonmedical marijuana outdoors ; (4 ) consider whether they wish to enact business regulations of nonmedical marijuana businesses; (5 ) consider whether they wish to enact land use regulations of nonmedical marijuana businesses ; (6 ) consider whether they wish to enact local taxes on marijuana ; and (7) comply with Proposition 218 if they decide to enact local taxes on marijuana. Cities should prioritize considering or enacting ordinance s regulating personal nonmedical marijuana cultivation, because it will be legal under state law on November 9, 2016 if the AUMA passes , whereas nonmedical marijuana businesses will not be able to operate lawfully until the state licensing system become s operational (likely in late 2017). Although cultivation for personal use will be legal as of November 9 , 2016 if the AUMA is approved by voters, local governments will not lose any regulatory authority if they do not have an ordinance in place addressing personal cultivation before the election. Locals will retain the ability to regulate personal cultivation and to enact related ordinances at any time after the election. The only change the AUMA will make in this area is to prohibit local bans of indoor cultivation for personal use. No ordinance enacted prior to the election can prevent this change in the law. to reducing exposure to second hand smoke, or to completely prohibit the establishment or operation of one or more types of businesses licensed under this division within the local juri sdiction.”] (emphasis added). 61 Compare Health & Saf . Code § 11362.777(b)(3) [a “person or entity shall not submit an application for a state license . . . if the proposed cultivation of marijuana will violate the provisions of any local ordinance or regul ation, or if medical marijuana is prohibited by the city, county, or city and county in which the cultivation is proposed to occur, either expressly or otherwise under principles of permissive zoning”] with Bus. & Prof Code § 26205(e) [“Licensing authoriti es shall not approve an application for a state license under this division if approval of the state license will violate the provisions of any local ordinance or regulation adopted in accordance with Section 26200.”]. 62 Bus . & Prof . Code § 26067(a). 1 November 22, 2016 Frequently Asked Questions (FAQs) Adult Use of Marijuana Act 1 Proposition 64 Question#1 : When does the AUMA take effect? Answer: The AUMA took effect November 9, 2016, the day after the election. But note, the AUMA requires a state license to engage in commercial nonmedical marijuana activity. Licensing authorities are required to begin issuing licenses by January 1, 2018 and the League anticipates that the issuance of licenses will not occur much in advance of January 1, 2018. Thus, the AUMA provisions legalizing commercial nonmedical marijuana activity will not become operational until the state begins issuing licenses (likely in late -2017). The AUMA provisions legalizing personal use and cultivation of nonmedical marijuana took effect November 9, 2016. Question #2 : Can private individuals cultivate nonmedical marijuana at home beginning November 9, 2016 ? Answer: Yes, within a private residence by a person 21 years and older for personal use. The AUMA provides that local governments can reasonably regulate, but cannot ban the personal indoor cultivation of up to six nonmedical marijuana plants per private residence. This includes cultivation in a greenhouse that is on the property of the residence but not physically part of the home, as long as it is fully enclosed, secure, and not visible from a public space. Because this activity is not subject to state licensing requirements, individuals may engage in personal indoor cultivation beginning November 9, 2016 , unless a city enacts an ordinance imposing a reasonable regulatory scheme that would preclude them from doing so before complying with the city’s regulatory requirements. Local governments may regulate or ban all personal outdoor cultivation. However, the AUMA includes language purporting to repeal any ordinance that bans personal outdoor 1 Please consult your City Attorney before taking action to implement the AUMA. The answers to these FAQs may be different in your city based upon your municipal code, regulations, and policies. The answers do not constitute legal advice from the League of California Cities ®. Attachment C 2 cultivation upon the California Attorney General’s determination that non medical use of marijuana is lawful under federal law. Question #3: Is there a limitation on the nu mber of marijuana plants that can be cultivated within a single residence? Answer: Yes. Not more than six living plants may be planted, cultivated, harvested, dried, or processed within a single private residence, or upon the grounds of that private residence, a t one time. A “residence” is defined as a house, an apartment unit, a mobile home, or other similar dwelling. No matter how many persons over 21 years of age are living in a “residence,” only 6 living plants may be cultivated at one time. (Health & Safety § 11362.2(b)(3).) Question #4 : Can a landlord ban the cultivation/smoking of marijuana on his or her property ? Answer: Yes. An individual or private entity may prohibit or restrict personal possession, smoking, and cultivation of marijuana on the individual’s or entity’s privately owned property. A state or local government agency also may prohibit or restrict such activ ities on property owned, leased, or occupied by t he state or local government. (Health & Safety §§ 11362.45(g) and (h).) Question # 5 : Can a city ban personal indoor cultivation in all leased or multi -unit residences within the city? Answer: No. A city c an not prohibit personal indoor cultivation of marijuana in all leased or multi -unit residences within the city. Howev er, because cities may reasonably regulate personal indoor cultivation, a city might be able to condition permit approval for personal indoor cultivation in a leased residence on the applicant receiving permission from his or her landlord. Question # 6 : Does a city’s ban on commercial cultivation, personal outdoor cultivation, or retail sa les of marijuana or marijuana products make it ineligible for state grant monies for law enforcement, fire protection, or other local programs addressing public health and safety associated with the implementation of Prop 64? Answer: Yes. If a city bans commercial cultivation, or personal outdoor cultivation, or retail sales of marijuana or marijuana products, it is ineligible to receive state grant monies funded through the new state excise taxes that ta ke effect on January 1, 2018. (Revenue and Taxation Code § 34019(e)(3)(D).) Question #7 : What does the AUMA say about possession, transporting, purchasing or giving away of non -medical marijuana? Answer : A person 21 years of age or older may possess, process, transport, purchase or give away to persons 21 years of age or older not more than 28.5 grams of marijuana in the non -concentrated form and not more than 8 grams of marijuana in a concentrated 3 form including marijuana products. If the AUMA passes, these activities will be lawful under state law and cannot be prohibited under local law. Question #8 : Do cities that ban or regulate medical marijuana businesses need to update their ordinances to inclu de nonmedical marijuana? Answer: Yes. The AUM A prohibits state licensing authorities from issuing a license to a commercial non medical marijuana business if operation of the business violates a local ordinance of the jurisdiction in which the business will operate. This means that a city wishing to adopt business or land use regulations prohibiting or regulating commercial nonmedical marijuana businesses must adopt an ordinance prior to the date the state begins issuing licenses , which the League anticipates will be in late 2017 .2 Question #9 : Can cities be confident that a permissive zoning code, by itself, provides sufficient protection against nonmedical marijuana businesses setting up shop without local approval? Answer: No. I t is unlikely that cities will succeed in arguing that nonmedical marijuana land uses are prohibited by permissive zoning codes under the AUMA , because the AUMA does not contain the same protective language as the MMRSA with respect to permissive zoning. Therefore, cities that wish to ban all or some nonmedical marijuana activities should adopt express prohibitions, even if they operate under a permissive zoning code. Question #1 0 : Are cities at risk of losing the opportunity to impose bans on personal outdoor cultivation if they don’t act until after the November election? Answer: No. A city may adopt an ordinance banning or regulating personal outdoor cultivation at any time. Question #1 1 : Are cities at risk of losing the opportunity to impose bans on nonmedical marijuana businesses , if they don’t act until after the November election? Answer: No. However, if a city does not adopt an ordinance expressly banning or regulating nonmedical marijuana businesses before the state begins issuing state licenses nonmedical businesses, a state -licensed nonmedical marijuana business will be able to operat e within its jurisdiction without local permission or permitting . This is due to a provision in the AUMA that provides that state licenses cannot be issued where the activity would violate a local ordinance. If a jurisdiction has no ordinance regulating no nmedical marijuana businesses, then the local regulatory scheme is silent on that type of activity, and the state can unilaterally issue a license under terms fully compliant with the AUMA. Cities may adopt an ordinance expressly banning or regulating such operations after the state begins to issue licenses, but it will be difficult to terminate the state licensee’s operations until the state license is up for renewal. Therefore, the best practice is to adopt an ordinance before the state begins issuing state licenses . 2 Please see Question #8 regarding the use of public roads for transportation and delivery. 4 Question #1 2 : Can cities ban deliveries under the AUMA? Answer: Yes. C ities can ban deliveries within their territorial limits. However, cities cannot prevent the use of public roads for the delivery of marijuana. For example, if a licensed delivery company located in City A must travel on public roads through City B to make an authorized delivery in City C, City B cannot prohibit the licensed delivery company from travelling on public roads in City B to get to City C . In addition, cities may not prevent the use of public roads within its juris diction to transport nonmedical marijuana. Question #1 3 : What i s the best way for cities to notify the state licensing agencies of their local ordinances that regulate and/or prohibit commercial non -medical marijuana activities within their jurisdictions? Answer: Unless the state licensing agencies indicate otherwise, cities should mail copies of their local ordinances that regulate or prohibit commercial nonme dical marijuana activities within their jurisdictions to the Department of Consumer Affairs, the Department of Food and Agriculture, and the Department of Public Health. Cities should regularly check each Department’s website to ensure that this practice c omplies with any regulations the Departments may pass regarding notice of local ordinances. In addition, Cities should ensure that any updates or amendments to local ordinances that regulate or prohibit commercial nonmedical marijuana activities are prompt ly submitted to each Department. Cannabis License Types Medical Cannabis Regulation and Safety Act (MCRSA) And Adult Use and Regulation Act (AUMA) Both MCRSA and AUMA provide for six nearly identical license categories, although AUMA makes clear that licenses are required for both medical and recreational activities, even if for the same activity. Some of the differences include:  Under MCRSA the retail sales permit is called “Dispensary” and under AUMA it is called “Retailer”;  AUMA did not create a separate “Transporting” permit as MCRSA does, instead this activity is covered under the “Distribution” license;  In September 2016, MCRSA was amended to add a “Specialty Cottage” cultivation license under Assembly Bill 2516 (aka “Cottage Cannabis Farmers Bill”), to accommodate “micro farmers”.  AUMA created a category of cannabis businesses called “microbusinesses” which is not included under MCRSA. A microbusiness is defined as a small operator with cultivation space not exceeding 10,000 square feet. A microbusiness license would allow holders to cultivate cannabis and act as a licensed distributor, Level 1 manufacture (using either nonvolatile solvents or no solvents), and retailer all under one license. Medical Cannabis Regulation and Safety Act MCRSA establishes 17 license types. There are restrictions to prevent vertical integration for licenses authorized by MCRA. In general, licensees can only hold licenses in up to two separate categories. Small cultivation licensee Types 1-2 may hold manufacturing or Type 10A retail licenses (limited to three dispensaries). Types 3- 4 licensees can't apply for manufacturing licenses at all. However, Type 10A licensees can apply for both manufacturing and cultivation licenses, provided their total cultivation area doesn't exceed 4 acres. Also, facilities in jurisdictions that require or permit cultivation, manufacture and distribution to be integrated as of July 1, 2015 may continue to operate that way until Jan 1, 2026 (this provision does not apply to Santa Monica as there are no dispensaries that are currently operating). Adult Use and Regulation Act AUMA established 19 license types. AUMA does not prohibit licensees from obtaining more than two license types, as MCRSA does. Only Type 5 license holders are precluded from obtaining distribution, testing or microbusiness license types under the AUMA. Type 5 licenses, will not be issued until January 1, 2023. Note: In creating the cultivation license Type 1, Type 1A, Type 1B, Type 2, Type 2A, Type 2B, Type 3, Type 3A, Type 3B and Type 4, AUMA defers to MCRSA to establish the size requirements specified in subdivision (g) of Section 19332 of Chapter 3.5 of Division 8. Following on the next two pages is a summary of the license types established by MCRSA and AUMA. Attachment D License Types Activity MCRSA AUMA Cultivation* Type 1 = Cultivation Specialty outdoor. Up to 5,000 square ft, or up to 50 noncontiguous plants Type 1-NM = Cultivation Specialty outdoor; Small Type 1A = Cultivation Specialty indoor. Up to 5000 sq ft Type 1A-NM = Cultivation Specialty indoor; Small Type 1B = Cultivation Specialty mixed-light. Using exclusively artificial lighting. Type 1B-NM = Cultivation Specialty mixed-light; Small Type 1C = Specialty Cottage Indoor cultivation of 2,500 square feet or less for mixed-light cultivation, up to 25 mature plants for outdoor cultivation, or 500 square feet or less for indoor cultivation, on one premises N/A Type 2 = Cultivation Outdoor. Up to 5000 sq ft, using a combination of artificial and natural lighting Type 2-NM = Cultivation; Outdoor; Small Type 2A = Cultivation Indoor. 5001 -10,000 sq ft. Type 2A-NM = Cultivation; Indoor; Small Type 2B = Cultivation Mixed-light. 5001 -10,000 sq ft Type 2B-NM = Cultivation; Mixed-light; Small Type 3 = Cultivation Outdoor. 10,001 sq ft - 1 Acre Type 3-NM = Cultivation; Outdoor; Medium Type 3A = Cultivation Indoor. 10,001 - 22,000 sq ft Type 3A-NM = Cultivation; Indoor; Medium Type 3B = Cultivation Mixed-light. 10,001 - 22,000 sq ft Type 3B-NM = Cultivation; Mixed-light; Medium Type 4 = Cultivation Nursery. Produces clones, immature plants, seeds, and other agricultural products used for the planting, propagation, and cultivation of medical cannabis. Type 4-NM = Cultivation; Nursery License Types Activity MCRSA AUMA Cultivation (cont.) N/A Type 5-NM = Cultivation Outdoor; Large Type 5A-NM =Cultivation Indoor; Large, greater than 22,000 sq ft Type 5B = Cultivation Mixed-light. Large, greater than 22,000 sq ft Note: Type 5 licenses, will not be issued until January 1, 2023. Manufacturing Type 6 = Manufacturer 1 for products not using volatile solvents. Type 6-NM = Manufacturer 1 Type 7 = Manufacturer 2 for products using volatile solvents. Type 7-NM = Manufacturer 2 Testing Type 8 = Testing laboratory Type 8-NM = Testing Retail Sales Type 10 = Dispensary; General Type 10-NM = Retailer Type 10A = Producing Dispensary; No more than three retail sites Distribution Type 11 = Distribution Type 11 = Distributor (includes transporting) Transporting Type 12 = Transporter N/A Microbusiness N/A Type 12 =Microbusiness - small retailers with farms not exceeding 10,000 sq. ft. Permit holders to cultivate cannabis, and act as a licensed distributor, manufacturer (using either nonvolatile solvents or no solvents), and retailer. 1 Other Relevant Legislation The State has also adopted several other bills to augment MCRSA and AUMA and new legislation has been introduced that is currently pending in the legislation, including:  Assembly Bill 21, signed by the Governor on February 3, 2016 to repeal a provision in the MCRSA that provided that if a jurisdiction did not have a land use ordinance or regulation prohibiting medical cannabis cultivation, either expressly or otherwise under principles of permissive zoning, or chose not to implement regulatory scheme, that commencing March 1, 2016 the State Department of Food and Agriculture (DFA) would become the sole licensing authority for cultivation in that jurisdiction  Assembly Bill 2679, signed by the Governor on September 29, 2016 provides guidance for cannabis manufacturers currently operating in California and exempts collectives and cooperatives that manufacture cannabis products from certain criminal sanctions.  Senate Bill 837, signed by the Governor on June 27, 2016 provided a number of provisions, among them amendments to certain areas of the MCRSA, which included changing references to “marijuana” to “cannabis”, a modification to the roles assigned to the various agencies responsible for the licensing and enforcement of MCRSA, grants agencies the authority to adopt emergency regulations to remaing in effect for no longer than 180 days in order to implement and enforce MCRSA, makes changes to the various license types, and now excludes infused butters from the Milk Products Act of 1947. The bill also clarifies that, with some conditions, medical cannabis businesses operating in compliance with local laws on Attachment E 2 January 1, 2018 can continue to operate until their state license application is either approved or denied.  Assembly Bill 2516 (aka “Cottage Cannabis Farmers Bill”), signed by the Governor on September 29, 2016 created a new license Type 1 cultivation license for “micro farmers”. The new license is added as Type 1C and is available to farms with 2,500 square feet for indoor cultivation using a combination of natural and supplemental artificial lighting at a maximum threshold to be determined by the licensing authority, with up to 25 mature plants for outdoor cultivation, or 500 square feet or less of total canopy size for indoor cultivation, on one premises . As part of the continual evolution of cannabis regulations, on December 12, 2016, Assembly Bill 64 was introduced to reconcile MCRSA and AUMA and address concerns from the industry. As of January 4, 2017, when the bill was read for the first time, key provisions of the bill included:  Assembly Bill 64. Commercial medical cannabis operations in California have protection from certain state criminal charges if they are organized as collectives or cooperatives and operate on a non-profit basis. In response to industry concerns that for-profit operations may not be allowed under the state law even after obtaining MCRSA licenses. Though that concern may be without basis in the existing statute, AB64 would make it abundantly clear that for-profit operations are allowed. AB64 would allow collectives and cooperatives to operate on a for-profit basis in the period until licensing under the MCRSA begins. AB64 would clarify that, after 3 receiving a MCRSA license, a medical cannabis operation could also operate on for-profit basis.  Recognize Non-Store Front Dispensaries, which would allow for sales from locations that are not open to the public.  Would expand and clarify restrictions on cannabis advertising and marketing. It would ban all cannabis advertising on interstates and state highways. AB64 would also impose some other restrictions, such as banning medical cannabis give-away promotions.  Would allow state trademark and service mark protection for medical and adult-use cannabis products. California currently follows federal law and does not allow such protection.  Would advance $3 million to the California Highway Patrol for research on impaired driving. Other cannabis related bills recently introduced:  Assembly Bill 6, Driving under the influence drug testing. AB 6 would allow officers to require law enforcement to collect saliva samples. Law enforcement agencies in California that may currently use these do so with the permission of the person. AB 6 would expand existing laws that require a driver to submit to breath, blood, or urine tests to include “a preliminary oral fluid screening test that indicates the presence or concentration of a drug”. It is important to note that existing law, even after the passage of Proposition 64, does not establish a per se limit on THC or its metabolites in a driver’s bloodstream. An officer must decide what, if any, limit applies. 4  Assembly Bill 76, Adult use marijuana marketing. Strengthens the provisions in Proposition 64 by specifically stating the Legislature’s intent to prohibit marketing adult-use cannabis to minors.  Senate Bill 65, Vehicles, alcohol and marijuana penalties. The bill would prohibit “smoking or ingesting marijuana or marijuana products” while operating a vehicle. Similar laws already apply to alcohol. A violation would be charged as either an infraction or a misdemeanor, and offenders could be sentenced to drug or alcohol education and counseling classes in addition to criminal or civil penalties. A Practical Guide for Law Enforcement COLORADO'S LEGALIZATION OF MARIJUANA AND THE IMPACT ON PUBLIC SAFETY: Attachment F COLORADO’S LEGALIZATION OF MARIJUANA AND THE IMPACT ON PUBLIC SAFETY: A Practical Guide for Law Enforcement This report was prepared by the Police Foundation and the Colorado Association of Chiefs of Police. The opinions and findings in this document are those of the authors and do not necessarily represent the official position or policies of the Colorado Association of Chiefs of Police, the law enforcement agencies named in the report, or the State of Colorado. Any products, services or companies mentioned in this report are used for illustrative purposes only and are not endorsed by the Police Foundation or the Colorado Association of Chiefs of Police. Websites and sources referenced in this publication provided useful information at the time of this writing. The authors do not necessarily endorse the information of the sponsoring organizations or other materials from these sources. Police Foundation 1201 Connecticut Avenue, N.W. Washington, D.C., 20036 www.policefoundation.org Twitter: @policefound info@policefoundation.org (202) 833-1460 (202) 659-9149 (fax) The Colorado Association of Chiefs of Police Greenwood Village Police Department 6060 South Quebec Street Greenwood Village, Colorado 80111 Email: CACPleadership@gmail.com © 2015 by the Police Foundation All rights, including transfer into other languages, reserved under the Universal Copyright Convention, the Berne Convention for Protection of Literary and Artistic Works, and the International and Pan American Copyright Conventions. Table of Contents Foreword ....................................................................................................................i Letter From President Jim Bueermann, Police Foundation ..........................i Letter From Chief Marc Vasquez, Erie Police Department .........................iii Acknowledgements ..............................................................................................iv Introduction .............................................................................................................1 Methodology .......................................................................................................2 Participants .........................................................................................................2 Procedures ..........................................................................................................3 I. Overview Of Colorado’s Marijuana Legislation ............................................4 II. Measuring Legalized Marijuana’s Impact On Investigations, ...................9 Crime, And Disorder III. Impact Of Legalization Of Marijuana On Law Enforcement Practices .....13 IV. Illegal Marijuana: Black And Gray Markets ..............................................17 V. Increased Public Health and Safety Impacts ..............................................22 VI. Marijuana’s Effect On Youth – Issues For Public Education ...................29 And Future Law Enforcement Challenges VII. VII. Field Tests Are A Challenge To Measure Driving .............................31 Under the Influence of Marijuana Conclusion .............................................................................................................33 Endnotes .................................................................................................................34 Appendices: 1. Colorado’s Legislative History- Regarding The Legalization ....................38 Of Marijuana 2. Glossary Of T erms ........................................................................................62 3. Colorado Association Of Chiefs Of Police Marijuana Position Paper ....66 4. Federal Guidance Memos On State Marijuana Legalization Laws ......70 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement i Letter From President Jim Bueermann, Police Foundation Dear Colleagues, This past spring, I was contacted by Chief Marc Vasquez of the Erie Police Department in Colorado to discuss the issues and challenges that Colorado law enforcement was experiencing as the state underwent the task of implementing the recent laws legalizing marijuana. In January 2014, after 14 years with legal medical marijuana use, Colorado became the first state to allow those over the age of 21 to grow and use recreational marijuana. State and law enforcement officials feared that this would lead to a huge increase in criminal behavior. Others predicted that the elimination of arrests for marijuana would bring a huge savings for police and the justice system. To date, these predictions have not been borne out. It is early to tell what effect legalized marijuana will have on crime and public safety overall. Nonetheless, Colorado law enforcement officials have observed some concerning trends in drug use, most notably with youth and young adults. Law enforcement officials also say they are spending increased amounts of time and funds on the challenges of enforcing the new laws surrounding legal marijuana. Both nationally and in Colorado, there is almost no significant research or data collection to determine the impact of legalized marijuana on public safety. We at the Police Foundation believe Colorado’s experience and subsequent knowledge as they implement legalized marijuana will be beneficial to share with law enforcement officials and policy makers across the nation. Understanding that there are lessons to be learned and shared with the larger law enforcement community, the Police Foundation partnered with the Colorado Association of Chiefs of Police in publishing this guide - “Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement.” Eighteen years ago, California became the first state to approve legalized medical marijuana. Since that time 22 other states have approved medical marijuana measures – nearly half of the nation. Four states and the District of Columbia have approved the legalization of recreational marijuana use. We are moving rapidly to a new era in how we manage marijuana sales and the larger industry growing underfoot, and we hope this guidebook can illustrate the challenges for local law enforcement and help those about to engage in this type of policy to learn from Colorado. Law enforcement is charged with ensuring public safety while enforcing the new regulations, which includes both the limitations and definitions under a new law. This guide is not a discussion on whether marijuana should be legalized, but rather a review of the challenges presented to Colorado law enforcement in the wake of legalized marijuana. Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement ii Colorado law enforcement has been tasked to balance critical issues such as opposing state and federal marijuana laws; illegal trafficking of Colorado marijuana across state lines; ensuring public safety of growing operations and extraction businesses in residential areas; to name a few. Resolving the issues resulting from legalized marijuana may benefit from a community policing approach – including partners from the medical, health, criminal justice, city and county government, and other marijuana stakeholders. The collective wisdom of these partnerships can potentially provide a consensus on policies and practices for ensuring safety. The Police Foundation intends that this guide will assist not only Colorado police and sheriffs, but will contribute to the growing dialogue as law enforcement officials, state and local policy makers across the nation consider legalizing marijuana in their states and localities. Sincerely, Jim Bueermann President Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement iii Letter From Chief Marc Vasquez, Erie Police Department Dear Colleagues, Colorado’s journey down the path of legalized marijuana took many of us in law enforcement by surprise – we simply did not think that it would ever happen here. Our understanding of the complex issues around marijuana legalization changes almost weekly as we continue to advance solutions for public safety under the Colorado constitution. It does not matter if we are for or against marijuana legalization. As law enforcement professionals, we must be prepared to tackle the implementation of public policies as we are faced with marijuana legalization nationally. Legalized marijuana brings new challenges. Increased use of marijuana by both adults and youth will occur in communities where marijuana is legalized. With increased use, we can expect to see more driving under the influence of marijuana cases and an increased number of accidental overdoses from highly potent THC concentrates. We anticipate increased diversion of marijuana to juveniles and states that currently prohibit marijuana. One of our greatest challenges is educating our communities, policy-makers and elected officials as to the risks of adding marijuana to already legal substances, such as alcohol and tobacco. Our ability to collect and analyze data regarding the impact of marijuana legalization remains a challenge. Another challenge is the conflict between state and federal law. As peace officers, we have pledged to uphold both the Colorado and United State’s constitutions, which conflict regarding marijuana laws. Like you, I am a strong community-policing advocate. Using the community policing model, I believe that we need to partner and problem-solve with our communities around the issues of marijuana legalization. Working with stakeholders who have an interest in marijuana legalization, either pro or con, provides the best opportunity to develop public policies that will be fair and effective for our communities. What works in Colorado may not work in your community so solutions to this complex issue must be crafted for your community. This technical assistance guide will be updated as our understanding of the complex issues around marijuana legalization continues to evolve. For any police chief or sheriff who may be facing marijuana legalization in your state, I hope this guide provides at least a starting point for you. Feel free to contact the Colorado Association of Chiefs of Police (http://www. colochiefs.org) or the Police Foundation in Washington D.C. (http://www.policefoundation. org) if we can be of any assistance. It is an honor to be involved in the development of this technical assistance guide on marijuana legalization published by the Police Foundation. Sincerely, Marc Vasquez, Chief Erie Police Department Erie, Colorado Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement iv ACKNOWLEDGEMENTS This report was made possible by the support and assistance of the Colorado Association of Chiefs of Police and the president, Chief John Jackson of the Greenwood Village Police Department. We are indebted to Chief Marc Vasquez of the Erie Police Department, who is the Marijuana Issues Committee Chair for the Colorado Association of Chiefs of Police and formerly the Chief of Investigations for the Medical Marijuana Enforcement Division for the Colorado Department of Revenue. Chief Vasquez’s contributions and leadership were invaluable. The Police Foundation would like to express gratitude for the willingness of those who participated in the Colorado law enforcement focus groups and provided incredible insight into the on-the-ground challenges and trends for police and sheriffs managing the legalization issues. Additionally, Police Foundation staff would like to recognize the following individuals. Without their support, cooperation and expertise, this report could not have been completed: Breckenridge (CO) Police Department: Caitlin Kontak, Detective. Canon City (CO) Police Department: Paul Schultz, Chief of Police. City and County of Denver, City Attorney’s Office: Marley Bordovsky, Assistant City Attorney, Department of Law, Prosecution and Code Enforcement. Colorado Department of Criminal Justice: Jeanne Smith, Director. Colorado Department of Revenue, Marijuana Enforcement Division: Jim Burack, Chief of Investigations, Lewis Koski, Director, and Julie Postlethwait, Communication Specialist. Colorado Department of Health and Environment: Steve R. Gonzales, CFE, Security Officer/ Fraud Protection, Health Statistics and Vital Records Division. Colorado Drug Investigator’s Association: Jim Gerhardt, Vice President. Colorado Springs (CO) Police Department: Vince Niski, Deputy Chief of Police and Dave Pratt, School Resource Officer. Colorado Office of State Planning and Budgeting: Alice Wheet, Budget Analyst. Denver (CO) Police Department: David Quiñones, Deputy Chief, Mark Fleecs, Commander, Investigative Support Division, James Henning, Lieutenant, Vice/Drug Bureau, and Daniel Kayser, Crime Analyst, Vice and Drug Unit. Golden (CO) Police Department: Bill K. Kilpatrick, Chief of Police. Government Administration Consultant: Paul Schmidt, Medical Records Management Consultant. Jensen Public Affairs: Annemarie Jensen, CEO. Lakewood (CO) Police Department: Kevin Paletta, Chief of Police; Mike Maestas, Sergeant, West Metro Drug Task Force. Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement v ACKNOWLEDGEMENTS Larimer County (CO) Sheriff’s Office: Justin Smith, Sheriff and Josh Sheldon, Investigator. Law Office of Chris Halsor & Understanding Legal Marijuana, LLC: Chris Halsor, Attorney National Narcotics Officers Association Coalition: Ernie Martinez, Director At-Large. Office of the Attorney General and the Colorado Department of Law: John W. Suthers, Attorney General; Matthew Durkin, Deputy Attorney General; Julie Selsberg, First Assistant Attorney General; Michael Song, Assistant Attorney General. Rocky Mountain High Intensity Drug Trafficking Area: Tom Gorman, Director, and Kevin Wong, Intelligence Analyst. University of Colorado Hospital Center for Dependency, Addiction, and Rehabilitation: Ben Cort, Business Development Manager and Community Liaison. Westminster (CO) Police Department: Ray Padilla, Detective. Wheat Ridge (CO) Police Department: Daniel Brennan, Chief of Police. The development of this guide and creation of this report were led by the Police Foundation’s Senior Policy Analyst Mora L. Fielder, Creative Communications Manager Mary DeStefano, Project Associate Mary Sigler, and Communications Manager Jim Specht. Also involved were Vice President Blake Norton and President James Bueermann. Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement vi ABOUT THE COLORADO ASSOCIATION OF CHIEFS OF POLICE The Colorado Association of Chiefs of Police (CACP) is a professional organization committed to excellence in delivering quality service to our membership, the law enforcement community, and the citizens of Colorado. Through our leadership, we will provide education and training and promote the highest ethical standards. We are personally and professionally dedicated to preserving basic family values, which are essential for achieving a high quality of life. ABOUT THE POLICE FOUNDATION The mission of the Police Foundation is “Advancing Policing Through Innovation & Science.” The Foundation is a national non-profit bipartisan organization that, consistent with its commitment to improve policing, has been on the cutting edge of police innovation for over 40 years. The professional staff at the Police Foundation works closely with law enforcement, judges, prosecutors, defense attorneys, and community- based organizations to develop research, comprehensive reports, policy briefs, model policies, and innovative programs that will support strong community-police partnerships. The Police Foundation conducts innovative research and provides on-the- ground technical assistance to police and sheriffs, as well as engaging practitioners from multiple systems (corrections, mental health, housing, etc.), and local, state, and federal jurisdictions on topics related to police research, policy, and practice. The Police Foundation also manages the National Law Enforcement Officer Near Miss Reporting System found at www.LEOnearmiss.org, and a site dedicated to learning from critical incidents found at www.incidentreviews.org Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 1 When voters made Colorado the first state in the nation to legalize recreational marijuana in 2012, law enforcement was presented with a new challenge: understanding and enforcing new laws that aim to regulate marijuana use, rather than enforcing laws that deem marijuana use to be illegal. Supporters of the new law claimed this would make things easier for police and save at least $12 million 1 in taxpayer dollars on reduced law enforcement costs. Agencies across the state argue that has not been the case 2 . The legislation to enact the new laws has been vague, and consequently difficult to enforce. Unforeseen problems have arisen, ranging from how to determine when a driver is legally under the influence of marijuana to how to deal with legal drug refining operations in residential neighborhoods. Some Colorado law enforcement agencies have at least one full-time officer dedicated to marijuana regulation and enforcement, but most agencies do not have this option and are struggling to deal with the additional workload brought by legalized marijuana. Many law enforcement leaders are frustrated by the conflict between enforcing the new law and upholding federal statutes that continue to view marijuana use as illegal. The neighboring states of Nebraska and Oklahoma have filed suit in the U.S. Supreme Court 3 to overturn Colorado’s Constitutional amendment legalizing recreational marijuana, claiming that they have been flooded with illegal marijuana from Colorado. Additionally, school resource officers and other law enforcement leaders interviewed by the Police Foundation said they worry that illicit drug use by young people is on the rise because of easy access to marijuana through a continuing black market and a “gray market” of semi-legal marijuana sold through unauthorized channels. The Police Foundation and Colorado Association of Chiefs of Police have developed this guide to illustrate the challenges for law enforcement in Colorado. This guide will introduce some of the solutions that have been put into effect and outline problems that still need to be addressed. The Colorado Association of Chiefs of Police and almost every law enforcement leader in the state opposed the passage of Amendment 64, which legalized the recreational use of marijuana. Many chiefs still express strong opposition and some want to work to repeal the law because they believe it will lead to more crime and possible increased drug addiction, especially for the youth population. However, this guide is not intended to address the complex political elements of marijuana legalization. It is designed to summarize the numerous challenges faced by law enforcement when enforcing the laws surrounding legalization, to document solutions that have been proposed and put into effect, and outline problems that still need to be addressed. INTRODUCTION Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 2 Colorado is only a year into the legalization of recreational marijuana and Colorado law enforcement agencies have already faced many challenges in enforcement and management of the legalization process, which lawmakers did not anticipate. Law enforcement will continue to address circumstances as they arise, and the Police Foundation and the Colorado Association of Chiefs of Police will continue to partner in relaying information on policies, procedures, and best practices in addressing crime and disorder related to legalized marijuana to law enforcement agencies nationwide. METHODOLOGY The purpose of this review was to identify Colorado’s public safety challenges, solutions, and unresolved issues with legalized medical marijuana and recreational marijuana. Very little hard data has been gathered on the effects of recreational marijuana sales in Colorado. There has been little rigorous, evidence-based research to draw any conclusions regarding the impact of legalized marijuana on law enforcement. Information gathered from interviews and focus groups with law enforcement officers and subject matter experts as well as official documents and news stories are presented in this guide to help all law enforcement who are facing the challenges of legalized marijuana. PARTICIPANTS The Police Foundation convened two focus groups to obtain the thoughts and opinions of Colorado law enforcement executives, detectives, and officers on enforcing the marijuana laws. Participants were selected based on their experience and knowledge of marijuana legalization, as well as agency location and size, to get a broad representation. One focus group had nine participants, with six police chiefs, one sheriff, and three officers representing large, mid-size, and small agencies, along the Front Range and in the Rocky Mountains. The chiefs of police and sheriff have been in policing from 23-40 years and the officers have been in policing 15 years or more. The second focus group session included six officers, detectives, and marijuana regulatory officers. These officers and detectives serve in the capacity of monitoring marijuana regulations in their community and investigating violations of the marijuana laws. Their tour of duty was anywhere from approximately five to 25 years. These officers represented Front Range agencies from large, mid-size, and small agencies, as well as the mountain towns and ski resorts. In addition to the focus groups, the Police Foundation conducted 23 individual interviews with Colorado law enforcement leaders and officers. A snowball sample was used to obtain names of subject matter experts. Whenever possible, the focus groups and interviews have been supplemented by official documents illustrating legislation, court decisions, and law enforcement studies. Hundreds of media articles were surveyed to gain background on the issue, and some are used to illustrate points or historical background. PROCEDURES Focus group participants were asked a series of questions on Amendment 20 (legalizing medical marijuana) and Amendment 64 (legalizing recreational marijuana) to determine how they worked with the community and municipal/county government to identify and address public safety concerns regarding: (1) crime and disorder, (2) youth related issues, (3) successful approaches to addressing crime or community issues, and (4) unanticipated consequences challenging public safety resources, strategies, policies, or procedures. Interviews were recorded whenever possible with the permission of the interviewee and then transcribed. Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 3 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 4 I. OVERVIEW OF COLORADO’S MARIJUANA LEGISLATION The passage of Amendment 20 in November 2000 made Colorado the fifth state to legalize the medical use of marijuana. Twelve years later the state became one of the first two (along with Washington) to legalize recreational marijuana when Amendment 64 passed in November 2012. Because Colorado’s law took effect immediately and Washington’s was delayed until supporting legislation was passed, Colorado is considered the first state to have legal recreational marijuana. The amendments conflict with the federal Controlled Substance Act of 1970, which classifies marijuana as a Schedule I controlled substance and states that it is illegal to sell, use or transport marijuana across state lines. Federal officials eventually granted some leeway to the states that have legalized marijuana, but the conflicts between state and federal law remain a significant challenge for law enforcement. Amendment 20, The Medical Use of Marijuana Act , passed in 2000 with 53.3 percent of the voters approving the use of marijuana for debilitating medical conditions. Under the act, individuals requesting medical marijuana for conditions such as cancer, glaucoma, cachexia, severe nausea, seizures, multiple sclerosis and chronic pain associated with a debilitating or medical condition, may register with the Colorado Department of Public Health and Environment (CDPHE) and obtain a registered medical marijuana patient card. Patients may also obtain a physician’s evaluation and official recommendation for the number of medical marijuana plants they are allowed to grow. The law allows individual patients the right to possess two ounces of marijuana and six marijuana plants – and they can have more upon a physician’s recommendation. Physicians can recommend any amount they deem necessary for the patient’s anticipated treatment. Patients can grow the marijuana themselves or designate a caregiver to cultivate the plants and distribute the yield. A caregiver could have up to five patients and theoretically cultivate plants for each of them; the law also requires the caregiver to register with the CDPHE. The implementation of Amendment 20 was uneventful for the first five years; however, three significant events occurred between 2005 and 2010, which changed the medical marijuana industry. (See Appendix 1 for a detailed history of Colorado’s marijuana laws). From 2001 to 2008, there were a total of 4,819 approved patient licenses. In 2009, there were 41,039 approved medical marijuana registrations from CDPHE. Source: CDPHE The number of marijuana dispensaries went from zero in 2008 to 900 by mid-2010. Source: Department of Revenue, Marijuana Enforcement Division Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 5 UÊÓääx\Ê i˜ÛiÀÊۜÌiÀÃÊ>««ÀœÛi`Ê̅iÊ`iVÀˆ“ˆ˜>ˆâ>̈œ˜ÊœvÊ«œÃÃiÃà ˆœ˜ÊœvÊÓ>Ê>“œÕ˜ÌÃʜvÊ marijuana for recreational use. Voters in the town of Breckenridge approved a similar measure in 2009. UÊÓää™\Ê i˜ÛiÀÊ ˆÃÌÀˆVÌÊ œÕÀÌÊÕ`}iÊ >ÛiÃÊ̅ÀiÜʜÕÌÊ * ½ÃÊ`iw˜ˆÌˆœ˜ÊvœÀÊV>Ài}ˆÛiÀÃÊ and instructed CDPHE to hold an open meeting and revise the caregiver language.4 The department was unable to set a new definition, and so there was no regulatory language on how many medical marijuana patients a caregiver could supply until the General Assembly created new laws the following year. UÊÓää™\Ê/…iÊ1°-°Ê i«>À̓i˜ÌʜvÊÕÃ̈ViÊÀii>Ãi`Ê̅iʺ"}`i˜Êi“œ]»Ê«ÀœÛˆ`ˆ˜}Ê}Ո`- ance and clarification to the U.S. Attorneys in states with enacted medical marijua- na laws. Deputy Attorney General David W. Ogden stated, among other things, the federal government would not prosecute anyone operating in clear and unambiguous compliance with the states’ marijuana laws.5 The Growth of Medical Marijuana Centers When CDPHE’s caregiver definition was overturned in court in 2009, there was no limit on the number of patients caregivers could serve. At the same time, there was a boom in the number of medical marijuana patients registering with CDPHE. Some medical marijuana proponents decided to test the boundaries of the caregiver model after the definition was thrown out. This resulted in a proliferation of medical marijuana centers throughout the state. These centers grew large quantities of marijuana plants because they could claim to be the “caregivers” for any registered medical marijuana patient. This was one of the first major unanticipated problems for law enforcement, according to members of the Police Foundation focus groups. Since there were no statutes or regulations, the medical marijuana centers had no restrictions on the number of patients to whom they could provide marijuana. This also led to patients “shopping” their doctor’s recommendation to as many medical marijuana centers as they wanted and as often as they wanted, focus group members said. As long as the patient had a “red card” and an authorized doctor’s recommendation, then that patient could go to countless medical marijuana centers as long as the patient only carried two ounces or less out of each one. Because so many medical marijuana centers opened so quickly, state and local officials found it difficult to regulate them. The General Assembly did not craft regulations until 2010 to govern licensing fees, inventory tracking requirements, production of marijuana infused products, packaging and labeling requirements, and disposal of waste water from the processing of medical marijuana. Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 6 Figure 1: Tipping Point for Opening Medical Marijuana Centers Source: Adapted from Chief Marc Vasquez From June 1, 2001, to December 31, 2008, a total of 5,993 patients applied for a medical marijuana registration card (also known as a red card due to its color). Of those applicants, 4,819 were approved. After the opening of the medical marijuana centers, by December 31, 2009, there were 43,769 applications of which 41,039 were approved. This is an increase of 751.61% in approved registrations in just one year’s time. As of December 1, 2014, there were 116,287 medical marijuana patients registered with the state. The Colorado legislature responded to these developments by passing legislation in the 2010 and 2011 sessions that created the Colorado Medical Marijuana Code. The primary bills creating the Code were HB 10-1284, SB 10-109 and HB 11-1043. They legalized medical marijuana centers and created a range of marijuana business-related regulations. Other parts of the code limited caregivers to provide for just five patients (although more could be approved under a waiver), and created a new regulatory body: the Medical Marijuana Enforcement Division under the state Department of Revenue. In addition to marijuana plants, the code allowed for “infused products” to be made and sold to patients. Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 7 The code requires centers to cultivate at least 70 percent of the marijuana they sell. The law created a “seed-to-sale” inventory tracking system which tracks all marijuana plants from cultivation to sale to the customer. The legislation allows local jurisdictions to set their own rules on whether to allow marijuana businesses to operate in their municipality or county, hours of operation and other rules – as long as the rules were stricter than state law. Of the state’s 64 counties, 22 agreed to allow new marijuana businesses in their jurisdictions, while 37 banned them outright. Others grandfathered in existing operators, and still others set further limits on the businesses. The update to the code that passed in 2011 - HB 11-1043 - set stricter requirements on doctors providing recommendations for medical marijuana and provided for licensing of businesses manufacturing infused products. In 2012 with the passage of Amendment 64, Colorado voters approved the recreational use of marijuana. The new law allows anyone 21 years of age or older to possess one ounce of marijuana or to grow six plants for personal use. It is illegal to provide recreational marijuana to anyone under the age of 21. Amendment 64 prohibits the consumption of marijuana in public or open places and defines driving under the influence. Regulations were also established on infused products – edibles that include marijuana oil – that could now be sold for recreational use. The amendment provided provisions for local governing bodies (i.e., City Council or County Commission) to determine whether to permit recreational marijuana stores, marijuana infused product businesses, or cultivations in their area, similar to provisions for medical marijuana providers. If approved locally, medical marijuana centers were allowed to sell recreational quantities. The amendment requires, among other things, operators of marijuana cultivation and sales facilities to undergo a criminal background check. Anyone with a felony conviction is barred from operating a cultivation and sales facility or working in the industry. Both medical marijuana and recreational marijuana is subject to the state’s 2.9 percent sales tax, and recreational sales are also subject to a 10 percent excise tax. Local taxes may be added as well – in Denver, recreational marijuana is subject to a total 21.12 percent tax. The Colorado legislature passed a series of bills (SB 13-283 and HB 13-1317) to implement the recreational marijuana provisions of Amendment 64. They limited non-Colorado residents to purchasing only one quarter of an ounce of marijuana after neighboring states expressed fears that marijuana “tourists” would transport large quantities home to sell illegally. This history of overlapping medical and recreational marijuana laws has left law enforcement in Colorado with the challenge of both interpreting and enforcing the laws. Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 8 The Four Models for Regulating Medical and Recreational Marijuana As a result of the passage of Amendments 20 and 64, four types of marijuana regulation and oversight models emerged – caregiver/patient, medical commercial, recreational home-grown and recreational commercial (see Figure 2). Having different models and regulatory agencies providing oversight has created challenges. The first model began with the passage of Amendment 20: the caregiver/patient model for medical marijuana. With the proliferation of medical marijuana centers the second model, medical commercial, was established for licensing and regulating the medical marijuana industry. When Amendment 64 was passed, the recreational models were established. The Marijuana Enforcement Division regulates the Medical and Recreational Commercial models, and systems are in place for monitoring the commercial industry. The regulation by local law enforcement of the caregiver/patient and the recreational home-grown models is more challenging. Local law enforcement agencies are not authorized to perform home checks. They are bound by the law and cannot investigate a home grow unless a complaint has been filed. Even then, the officer must have probable cause to believe a crime is being committed by residents of the home or the resident would have to consent to allow the officers into the home. Thus, officers could conduct “knock & talks” at a caregiver location, but they would need to establish probable cause to execute a criminal search if they believe crimes are being committed. Some municipalities are enacting ordinances that prohibit noxious odors and the number of plants allowed to grow, and local law enforcement can use those ordinances to address neighborhood complaints.6 Figure 2 : Four Models Created through Amendments 20 and 64 Source: Adapted from Chief Marc Vasquez 7 Medical Commercial – Licensing for Businesses, Owners and Employees – Licensed by Department of Revenue, Marijuana Enforcement Division – Regulatory authority: Marijuana Enforcement Division Caregiver/Patient – Caregivers who can grow for up to 5 patients and themselves – Routinely see large grows – Patients are licensed by Colorado Department of Public Health and Environment – Caregiver Regulatory authority: Colorado Department of Public Health and Environment and local law enforcement Recreational Commercial – Licensing for Businesses, Owners and Employees – Licensed by Department of Revenue, Marijuana Enforcement Division – Regulatory authority: Marijuana Enforcement Division Recreational Home Grows – Anyone 21 years of age or older can grow up to 6 plants. Law enforce -ment is seeing “Co-op” cultivations where a number of adults over 21 grow their marijuana at one location. This scenario is challenging for law enforcement because officers are uncertain which area of Amendment 20 or 64 may apply to the cultivation. – No licensing required – Regulatory authority: local law enforcement Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 9 II. MEASURING LEGALIZED MARIJUANA’S IMPACT ON INVESTIGATIONS, CRIME, AND DISORDER The legalization of marijuana in Colorado has created numerous challenges for law enforcement in conducting investigations, establishing probable cause, determining search and seizure procedures, and addressing public safety concerns with home growing operations. In order to best assess the impact that the legalization of marijuana has had on crime, data must be gathered. Colorado authorities did not establish a data collection system when they began addressing the enforcement of the new laws; thus, law enforcement leaders who participated in the Police Foundation focus groups have urged that departments in other states facing laws on legalization move quickly to establish data collection systems and processes in preparation for the new challenges they will face. Law enforcement leaders in focus groups convened by the Police Foundation warned that until there is a statewide data collection system, it will not be possible to fully understand the impact of legalized marijuana and related crime in the state of Colorado; however, they believe crime is increasing. Efforts are currently underway at the Colorado Department of Criminal Justice to develop statewide data collection systems. Given the time needed to create a statewide data system, it may be years before Colorado law enforcement can fully analyze the impacts of legalized marijuana. In the meantime, local law enforcement and other related regulatory agencies and service providers are collecting data at the local level to understand the impact of marijuana-related crime. Collecting and analyzing this data is a challenge for smaller agencies including the majority of mountain towns, which are impacted by high volumes of out-of-state visitors. Colorado law enforcement leaders in the Police Foundation focus groups have urged that departments in other states facing laws on legalization move quickly to establish data collection regarding the new challenges they face. The Denver Police Department (DPD) has been one of the most active agencies in collecting data since legalization. Examining Denver’s data provides some insight into the complexity of marijuana data collection at the local level. “The absence and lack of data is absolutely a killer to demonstrate whether there is going to be adverse consequences of marijuana on your community or not. So what every law enforcement agency in the country should do right now, today, is start collecting data, not just on marijuana but on all controlled substances to establish a baseline. Colorado has missed their opportunity to collect baseline data, but other states could be establishing their baselines now.” – Sgt. Jim Gerhardt Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 10 Figure 3: Denver and State Comparisons for Marijuana Medical and Retail stores, Marijuana Cultivations, Marijuana Infused Product Producers and THC Inspection Laboratories Source: City of Denver data from Denver (CO) Police Department; state data from State of Colorado, Department of Revenue. The Denver Police Department collects marijuana crime data specifically for industry- related crimes (defined as offenses directly related to licensed marijuana facilities) and non-industry crimes (defined as marijuana taken during the commission of a crime that did not involve a licensed marijuana facility). Data from 2012 through September 2014 shows burglary as the most prevalent industry-related crime. Burglaries at licensed marijuana facilities are much higher than other retail outlets like liquor stores. Burglaries occurred at 13 percent of Denver’s licensed marijuana facilities in 2012 and 2013, compared with just 2 percent of liquor stores, according to Denver Police Department crime analyst, D. Kayser. KEY ISSUES Marijuana-Industry Related Homelessness Brings Challenges for Law Enforcement, Social Agencies Denver officials say they are facing one unexpected result of legalization – a significant influx of homeless adults and juveniles are coming to Denver due to the availability of marijuana.8 Although homelessness has been a persistent problem in Denver, police have seen an increase in the number of 18 to 26 year olds seeking homeless shelters because Denver Licensed Medical Centers = 198 Marijuana Infused Product-Making Facilities = 78 Cultivations = 376 Statewide Licensed Medical Centers = 501 Marijuana Infused Product-Making Facilities = 158 Cultivations = 739 Denver Licensed Retail Stores = 126 Marijuana Infused Product-Making Facilities = 44 Cultivations = 190 Labs Checking for THC Levels = 9 Statewide Licensed Retail Stores = 306 Marijuana Infused Product-Making Facilities = 92 Cultivations = 375 Labs Checking for THC Levels = 15 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 11 they are hoping to find work in the cannabis industry. However, many have felony backgrounds and are ineligible to obtain work in the limited jobs in the industry. The St. Francis Center, a daytime homeless shelter, reported that “marijuana is the second most frequent volunteered reason for being in Colorado, after looking for work.”9 The issue of homelessness has spread to suburban neighborhoods because of the location of growing operations, police said. The Golden City Council voted in June 2014 10 to ban recreational marijuana sales and restricted medical marijuana operations to manufacturing areas.11 The council voted to only allow indoor marijuana cultivation. Any cultivation operation that attracts a high volume of foot or vehicular traffic can be shut down. Marijuana businesses are keeping too much cash on hand because of federal banking restrictions, creating targets for burglaries and robberies The U.S. Department of Justice and the U.S. Treasury Department’s Financial Crimes Enforcement Network have issued guidelines 12 allowing banks to work with marijuana businesses that are in compliance with new state legalization laws. Even with the new Treasury guidelines, bank officials continue to be reluctant to do business with growers as they fear that they will still be subject to investigation 13 for accepting cash that drug- sniffing dogs can target as smelling of marijuana, according to news reports. Given that marijuana remains a Schedule I controlled substance under federal law, banks fear they could be prosecuted under money laundering laws for accepting funds from legalized businesses. To respond to the business need for financing, Colorado state regulators have approved the development of a credit union 14 to serve the industry, according to media reports. Nonetheless, most of the marijuana businesses remain cash-only, which will increase public safety risks and crime, Police Foundation focus group members said. The dichotomy of federal and state law has led companies to turn to innovative strategies to resolve the cash problem. Entrepreneurs have developed armored car services for marijuana businesses 15 in which they collect the money, remove marijuana residue from the cash, and then transport the funds to the banks for deposit. Some law enforcement leaders believe this may be vulnerable to money laundering operations, while others say it is good policy. This has resulted in many business owners choosing to operate solely using cash. Focus group members said that Colorado law enforcement officials have observed that criminals http://www.click2houston.com/news/pot-draws- homeless-texans-to-colorado/28186888 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 12 are targeting centers, knowing they may have large sums of cash. Ac- cording to focus group members, even couriers transporting mari- juana from one location to another (e.g., transporting marijuana to an edible-infused business) are at risk and have been robbed. A cash-only business also poses a challenge on the investigations side of enforcement. Criminal investigations can be hampered when there is no paper trail to determine cash flow. An all-cash business can potentially be used for money laundering activities, and it makes it more difficult to track the gray and black-market sales. POINT FOR CONSIDERATION UÊ>ÜÊi˜vœÀVi“i˜ÌʓÕÃÌÊ`iÛiœ«Ê«œˆVÞ]ÊÌÀ>ˆ˜ˆ˜}Ê>˜`Ê«À>V̈ViÃÊ̅>ÌÊÌ>Žiʈ˜ÌœÊ>VVœÕ˜ÌÊ Vœ˜yˆV̈˜}Êvi`iÀ>Ê>˜`ÊÃÌ>Ìiʏ>ÜÃʈ˜ÊÀi>̈œ˜Ê̜ʓ>ÀˆÕ>˜>Ê i}>ˆâ>̈œ˜Êˆ˜Ê œœÀ>`œ° Marijuana remains a Schedule I controlled substance under federal law. Law enforcement officials at all levels should review and follow the rules laid out in the memorandum issued by Attorney General Holder in April 2013 entitled “Guidance Regarding Marijuana Enforcement”16 to ensure that the federal guidelines are taken into account by local law enforcement. https://www.youtube.com/watch?v=2J41ZyYYFiI&feature=youtu.be> Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 13 III. IMPACT OF LEGALIZATION OF MARIJUANA ON LAW ENFORCEMENT PRACTICES The laws surrounding commercial, recreational, and medical marijuana have established stringent reporting requirements, but medical marijuana caregivers were “grandfathered” under much less strict rules. The lack of clarity in the laws affecting medical and recreational marijuana has created significant challenges for Colorado law enforcement to investigate potential abuses and build a case for illegal marijuana growing operations. According to HB 11-1043, a “primary caregiver” cultivating for medical marijuana patients must register the location of the cultivation operation with the Marijuana Enforcement Division and provide the registry ID for each patient. However, the law does not set a punishment for the caregiver who does not register. In addition, police cannot access patient information because of privacy laws, and so they cannot ascertain whether the “caregivers” are growing the amount specified in a doctor’s recommendation or whether the caregiver is indeed still the caregiver for a given patient. Amendment 20 – which made medical marijuana legal in the state - mandates that patients must carry a medical marijuana registry card, whereas caregivers have no cards and no punitive sanctions from law enforcement if they have not registered. Investigations and Probable Cause – How to Track Inventory Colorado’s laws established a “seed-to-sale” registry that has been praised for keeping track of every plant cultivated in the state. However, an audit by the Colorado State Auditor in 2013 found that the registry was failing in its mandate to monitor 17 medical marijuana dispensaries. Investigators for the Colorado Department of Revenue, Marijuana Enforcement Division, found in 2014 that some retail outlets they visited had discrepancies between the registry and the inventory on site. When queried, retailers could not articulate the reason for the discrepancies in inventory. “From the probable cause point of view, every situation has to be looked at from the totality of the circumstances that are present. Specifically, intelligence information, calls for service, neighborhood complaints, what you see, smell and hear, and any other information that would lead you to establish reasonable suspicion and/or probable cause.” – Lieutenant Ernie Martinez, ˆÀiV̜À‡>̇>À}i]Ê >̈œ˜>Ê >ÀVœÌˆVÃÊ "vwViÀÃÊÃÜVˆ>̈œ˜Ê œ>ˆÌˆœ˜Ê Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 14 Members of the focus groups convened by the Police Foundation believe that the state registry officials are improving as funding increases to establish benchmarks for monitoring the supply. Law enforcement also noted that that the lack of coherent data and inventory information means that police must rely on standard investigative techniques to ascertain whether a grower or sales outlet is engaging in illegal underground activity on the side. Searches and Seizures and Prosecution Under Legalization Colorado police officials interviewed by the Police Foundation said one of the biggest concerns for law enforcement is attempting to establish probable cause for a search warrant under the conflicting laws regulating medical and recreational marijuana. “It is often difficult for law enforcement to develop probable cause because of vague language in the constitutional amendments and (that inhibits) the issuance of search warrants,” said Chief Marc Vasquez of the Erie Police Department. District attorneys have become cautious about warrants because juries have often found in favor of defendants who are medical marijuana users, said Matthew Durkin, Deputy Attorney General: “The same confusion and ambiguity in the legal landscape that hinders law enforcement, presents significant obstacles to a successful prosecution. The overly complex legal framework for marijuana not only makes developing evidence very challenging, but it also allows defendants to retroactively manipulate evidence.” Law enforcement is also caught in the middle when it comes to seizing and returning marijuana evidence because of conflicting state and federal laws. “We have changed our seizure policies several times over the past few years due to court findings,” said Deputy Chief Vince Ninski of the Colorado Springs Police Department. “We received a legal opinion from our city attorney’s office that since marijuana is still federally illegal, we would seize marijuana plants and harvested products when we believed the grower was violating state law. When a defendant was acquitted of his or her charges, the Colorado Springs P.D. was ordered to return the marijuana back to the defendant. The U.S. Attorney advises police that to return it would be in violation of federal law. Our hands are tied.” Even dealing with seized evidence has presented new challenges. Police departments confiscate marijuana plants but are challenged in securing the evidence and caring for the plants properly. Some departments have taken pictures of the plants but left the actual evidence with the person charged for operating illegally. Other agencies have confiscated the plants and let them die. In a case brought by a grower whose confiscated plants had died, the Colorado Court of Appeals upheld a ruling by District Court Judge Dave Williams that the Larimer County Sheriff’s Office did not have to pay damages to the plaintiff in part because federal law did not recognize marijuana as property subject to search and seizure rules (see case at http://www.cobar.org/opinions/opinion. cfm?opinionid=9505&courtid=1). Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 15 KEY ISSUE Drug-Sniffing Canines May Have To Be Retrained or Replaced Canines trained to detect marijuana introduce a conundrum for officers in conducting drug searches. Drug dogs are usually trained to alert on all drug scents; therefore, it is not clear to an officer which drug a canine has detected. If a police dog detects drugs in a car, for example, it is not clear under the new laws if the officer has probable cause for a search since the officer does not know which drug the canine is detecting. If the driver has legal amounts of marijuana in the car, the search might be deemed inadmissible even if other drugs were found. Officers have been advised to ask whether there is marijuana in the car and can continue with the search if the suspect says there is none. The practices surrounding the use of drug-detecting canines will continue to evolve, with new training necessary both for officers and possibly for the dogs themselves. POINTS FOR CONSIDERATION UÊ iÜÊÃÌ>˜`>À`Ãʘii`Ê̜ÊLiÊiÃÌ>LˆÃ…i`ÊLÞʏ>ÜÊi˜vœÀVi“i˜ÌÊÌœÊ LiÊ>LiÊ̜Ê`iÌiÀ“ˆ˜iÊÊ Ì…iÊ`ˆvviÀi˜ViÊLiÌÜii˜Ê>ʏi}>Ê>˜`Ê>˜Êˆi}>Ê“>ÀˆÕ>˜>Ê }ÀœÜˆ˜}ʜ«iÀ>̈œ˜° Law enforcement leaders, district and city attorneys and policymakers should form working groups to clarify the criteria for determining an illegal marijuana growing operation. UÊ>ÜÊi˜vœÀVi“i˜Ì]ÊܜÀŽˆ˜}Ê܈̅ÊÃÌ>ÌiʏiÛiÊi>`iÀň«]ʘii`ÃÊ ÌœÊÀiۈÃiÊ>˜`ÊÕ«`>ÌiÊ Ãi>ÀV…ÊÜ>ÀÀ>˜ÌÊ«ÀœVi`ÕÀiÃÊvœÀÊVœ˜`ÕV̈˜}ÊÃi>ÀV…iÃÊ>ÃÊ̅iÞÊ Ài>ÌiÊ̜Ê̅iʘi܏ÞÊÊ «>ÃÃi`ʏi}>ˆâi`ʓ>ÀˆÕ>˜>ÊÃÌ>ÌÕÌið Officers and deputies need uniform guidance on how to establish probable cause to gain a warrant to search and seize illegal marijuana operations. A “Law Officer’s Marijuana Handbook” – similar to the Colorado handbook created for liquor enforcement - should be available to inform patrol officers on policies, procedures, protection gear, and other important information regarding marijuana searches and seizures. http://www.thedenverchannel.com/news/local- news/marijuana/legalization-of-marijuana-presents- a-potential-problem-for-police-departments-using- drug-dogs Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 16 UÊ POINT FOR CONSIDERATION UÊÊ>ÜÊi˜vœÀVi“i˜Ìʏi>`iÀÃ]ÊVÀˆ“ˆ˜>ÊÕÃ̈ViʜvwVˆ>Ã]Ê>˜`Ê«œˆVޓ>ŽiÀÃÊŜՏ`Ê `iÌiÀ“ˆ˜iʈvÊ̅iÀiÊ>ÀiÊ>˜ÞÊÀ>“ˆwV>̈œ˜ÃÊvœÀÊÕȘ}Ê̅iÊVÕÀÀi˜ÌÊV>`ÀiʜvÊ`ÀÕ}Ê`œ}ÃÊvœÀÊ }i˜iÀ>Ê`ÀÕ}ÊÃi>ÀV…iÃ°Ê Drug-sniffing dogs in Colorado (and in other states) are currently trained to target all drugs, including marijuana. Law enforcement leaders should assess the current practice of using drug dogs in the field and determine if new training and protocols need to be adopted as a result of legalized marijuana. Newly trained drug-sniffing dogs may be required in states where marijuana has been legalized. Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 17 IV. ILLEGAL MARIJUANA: BLACK AND GRAY MARKETS When Colorado state regulators commissioned a look at the new legalized industry in mid- 2014, the study 19 conducted by the Marijuana Policy Group for the Colorado Department of Revenue’s Marijuana Enforcement Division, entitled “Market Size and Demand for Marijuana in Colorado,” turned up some unexpected numbers: Demand for marijuana through 2014 was estimated at 130 metric tons but legal supplies could only account for 77 metric tons. The rest, according to a widely quoted Washington Post article,20 was coming through continuing illegal sales – either by criminals in a black market, or by legal cultivators selling under the table in a growing “gray” market. Colorado law enforcement officials interviewed by the Police Foundation are convinced that the black and the gray markets are thriving in Colorado primarily through unregulated grows, large quantities of marijuana stashed in homes, and by undercutting the price of legitimate marijuana sales. In fact, police have stated that legalized marijuana may have increased the illegal drug trade. Low-level drug dealers, looking to profit from access to an abundance of marijuana, have an open market to grow illegal amounts of marijuana and sell through the black market. Or they can purchase excess marijuana from caregivers growing marijuana for patients but divert their excess crop illegally – the gray market. It is difficult for Colorado law enforcement to prove when a marijuana cultivation site is producing for the gray market. Medical marijuana growers may have a license, but ensuring that all of their plants are registered can be time-consuming and difficult to accomplish without a warrant and can be costly in staff time to check hundreds of plants. Focus group members said that recreational growers may also have an easy means of growing off- market plants. A resident might grow their limit of six marijuana plants, but could conceivably grow additional plants for family members, friends, and neighbors who are all over twenty-one. With the passage of Amendment 64, there is an increasing trend toward co-op growing, which state officials have suggested has created a shortage of warehouse space 21 in Denver. This practice has become popular as growers have found they can save on operating costs such as rent and utilities when they section off the warehouse for their cultivation space. The presence of multiple growers sharing one facility has created a time-consuming challenge to law enforcement agencies trying to track down illegal marijuana growers, focus group members said. The challenge of locating and shutting down illegal growers has spread to residential neighborhoods as well, law enforcement officials said. Growers have rented homes solely Colorado’s commercial marijuana is grown indoors. The operation at LivWell in Denver, at 120,000 square feet, dwarfs the competition. Credit: Lawrence Downes Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 18 to grow marijuana,22 according to media reports, destroying the interior of the home as every room is converted to the growing operation. Colorado law enforcement officials have also faced continuing challenges when trying to ensure that medical marijuana caregivers are not feeding the gray market, focus group members said. Caregivers are required by Amendment 20 to register their cultivation operations with the Marijuana Enforcement Division. Many do not register their operations; however, according to observations made by Colorado law enforcement officials. When police challenge the legality of the growing operation, it is difficult to file criminal charges. Media reports 23 have shown that caregivers can have numerous grow locations for the same five patients, leaving excess marijuana to be diverted through the gray market. A physician verifying a patient’s medical needs for medical marijuana can recommend any number of plants for the patient. Regulators cracking down on shoddy prescribers discovered one doctor had given out thousands of medical marijuana recommendations 24 without even seeing the patients. http://www.washingtonpost.com/news/storyline/ wp/2014/07/30/inside-colorados-flourishing-segregated- black-market-for-pot/ “A typical joint in the United States contains just under half a gram of marijuana, and a single intake of smoke, or “hit,” is about 1/20th of a gram. A joint of commercial-grade cannabis might get a recreational user high for up to three hours; one- third as much premium-priced sinsemilla might produce the same effect. A heavy user might use upwards of three grams of marijuana a day. The development of tolerance means that frequent users need more of the drug to get to a given level of intoxication.” Source: Jonathan P. Caulkins, Marijuana Legalization: What Everyone Needs to Know. http://www.huffingtonpost.com/2013/11/07/how-many- joints_n_4236586.html Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 19 Diverson of marijuana through the mail According to Rocky Mountain High Intensity Drug Trafficking Area, the number of marijuana packages mailed out-of-state has increased from zero parcels in 2009 to 207 parcels in 2013. The poundage of marijuana seized increased annually beginning with zero pounds in 2009 and then increased to 57.20 pounds in 2010, 68.20 pounds in 2011, and 262 pounds in 2012, all during the time of legalized medical marijuana. Then in 2013, when recreational marijuana became legal, the postal service seized 493.05 pounds and the top five states intercepting these marijuana parcels were Florida, Maryland, Illinois, Missouri, and Virginia. These numbers are most likely conservative since not all packages mailed are intercepted. When officers try to verify a caregiver’s quota of plants, they are often faced with growers who do not have documentation on hand, according to members of the Police Foundation focus groups. Due to privacy and confidentiality laws, officers cannot call CDPHE to verify the patient-caregiver information. Taxation may be fueling gray and black markets The state’s tax structure mainly affects recreational marijuana. Medical marijuana buyers must only pay a 2.9 percent state sales tax. In addition to the sales tax, recreational marijuana faces a 15 percent excise tax plus a 10 percent special state sales tax. The proceeds of this are divided, with 85 percent going into the state marijuana tax cash fund and 15 percent to local governments that allow retail marijuana sales. Licensed cultivation centers pay the state excise sales tax of 15 percent on the average market wholesale price of recreational marijuana. Local taxes are also applied to the retail marijuana shops. Denver’s 2014 local retail marijuana tax is 7.12 percent, plus 1 percent for the Regional Transportation District (RTD) and .1 percent for the Cultural Facilities District. When this is added to the state retail marijuana tax of 12.9 percent, a marijuana consumer would be paying 21.2 percent in taxes.25 Medical marijuana is taxed in Denver at a rate of 3.62 percent sales tax, 1 percent for RTD and .1 percent for Cultural Facilities District, which is added to the state tax of 2.9 percent.26 Police estimate that marijuana purchased on the street ranges from $160 to about $300 an ounce.27 The average price per ounce for medical marijuana is $200 per ounce and average retail marijuana is $225/ounce and an average of $320/ounce in the mountain towns.28 With taxes added in, a recreational consumer will pay a total of $242 for an ounce priced at $200 in Denver. Medical marijuana users will pay $215.24 for the same ounce. Regulators suggested this major tax burden might have caused an increase in the past year in patients seeking medical marijuana red cards, even as overall tax revenues fell short.29 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 20 KEY ISSUE Bordering States Feel the Effects of Colorado’s Legalization of Marijuana Colorado’s legalized marijuana laws are impacting 30 neighboring Nebraska, Arizona, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. States bordering Colorado are concerned with the amount of time, resources, and expenses required in arresting and prosecuting offenders for the diversion of marijuana. In its report on the effects of legalized marijuana, the Rocky Mountain HIDTA 31 noted that cartel operations and other criminals may be using the thriving black market to stage illegal shipments to other states. The states of Nebraska and Oklahoma in December 2014 filed suit in the U.S. Supreme Court,32 asking that the court find Colorado’s recreational marijuana law in violation of the U.S. Constitution. The states claim that Colorado has violated federal laws that criminalize marijuana use and sales and that it has caused significant crime and hardship for law enforcement in the two states because of criminals illegally transporting Colorado marijuana across state lines. The Federal El Paso Intelligence Center reported that law enforcement agencies across the country seized three and a half tons of Colorado marijuana destined for other states in 2012.33 That’s up more than 300 percent from 2009 when there was slightly over three-quarters of a ton of Colorado marijuana seized.34 In Kansas, there was a 61 percent increase in marijuana seizures from Colorado.35 In response to the additional law enforcement costs in bordering states, Colorado legislators introduced a bill to share surplus revenue with bordering states’ law enforcement agencies to further prevent out-of-state marijuana diversion; however, the bill died in the 2014 legislative session.36 POINT FOR CONSIDERATION http://www.cbsnews.com/videos/colorados-neighbors- deal-with-marijuana-trafficking/ Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 21 POINTS FOR CONSIDERATION U Ê >ÜÊi˜vœÀVi“i˜ÌÊŜՏ`ÊܜÀŽÊ܈̅ʫœˆVޓ>ŽiÀÃÊ̜ÊLÀˆ˜}ÊV>ÀˆÌÞÊ>˜`ÊÌÀ>˜Ã«>Ài˜VÞÊÌœÊ Ì…iʓi`ˆV>Ê“>ÀˆÕ>˜>Ê«>̈i˜ÌÊ>˜`ÊV>Ài}ˆÛiÀʈ`i˜ÌˆwV>̈œ˜ÊÃÞÃÌi“° Current law is vague about the identification required for a medical marijuana caregiver and about the penalties for not producing the ID when requested by law enforcement. Law enforcement officials have called for registration of caregivers with pictured licensed cards, along with the necessary enforcement resources and penalties. They have also urged creation of a patient registration system that would ensure that a caregiver is growing the correct number of plants, and would stop patients from buying from more than one caregiver. Local jurisdictions should consider ordinances that require a business license for anyone growing more than six marijuana plants, which would provide law enforcement with a tool for inspecting growing operations. U Ê ˜VÀi>ÃiÊVœœ«iÀ>̈œ˜Ê܈̅ÊLœÀ`iÀˆ˜}ÊÃÌ>ÌiÃÊÀi}>À`ˆ˜}Ê̅iʈi}>ÊÌÀ>˜Ã«œÀÌ>̈œ˜ÊœvÊ œœÀ>`œÊ“>ÀˆÕ>˜>Ê>VÀœÃÃÊÃÌ>Ìiʏˆ˜ið Law enforcement agencies in neighboring states have reported arrests involving possession of marijuana that was produced in Colorado. Officials in the other states have raised alarms over their concerns of the potential for problems, and are currently attempting to track the data to identify trends. A regional working group should be established to follow up on any diversions of marijuana to other states with the aim of detecting the source of the marijuana and disrupting any further illegal transportation across state lines. Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 22 V. INCREASED PUBLIC HEALTH AND SAFETY IMPACTS Marijuana connoisseurs are using enhanced science and technology to breed plants for various characteristics, especially plants that produce stronger compounds. Chemical extractions pose serious public safety risks. The chemical solvents, most often butane gas, create fumes that are highly flammable and can lead to explosions and fire that are similar to the extremely dangerous methamphetamine labs that have long plagued police and firefighters. There are 483 compounds in a marijuana plant; the most well-known are tetrahydrocannabinol (THC) and cannabidiol (CBD).37 THC is known to be a mild analgesic and is therefore used for medicinal purposes. It is also known to stimulate a person’s appetite.38 THC produces psychoactive chemical compounds and when extracted it becomes a resin used in hashish, tinctures, edibles, and ointments.39 A liquid process is used to extract THC.40 Cannabinoids are not water soluble, which means the extraction businesses use a solvent to remove the resin from the plant. Chemical solvents, such as butane, hexane, isopropyl alcohol, or methanol are the most popular because higher levels of THC can be extracted and the process is much faster. Chemical extractions can obtain THC levels as high as 90 percent. KEY ISSUES Threat of Explosion and Fire A hash oil explosion not only puts the lives of people inside the home at risk, it can quickly spread to nearby homes. While meth labs tend to be located in remote areas because of their illegal nature, hash oil operations are often conducted in residential neighborhoods by homeowners using legally grown marijuana. While consumers can purchase hash oil or by-products of hash oil from a marijuana retail store, many residents attempt to make their own hash oil because it is cheaper. Commercial extractions have the necessary equipment to safely extract hash oil. Denver experienced nine hash oil explosions from January 1 to September 15, 2014. The City and County of Denver recently passed an ordinance that will restrict unlicensed hash oil extractions. One of the exceptions is that the extraction use alcohol, and not a fuel-fired or electrified source. The accepted process can use no more than 16 ounces of alcohol or ethanol for each extraction.41 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 23 Impact on Medical Facilities The Burn-Trauma Intensive Care Unit at the University of Colorado Hospital is the primary burn center for Colorado. They report caring for only one patient from 2010 through 2012 from hash oil extraction burns. Since then it has significantly increased to 11 patients in 2013 and to 10 patients from January through May 2014.42 Camy Boyle, associate nurse manager for CU’s burn ICU, collected data on hash oil burn patients and found that the hash oil burn patients were almost always men in their 30s, on average had severe burns over 10 percent of their bodies (primarily hands and face), and stayed in the hospital an average of nine days.43 Lack of Regulations for Edibles Related to Increased Overdoses The growing industry of injecting hash oil into candy, cookies and other “edibles” has raised concerns among health officials and police because it is unclear to most who ingest them what the potency levels are. Although there are legal limits to the total amount of THC allowed in individual edibles, the portions are not well regulated. Purchasers may not understand that eating several cookies or pieces of candy could result in toxic levels of THC. Due to the increased toxicity, medical and police professionals have seen an increase in adult psychotic episodes resulting in hospitalizations and deaths by suicide or homicide. For example, a student from Northwest College, in Wyoming, visiting Denver for vacation jumped over the railing of a hotel, falling to his death, after consuming an entire marijuana cookie. An autopsy revealed that there was no other drug, nor alcohol, in his body except marijuana. http://kdvr.com/2014/04/02/student-fell-to-death-after- eating-marijuana-cookie-denver-coroner-says/ http://denver.cbslocal.com/2014/09/15/ordinance-would- ban-denverites-from-making-hash-oil-at-home/ https://www.youtube.com/watch?v=3P_CEXRt010 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 24 Often the marijuana edibles are packaged and look just like over-the-counter candy and food purchases. This is of particular concern when it comes to youth. According to the Children’s Hospital Colorado,44 children are at a significant risk when they ingest marijuana edibles, innocently believing it is candy. The concerns over packaging and labeling have led the Department of Revenue, Marijuana Enforcement Division (MED), to call for a new panel 45 to determine how edibles can be made safer. Colorado law gives the MED powers to enforce packaging and sales practices by recreational marijuana operations similar to those granted over liquor products and stores. Informational labeling requirements have been established by the MED.46 The labels are required to list the batch number or marijuana plant or plants contained in the container that were harvested and a list of solvents and chemicals used in the creation of the medical marijuana concentrate. In addition, medical marijuana-infused products must be designed and constructed to be difficult for children under five years of age to open, as well as have print on the label saying, ”Medicinal product – keep out of reach of children.” Marijuana Tourism: Impacts on Public Safety Marijuana tourism began almost immediately after the passage of Amendment 64, and it has grown to become a significant factor in the administration of the law. Visitors from out of state can only buy ¼ of an ounce at a time (compared to an ounce at a time for residents). Nearly 90 percent of the recreational marijuana sold at ski resorts was to tourists.47 The annualized marijuana demand for tourists visiting mountain communities is between 2.15 and 2.54 tons of marijuana, and it is expected to grow in 2014 to be between 4.3 and 5.1 metric tons of marijuana.48 Law enforcement agencies have found novice users, such as tourists, pose a particular problem because they often do not understand the potency of the marijuana and marijuana infused products, often resulting in overdoses. Hospitalizations related to marijuana have steadily increased 49 from 2000 to 2013 resulting in a 218% increase (see graph below taken from Rocky Mountain HIDTA report).50 Many patients go to the emergency room reporting that they feel like they are dying because they feel their heart pounding in their chest.51 http://www.mrctv.org/videos/cbs-wakes-dangers-edible-pot A marijuana-infused gummy bear next to a regular one. source: International Business Times - http://www. ibtimes.com/marijuana-edibles-colorado-offi- cials-want-ban-some-strict-regulations-others-1707957 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 25 To deal with the problem of educating tourists, police departments have asked hotels and visitors’ bureaus to include literature on marijuana safety. The Breckenridge Police Department has prepared literature for tourists and asked it to be distributed by recreational marijuana shops. The department has prepared a separate brochure warning hotel workers to be cautious of edibles left in the rooms by departing tourists. SOURCE: Colorado Hospital Association, Emergency Department Visit Dataset. Statistics Prepared by the Health Statistics and Evaluation Branch, Colorado Department of Public Health and Environment (CDPHE). Reprinted from the Rocky Mountain High Intensity Drug Trafficking Area report on the “Legalization of Marijuana in Colorado, The Impact.” August 2014. Tourists are occasionally stopped at airports with marijuana “leftovers” in their bags. Others have left marijuana inside hotel rooms and rental cars. One hotel worker found marijuana edibles left in a room and thought it was candy. Upon returning home the worker innocently gave it to children. Residential grows pose safety risks for first responders There are many public safety hazards with homegrown marijuana. First responders entering a home growing operation need to be aware of the types of dangers and the importance of using personal protective equipment before entering. Just like methamphetamine houses, marijuana houses contain numerous health and safety hazards that require special practices. Growing marijuana requires high-intensity lighting for the growing and flowering season, increased carbon dioxide levels, high humidity levels, and heat. Law enforcement officials working with National Jewish Health in Denver issued a checklist of potential hazards for officers entering a growing operation 52 : Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 26 UÊÊ/œÝˆVʓœ`]Ê܅ˆV…Ê}ÀœÜÃʈ˜ÊVœ˜ÃÌ>˜ÌÊÜiÌÊVœ˜`ˆ- tions, can be dangerous even in small quantities for some people. UÊÊ7…i˜ÊÀi“œÛˆ˜}ʈi}>Ê}ÀœÜˆ˜}ʜ«iÀ>̈œ˜Ã]Ê officers should be wary of THC levels in the air, on the surfaces of the home, and on the hands of the investigating officers. Therefore, officers should use gloves and possibly surgical masks when handling plants. UÊÊÀœÜiÀÃʅ>ÛiÊLii˜ÊŽ˜œÜ˜Ê̜Ê`ˆÃVœ˜˜iVÌÊ̅iÊÛi˜ÌÊ system for the furnace and hot water heater, to enhance plant growth. This creates high carbon dioxide levels and a potential for carbon monox- ide poisoning. UÊÊiÀ̈ˆâiÀÃÊ>˜`Ê«iÃ̈Vˆ`iÃÊV>˜Ê«œÃiÊ>ʅ>â>À`ʈvʈ“«Àœ«iÀÞÊ …>˜`i`°Ê Law enforcement officials said that one of the most dangerous factors for residents extracting their own THC is the potential for a hash oil explosion. Because growing operations can include a rudimentary THC hash oil refinery, officers are urged to take precautions similar to those used in a methamphetamine laboratory operation. When dealing with hash oil refineries, officers are recommended to follow PPE guidelines as provided by the American Industrial Hygiene Association in 2010: UÊÊ …i“ˆV>ÊÀiÈ`i˜ÌÊLœœÌÃÊ܈̅Êψ«Ê>˜`ʫ՘VÌÕÀiÊ«ÀœÌiV̈œ˜ÆÊ UÊÊ ÞiÊ>˜`Êv>ViÊ«ÀœÌiV̈œ˜Æ UÊÊ/>V̈V>ÊL>ˆÃ̈Vʅi“iÌÆ UÊÊ/i>ÀÊ>˜`ÊwÀiÊÀiÈÃÌ>˜ÌʜÕÌiÀÊ}>À“i˜ÌÆ UÊÊ …i“ˆV>ÊÀiÈÃÌ>˜ÌÊ}œÛiÃÆ UÊÊ/ÞÛiŽÊ>˜`ɜÀÊV…i“ˆV>ÊÀiÈÃÌ>˜ÌÊVœÛiÀ>ÃÆ UÊÊœÀÊ՘Ž˜œÜ˜Ê>̓œÃ«…iÀiÃÊqÊ>ÊÃiv‡Vœ˜Ì>ˆ˜i`ÊLÀi>̅ˆ˜}Ê >««>À>ÌÕÃÊ­- ®Æ UÊÊœÀʎ˜œÜ˜Ê>̓œÃ«…iÀiÃÊqÊ>Ê*œÜiÀi`Ê>ˆÀÊ«ÕÀˆvވ˜}ÊÀiëˆÀ>̜ÀÊ ­**,®ÊœÀÊ>ˆÀÊ«ÕÀˆvވ˜}Ê respirator with a P-100 cartridges.53 Residential growing operations can contain fire risks including overloaded electrical circuits and bypassed electrical meters. An additional hazard is the presence of carbon dioxide cylinders, which can explode due to electrical arcing.54 Denver Rental Grow source: Chief Marc Vasquez Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 27 Beyond the risk to investigating officers, law enforcement officials in the Police Foundation focus groups said they are concerned about the potential danger for children living in homes with marijuana growing operations. The Colorado legislature had considered legislation to define drug endangerment, but no laws have passed. Officers asked to investigate child endangerment in growing operations must rely on current safety laws during the investigation. KEY ISSUE Legalization of Marijuana Will Bring Changes to Hiring Practices The conflicts between drug-free workplace laws and patients’ rights are currently being debated in Colorado’s courts. The language of Amendment 64 stated that it did not require any employer to accommodate the use of medical marijuana in the workplace. But the Colorado Supreme Court is weighing an appeal by a worker 55 – left a quadriplegic in an auto crash - who was fired for having THC in his system, although he did not use marijuana at work. Even without a legal requirement to allow officers to use medical marijuana when recommended, departments in states with legalized marijuana laws may soon be faced with the need to rethink hiring practices that ban any admitted use of marijuana. Public safety agencies are seeing more job applicants admitting to using marijuana just prior to applying. The pool of applicants is shrinking because of this, which has made it more difficult to fill openings in a timely manner.56 The Attorney General’s Office has supported a zero tolerance stance for all employees, including peace officers and firefighters, for use of marijuana even when off duty. Residential Electrical Rewiring source: Chief Marc Vasquez. Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 28 POINTS FOR CONSIDERATION U Ê œ‡œÀ`ˆ˜>Ìi`Ê«>˜˜ˆ˜}Ê>˜`ʜÕÌÀi>V…Ê>Àiʘii`i`Ê̜Êi˜ÃÕÀiÊ̅iÊÃ>viʜ«iÀ>̈œ˜ÊœvÊ “>ÀˆÕ>˜>ÊLÕȘiÃÃiÃ°Ê Officers and deputies are called when citizens are concerned about potential nuisance and safety violations caused by marijuana operations in their neighborhoods. Law enforcement is often faced with the necessity of both interpreting and enforcing vague laws and regulations regarding marijuana cultivation and extraction operations. Law enforcement leaders should develop partnerships with city or county code inspectors, planners, city or county attorneys, district attorney’s offices, and any other city or county agency that can play a role in establishing ordinances or inspecting, regulating, and prosecuting public safety violations. U Ê >ÜÊi˜vœÀVi“i˜Ìʏi>`iÀÃÊŜՏ`ÊvœÀ“Ê>ÊÃÌ>Ìi܈`iÊܜÀŽˆ˜}Ê}ÀœÕ«Ê̜Ê>ÃÃiÃÃÊVÕÀÀi˜ÌÊ V…>i˜}iÃÊ>˜`Ê«À>V̈Viʜ˜Ê“>ÀˆÕ>˜>Êi˜vœÀVi“i˜Ìʈ˜ÊœÀ`iÀÊ̜ʈ˜vœÀ“ÊÃÌ>ÌiÊ>˜`ʏœV>Ê «À>V̈ViÃÊ>˜`Ê«œˆVˆið Under Colorado law, every local jurisdiction can establish its own regulations on marijuana businesses, but many of the challenges facing law enforcement are similar throughout the state. Police Foundation focus group members called for statewide information sharing sessions to share best practices and emerging issues, as well as ensuring the dissemination of criminal intelligence and information on illegal marijuana trafficking. U Ê /…iÊÃÌ>Ìiʓi`ˆV>Ê>ÃÜVˆ>̈œ˜ÊŜՏ`Ê`iÛiœ«ÊÃÌ>˜`>À`ˆâi`Ê«…ÞÈVˆ>˜ÊVÀˆÌiÀˆ>Ê vœÀÊÜÀˆÌˆ˜}ʓi`ˆV>Ê“>ÀˆÕ>˜>ÊÀiVœ““i˜`>̈œ˜ÃÊ>˜`ÊÅ>ÀiÊ̅iÊVÀˆÌiÀˆ>Ê܈̅ʏ>ÜÊ i˜vœÀVi“i˜ÌÊ>˜`Ê̅iÊ«ÕLˆV° Law enforcement faces a challenge in determining whether medical marijuana growers are producing excess product that could be sold on the black market. Additionally, a physician has been sanctioned 57 for writing thousands of recommendations without even meeting patients. A standardized state system could provide guidance in planning enforcement efforts.NSIDERATION cont’d U Ê >ÜÊi˜vœÀVi“i˜Ìʏi>`iÀÃÊ>˜`ÊÃÌ>ÌiÊ̜ÕÀˆÃ“ÊœvwVˆ>ÃÊŜՏ`Ê`iÛiœ«Ê>˜`Ê`ˆÃÌÀˆLÕÌiÊ i`ÕV>̈œ˜>Ê“>ÌiÀˆ>ÃÊ>LœÕÌÊ œœÀ>`œ½Ãʓ>ÀˆÕ>˜>ʏ>ÜÃÊ>˜`ÊÃ>viÌÞʈ˜vœÀ“>̈œ˜° Tourists coming from out-of-state often do not know the basics of Colorado’s marijuana laws, such as no public consumption or no consumption while driving. Medical center emergency rooms have also reported seeing an increasing number of out-of-state patients who overdosed because they were not aware of the potency of the product they ingested. Educational materials should be available in hotels, tourism outlets, and marijuana retail businesses to provide legal and safety information. U Ê ,iµÕˆÀiʅœÃ«ˆÌ>ÃÊ>˜`Êi“iÀ}i˜VÞÊV>ÀiÊVi˜ÌiÀÃÊ̜ÊVœiVÌÊ`>Ì>ʜ˜Ê̅iʘՓLiÀÊ>˜`Ê ˜>ÌÕÀiʜvÊi“iÀ}i˜VÞÊÀœœ“ÊۈÈÌÃʈ˜ÛœÛˆ˜}ʓ>ÀˆÕ>˜>° The health care industry and law enforcement agencies should create a statewide database to inform practices and policies regarding marijuana overdose and what on- the-scene measures might help lessen the trauma. Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 29 VI. MARIJUANA’S EFFECT ON YOUTH – ISSUES FOR PUBLIC EDUCATION AND FUTURE LAW ENFORCEMENT CHALLENGES A widely-cited article in the Lancet Psychiatry Journal 58 stated that studies have shown that those who use marijuana daily before age 17 are 60 percent less likely to finish high school or college, seven times more likely to commit suicide and eight times more likely to use addictive drugs later in life. Amendment 64 clearly states that no one under the age of 21 can possess recreational marijuana. Legal marijuana retail stores face the same enforcement and oversight as liquor stores when it comes to selling to minors. Ben Cort, Business Development Manager, University of Colorado Center for Dependency, Addiction and Rehabilitation, said that studies have shown that many young people with substance abuse problems have easy access to marijuana through patients with a medical marijuana card. In addition, many teenagers have followed the debate regarding legalized marijuana and have been swayed by the proponents’ arguments that marijuana is much safer than alcohol, he said. Cort told the Colorado Juvenile Council meeting in November 2014 that the dangers to youth from marijuana have increased under legalization. Colorado has seen the greatest percentage of youth marijuana use in 10 years, based on the latest National Survey on Drug Use and Health (2011-2012). Youth, ages 12-17, reported using marijuana in the past month at a rate almost 40 percent higher than the national average. Marijuana use by homeless juveniles is a growing concern, according to Police Foundation focus group members. As with the general homeless population, many turn to panhandling and theft to support themselves, focus group members said. No studies are available to measure the effects of juvenile marijuana use on future criminal “We won’t know the extent of the damage legalized marijuana has caused for our youth until 5 to 10 years down the road. Unfortunately, we’ve used our kids to understand the impacts in this great social experiment.” – Ben Cort, ÕȘiÃÃÊ iÛiœ«“i˜ÌÊ>˜>}iÀ]Ê 1˜ˆÛiÀÈÌÞʜvÊ œœÀ>`œÊ Ê “I am very concerned about the effect of marijuana on the developing brains of our youth. I believe we can and must do a better job addressing this issue in Colorado… Our success with the student-led/adult-facilitated ‘Drive Smart Campaign’ has been highly successful in terms of reducing teen driving accidents and fatalities. I would like to see a similar approach to addressing the issue of teen drug use.” – Officer David Pratt, -V…œœÊ,iÜÕÀViÊ"vwViÀ]Ê œœÀ>`œÊ -«Àˆ˜}ÃÊ­ "®Ê*œˆViÊ i«>À̓i˜Ì Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 30 behavior. Police Foundation focus group members expressed concern that the high dropout rate and emotional setbacks faced by such teens are common indicators of the potential for future criminal activity. They worry that the increased availability of high- potency marijuana and an increasingly positive public reaction to marijuana use will mean difficult challenges ahead for youth education on these dangers. POINTS FOR CONSIDERATION UÊ*ÕLˆVÊi`ÕV>̈œ˜ÊV>“«>ˆ}˜ÃÊ̜ʫÀiÛi˜ÌʍÕÛi˜ˆiʓ>ÀˆÕ>˜>ÊÕÃiÊ Ã…œÕ`ÊLiÊÀiۈÃi`ÊÌœÊ i“«…>ÈâiÊ̅iʅi>Ì…Ê`>˜}iÀÃʜvÊÀi}Տ>Àʓ>ÀˆÕ>˜>ÊÕÃiÊLÞÊޜÕ̅° Colorado law restricts recreational marijuana possession to people over the age of 21, but law enforcement officials said they have observed an increase in marijuana use among teenagers since legalization. Public education campaigns must emphasize scientific studies that have raised health alarms over juvenile marijuana use to counter the public perception that marijuana is safer to use than alcohol. UʘVÀi>Ãi`ÊÌÀ>ˆ˜ˆ˜}Ê>˜`Ê̜œÃÊŜՏ`ÊLiÊ«ÀœÛˆ`i`Ê̜ÊÃV…œœÊÀià œÕÀViʜvwViÀÃÊ̜Êi˜ÃÕÀiÊ̅>ÌÊ ÞœÕ̅ÊÀiViˆÛiÊv>VÌÕ>Êˆ˜vœÀ“>̈œ˜Êœ˜Ê̅iÊ`>˜}iÀÃʜvʓ>ÀˆÕ>˜>ÊÕ Ãi°Ê State health and research officials should intensify studies on the effects of marijuana on education, employment, health, and mental illness. https://www.youtube.com/watch?v=jtVJMJpavyw Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 31 VII. FIELD TESTS ARE A CHALLENGE TO MEASURE DRIVING UNDER THE INFLUENCE OF MARIJUANA As stated in Amendment 64, recreational marijuana use is subject to the same standards of public behavior as alcohol. Consumption of marijuana is prohibited in all public places, and standards of public intoxication can be similarly applied. Consumption of marijuana while driving is prohibited, and driving under the influence of marijuana is treated similarly to driving under the influence of alcohol.59 However, police have found that putting these new enforcement measures into effect is a major challenge. Colorado has established a blood level of five or more nanograms per milliliter of THC as the limit for driving while impaired. One of the biggest challenges is determining the legal limit of driving while impaired when marijuana is combined with alcohol or other drugs. Using marijuana with alcohol will produce more impairment than if either drug was used alone.60 Detection of this level of impairment has required an entirely new testing system and complete retraining for law enforcement officers in Colorado. The initial procedures for driving under the influence of alcohol or marijuana are the same, law enforcement officials said. The officer will look for inidicia of impairment like bloodshot eyes, slurred speech, and abnormal responses to questions. If the officer suspects that a driver is impaired, a field sobriety test can be performed to measure balance and other factors. If the driver fails that test, or refuses it, the officer must decide whether to require a blood test to determine the level of THC. These tests require medical personnel, either a paramedic at the scene or a hospital emergency room to draw the blood sample. The test results can take from one day to six weeks. Police Foundation focus group members said law enforcement is facing a tremendous cost increase for testing for driving under the influence of marijuana. A blood test for alcohol costs approximately $25 to $35, while the drug panel that includes marijuana can cost $250-$300. There is emerging technology that allows for the testing of oral fluids for drugs, such as THC. The State of Colorado is currently examining this technology to see if it is effective. This alternative technology tests for the presence of drugs based on saliva, known as the Oral Fluid Test. Although the method is quicker and easier than taking blood samples, the evaluation period to show whether drugs are in the system is about the same. There is currently no technology available to do a marijuana “breathalyzer” test, which has significantly shortened the time involved for DUI testing for alcohol. Researchers at Washington State University have reported progress in developing a portable breathalyzer that could provide an initial reading to aid in decision-making on driving under the influence. Testing on the device is expected to begin in spring 2015. Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 32 The additional law enforcement training for sobriety testing and drug detection will cost about $1.24 million in the coming year, according to the Colorado Association of Chiefs of Police (CACP). Those funds will include officer training on Advanced Roadside Impaired Driving Enforcement (ARIDE), legal updates, train-the-trainers, Drug Recognition Expert (DRE) trainings, and DUID classes. There are a series of trainings offered which will assist law enforcement officers to better detect drivers who are impaired by substances, such as marijuana. As an example, officers can receive training on the basic Standardized Field Sobriety Test (SFTS). A more intense training course is called ARIDE, which is a sixteen-hour class to train law enforcement officers on how to detect drug-impaired drivers and is given after the SFST training. The National Highway Safety Administration (NHTSA) developed training materials for these courses. Finally, if an officer wishes to become an expert in roadside detection, then the officer would become a drug recognition expert (DRE). The DRE training, which has been in existence since the 1970s, trains law enforcement officers to detect and identify drivers who may be impaired on a variety of substances. This detection is very important because research has shown that drivers are often impaired by more than one substance. Observing drug-impaired driving is not a new situation for most officers, but legal experts have warned that more training and better equipment is essential in order to provide adequate resources for prosecution under the new laws of marijuana legalization. While in the past simply having evidence of marijuana in the system could lead to conviction of drivers, many judges and juries will be more demanding of proof that the case meets the legal criteria of impairment. POINT FOR CONSIDERATION Uʈi`Ê-œLÀˆiÌÞÊÌiÃ̈˜}ÊvœÀʓ>ÀˆÕ>˜>ÊÕÃiÀÃÊŜՏ`ÊLiÊv՘`i`Ê ÌœÊi˜ÃÕÀiÊ̅>ÌÊ>ÊœvwViÀÃÊ ˆ˜Ê œœÀ>`œÊ>ÀiÊÌÀ>ˆ˜i`Ê̜ÊÀiVœ}˜ˆâiÊ̅iÊ`ˆvviÀi˜ViÊLiÌÜii˜Ê `ÀˆÛiÀÃÊ܅œÊ>ÀiÊ՘`iÀÊ̅iÊ ˆ˜yÕi˜Viʜvʓ>ÀˆÕ>˜>ÊÛiÀÃÕÃÊ>Vœ…œ° Marijuana is being ruled a factor in an increasing number of highway deaths 63 in Colorado according to data gathered by the Rocky Mountain High Intensity Drug Trafficking Area task force, and patrol officers must be given the tools to discern whether drivers are impaired by marijuana ingestion. Currently the state has not fully funded the training program for officers to determine if those stopped are driving under the influence of marijuana. Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 33 CONCLUSION Legalization of marijuana is a complex issue and many unanticipated consequences have challenged Colorado law enforcement. Until there is more clarification and stiffer sanctions for law violations, law enforcement is working at a deficit in trying to reduce the black and gray markets. Law enforcement leaders are just beginning to understand the related crime and disorder issues associated with legalized marijuana, and how to reduce them through ordinances, codes, policies, and partnerships. Establishing partnerships with city agencies, such as code enforcement, building inspectors, fire, and zoning is currently one of the best strategies in addressing the problems. Local ordinances addressing neighborhood complaints, such as noxious odors, building and code violations, and land use codes, have been found to be effective in regulating non-commercial marijuana cultivation. Marijuana odors emitted from households growing marijuana, child endangerment, THC distillation processes, dangerous electrical wiring, and furnace reconstruction to recover dangerous carbon monoxide fumes for plant growth are just a few examples of how law enforcement can work with city and county agencies to reduce these public risks. Officer safety is paramount when going into marijuana cultivations, especially houses where toxic black mold is in the house growing marijuana. These homes may pose similar health dangers as methamphetamine homes. Policies should be established outlining procedures for officers using personal protective equipment when entering these homes or at any grow location where there is risk of toxic black mold. The conflict between federal and state laws regarding the legalization of marijuana has put law enforcement in a difficult situation. This has impacted public safety regarding unavailability of banking services and the challenges to officer integrity for those who have taken an oath to uphold both federal and state constitutions, but are now trying to uphold conflicting laws. The Police Foundation and the Colorado Association of Chiefs of Police believe sharing challenges, lessons learned, and points for consideration will provide a launching point for increased national discussions and will help identify strategies to resolve the conflicts and challenges for states passing legalized marijuana laws. As the states neighboring Colorado have discovered, marijuana has become a complicated and pressing issue, even where it has not been legalized. The Colorado Association of Chiefs of Police and individual departments around the state worked tirelessly to ensure that legislation enacting the rules and regulations in Amendment 64 provided adequate enforcement measures. Those efforts were rushed, however, by the short period between the passage of the amendment and enactment of the legislation.64 They remain concerned that state officials have not allocated adequate resources to meet the new challenges brought by the law. Their message to law enforcement officials in states where voters are considering legalization: Develop a legislative and statewide funding plan before the measure passes and be ready to make the case for proper enforcement in the name of public safety. Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 34 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement ENDNOTES 1 Stiffler, C. (2013, August 16). Amendment 64 would produce $60 million in new revenue and savings for Colorado. Colorado Center on Law and Policy. Retrieved from http://cclponline.org/ wp-content/uploads/2013/11/amendment_64_analysis_final.pdf 2 Ticer, R.L. (2014, March 3). Letter to the Honorable John Hickenlooper. TS. 3 States of Nebraska and Oklahoma v. State of Colorado, 28 U.S.C. § 1251(a) (2014). 4 Ingold, J. (2009, November 10). Judge tosses out health board decision on medical pot. The Denver Post. Retrieved from http://www.denverpost.com/ 5 Ogden, D.W. (2009). I nvestigations and prosecutions in States authorizing the medical use of marijuana [Memorandum] Washington, DC: Department of Justice. 6 Vasquez, Marco, Interview December 3, 2014. 7 Vasquez, Marco, “Marijuana in Colorado,” PowerPoint presentation at Metro State University, October 2014. 8 McGhee, T. (2014, July 25). Legal pot blamed for some of the influx of homeless in Denver this summer. The Denver Post . Retrieved from http://www.denverpost.com/ 9 Pot is blamed for influx of homeless kids in Denver. (2014, July 26). The Associated Press . Retrieved from http://nj1015.com/pot-is-blamed-for-influx-of-homeless-kids-in-denver/. 10 Klemaier, J. (2014, June 5). Golden city council votes to ban marijuana sales. The Denver Post . Retrieved from http://www.denverpost.com/ 11 Golden, Colorado, Municipal Code § 4.94.110. 12 Department of Treasury Financial Crimes Enforcement Network. (2014, February 14). BSA expectations regarding marijuana-related businesses. Retrieved from http://www.fincen.gov/ statutes_regs/guidance/pdf/FIN-2014-G001.pdf 13 Kuntz, K. (2014, December 8) Feds connecting legal marijuana transactions with suspicious activities. Rocky Mountain PBS News . Retrieved from http://inewsnetwork.org/2014/12/08/ feds-connecting-legal-marijuana-transactions-with-suspicious-activities/ 14 Migoya, D. (2014, November 20). Colorado pot credit union could be open by Jan. 1 under state charter. The Denver Post . Retrieved from http://www.denverpost.com/ 15 Hughes, T. (2014, July 13). Pots of marijuana cash cause security concerns. USA Today . Re- trieved from http://www.usatoday.com/ 16 Cole, J.D. (2013, August 29). Guidance regarding marijuana enforcement. Washington, DC: Department of Justice. 17 Department of Revenue Department of Public Health and Environment. (2013). Medical marijuana regulatory system- Part 1. Retrieved from http://www.leg.state.co.us/OSA/coauditor1.nsf/All/1B - B1CBF38E313A1587257B320079E543/$FILE/2194A%20MedicalMarijuanaRegSys%20031813.pdf 18 Gurman, S. (2014, June 29). Police growing cautious of seizing marijuana plants. The Boston Globe . Retrieved from http://www.bostonglobe.com/ Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 44 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement ENDNOTES 19 Light, M.K., Orens, A., Lewandowski, B., & Pickton, T. (2014). Market size and demand for mar- ijuana in Colorado: Prepared for the Colorado Department of Revenue. The Marijuana Policy Group. Retrieved from https://www.colorado.gov/pacific/sites/default/files/Market%20Size%20 and%20Demand%20Study,%20July%209,%202014%5B1%5D.pdf. 20 Griego, T. (2014, July 30). Inside Colorado’s flourishing, segregated black market for pot. The Washington Post . http://www.washingtonpost.com/ 21 Nicks, D. (2014, March 11). Pot growers are snatching up warehouse space in Denver. Time . Retrieved from www.time.com 22 Griego, T. (2014, July 30). Inside Colorado’s flourishing, segregated black market for pot. The Washington Post . http://www.washingtonpost.com/ 23 Griego, T. (2014, July 30). Inside Colorado’s flourishing, segregated black market for pot. The Washington Post . http://www.washingtonpost.com/ 24 Sujdak v State of Colorado, No 2012-003919-B (May 23, 2014). 25 Denver Combined Tax Rates. (2013). Retrieved on December 23, 2014, from http://www.denver- gov.org/Portals/571/documents/Tax%20Rates%20effective%201-1-2014.pdf. 26 Ibid., http://www.denvergov.org/Portals/571/documents/Tax%20Rates%20effective%201-1-2014.pdf. 27 Davidson, J. (2014, July 8). Price war heats up between legal marijuana and the black market. Time- Money . Retrieved from http://time.com/money/ 28 Light, M.K., Orens, A., Lewandowski, B., & Pickton, T. (2014). Market size and demand for mar- ijuana in Colorado: Prepared for the Colorado Department of Revenue. The Marijuana Policy Group. Retrieved from https://www.colorado.gov/pacific/sites/default/files/Market%20Size%20 and%20Demand%20Study,%20July%209,%202014%5B1%5D.pdf. 29 Lee, K. (2014, August 12). In Colorado, tax revenue from recreation pot lower than expected. LA Times . Retrieved from http://www.latimes.com/ 30 Hegeman, R. (2013, August, 27). Kansas at crossroads of marijuana trafficking. The Denver Post . Retrieved from http://www.denverpost.com/ 31 Rocky Mountain High Intensity Drug Trafficking Area. (2014, August). The legalization of mari- juana in Colorado: The Impact. Retrieved from www.rmhidta.org . 32 States of Nebraska and Oklahoma v. State of Colorado, 28 U.S.C. § 1251(a) (2014). 33 Ingold, J, & Gorski, E. (2013, September 3). More Colorado pot is flowing to neighboring states, officials say. The Denver Post . Retrieved from http://www.denverpost.com/ 34 Ingold, J, & Gorski, E. (2013, September 3). More Colorado pot is flowing to neighboring states, officials say. The Denver Post . Retrieved from http://www.denverpost.com/ 35 Horwitz, S. (2014, April 30). DEA Chief says marijuana- trafficking spiking in states near Colora- do. The Washington Post . Retrieved from http://www.washingtonpost.com/ 36 Kost, A. & Kovaleski, J. (2014, May 25). Colorado weed blamed for increasing law enforcement costs in Nebraska. ABC7 Denver News . Retrieved http://www.thedenverchannel.com/. 35 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 36 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement ENDNOTES 37 Learn about Marijuana: Science based information for the public. (n.d.) National Cannabis Pre- vention and Information Centre. Retrieved from http://learnaboutmarijuanawa.org/factsheets/ cannabinoids.htm 38 Ibid., http://learnaboutmarijuanawa.org/factsheets/cannabinoids.htm 39 Ibid., http://learnaboutmarijuanawa.org/factsheets/cannabinoids.htm 40 Silva, R. (2014, April 28). Hash oil cause of explosion in Colorado Home. HNGN News. Retrieved from http://www.hngn.com/articles/29844/20140428/hash-oil-cause-of-explosion-in-colorado- home.htm. 41 Watts, L. (2014, November 10). Dad prompts Denver to change hash oil ban; Some production now allowed for medical purposes. 7 News Denver . Retrieved from http://www.thedenver- channel.com; Murray, J. (2014, September 4). Denver joins cities seeking to crack down on risky hash oil extraction. The Denver Post . Retrieved http://www.denverpost.com/news. 42 McCrimmon, K.K. (2014, June 4). Colorado epicenter for hash oil fires, severe burns. Health News Colorado . Retrieved from http://www.healthnewscolorado.org/2014/06/04/colorado-epi- center-for-hash-oil-fires-severe-burns/. 43 Ibid., http://www.healthnewscolorado.org/2014/06/04/colorado-epicenter-for-hash-oil-fires-se- vere-burns/. 44 Marijuana Safety in the Home. (n.d.) Retrieved December 23, 2014, from http://www.childrens- colorado.org/wellness-safety/parent-resources/marijuana-what-parents-need-to-know/safety 45 Wyatt, K. (2014, November 16). APNewsBreak: Pot treats may face Colorado scrutiny. Associ- ated Press . Retrieved from http://bigstory.ap.org/article/a43d5d4c9a534b139a867cdc88d516f8/ apnewsbreak-pot-treats-may-face-colorado-scrutiny 46 Retail Marijuana Code of 2014, C.R.S. 24-43.4-101 -et. seq. 47 Light, M.K., Orens, A., Lewandowski, B., & Pickton, T. (2014). Market size and demand for mar- ijuana in Colorado: Prepared for the Colorado Department of Revenue. The Marijuana Policy Group. Retrieved from https://www.colorado.gov/pacific/sites/default/files/Market%20Size%20 and%20Demand%20Study,%20July%209,%202014%5B1%5D.pdf. 48 Ibid., p.24, https://www.colorado.gov/pacific/sites/default/files/Market%20Size%20and%20De- mand%20Study,%20July%209,%202014%5B1%5D.pdf. 49 Dukakis, A. (2014, April 29). Denver emergency room doctor seeing more patients for marijuana edibles. Colorado Public Radio . Retrieved from http://www.cpr.org/ 50 Rocky Mountain High Intensity Drug Trafficking Area. (2014, August). The legalization of mari- juana in Colorado: The Impact. Retrieved from www.rmhidta.org . 51 Hughes, T. (2014, May 8_ Marijuana ‘edibles’ pack a wallop. USA TODAY . Retrieved from http:// www.usatoday.com/ 52 Martyny, J.W., Van Dyke, M.V., Schaefer, J., & Serrano, K. (2010). Health effective associated with indoor marijuana grow operations. U.S. Department of Justice, Bureau of Justice Assis- tance Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 46 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement ENDNOTES 53 Martyny, J.W., Van Dyke, M.V., Schaefer, J., & Serrano, K. (2010). Health effective associated with indoor marijuana grow operations. U.S. Department of Justice, Bureau of Justice Assistance 54 Jelinek, C. (2009, December). Indoor marijuana cultivation fire risk reduction. Eureka Fire De- partment, Eureka California. Retrieved from http://www.usfa.fema.gov/pdf/efop/efo44164.pdf. 55 Campbell, G. (2014, October 6). Colorado high court weighs landmark medical mari- juana case. The Daily Caller . Retrieved from http://dailycaller.com/2014/10/06/colora- do-high-court-weighs-landmark-medical-marijuana-case/. 56 Interview with Deputy Chief Vince Niski, December 2, 2014. 57 Sujdak v State of Colorado, No 2012-003919-B (May 23, 2014). 58 Silins, E., Horwoord, L.J., Patton, G.C., Fergusson, D.M., Olsson, C.A., Hutchinson, D.M., . . . Mat- tick, R.P. (2014). Young adult sequelae of adolescent cannabis use: An intergrative analysis. The Lancet Psychiatry , 1(4), 286-293. doi: http://dx.doi.org/10.1016/S2215-0366(14)70307-4 59 Title 42- Vehicles and Traffic, C.R.S. 42-4-1301 (2014). 60 Sewell, R.A., Poling, J., & Sofuoglu, M. (2009). The effect of cannabis compared with alcohol on driving. The American Journal on Addictions , 18(3), 185-19. doi: 10.1080/10550490902786934 61 Santos, M. (2014, November 28). Breath test to detect pot is being developed at WSU. The News Tribune . Retrieved from http://www.thenewstribune.com/ 62 Interview with Chris Haslor, Understanding Legal Marijuana, L.L.C., Law Office of Chris Haslor, former Traffic Safety Resource Prosecutor for Colorado District Attorneys’ Council. 63 Rocky Mountain High Intensity Drug Trafficking Area. (2014, August). The legalization of mari- juana in Colorado: The Impact. Retrieved from www.rmhidta.org . 64 Sybrandy, H. (2013, April 30). Police leaders sound alarm, say legislature dropped ball on mari- juana regulation. Fox 31 Denver . Retrieved from http://kdvr.com/ 37 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 38 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement APPENDIX 1: COLORADO’S LEGISLATIVE HISTORY REGARDING THE LEGALIZATION OF MARIJUANA INTRODUCTION Understanding Colorado’s legislative and political history provides important perspective for appreciating Colorado law enforcement’s experience with addressing the legalization of marijuana. There were two notable elements of the legislation that legalized marijuana in the state of Colorado: first, marijuana became legal through an amendment to the Colorado’s consti - tution; and second, the legislative language was ambiguous and broad. This has placed Colorado law enforcement in the position of both interpreting and enforcing the law. It is further complicated by the fact that, at the federal level, marijuana is still an illegal drug under the Controlled Substance Act of 1970 1 , which classified marijuana as a Schedule I controlled substance.2 AMENDMENT 20: NOVEMBER 2000 MEDICAL MARIJUANA BALLOT MEASURE Overview of Colorado Amendment 20 The shift toward legalized marijuana use began with the passage of Amendment 20, The Medical Use of Marijuana Act , which passed with the support of 53.3 percent of Colorado voters in November 2000.3 The amendment to the Colorado Constitution made the following legal under state law: UÊ1Ș}ʓ>ÀˆÕ>˜>Ê܈̅Ê>Ê«…ÞÈVˆ>˜½ÃÊÀiVœ““i˜`>̈œ˜ÊvœÀÊ`iLˆˆÌ>̈˜}ʓi`ˆV>ÊVœ˜`ˆ- tions defined as chronic pain, severe nausea, persistent muscle spasms (i.e. multi- ple sclerosis), cancer, glaucoma, cachexia, seizures (e.g., epilepsy), and HIV; UÊ*œÃÃiÃȘ}ʘœÊ“œÀiÊ̅>˜ÊÌܜʜ՘ViÃÊ>˜`ÊÕ«Ê̜ÊÈÝʓ>ÀˆÕ>˜>Ê«>˜ÌÃ]Ê܈̅ʘœÊ“œÀiÊ than three being mature flowering plants that produce usable marijuana; UʘÊiÝi“«Ìˆœ˜ÊvÀœ“ÊVÀˆ“ˆ˜>Ê«ÀœÃiVṎœ˜Ê>˜`Ê>˜Êi>vwÀ“>̈ÛiÊ`ivi˜ÃiÊvœÀÊ«>̈i˜ÌÃÊ from some state criminal marijuana penalties; UÊ/>Έ˜}Ê̅iÊ œœÀ>`œÊ i«>À̓i˜ÌʜvÊ*ÕLˆVÊi>Ì…Ê>˜`Ê ˜ÛˆÀœ˜“i˜ÌÊ­ * ®ÊÜˆÌ…Ê establishing a confidential registry for patients and primary caregivers; UʏœÜˆ˜}ÊV…ˆ`Ài˜Ê>VViÃÃÊ̜ʓi`ˆV>Ê“>ÀˆÕ>˜>Ê܈̅ʫ>Ài˜ÌýʫiÀ“ˆÃȜ˜ÆÊ>˜`] UÊ>Žˆ˜}ʏ>ÜÊi˜vœÀVi“i˜ÌÊiVœ˜œ“ˆV>Þʏˆ>LiÊvœÀÊ̅iÊÛ>Õiʜvʓ>ÀˆÕ>˜>ÊŜՏ`Ê>Ê criminal case not be filed, dismissed, or results in an acquittal. Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 48 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 2000 TO 2008: LEGISLATION AND NOTABLE EVENTS FOLLOWING THE PASSAGE OF AMENDMENT 20 Following the passage of Amendment 20, registrations for medical marijuana started on June 1, 2001. By December 31, 2008, there were 4,819 total medical marijuana patients registered with CDPHE and receiving marijuana drug treatment.4 Registered caregivers with CDPHE cultivated marijuana plants and distributed the drug to their patients. A series of events led to a massive number of people registering for medical marijuana cards and the proliferation of medical dispensaries opening in a very short period of time. By December 31, 2009, there were 41,039 patients who possessed a valid registration card from CDPHE.5 The rapid increase created a concern among public safety and public health officials. Decriminalization of Possession and Low Enforcement Priority for Marijuana In November 2005, the City and County of Denver voters passed a ballot initiative de - criminalizing possession of small amounts of marijuana. In 2007, Denver voters approved Ballot Question 100, which directed law enforcement to make arrest or citation of adult cannabis users the lowest priority.6 The town of Breckenridge, a mountain town near ski resorts, also decriminalized marijuana possession and allowed citizens to carry small amounts in 2009.7 Lawsuit Against CDPHE’s Five Patient Rule The Colorado Court of Appeals ruled in October 2009 that caregivers must know the pa- tients who use the marijuana they grow. The ruling upheld a verdict against Stacy Clen- denin who had been found guilty of illegally growing marijuana in her home. Clendenin claimed that she was a caregiver who was growing marijuana for patients. However, the Court of Appeals ruled, “Simply knowing that the end user of marijuana is a patient is not enough.” The court said, “A care-giver [sic] authorized to grow marijuana must actually know the patients who use it.”8 Responding to the court’s ruling, The Colorado Department of Public Health and Environ- ment’s Board of Health created a policy, during a closed meeting, called the “Five Patient Policy” limiting caregivers to providing medical marijuana to no more than five patients.9 The Board of Health’s process for establishing the Five Patient Policy was challenged in a 2007 lawsuit filed on behalf of David “Damien” LaGoy, a registered marijuana patient with life-threatening symptoms resulting from HIV/AIDs and Hepatitis C. LaGoy’s lawsuit claimed that CDPHE: (1) violated the Open Meetings Act,10 (2) violated the Administrative Proce - dures Act 11 by deeming the meeting as an emergency, and (3) decreased LaGoy’s access to medical marijuana, increased the confusion of his registered caregiver, Daniel, as to his responsibilities due to the policy defining the caregiver as one who is “significantly respon - 39 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 40 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement sible for the well-being of a patient,” and therefore caused an “immediate and irreparable injury.”12 The plaintiffs requested that CDPHE hold a public meeting to define the term “caregiver” and to invalidate their current policy because it was adopted in an arbitrary manner. Additionally, they asked the courts for a temporary and permanent injunction or - dering the defendants to cease and desist from the enforcement of the regulatory change.13 Denver District Court Judge Dave Naves granted a temporary injunction, and after further review, permanently overturned CDPHE’s definition for caregivers. Naves required the CDPHE to hold an open meeting and revise the caregiver language.14 The CDPHE held public hearings according to Naves’ ruling but did not reinstate the “Five Patient Policy.”15 The Federal Government’s Position on Marijuana Enforcement The first national statement regarding legalizing medical marijuana came from President Barak Obama during his campaign in 2008. Attorney General Eric Holder, in Octo- ber 2009, laid out medical marijuana guidelines for federal prosecutors in accordance with the Controlled Sub- stance Act (CSA).16 A memorandum from Deputy Attorney General David W. Ogden provided guidance and clarifi- cation to U.S. Attorneys in those states that have enacted medical marijuana laws. This became known as “The Og- den Memo.”17 The Ogden Memo provides uniform guidance but does not allow medical marijuana to be a legal defense to the violation of federal law, including the Controlled Substances Act. (http://www. justice.gov/sites/default/files/opa/legacy/2009/10/19/medical-marijuana.pdf).18 Specifically, the Ogden Memo directs that prosecutors should place a low priority on cases involving individuals with medical conditions and who are in “clear and unambig- uous compliance” with state laws. The federal government continues to pursue illegal drug trafficking activity as well as the unauthorized production or distribution of medical marijuana by the state when the following situations are present: UÊ1˜>ÜvՏʫœÃÃiÃȜ˜ÊœÀÊ՘>ÜvՏÊÕÃiʜvÊwÀi>À“ÃÆÊ UÊ6ˆœi˜ViÆ https://www.youtube.com/watch?v=LvUziSfMwAw Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 50 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement UÊ->iÃÊ̜ʓˆ˜œÀÃÆ Uʈ˜>˜Vˆ>Ê>˜`ʓ>ÀŽï˜}Ê>V̈ۈ̈iÃʈ˜Vœ˜ÃˆÃÌi˜ÌÊ܈̅ÊÃÌ>Ìiʏ>Ü]ʈ˜VÕ`ˆ˜}ʓœ˜iÞÊ laundering, financial gains or excessive amounts of cash inconsistent with purport- ed compliance with state or local law; Uʏi}>Ê«œÃÃiÃȜ˜ÊœÀÊÃ>iʜvʜ̅iÀÊVœ˜ÌÀœi`ÊÃÕLÃÌ>˜ViÃÆʜÀ UÊ/ˆiÃÊ̜ʜ̅iÀÊVÀˆ“ˆ˜>Êi˜ÌiÀ«ÀˆÃið 2009: THE GROWTH OF MEDICAL MARIJUANA CENTERS When CDPHE’s caregiver definition was overturned in 2009, there was no limit on the number of patients caregivers could serve. At the same time, there was a boom in the number of medical marijuana patients registering with CDPHE.a Some medical marijuana proponents decided to test the boundaries of the caregiver model as a result of the LaGoy-Pope Case. This resulted in a prolifer- ation of medical marijuana dispensaries opening in a relatively short time period of time throughout the state. These centers grew large quantities of marijuana plants because they could now claim to be the “caregivers” for an unlimited number of registered medical marijuana patients. This was one of the first major unanticipated problems for law enforcement, according to members of the Police Foundation focus groups. Since there were no statutes or regula - tions, the medical marijuana centers had no restrictions to the number of plants they could grow and the number of patients they served. This also led to patients “shopping” their doctor’s recommendation to as many medical marijuana centers as they wanted and as of - ten as they wanted, focus group members said. As long as the patient had a medical mar - ijuana licence and an authorized doctor’s certification, then that patient could go to many medical marijuana centers as long as they only carried two ounces out of each center. From 2001 to 2008, there were a total of 4,819 approved patient licenses. In 2009, there were 41,039 approved medical marijuana registrations from CDPHE. Source: CDPHE The number of marijuana dispensaries went from zero in 2008 to 900 by mid-2010. Source: Department of Revenue, Marijuana Enforcement Division a. This has led to another challenge in regulation. CDPHE registers medical marijuana patients and caregivers; however, they do not regulate or monitor the caregiver marijuana grows. Beginning in 2010 (?), the Colorado Department of Revenue, Medical Marij uana Enforcement Division (MMED), now entitled the Marijuana Enforcement Division (MED), is responsible for monitoring the caregiv er grows. Caregivers are required to register their grow locations with the MED. However, there is no way to cross-verify if this is occurring since CDPHE cannot release the names of the patients and their caregivers due to the Health Insurance Portability and Accountability Act (HIPAA). As a result, enforcing caregiver cultivations is challenging on many different levels such as locations of cultivations, number of plants authorized to grow per patient, illegal cultivations in multiple locations for the same set of patients, and detecting gray market illegal sells to adults and minors. 41 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 42 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement Because so many medical marijuana centers opened so quickly, state and local officials found it difficult to regulate them. The Colorado General Assembly had not crafted regula- tions governing licensing fees, inventory tracking requirements, production of marijuana infused products, packaging and labeling requirements, and disposal of waste water produced during the processing of medical marijuana. Figure 1: Tipping Point for Opening Medical Marijuana Centers From June 1, 2001, to December 31, 2008, a total of 5,993 patients applied for a medical mar - ijuana registration card (also known as a red card due to its color, shown in Figure 2). Of those applicants, 4,819 were approved. After the opening of the medical marijuana centers, by December 31, 2009, there were 43,769 applications, of which 41,039 were approved. This is an increase of 751.61% approved registrations in just one year’s time. As of December 1, 2014, there were 116,287 medical marijuana patients registered with the state.c c. Lower-than-projected revenues from recreational marijuana, combined with higher revenues from medical marijuana and a high proportion of out of state recreational marijuana customers provide a strong indication that many have elected to obtain red cards because it is less expensive to purchase medical marijuana because of the higher tax structure on recreational marijuana. d. The number of medical conditions does not add to 100% because patients can have more than one debilitating condition. e. The number of medical conditions does not add to 100% because patients can have more than one debilitating condition. Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 52 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 43 Year Year Nu m b e r o f r e g i s t e r e d p a t i e n t s Nu m b e r o f r e g i s t e r e d p a t i e n t s Figure 2: Example of Colorado Medical Marijuana Patient Registry Card Source: Chief Marc Vasquez 19 Figure 3: Number of Registered Patients and Five Illness Reasons from 2001-2009 d Source: CDPHE Figure 4: Number of Registered Patients and Three Illness Reasons from 2001-2009 e Source: CDPHE Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 44 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement There were no medical marijuana centers before 2009. In that year alone, 250 were opened. As of December 1, 2014, there were 501 state licensed medical marijuana centers with 23 pending applications (see Figure 5 for a map of dispensary locations).22 Figure 5: Colorado Map with Medical Marijuana Dispensary Locations Source: Lt. Ernie Martinez, Director At-Large for the National Narcotics Officers Association Coalition 23 , for illustration purposes LEGISLATION SUPPORTING AMENDMENT 20 IN 2010 AND 2011 The Colorado Legislature in 2010 and 2011 passed a series of bills to address the unantici- pated consequences of Amendment 20. 2010: Legislation Regulating Medical Marijuana Centers During the 2010 legislative session, the issues of medical marijuana centers and the reg- ulation of cultivation and sales of medical marijuana were addressed through two signif- icant bills: House Bill (HB) 10-1284, establishing the medical marijuana code, and Senate Bill (SB) 10-109, establishing the physician-patient relationship. Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 54 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement HB 10-1284: Colorado Medical Marijuana Code Figure 6: Overview of HB 10-1284 Source: Adapted from State of Colorado, Amendment 64 Legislation 27 HB 10-1284, known as the Colorado Medical Marijuana Code, codifies sections §12-43.3- 101 et seq., Colorado Revised Statutes (C.R.S.), and was passed in May 2010 and signed into law on June 2010. This bill established legalized medical marijuana centers and other business-related regulations. Additionally, it designated the Colorado Department of Revenue (DOR) as the state licensing authority as well as local licensing authorities throughout the state. This legislation also established the Medical Marijuana Enforcment Division (MMED) within the Department of Revenue to regulate the cultivation, manufac- ture, distribution and sale of medical marijuana and promote compliance with other laws that prohibit illegal trafficking. It also provided regulations for: UÊi`ˆV>Ê“>ÀˆÕ>˜>ÊLÕȘiÃÃʜܘiÀÃÆÊ UÊœV>Ê}œÛiÀ˜“i˜ÌÆ UÊ*…ÞÈVˆ>˜ÃÆÊ UÊ >Ài}ˆÛiÀÃÊ>˜`Ê«>̈i˜ÌÃÆÊ>˜` UÊ/…iÊ œœÀ>`œÊ i«>À̓i˜ÌʜvÊ*ÕLˆVÊi>Ì…Ê>˜`Ê ˜ÛˆÀœ˜“i˜ÌÊ­ * ®° 45 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 46 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement According to HB 10-1284, an owner interested in opening a medical marijuana business was required to obtain approval first from their local licensing authorities. Once approved, the owner could apply to obtain a state license from the Department of Revenue. The law gave the MMED the authority to establish an application fee structure to cover the state and local licensing authorities’ operating costs. All existing center or manufacturer owners, or owners who had applied to a local gov- ernment for operations by July 2010, were allowed to continue to operate as long as they registered with the Department Revenue and paid their license fee. They also had to certify that they were cultivating at least 70 percent of the marijuana necessary for their operations by September 2010. Provisions were established for local licensing authorities which allowed local government to adopt a resolution or ordinance to license, regulate, or prohibit the cultivation and sale of medical marijuana. This needed to be completed by July 1, 2011. HB 10-1284 also allowed local licensing authorities to establish limitations on marijuana centers such as restricting the number and location of centers. If they did not establish local limitations, the ordinanc - es defaulted to the requirements established in HB 10-1284 which are as follows: UÊ/…iÊVi˜ÌiÀÊV>˜˜œÌÊLiʏœV>Ìi`Ê܈̅ˆ˜Ê£]äääÊviiÌʜvÊ>ÊÃV…œœ° UÊœÕÀÃʜvʜ«iÀ>̈œ˜Ê“ÕÃÌÊv>ÊLiÌÜii˜Ên\ääÊ>°“°Ê̜ÊÇ\ääÊ«°“°Ê˜œÊ“>ÌÌiÀÊ܅ˆV…Ê`>Þ­Ã®Ê of the week. UÊ/…iÊVՏ̈Û>̜Àʓ>ÞÊÃiÊ˜œÊ“œÀiÊ̅>˜ÊÈÝʈ““>ÌÕÀiÊ«>˜ÌÃÊ̜Ê>Ê«>̈i˜ÌÊ>˜`ÊV>˜˜œÌÊ exceed more than half of the recommended plant count to a patient, primary care- giver, another medical marijuana cultivator, or to a marijuana infused products manufacturer. In other words, if patients grow their own medical marijuana, they can purchase up to six immature plants from a medical marijuana center. If a phy- sician has recommended more than six plants, the patient can only receive half of the additional amount of immature plants at one time. So if a patient were allotted 20 plants, he or she could only purchase 10 of those immature plants at one time. UÊ/…iʏ>ÜÊ«Àœ…ˆLˆÌÃÊ«…ÞÈVˆ>˜Ã]ʓˆ˜œÀÃ]Ê>˜`ʏ>ÜÊi˜vœÀVi“i˜Ìʓi“LiÀÃÊvÀœ“Êœ«iÀ - ating a dispensary. It prohibits certain individuals, including felons convicted of possession, distribution or use of a controlled substance, from obtaining medical marijuana center licenses. UʈVi˜ÃiÃÊ>ÀiÊÛ>ˆ`ÊvœÀÊÕ«Ê̜ÊÌܜÊÞi>Àð UÊ6ˆœ>̈œ˜ÃʜvÊ̅iʓi`ˆV>Ê“>ÀˆÕ>˜>ÊVœ`iÊ>ÀiÊV>ÃÃÊÓʓˆÃ`i“i>˜œÀð25 The legislation required that physicians must have a “bona fide” relationship with a patient, keep records of all patients that are certified by the registry, cannot have an economic interest in marijuana centers, and are required to hold a doctor of medicine or doctor of osteopathic medicine degree from an accredited medical school, as well as meet certain educational and professional requirements. It required caregivers to register with CDPHE for each patient they provide services up to five patients at any time. In addition, patients may only have one caregiver. Patients must Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 56 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement obtain registry cards and have them in their possession whenever they possess medical marijuana. CDPHE’s responsibilities include keeping a confidential registry for caregivers and patients and issue medical marijuana registry cards. HB 10-1284 created a vertically integrated, closed-loop commercial medical marijuana regulatory scheme. Cultivating, processing, and manufacturing marijuana as well as retail sales had to be a common enterprise under common ownership.26 The vertical integration model also requires that medical marijuana businesses must cultivate at least 70 percent of the medical marijuana needed for the operation of their business. The remaining 30 percent may be purchased from another licensed medical marijuana center. No more than 500 plants can be cultivated unless the Director of the Medical Marijuana Enforcement Division grants a waiver. If a facility cultivates more mar- ijuana than it needs for its operation, it can sell the excess to other licensed facilities. The vertical integration model also required that medical marijuana businesses must cultivate at least 70 percent of the medical marijuana needed for the operation of their business. The remaining 30 percent may be purchased from another licensed medical marijuana center. For Optional Premises Centers (OPC), no more than 500 plants may be cultivated unless the director of the Medical Marijuana Enforcement Division grants a waiver. If a facility cultivates more marijuana than it needs for its operation, it can sell the excess to other licensed facilities. The legislation established rules for ownership including that the applicant must have been a Colorado resident for two years prior to filing the application. Applicants are fin- gerprinted, and the MMED investigates the qualifications of an applicant or licensee. The MMED checks character references, criminal histories, possible prior rehabilitation and educational achievements.f Article 43.3 also establishes the types of licenses for the cultivation, manufacture, distri- bution and sale of medical marijuana. This article is the foundation for licensing require- ments by the Marijuana Enforcement Division or Medical Marijuana Enforcement Division. A significant provision in HB 10-1284 was the option for cities and counties to allow or prohibit any or all medical marijuana businesses such as medical marijuana centers and production of marijuana infused products. If a local municipality or county wished to exercise this option, it had to be done either by a special election or by a majority of the governing board (i.e., city council or county commissioners). A local governing board had until July 1, 2011, to vote to prohibit medical marijuana centers. There are 64 counties in the state of Colorado. Denver and Broomfield have consolidated their city and county governments. In Figure 3, the counties’ decisions for or against hav- ing medical marijuana centers is shown. Of those counties, 29 of the state’s county board of commissioners voted to ban medical marijuana centers (peach shaded areas). Medical 47 f. If a person has a past felony drug conviction then that person cannot apply for medical marijuana center ownership. For all other felonies, a person can apply for an ownership license five years after the conviction. If someone with a past felony drug convi ction applies for ownership of a retail marijuana store, then they must apply 10 years after all felonies. The Marijuana Enforcement Divi- sion also applies a moral character test when determining status of licensing. Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 48 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement marijuana centers are allowed by 22 counties (purple shaded areas). Voters enacted a ban in eight counties (green shaded areas). Two counties banned new centers but grand- fathered in existing centers. In another two counties (pink and purple striped areas), the boards of county commissioners enacted a partial ban meaning they authorize only spe- cific types of medical marijuana facilities within their jurisdiction, and in one county (grey and purple striped area), voters elected for a partial ban. Figure 7: Medical Marijuana Centers – Regulatory Status Source: Colorado Department of Revenue, Medical Marijuana Enforcement Division The Colorado Medical Marijuana Code was amended in 2011 to provide for an “infused products manufacturing license.” As of December 1, 2014, statewide there were: UÊxä£Ê“i`ˆV>Ê“>ÀˆÕ>˜>ÊVi˜ÌiÀÃÊ­`ˆÃ«i˜Ã>Àˆiî UÊÇәʓi`ˆV>Ê“>ÀˆÕ>˜>ÊVՏ̈Û>̈œ˜Êœ«iÀ>̈œ˜Ã UÊ£{™Ê“i`ˆV>Ê“>ÀˆÕ>˜>ʈ˜vÕÃi`Ê«Àœ`ÕVÌÊv>V̜Àˆià 28 Patients must apply annually for a medical marijuana card. In January 2009, CDPHE reg- istered 41,039 patients and in December 2014, there were 116,180 patients holding medical marijuana cards, resulting in a 183.1% increase in the number of registered marijuana patients.29 As of January 31, 2014, the reported conditions for obtaining a medical marijuana card were: Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 58 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement Uʙ{¯ÊvœÀÊÃiÛiÀiÊ«>ˆ˜ÊLÞÊ£äÎ]™£nÊ«>̈i˜Ìà UʣίÊvœÀʓÕÃViÊë>ÓÃÊLÞÊ£{]ÈÎÓÊ«>̈i˜Ìà UÊ£ä¯ÊvœÀÊÃiÛiÀiʘ>ÕÃi>ÊLÞÊ£ä]™ä{Ê«>̈i˜Ìà UÊίÊvœÀÊV>˜ViÀÊLÞÊÎ]££nÊ«>̈i˜Ìà UÊÓ¯ÊvœÀÊÃiˆâÕÀiÃÊLÞÊÓ]£££Ê«>̈i˜Ìà UÊ£¯ÊvœÀÊ}>ÕVœ“>ÊLÞÊ£]£ÎÎÊ«>̈i˜Ìà UÊ£¯ÊvœÀÊV>V…i݈>ÊLÞÊ£]£ÓÈÊ«>̈i˜Ìà UÊ£¯ÊvœÀÊ6É -ÊLÞÊÈÈnÊ«>̈i˜Ìà 30 SB 10-209: Regulation of the Physician-Patient Relationships for Medical Marijuana Patients SB 10-209 required CDPHE to establish new rules for issuing registry identification cards, documentation for physicians who prescribe medical marijuana, and sanctions for physi - cians who violate the law.31 The law outlines the following requirements for a physician: UÊÕÃÌʅ>ÛiÊ>ÊLœ˜>Êw`iÊ«…ÞÈVˆ>˜‡«>̈i˜ÌÊÀi>̈œ˜Ã…ˆ«Æ UÊÕÃÌÊ«ÀœÛˆ`iÊVœ˜ÃՏÌ>̈œ˜Ê܈̅ʫ>̈i˜ÌÊÀi}>À`ˆ˜}Ê«>̈i˜Ì½ÃÊ`iLˆˆÌ>̈˜}ʓi`ˆV>Ê condition; UÊÕÃÌÊ«ÀœÛˆ`iÊvœœÜ‡Õ«ÊV>ÀiÊ>˜`ÊÌÀi>̓i˜ÌÊÊ̜Ê̅iÊ«>̈i˜ÌÊÊ̜ÊiÃÌ>LˆÃ…ÊivwV>VÞʜvÊ the use of medical marijuana; UÊÕÃÌÊLiʏˆVi˜Ãi`Ê>˜`ʈ˜Ê}œœ`ÊÃÌ>˜`ˆ˜}Ê܈̅Ê̅iÊ œœÀ>`œÊi`ˆV>Ê œ>À`Æ UÊœ`ÃÊ>Ê`œV̜Àʜvʓi`ˆVˆ˜iʜÀÊ`œV̜ÀʜvʜÃÌiœ«>̅ˆVʓi`ˆVˆ˜iÊ`i}ÀiiÊvÀœ“Ê>˜Ê accredited medical school; and UÊ>ÃʘœÌʅ>`ʅˆÃʜÀʅiÀÊ1°-°Ê i«>À̓i˜ÌʜvÊÕÃ̈ViÊvi`iÀ>Ê`ÀÕ}Êi˜vœÀVi“i˜ÌÊ>`“ˆ˜- istration controlled substances registration suspended or revoked at any time. A physician cannot: UÊ"vviÀÊ>Ê`ˆÃVœÕ˜ÌʜÀÊ>˜Þʜ̅iÀÊ̅ˆ˜}ʜvÊÛ>ÕiÊ̜ÊÕÃiÊ>ÃÊ>Ê«>À̈VՏ>ÀÊ«Àˆ“>ÀÞÊV>Ài}ˆÛiÀ]Ê distributor, or other provider of medical marijuana to procure medical marijuana; UÊ ˆ>}˜œÃiÊ>Ê`iLˆˆÌ>̈˜}ÊVœ˜`ˆÌˆœ˜Ê>ÌÊ>ʏœV>̈œ˜Ê܅iÀiʓi`ˆV>Ê“>ÀˆÕ>˜>ʈÃÊ܏`ÆʜÀ UÊœ`Ê>˜ÊiVœ˜œ“ˆVʈ˜ÌiÀiÃÌʈ˜Ê>˜Êi˜ÌiÀ«ÀˆÃiÊ̅>ÌÊ«ÀœÛˆ`iÃʜÀÊ`ˆÃÌÀˆLÕÌiÃʓi`ˆV>Ê marijuana. The legislation established a marijuana review board and will review requests by patients under 21 years of age who are not veterans or military service and are seeking to be placed on the state’s confidential registry for the use of medical marijuana. 49 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 50 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 2011: LEGISLATION REGULATING MEDICAL MARIJUANA CENTERS HB11-1043 established rules for the purpose of cultivation, manufacture or sale of medical marijuana or medical marijuana-infused products. Within the law, it sets forth the powers and duties for MMED in reviewing marijuana industry applications and granting licenses. This bill also requires primary caregivers who cultivate medical marijuana for their pa- tients to register their cultivation location with the MMED. 2012: FEDERAL RESPONSE TO THE COLORADO MEDICAL MARIJUANA LAW U.S. Attorney’s Office Issues Warning Letters and Closes Businesses John Walsh, the United States Attorney for the District of Colorado, issued three waves of letters to medical marijuana businesses who were deemed to be in violation of federal law. On January 12, 2012, 23 letters were issued to medical marijuana centers in Colorado advising them they were within 1,000 feet of schools and gave the businesses 45 days to close down before facing potential civil and criminal action.33 By February 2012, all 23 businesses were shut down. In March 23, 2012, the U.S. Attorney’s Office issued a second wave of warning letters to another 25 medical marijuana centers and by May 8, 2012, they all were closed. The third and last wave of letters were sent on August 3, 2012, to another 10 businesses because they were operating within 1,000 feet of schools; these businesses subsequently closed.34 Medical Marijuana Enforcement Division Budget Shortfalls and Staff Reduction The original Medical Marijuana Code licensing model was a “dual-licensing” model, which required that the local licensing authority issue the local license before the state licensing authority could issue the state license. There was a moratorium in place which would not allow any new applicants to apply for licenses until July 1st of 2011. It was de- cided by the state legislators (with the agreement of the DOR and other stakeholders such as the Colorado Municipal League) to extend the moratorium for another year to July 1, 2012. There were reasons why extending the moratorium made sense at that time such as the tremendous workload the MMED had with limited staff and infrastructure. The MMED was in the process of conducting background investigations (over 4,500 investigations) into the individuals and businesses seeking licenses from the state licensing authority with a limited staff. Also, many local licensing authorities had not adopted rules and had not issued local licenses by this time. It had been anticipated that once the moratorium had been lifted, a new round of applications and licenses would be issued. The MED was to obtain operating revenue from licensing and application fees as required through legislation. However, marijuana industries wanting to start up a business had to seek local Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 60 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement approval first. Local jurisdictions did not approve the applications as quickly as expect- ed, and there was no “second wave” of renewal applications. Because of this delayed approval process, the revenue into MMED was significantly lower than anticipated. The MMED created numerous positions in its first year. The MMED had been approved to hire approximately 55 full time employees (FTEs). During this time frame, the MMED had hired 38 FTEs only to discover they had to significantly reduce their staff due to the lack of income. As a result, many of the FTEs hired were either relocated to other agencies in the Department of Revenue or laid off. The impact of this staff reduction was not having the personnel needed to conduct the regulation oversight of a significant number of medical marijuana centers already in operation. 2012: RECREATIONAL MARIJUANA LEGISLATION PASSES In February 2012, the initiative for the legalization of recreational marijuana was certified as having the more than 86,000 signatures required to be placed as an amendment on the November 2012 ballot, making Colorado the first in the nation to legalize recreational marijuana if passed.35 The ballot measure read: “Shall there be an amendment to the Colorado constitution concerning marijuana, and, in connection therewith, providing for the regulation of marijuana; permitting a person twenty-one years of age or older to consume or possess limited amounts of marijuana; providing for the licensing of cultivation facilities, product manufac- turing facilities, testing facilities, and retail stores; permitting local governments to regulate or prohibit such facilities; requiring the general assembly to enact an excise tax to be levied upon wholesale sales of marijuana; requiring that the first $40 million in revenue raised annually by such tax be credited to the public school capital construction assistance fund; and requiring the general assembly to enact legislation governing the cultivation, processing, and sale of industrial hemp?”36 Voter Turnout The citizens of Colorado passed Amendment 64 on November 6, 2012, adding to the state constitution the legalization of marijuana for personal use.37 With a voter turnout of 69%, the amendment passed with 55% of voters approving (see Figure 4). 51 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 52 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement Figure 8: Map of Counties Passing Amendment 64 Source: Rocky Mountain PBS News Amendment 64: Use and Regulations of Marijuana The law provides for regulation to be similar to that of alcohol regulation. Specifically, only individuals 21 years or older have the ability to: UÊ*œÃÃiÃÃ]ÊÕÃi]Ê`ˆÃ«>Þ]Ê«ÕÀV…>Ãi]ʜÀÊÌÀ>˜Ã«œÀÌʓ>ÀˆÕ>˜>Ê>VViÃÜÀˆiÃʜÀʜ˜iʜ՘ViÊ or less of marijuana; UÊ *œÃÃiÃÃ]Ê}ÀœÜ]Ê«ÀœViÃÃ]ʜÀÊÌÀ>˜Ã«œÀÌʘœÊ“œÀiÊ̅>˜ÊÈÝʓ>ÀˆÕ>˜>Ê«>˜ÌÃ]Ê܈̅Ê̅ÀiiʜÀÊ fewer immature and three mature cannabis plants (i.e., flowering plants) on the prem - ises where the plants are grown. These plants must be in an enclosed, locked space; and cultivation is not conducted openly or publicly, and is not made available for sale; UÊ/À>˜ÃviÀʜ˜iʜ՘ViʜÀʏiÃÃʜvʓ>ÀˆÕ>˜>Ê܈̅œÕÌÊ«>ޓi˜ÌÊ̜Ê>Ê«iÀܘÊ܅œÊˆÃÊÓ£Ê years or older; and UÊÃÈÃÌÊ>˜œÌ…iÀÊ«iÀܘ]ÊÓ£ÊÞi>ÀÃʜÀʜ`iÀ]ʈ˜Ê>˜ÞʜvÊ̅iÊ>LœÛiÊ>VÌð UʏÜ]ÊVœ˜ÃՓ«Ìˆœ˜Êœvʓ>ÀˆÕ>˜>ʈÃÊ«Àœ…ˆLˆÌi`ʈ˜Êœ«i˜Ê>˜`Ê«ÕLˆVÊ>Ài>ÃʜÀʈ˜Ê>ʓ>˜- ner that endangers others. Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 62 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement It makes it lawful for people 21 years or older to: UÊ>˜Õv>VÌÕÀi]Ê«œÃÃiÃÃ]ʜÀÊ«ÕÀV…>Ãiʓ>ÀˆÕ>˜>Ê>VViÃÜÀˆiÃʜÀÊÃiÊ“>ÀˆÕ>˜>Ê>VVià - sories to a person 21 years or older; UÊ*œÃÃiÃÃ]Ê`ˆÃ«>Þ]ʜÀÊÌÀ>˜Ã«œÀÌʓ>ÀˆÕ>˜>ʜÀʓ>ÀˆÕ>˜>Ê«Àœ`ÕVÌÃÆ UÊ*ÕÀV…>Ãiʓ>ÀˆÕ>˜>ʜÀʓ>ÀˆÕ>˜>Ê«Àœ`ÕVÌÃÊvÀœ“Ê>ʓ>ÀˆÕ>˜>ÊVՏ̈Û>̈œ˜Êv>VˆˆÌÞÆ UÊ-iÊ“>ÀˆÕ>˜>ʜÀʓ>ÀˆÕ>˜>Ê«Àœ`ÕVÌÃÊ̜ÊVœ˜ÃՓiÀÃʈvÊ̅iÊ«iÀܘʅ>ÃÊ>ÊVÕÀÀi˜Ì]Ê valid license to operate a retail marijuana store or is acting in his or her capacity as an owner, employee or agent of a licensed marijuana store; UÊ ÕÌˆÛ>Ìi]ʅ>ÀÛiÃÌ]Ê«ÀœViÃÃ]Ê«>VŽ>}i]ÊÌÀ>˜Ã«œÀÌ]Ê`ˆÃ«>Þ]ʜÀÊ«œÃÃiÃÃʓ>ÀˆÕ>˜>Æ UÊ iˆÛiÀʜÀÊÌÀ>˜ÃviÀʓ>ÀˆÕ>˜>Ê̜Ê>ʓ>ÀˆÕ>˜>ÊÌiÃ̈˜}Êv>VˆˆÌÞÆ UÊ-iÊ“>ÀˆÕ>˜>Ê̜Ê>ʓ>ÀˆÕ>˜>ÊVՏ̈Û>̈œ˜Êv>VˆˆÌÞ]Ê>ʓ>ÀˆÕ>˜>Ê«Àœ`ÕVÌʓ>˜Õv>VÌÕÀ - ing facility or a retail marijuana store if the person conducting the activities has obtained a current, valid license to operate a marijuana cultivation facility or is acting in his or her capacity as an owner, employee, or agent of a licensed marijua- na cultivation facility; UÊ*>VŽ>}i]Ê«ÀœViÃÃ]ÊÌÀ>˜Ã«œÀÌ]ʓ>˜Õv>VÌÕÀi]Ê`ˆÃ«>ÞʜÀÊ«œÃÃiÃÃʓ>ÀˆÕ>˜>ʜÀʓ>À - ijuana products, delivery to marijuana testing facility, purchase from a marijuana cultivation facility or manufacturing facility if they are acting as an owner, employ- ee, or agency of a licensed marijuana product manufacturing facility; and UÊi>ÃiʜÀÊ>œÜÊ̅iÊÕÃiʜvÊ«Àœ«iÀÌÞʜܘi`]ʜVVÕ«ˆi`]ʜÀÊVœ˜ÌÀœi`ÊLÞÊ>˜ÞÊ«iÀܘ]Ê corporation or other entity for any of the activities conducted lawfully in accor- dance with the above regulations. Marijuana legalization will be regulated by MED, which had to adopt regulations neces- sary for implementation of recreational marijuana no later than July 1, 2013. Additional requirements include UÊ««ˆV>̈œ˜]ʏˆVi˜Ãˆ˜}]Ê>˜`ÊÀi˜iÜ>ÊviiÃÊÅ>Ê˜œÌÊiÝVii`Êfx]äää]Ê܈̅Ê̅iÊÕ««iÀÊ limits adjusted for inflation; UʈVi˜ÃÕÀiʈÃÊvœÀÊ̅iʜ«iÀ>̈œ˜Êœvʓ>ÀˆÕ>˜>ÊiÃÌ>LˆÃ…“i˜ÌÃÆ UÊ-iVÕÀˆÌÞÊÀiµÕˆÀi“i˜ÌÃÊvœÀʓ>ÀˆÕ>˜>ÊiÃÌ>LˆÃ…“i˜ÌÃÆ UÊ,iµÕˆÀi“i˜ÌÃÊ̜ʫÀiÛi˜ÌÊ̅iÊÃ>iʜÀÊ`ˆÛiÀȜ˜Êœvʓ>ÀˆÕ>˜>Ê>˜`ʓ>ÀˆÕ>˜>Ê«Àœ`ÕVÌÃÊ to individuals under the age of 21; UÊ>LiÊÀiµÕˆÀi“i˜ÌÃÊvœÀʓ>ÀˆÕ>˜>Ê>˜`ʓ>ÀˆÕ>˜>ʈ˜vÕÃi`Ê«Àœ`ÕVÌÃÆ UÊi>Ì…Ê>˜`ÊÃ>viÌÞÊÀi}Տ>̈œ˜ÃÊ>˜`ÊÃÌ>˜`>À`ÃÊvœÀÊ̅iʓ>˜Õv>VÌÕÀiʜvʓ>ÀˆÕ>˜>Ê products and the cultivation of marijuana; UÊ,iÃÌÀˆV̈œ˜Ãʜ˜Ê̅iÊ>`ÛiÀ̈Ș}Ê>˜`Ê`ˆÃ«>Þʜvʓ>ÀˆÕ>˜>Ê>˜`ʓ>ÀˆÕ>˜>Ê«Àœ`ÕVÌÃÆ UÊ ˆÛˆÊ«i˜>ÌˆiÃÊvœÀÊv>ˆÕÀiÊ̜ÊVœ“«ÞÊ܈̅ÊÀi}Տ>̈œ˜ÃÊiÃÌ>LˆÃ…i`ÊLÞÊ ",Æ 53 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 54 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement UÊ/>ÝʏiÛÞʘœÌÊ̜ÊiÝVii`Ê£xÊ«iÀVi˜ÌÊ«ÀˆœÀÊ̜Ê>˜Õ>ÀÞÊ£]ÊÓä£Ç]Ê>ÌÊ܅ˆV…Ê̈“iÊ̅iÊi˜iÀ - al Assembly will determine a rate to apply thereafter; the first $40 million in revenue raised annually from excise tax will be credited to the Public School Capital Con- struction Assistance Fund; and a competitive application process which will con- sider whether the applicant has: – Prior experience producing or distributing marijuana or marijuana products in the locality in which the applicant seeks to operate a marijuana establishment, and – Complied consistently with the Colorado Medical Marijuana Code. Local ordinances or regulations specifying the entity within the locality that is responsible for processing applications submitted for licenses to operate a marijuana establishment within the boundaries of the locality had to be enacted no later than October 1, 2013. Local government could enact ordinances or regulations that are not in conflict with the existing law that determine: UÊ/ˆ“i]Ê«>Vi]ʓ>˜˜iÀÊ>˜`ʘՓLiÀʜvʓ>ÀˆÕ>˜>ÊiÃÌ>LˆÃ…“i˜ÌÃÆÊ UÊ *ÀœVi`ÕÀiÃÊvœÀÊ̅iʈÃÃÕ>˜Vi]ÊÃÕëi˜Ãˆœ˜]Ê>˜`ÊÀiۜV>̈œ˜ÊœvÊ>ʏˆVi˜ÃiʈÃÃÕiÃÊLÞÊ̅iÊ locality; UÊ -V…i`ՏiʜvÊ>˜˜Õ>Êœ«iÀ>̈˜}]ʏˆVi˜Ãˆ˜}]Ê>˜`Ê>««ˆV>̈œ˜ÊviiÃÊv œÀʓ>ÀˆÕ>˜>ÊiÃÌ>LˆÃ…- ments; UÊ ˆÛˆÊ«i˜>ÌˆiÃÊvœÀÊۈœ>̈œ˜ÊœvÊ>˜ÊœÀ`ˆ˜>˜ViʜÀÊÀi}Տ>̈œ˜Ê}œÛiÀ˜“i˜ÌÊ̅iÊ̈“i]Ê place, and manner of marijuana establishment operations; and UÊ "«Ìˆ˜}ʈ˜ÊœÀʜÕÌʜvÊ>œÜˆ˜}ʓ>ÀˆÕ>˜>ÊVՏ̈Û>̈œ˜Êv>VˆˆÌˆiÃ]Ê “>ÀˆÕ>˜>Ê«Àœ`ÕVÌʓ>˜- ufacturing facilities, marijuana testing facilities, or retail marijuana stores through ordinance by the local governing authority (i.e., city council or board of commission - ers) or if through public vote, on a general election ballot during an even numbered year. Local governing authorities can remove or approve marijuana establishments any time or as many times as they deem is in the best interest of their community. An employer is not required to permit or accommodate the use, consumption, possession, transfer, display, transportation sale or growing of marijuana in the workplace. Employers may have policies restricting the use of marijuana by employees. A person, employer, school, hospital, detention facility, corporation or any other entity who occupies, owns, or controls a property may prohibit or regulate the possession, consumption, use, display, transfer, distribution, sale, transportation, or growing of marijuana on or in that property. In addition, the law addresses hemp 40 as follows: Uʘ`ÕÃÌÀˆ>Ê…i“«ÊŜՏ`ÊLiÊÀi}Տ>Ìi`ÊÃi«>À>ÌiÞÊvÀœ“ÊÃÌÀ>ˆ˜ÃʜvÊV>˜˜>LˆÃÊ܈̅ʅˆ}…iÀÊ delta-9-tetrahydrocannabinol (THC) concentrations that do not exceed three-tenths percent on a dry weight basis; and UÊ œÌʏ>ÌiÀÊ̅>˜ÊՏÞÊ£]ÊÓä£{]Ê̅iÊi˜iÀ>ÊÃÃi“LÞÊ܈Êi˜>VÌʏi}ˆÃ>̈œ˜Ê}œÛiÀ˜ˆ˜}Ê the cultivation, processing and sale of industrial hemp.g g. The Industrial Hemp Regulatory Program Act was passed through the Hemp Act of 2014, Title 35 Agriculture, Article 61, Industrial Hemp Regulatory Program, C.R.S. 35-61-109. The Colorado Department of Agriculture is responsible for oversight; rules pertaini ng to the administration and enforcement of this act is established through 8 CCR 1203-23. Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 64 2014: RECREATIONAL MARIJUANA STORES OPEN FOR BUSINESS Recreational marijuana stores opened for business on January 1, 2014. Thirty-seven cities and towns have opted out of allowing recreational marijuana stores (see Figure 5), includ- ing Colorado Springs, the state’s second largest city, and Greeley, the third largest city. Fifteen cities and towns have allowed the recreational sales and cultivation, including Denver, the largest city in Colorado. Six counties have a moratorium on allowing stores, five counties have allowed the existing medical marijuana centers to also sell for recre- ational purposes, and one county allows recreational cultivation only. Figure 9: Locations for Towns and Cities Opting out of Recreational Retail Stores Source: Colorado Department of Revenue, Marijuana Enforcement Division 41 As of December 2014, there are: UÊÎääÊi`ˆV>Ê>ÀˆÕ>˜>Ê i˜ÌiÀÃʈ˜Ê i˜ÛiÀ UÊ{™ÈÊi`ˆV>Ê>ÀˆÕ>˜>Ê i˜ÌiÀÃÊÃÌ>Ìi܈`i UÊÓ£ÓÊÀiÌ>ˆÊÃ̜Àià UÊÓǙÊVՏ̈Û>̈œ˜Êœ«iÀ>̈œ˜Ã UÊÈÎʈ˜vÕÃi`Ê«Àœ`ÕVÌÊv>V̜Àˆià UÊnʏ>LœÀ>̜ÀÞÊÌiÃ̈˜}Êv>VˆˆÌˆià 42 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 55 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 56 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement BANKING CHALLENGES FOR COLORADO MARIJUANA INDUSTRY The Cole Memorandum on Marijuana Related Financial Crimes As medical marijuana centers began making money, opening a bank account was not possible since banks, which are federally regulated, cannot receive funds obtained ille- gally under federal law. According to law enforcement officials in the Police Foundation focus groups, these business owners pay for everything in cash and have to store their revenue in their own safes. This has posed a safety risk for the owner, employees, and patrons who are at risk of being robbed either at the business, in the parking lot, or while being followed to another location. In response to the banking problem, Deputy U.S. Attorney General James M. Cole re- leased a memorandum on February 14, 2014, titled “Guidance Regarding Marijuana Re- lated Financial Crimes.” Besides reiterating the enforcement of the Controlled Substance Act, Cole outlined the expectations of the Department of Treasury’s Financial Crimes Enforcement Network (FinCEN) for financial institutions providing services to marijua- na-related businesses.43 Cole’s memo reiterated the eight federal priorities in enforcing the Controlled Substance Act Enforcement: UÊ ˆÃÌÀˆLṎœ˜Êœvʓ>ÀˆÕ>˜>Ê̜ʓˆ˜œÀÃÆ UÊ,iÛi˜ÕiÊvÀœ“Ê̅iÊÃ>iʜvʓ>ÀˆÕ>˜>ÊvÀœ“Ê}œˆ˜}Ê̜ÊVÀˆ“ˆ˜>Êi˜ÌiÀ«ÀˆÃiÃ]Ê}>˜}Ã]Ê>˜`Ê cartels; UÊ ˆÛiÀȜ˜Êœvʓ>ÀˆÕ>˜>ÊvÀœ“ÊÃÌ>ÌiÃÊ܅iÀiʈÌʈÃʏi}>Ê՘`iÀÊÃÌ>Ìiʏ>ÜÊʈ˜ÊܓiÊvœÀ“ÊÌœÊ other states; UÊ-Ì>Ìi‡>Õ̅œÀˆâi`ʓ>ÀˆÕ>˜>Ê>V̈ۈÌÞÊvÀœ“ÊLiˆ˜}ÊÕÃi`Ê>ÃÊ>ÊVœÛiÀʜÀÊÊ«ÀiÌiÝÌÊvœÀÊ̅iÊ trafficking of other illegal drugs or other illegal activity; UÊ6ˆœi˜ViÊ>˜`Ê̅iÊÕÃiʜvÊwÀi>À“Ãʈ˜Ê̅iÊVՏ̈Û>̈œ˜Ê>˜`Ê`ˆÃÌÀˆLṎœ˜Êœvʓ>ÀˆÕ>˜>ÆÊ UÊ ÀÕ}}i`Ê`ÀˆÛˆ˜}Ê>˜`Ê̅iÊiÝ>ViÀL>̈œ˜Êœvʜ̅iÀÊ>`ÛiÀÃiÊ«ÕLˆVʅi>Ì…ÊVœ˜ÃiµÕi˜ViÃÊ associates with marijuana use; UÊÀœÜˆ˜}ʜvʓ>ÀˆÕ>˜>ʜ˜Ê«ÕLˆVʏ>˜`ÃÊ>˜`Ê̅iÊ>ÌÌi˜`>˜ÌÊ«ÕLˆVÊÊÃ>viÌÞÊ>˜`Êi˜ÛˆÀœ˜- mental dangers posed by marijuana production on public lands; and UÊ>ÀˆÕ>˜>Ê«œÃÃiÃȜ˜ÊœÀÊÕÃiʜ˜Êvi`iÀ>Ê«Àœ«iÀÌÞ°Ê Cole further summarized statutes for prosecuting financial institutions that accept money from the marijuana industry, specifically related to: UÊœ˜iÞʏ>՘`iÀˆ˜}ÊÃÌ>ÌÕÌiÃÊ­£nÊ1°-° °ÊÅÅÊ£™xÈÊ>˜`Ê£™xÇ®]ʓ>Žˆ˜}ʈÌÊ՘>ÜvՏÊ̜Êi˜- gage in financial and monetary transactions with the proceeds from, among other things, marijuana-related violations of the Controlled Substance Act. UÊ1˜ˆVi˜Ãi`ʓœ˜iÞÊÌÀ>˜Ã“ˆÌÌiÀÊÃÌ>ÌÕÌiÊ­£nÊ1°-° °ÊÅÊ£™Èä®]Ê܅ˆV…Ê“>ŽiÃʈÌʈi}>ÊÌœÊ engage in any transactions by or through a money transmitting business involving funds “derived from” marijuana-related conduct Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 66 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement UÊ,iVœÀ`ʎii«ˆ˜}ʈ˜Ê>VVœÀ`>˜ViÊ̜Ê̅iÊ ÕȘiÃÃÊ-iVÀiVÞÊVÌʜvÊ£™ÇäÊÜÊ̅iÊ1°-°Ê}œÛ - ernment can detect and prevent money laundering, tax evasion, or other criminal activities.44 The U.S. Department of the Treasury Financial Crimes Enforcement Network (FinCEN) released, on the same day as the Cole memo, their expectations regarding marijuana-re- lated business.45 The Four Models for Regulating Medical and Recreational Marijuana As a result of the passages of Amendments 20 and 64, four types of marijuana regulation and oversight models emerged (see Figure 6). Having different models and regulatory agencies providing oversight has created challenges. The first model began with the pas- sage of Amendment 20: the caregiver/patient model for medical marijuana. The first model began with the passage of Amendment 20: the caregiver/patient model for medical marijuana. W. Lewis Koski, Director of the Marijuana Enforcement Division, wrote that “the affirmative defense (in Amendment 20) was narrowly tailored to patients who were suffering from debilitating medical conditions provided they could prove that a doctor was recommending the use of cannabis to help treat the condition (Colorado Constitution, Art. XVII, § 14)….This model was not intended to take on the tone of a com- mercial market and it was my understanding that the fear of federal intervention kept most of the caregivers operating underground. Since this was relatively unique public policy at the time, it stands to reason that cultivators/caregivers were unwilling to come from out of the shadows and make themselves known to law enforcement since after all, the cultivat- ing, manufacturing, distribution and possession of any marijuana was still criminal under federal law (Controlled Substances Act). It remains so today.”46 With the proliferation of medical marijuana centers, the second model, Medical Commer- cial, was established for licensing and regulating the medical marijuana industry. When Amendment 64 was passed, the recreational models were established. The Medical and Recreational Commercial models are regulated by the MED and systems are in place for monitoring the commercial industry. The regulation by local law enforcement of the Caregiver/Patient and the Recreation - al Home Grows models is more challenging. Local law enforcement agencies are not authorized to randomly perform home checks. They are bound by the law and cannot investigate a home grow unless a complaint has been filed or if the officer has some probable cause and the resident willingly allows the officer to enter the home. There is nothing that would allow or prohibit local law enforcement to conduct “knock & talks” at a caregiver location, but they would need to establish probable cause to execute a crim - inal search if they believe crimes are being committed. Some municipalities are enacting ordinances which prohibit noxious odors and the number of plants allowed to be grown residentially, and local law enforcement can use those ordinances to address neighbor - hood complaints.47 57 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 58 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement Figure 10: Four Models Created through Amendments 20 and 64 Source: Adapted from Chief Marc Vasquez 48 Medical Commercial – Licensing for businesses, owners and employees – Licensed by Department of Revenue, Marijuana Enforcement Division – Regulatory authority: Marijuana Enforcement Division Caregiver/Patient – Caregivers who can grow for up to 5 patients and themselves – Routinely see large grows – Patients are licensed by Colorado Department of Public Health and Environment – Caregiver regulatory authority: Colorado Department of Health and Environment and local law enforcement Recreational Commercial – Licensing for businesses, owners and employees – Licensed by Department of Revenue, Marijuana Enforcement Division – Regulatory authority: Marijuana Enforcement Division Recreational Home Grows – Anyone 21 years of age or older can grow up to 6 plants – No licensing required – Regulatory authority: local law enforcement Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 68 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement ENDNOTES FOR APPENDIX 1 1 Comprehensive Drug Abuse Prevention and Control Act § Statute 84 (1970) 2 Note: According to the Controlled Substances Act of 1970, a Schedule I controlled substance is defined as, (A) The drug or other substance has a high potential for abuse; (B) The drug or other substances has no currently accepted medical use in treatment in the United States; and (C) There is a lack of accepted safety for use of the drug or other substance under medical supervision. 3 A Guide to Drug-Related State Ballot Initiatives. (n.d.). Colorado Amendment 20 . Retrieved January 1, 2015 from http://www.nationalfamilies.org/guide/colorado20.html; Vasquez, Marc, “Marijuana in Colorado,” PowerPoint presentation to Metro State University, October 2014. 4 “Medical Marijuana Registry Program Update (as of December 31, 2008),” Colorado Department of Public Health and Environment. 5 “Medical Marijuana Registry Program Update (as of December 31, 2009), Colorado Department of Public Health and Environment. 6 Denver Marijuana Initiative Winning Again: Question 100 Makes Pot Enforcement Low Priority. (2007, November 7). The Denver Channel . Retreived from http://www.thedenverchannel.com 7 Colorado Ski Town Votes to Legalize Marijuana. (2009, November 4). NBC NEWS . Retrieved from www.nbcnews.com 8 People v. Clendenin, No. 08CA0624, Col App 2009.; Colorado appeals court: “Caregiver” must do more than grow pot. (2009,October 29). The Denver Post . Retrieved from www.denverpost.com 9 People v. Clendenin, No. 08CA0624, Col App 2009. 10 The Open Meetings Act, C.R.S. § 24-6-402 http://www.rcfp.org/colorado-open-government- guide/i-statute-basic-application/d-what-constitutes-meeting-subject-law/2-. 11 The Colorado State Administrative Procedures Act, C.R.S. § 24-4-101 et seq. http://www.sos. state.co.us/pubs/info_center/laws/Title24Article4.html#24-4-103 12 People v. Clendenin, No. 08CA0624, Col App 2009. 13 People v. Clendenin, No. 08CA0624, Col App 2009. 14 Ingold, J. (2009, November 10). Judge Tosses Out Health Board Decision on Medical Pot. The Denver Post . Retrieved from www.denverpost.com 15 Rocky Mountain High Intensity Drug Trafficking Area. (2014, August). The legalization of marijuana in Colorado: The Impact. Retrieved from www.rmhidta.org . 16 Eric Holder Says DOJ will let Washington, Colorado Marijuana Laws Go into Effect. (2013, August 29). Huffington Post . Retrieved from http://www.huffingtonpost.com 17 Ogden, D.W. (2009). Investigations and prosecutions in States authorizing the medical use of marijuana [Memorandum] Washington, DC: Department of Justice. 59 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 60 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 18 Ogden, D.W. (2009). Investigations and prosecutions in States authorizing the medical use of marijuana [Memorandum] Washington, DC: Department of Justice. 19 Chief Marc Vasquez, Chief of Police, Erie, CO. 20 Colorado Department of Health and Environment, Medical Marijuana Registry Program Update reports for 2001, 2003, 2004, 2005, 2006, 2007, 2008 and 2009, https://www.colorado.gov/. 21 Ibid., https://www.colorado.gov/. 22 Department of Revenue, Marijuana Enforcement Division. 23 Map created by Lt. Ernie Martinez, Director-At-Large for the National Narcotic Officers’ Associations’ Coalition. 24 Regulation of Medical Marijuana Act § 10-0773.02. 25 Kelty, K. (2010, August 11). Colorado’s Medical Marijuana Law. Colorado Legislative Council Staff, Issue Brief retrieved from http://www. colorado.gov/cs/Satellite?blobcol=urldata&blobheader=application/ pdf&blobkey=id&blobtable=MungoBlobs&blobwhere=1251649691480&ssbinary=true 26 Finlaw, J., & Brohl, B. (2003, March). Task Force Report on the Implementation of Amendment 64. Retrieved from http://www.colorado.gov/ 27 Finlaw, J., & Brohl, B. (2003, March). Task Force Report on the Implementation of Amendment 64. Retrieved from http://www.colorado.gov/ 28 Rocky Mountain High Intensity Drug Trafficking Area. (2014, August). The legalization of marijuana in Colorado: The Impact. Retrieved from www.rmhidta.org. 29 Rocky Mountain High Intensity Drug Trafficking Area. (2014, August). The legalization of marijuana in Colorado: The Impact. Retrieved from www.rmhidta.org. 30 Light, M.K., Orens, A., Lewandowski, B., & Pickton, T. (2014). Market size and demand for marijuana in Colorado: Prepared for the Colorado Department of Revenue. The Marijuana Policy Group. Retrieved from https://www.colorado.gov/ 31 State of Colorado, Senate Bill 10-209 32 State of Colorado, House Bill 11-1043 33 Marc Vasquez, Chief of Police, Erie, CO, PowerPoint presentation at Metro State College, October 2014; 25 Colorado Medical Marijuana Dispensaries Close after Warning. (2012, May 9). The Denver Post. Retrieved from www.denverpost.com 34 U.S. Department of Justice, Drug Enforcement Administration. (2011, September 25). Third Wave of Warning Letters Results in Closure of all 10 Targeted Marijuana Dispensaries within 1,00 Feet of a School. Retrieved from http://www.dea.gov/divisions/den/2012/den092512.shtml. Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 70 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 35 Ingold, J. (2012, February 27). Initiative to Legalize Marijuana Makes Ballot in Colorado. The Denver Post . Retrieved from www.denverpost.com 36 “Amendment 64: Use and Regulation of Marijuana,” Legislation State of Colorado, accessed November 3, 2014, http://www.leg.state.co.us/LCS/Initiative%20Referendum/1112initrefr. nsf/c63bddd6b9678de787257799006bd391/cfa3bae60c8b4949872579c7006fa7ee/$FILE/ Amendment%2064%20-%20Use%20&%20Regulation%20of%20Marijuana.pdf. 37 State of Colorado, http://www.leg.state.co.us/LCS/Initiative%20Referendum/1112initrefr. nsf/c63bddd6b9678de787257799006bd391/cfa3bae60c8b4949872579c7006fa7ee/$FILE/ Amendment%2064%20-%20Use%20&%20Regulation%20of%20Marijuana.pdf 38 Vaughan, K. & Hubbard, B. (2012, November 7). Election 2012: Colorado Counties, Presidential, Marijuana Results. PBS News. Retrieved from http://inewsnetwork.org/2012/11/07/election-2012- colorado-counties-presidential-medical-marijuana-results/#files. 39 Colorado Department of Agriculture. (n.d.). Industrial Hemp . Retrieved from http://www.colorado. gov/cs/Satellite/ag_Plants/CBON/1251644613180 40 Colorado Department of Agriculture. (n.d.). Industrial Hemp . Retrieved from http://www. colorado.gov/cs/Satellite/ag_Plants/CBON/1251644613180 41 Colorado Department of Revenue, Medical Marijuana Enforcement Division. 42 Rocky Mountain High Intensity Drug Trafficking Area. (2014, August). The legalization of marijuana in Colorado: The Impact. Retrieved from www.rmhidta.org. 43 Cole, J.M. (2013, August 29). Guidance regarding marijuana enforcement [Memorandum], Washington, DC: U.S. Department of Justice. 44 “Financial Crimes Enforcement Network (FinCEN’s) Mandate from Congress,” 31.U.S.C. 310, accessed October 29, 2014, http://www.fincen.gov/statutes_regs/bsa/. 45 Department of Treasury Financial Crimes Enforcement Network. (2014, February 14). BSA expectations regarding marijuana-related businesses. Retrieved from http://www.fincen.gov/ statutes_regs/guidance/pdf/FIN-2014-G001.pdf 46 Koski, W. Lewis, 2014, excerpt from doctorial research for Walden University. 47 Vasquez, Marco, Interview December 3, 2014. 61 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 62 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement This glossary contains terms frequently used in the discussion of the new medical marijuana and recreational marijuana laws approved by Colorado voters in Amendment 20 and Amendment 64. It also includes a number of terms frequently used by and about Colorado law enforcement and their involvement in the new legal marijuana laws. The intent of this glossary is to assist the reader with terms used in this report that may not be familiar to those outside of the field. These terms are frequently used in the marijuana industry and law enforcement when discussing marijuana. Amendment 20 – Colorado voters passed “Medical Use of Marijuana 2000,”allowing persons suffering from debilitating medical conditions to legally grow and use marijuana under strict registry guidelines. This amended Article XVIII of the Colorado Constitution. Amendment 64 – Citizens of Colorado passed the “Use and Regulation of Marijuana” amendment in 2013, allowing the recreational use of marijuana and licensing for cultivation facilities, product manufacturing facilities, testing facilities, and retail stores. This amended Article XVIII of the Colorado Constitution. Black Market – The sale or illegal trade of consumer goods that are scarce or heavily taxed. Black market marijuana is considered controlled by criminals and drug cartels. http://www.businessdictionary.com/definition/black-market.html Caregiver – A person managing the well being of a patient with a debilitating health condition. This person cannot only deliver medical marijuana or marijuana paraphernalia, but must also provide other patient care (i.e., transportation, housekeeping, meal preparation, shopping, and arranging access to medical care). The person providing care must be 18 years of age or older; cannot be the patient or the patient’s physician; and cannot have a primary caregiver of their own. https://www.colorado.gov/pacific/cdphe/ medical-marijuana-caregiver-eligibility-and-responsibilities Colorado Department of Public Health and Environment (CDPHE) – Legislative appointed agency that registers medical marijuana patients and caregivers. Concentrates – Extracted from marijuana, it usually has higher levels of THC through a chemical solvent process (most widely using butane). Depending upon what is done during the extraction process, it can produce different forms of the THC product, such as oil, wax, and shatter. These concentrates are used in marijuana-infused products, such as food and drink products. These concentrates can also be smoked, dabbed, or used in oils or tinctures. Diversion – Is delivering, distributing, or dispensing of a drug illegally. http://www. deadiversion.usdoj.gov Drug Cartel – A criminal organization involved in drug trafficking operations. APPENDIX 2: GLOSSARY OF TERMS Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 72 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement Edibles – Marijuana infused products in the forms of food or drinks, such as butter, pizza, snacks, candies, soda pop, and cakes. Extraction Processes – The distillation process to extract THC resin from the marijuana plant using a liquid-to-liquid process through water or chemical solvents. Chemical solvents are more popular for extractions (i.e., butane, hexane, isopropyl alcohol, or methanol) because a higher chemical extraction of THC can be obtained. Chemical extraction processes are more dangerous if not done in a professional and controlled environment because gas fumes from the process can ignite on fire and explode. Gray Market – A market of semi-legal marijuana produced by caregivers and anybody over 21 who grows their own marijuana. The marijuana in the gray may be legal or grown in legal operations, but its sale circumvents authorized channels of distribution. Hashish and Hash Oil – To obtain higher levels of THC, the flower from the Cannabis sativa is concentrated through distraction processes, which results in a resin called hashish or a sticky, black liquid called hash oil. Bubble hash is produced through a water process. Industry-related Crime – Offenses directly related to licensed marijuana facilities. Marijuana – This is the dried leaves, flowers, stems, and seeds from the cannabis plant. It is usually smoked in hand-rolled cigarettes (also called joints) or in pipes or water pipes (also known a bongs). It can also be mixed in food. When smoked or ingested, it alters perceptions and mood; impairs coordination; and creates difficulty with thinking and problem solving and disrupts learning and memory. http://www.drugabuse.gov/ publications/drugfacts/marijuana). Long-term use can contribute to respiratory infection, impaired memory, and exposure to cancer-causing compounds (http://www.samhsa.gov/ disorders/substance-use). Marijuana Cultivations – This is the propagation of cannabis plants beginning with cuttings from other cannabis plants or from seed. In Colorado, all plants must be started from cuttings. Marijuana Infused Products – Foods, oils, and tinctures containing THC available for consumer purchase. Marijuana Product Manufacturers – A licensed business through the Department of Revenue, Medical Marijuana Division, that produces and sells concentrates, topicals (e.g., massage oils and lip balms), and edibles (e.g., cakes, cookies, candies, butters, meals, and beverages). Medical Marijuana – The use of cannabis for the purposes of helping to alleviate symptoms of those persons suffering from chronic and debilitating medical conditions. Medical Marijuana Center (Centers) and Medical Marijuana Dispensaries (Dispensaries) – The reference to medical marijuana businesses that sell to registered patients has interchangeably been called ‘medical marijuana dispensaries ’ and ‘medical marijuana centers .’ Dispensaries connote a doctor’s prescription to receive medication. 63 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 64 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement Colorado doctors do not prescribe medical marijuana, they simply make a certification that recommends the number of plants a patient needs. Since a prescription is associated with dispensaries, the reference to medical marijuana businesses as centers has become the preferable terminology. The medical marijuana businesses are the “center” of a financial transaction between patient and the grow facility. Medical Marijuana Conditions – A person wanting to register for a medical marijuana card must have one of the following debilitating or chronic conditions: cancer, glaucoma, HIV or AIDS Positive, Cachexia (also known as wasting syndrome in which weight loss, muscle atrophy, fatigue, weakness and significant loss of appetite), persistent muscle spasms, seizures, severe nausea, and severe pain. https://www.colorado.gov/pacific/ sites/default/files/CHEIS_MMJ_Debilitating-Medical-Conditions.pdf Medical Marijuana Division (MED) – Located in the Colorado Department of Revenue, the MED licenses and regulates medical and retail marijuana industries. The MED implements legislation, develops rules, conducts background investigations, issues business licenses and enforces compliance mandates. https://www.colorado.gov/enforcement/ marijuanaenforcement Non-industry Crime – Marijuana taken during the commission of a crime that did not involve a licensed marijuana facility Patient Medical Marijuana Registration Card – After a patient’s application is submitted, reviewed, and approved by the Colorado Department of Public Health and Environment, the patient receives a red license card to be presented to registered Medical Marijuana Centers for purchasing marijuana. The patient must renew annually to remain with the registry. https://www.colorado.gov/pacific/cdphe/renew-your-medical-marijuana- registration-card Physician’s Recommendation – Physicians must qualify to write patient recommendations for medical marijuana. These qualifications include having a bona fide physician-patient relationship and a good standing with the medical licensing board. Physicians must certify annually with the Colorado Department of Public and Health Environment in order to assist people wanting to receive medical marijuana. Physicians do not prescribe marijuana, but rather provide a marijuana plant count recommendation for the patient based on the severity of the patient’s condition. A physician is not limited in the number of plants recommended in a year for a patient. If a physician does not select a marijuana plant count option, then the patient will receive the standard 6-plants/2 ounces of useable marijuana as defined through legislation. https://www.colorado.gov/pacific/sites/default/ files/Medical-Marijuana-Registry_Physician-Newsletter_Mar2012.pdf Probable Cause – A reasonable and factual basis for believing a crime has been committed in order to make an arrest, conduct a search, or obtain a warrant. Recreational marijuana – The use of cannabis as a pastime to alter a person’s state of consciousness. Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 74 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement Red Card – This is slang for a patient medical marijuana registration card because the license color is red. Registered Medical Marijuana Patient – Someone who has gone through the approval process and obtains a licensed medical marijuana patient card from the Colorado Department of Public Health and Environment. Retail marijuana stores – Licensed stores that can sell marijuana, paraphernalia, and marijuana infused-products. Seed-to-sale – The tracking process for medical marijuana from either the seed or immature plant stage until the medical marijuana or medical infused-product is sold to a customer at a medical marijuana center or is destroyed. This tracking system is used by the Department of Revenue, Marijuana Enforcement Division, to monitor licensed marijuana businesses inventory. https://www.colorado.gov/pacific/sites/ default/files/Retail%20Marijuana%20Rules,%20Adopted%20090913,%20Effective%20 101513%5B1%5D_0.pdf Schedule I Controlled Substances – These drugs, substances or chemicals are not currently accepted for medical use and have a high potential for drug abuse as defined in the Substance Control Act of 1970. These are the most dangerous drugs that can potentially cause severe psychological or physical dependency. Drugs in this category include: heroin, LSD, marijuana, ecstasy, methaqualone, and peyote. http://www.dea.gov/ druginfo/ds.shtml Substance Control Act of 1970 – This law regulates the manufacturing and distribution of narcotics, stimulants, depressants, hallucinogens, anabolic steroids, and illicit production of controlled substances. These drugs are placed within one of the five schedules based on medicinal value, harmfulness, and potential for abuse or addiction. THC (Tetrahydrocannabinol) – THC is the mind-altering chemical found in the Cannabis sativa plant (which is one species of the hemp), specifically in the leaves, flowers, stems, and seeds. Vape Pens – A battery operated heating element that vaporizes liquid marijuana oils. 65 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 66 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement APPENDIX 3: COLORADO ASSOCIATION OF CHIEFS OF POLICE MARIJUANA POSITION PAPER Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 76 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 67 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 68 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 78 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 69 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 70 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement Marijuana remains a Schedule I controlled substance and is an illegal drug under the Federal Controlled Substance Act. Federal officials have made it clear on numerous occasions that federal law enforcement will continue to enforce the law when activities involving marijuana amount to a violation of federal statutes. However, the U.S. Department of Justice has since 2009 set out parameters under which the federal law may be enforced within states, and has otherwise allowed states to enforce their own laws regarding medical marijuana, and now in Colorado, recreational use of marijuana. The guidance regarding federal enforcement was first laid out in a 2009 memo from Deputy Attorney General David W. Ogden to federal prosecutors, attached below. Following this guidance, federal law enforcement in 2012 informed a total of 58 marijuana businesses in Colorado that they were in violation of the conditions the federal government has laid out under which it would consider a marijuana operation illegal. All of these businesses agreed to close without prosecution. This guidance policy was reinforced by a second memo issued in 2014 by Deputy Attorney General James M. Cole, also attached below. This memo expanded the guidelines to inform financial institutions of how federal money laundering laws will be enforced with regards to accounts for marijuana businesses that are deemed legal at the state level. This latter guidance was supported by a memo (also attached) from the Financial Crimes Enforcement Network of the U.S. Department of Treasury, also clarifying the laws on money laundering with regard to marijuana businesses deemed legal under state laws. Federal policy continues to evolve as more states allow some form of legal marijuana. The U.S. Congress, in the 2015 Appropriations omnibus funding bill, approved language barring any federal agency from using funds to enforce laws against medical marijuana operations deemed legal under state laws; however, this provision will expire at the end of the fiscal year on September 30, 2015. APPENDIX 4: FEDERAL GUIDANCE MEMOS ON STATE MARIJUANA LEGALIZATION LAWS Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 80 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 71 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 72 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 82 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 73 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 74 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 84 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 75 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 76 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 86 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 77 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 78 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 88 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 79 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 80 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 90 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 81 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 82 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 92 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement 83 Colorado’s Legalization of Marijuana and the Impact of Public Safety: A Practical Guide for Law Enforcement 84 Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement Police Foundation 1201 Connecticut Avenue N.W. Washington, DC 20036 (202) 833-1460 Attachment G The  Legalization  of  Marijuana  in  Colorado:  The  Impact  Vol. 4/September  2016                                                                 P REPARED  BY :  R OCKY  M OUNTAIN  HIDTA   I NVESTIGATIVE  S UPPORT  C ENTER   S TRATEGIC  I NTELLIGENCE  U NIT     I NTELLIGENCE  A NALYST  K EVIN  W ONG   I NTELLIGENCE  A NALYST  C HELSEY  C LARKE   I NTELLIGENCE  A NALYST  T. G RADY  H ARLOW       The  Legalization  of  Marijuana  in  Colorado:  The  Impact  Vol. 4/September  2016   Table  of  Contents  i   Table of Contents     Acknowledgements     Executive  Summary  ............................................................................................ 1   Purpose  ..................................................................................................................................1   State  of  Washington  Data  ...................................................................................................5     Introduction  .......................................................................................................... 7   Purpose  ..................................................................................................................................7   The  Debate  ............................................................................................................................7   Background  ...........................................................................................................................8   Preface  ....................................................................................................................................8   Colorado’s  History  with  Marijuana  Legalization  ...........................................................9   Medical  Marijuana  2000 ‐2008  .................................................................................................... 9   Medical  Marijuana  Commercialization  and  Expansion  2009 ‐Present  ................................. 9   Recreational  Marijuana  2013 ‐Present  ...................................................................................... 11     SECTION  1:  Impaired  Driving  ...................................................................... 13   Definitions  by  Rocky  Mountain  HIDTA  ........................................................................13   Some  Findings  ....................................................................................................................13   Data  for  Traffic  Deaths  ......................................................................................................14   Total  Number  of  Statewide  Traffic  Deaths  ........................................................................... 15   Traffic  Deaths  Related  to  Marijuana  ...................................................................................... 16   Operators  Testing  Positive  for  Marijuana  Involved  in  Fatal  Crashes  .............................. 18   Number  of  Drivers  Involved  in  Fatal  Crashes  Who  Tested  Positive  for  Marijuana  ...... 22   Data  for  Impaired  Driving  ................................................................................................22   Number  of  Positive  Cannabinoid  Screens  ............................................................................ 23   ChemaTox  and  Colorado  Department  of  Public  Health  and  Environment  Data   Combined  (2009 ‐2013) ...................................................................................................... 24   ChemaTox  Data  Only  (2013 ‐May2016) ................................................................................. 24   Colorado  State  Patrol  Number  of  DUIDs, 2014  and  2015  .................................................. 25   Denver  Police  Department  Number  of  DUIDs  Involving  Marijuana  .............................. 26   Larimer  County  Sheriff’s  Office  Percent  of  DUIDs  Involving  Marijuana  ........................ 26   Total  Number  of  Accidents  in  Colorado  .............................................................................. 27   Related  Costs  ......................................................................................................................27   Some  Information  from  Washington  State  .....................................................................28   The  Legalization  of  Marijuana  in  Colorado:  The  Impact  Vol. 4/September  2016   Table  of  Contents  ii   Case  Examples  and  Related  Material  ..............................................................................28   Sources  .................................................................................................................................34     SECTION  2:  Youth  Marijuana  Use  ............................................................... 37   Some  Findings  ....................................................................................................................37   Data  ......................................................................................................................................38   Youth  Ages  12  to  17  Years  Old  ............................................................................................... 38   Past  Month  Marijuana  Use  Youth  Ages  12  to  17  Years  Old  ........................................ 38   States  for  Past  Month  Marijuana  Use  Youth  Ages  12  to  17  Years  Old, 2013/2014  ... 41   All  Drug  Violations, 2015 ‐2016  School  Year  .................................................................. 42   Impact  on  School  Violation  Numbers  ............................................................................ 42   Drug ‐Related  Suspensions/Expulsions  .......................................................................... 43   Percent  of  Total  Suspensions  in  Colorado  ..................................................................... 43   Percent  of  Total  Expulsions  in  Colorado  ........................................................................ 44   Percent  of  Total  Referrals  to  Law  Enforcement  in  Colorado  ....................................... 44   Colorado  Probation  Percent  of  All  Urinalysis  Tests  Positive  for  Marijuana   Youth  Ages  10  to  17  Years  Old  .................................................................................. 45   Colorado  High  School  Dropout  Rates  ............................................................................ 45   Colorado  School  Resource  Officer  Survey  .....................................................................46   Predominant  Marijuana  Violations, 2016  ............................................................................. 46   Student  Marijuana  Source, 2016  ............................................................................................. 47   Some  Comments  from  School  Resource  Officers  ................................................................ 47   School  Counselor  Survey  ..................................................................................................50   Predominant  Marijuana  Violations, 2015  ............................................................................. 50   Student  Marijuana  Source, 2015  ............................................................................................. 51   Some  Comments  from  School  Counselors  ........................................................................... 51   Youth  Use  Surveys  Not  Utilized  and  Why  ....................................................................54   Healthy  Kids  Colorado  Survey  (HKCS) ............................................................................... 54   Centers  for  Disease  Control  Youth  Risk  Behavior  Survey  (YRBS).................................... 56   2015  YRBS  Participation  Map  .......................................................................................... 56   Monitoring  the  Future  (MTF) Study  ..................................................................................... 56   Related  Material  .................................................................................................................57   Sources  .................................................................................................................................61     SECTION  3:  Adult  Marijuana  Use  ............................................................... 63   Some  Findings  ....................................................................................................................63   Data  ......................................................................................................................................64   College  Age  18  to  25  Years  Old  .............................................................................................. 64   Past  Month  Marijuana  Use  College  Age  18  to  25  Years  Old  ....................................... 64   States  for  Past  Month  Marijuana  Use  College  Age  18  to  25  Years  Old, 2013/2014  ... 67   Adults  Age  26+ Years  Old  ....................................................................................................... 68   The  Legalization  of  Marijuana  in  Colorado:  The  Impact  Vol. 4/September  2016   Table  of  Contents  iii   Past  Month  Marijuana  Use  Adults  Age  26+ Years  Old  ................................................ 68   States  for  Past  Month  Marijuana  Use  Adults  Ages  26+ Years  Old, 2013/2014  .......... 71   Colorado  Adult  Marijuana  Use  Demographics  ................................................................... 72   Related  Material  .................................................................................................................72   Sources  .................................................................................................................................75     SECTION  4:  Emergency  Department  and  Hospital  Marijuana ‐Related   Admissions  ................................................................................ 77   Some  Findings  ....................................................................................................................77   Definitions  ...........................................................................................................................78   Emergency  Department  Data  ...........................................................................................79   Marijuana ‐Related  Emergency  Department  Visits.............................................................. 79   Colorado  Emergency  Department  Rates  that  are  Likely  Related  to  Marijuana  .............. 80   Colorado  Emergency  Department  Rates  that  Could  be  Related  to  Marijuana  ............... 81   Emergency  Department  Rates  Per  100,000  Marijuana ‐Related  ......................................... 82   Hospitalization  Data  ..........................................................................................................83   Hospitalizations  Related  to  Marijuana  ................................................................................. 83   Average  Marijuana ‐Related  Hospitalizations  ...................................................................... 83   Colorado  Hospitalization  Rates  that  are  Likely  Related  to  Marijuana  ............................. 84   Colorado  Hospitalization  Rates  that  Could  be  Related  to  Marijuana  .............................. 85   Hospital  Discharge  Rates  Per  100,000  Marijuana ‐Related  ................................................. 86   Children’s  Hospital  Marijuana  Ingestion  Among  Children  Under  9  Years  Old  ............ 87   Penrose  Hospital  (Colorado  Springs) Urine  Drug  Screens  Positive  for  Cannabis  ......... 87   Cost  ......................................................................................................................................88   Related  Material  .................................................................................................................88   Sources  .................................................................................................................................91     SECTION  5:  Marijuana ‐Related  Exposure  ................................................. 93   Some  Findings  ....................................................................................................................93   Data  ......................................................................................................................................94   Marijuana ‐Related  Exposures  ................................................................................................ 94   Average  Number  of  Marijuana ‐Related  Exposures  All  Ages............................................ 94   Marijuana ‐Related  Exposures, By  Age  Range  ..................................................................... 95   Average  Number  of  Marijuana ‐Related  Exposures  Children  Ages  0  to  5  Years  Old  .... 95   Average  Number  of  Marijuana ‐Related  Exposures  Youth  Ages  6  to  17  Years  Old  ....... 96   Average  Percent  of  All  Marijuana ‐Related  Exposures, Children  Ages   0  to  5  Years  Old  .................................................................................................................. 96   Number  of  Marijuana  Only  Exposures  Reported  ............................................................... 97   Related  Material  .................................................................................................................97   Sources  .................................................................................................................................99     The  Legalization  of  Marijuana  in  Colorado:  The  Impact  Vol. 4/September  2016   Table  of  Contents  iv   SECTION  6:  Treatment  ................................................................................. 101   Some  Findings  ..................................................................................................................101   Data  ....................................................................................................................................101   Treatment  with  Marijuana  as  Primary  Substance  Abuse, All  Ages  ............................... 101   Drug  Type  for  Treatment  Admissions  All  Ages  ................................................................ 102   Percent  of  Marijuana  Treatment  Admissions  by  Age  Group  .......................................... 103   Marijuana  Treatment  Admissions  Based  on  Criminal  Justice  Referrals  ........................ 104   Comments  from  Colorado  Treatment  Providers  ........................................................104   Related  Material  ...............................................................................................................105   Sources  ...............................................................................................................................107     SECTION  7:  Diversion  of  Colorado  Marijuana  ....................................... 109   Definitions  .........................................................................................................................109   Some  Findings  ..................................................................................................................109   Data  ....................................................................................................................................110   Colorado  Marijuana  Interdiction  Seizures  ......................................................................... 110   Average  Pounds  of  Colorado  Marijuana  from  Interdiction  Seizures  ............................. 111   States  to  Which  Colorado  Marijuana  Was  Destined  (2015) ............................................. 112   Top  Three  Cities  for  Marijuana  Origin  ............................................................................... 112   A  Few  Examples  of  Interdictions  ...................................................................................113   A  Few  Examples  of  Investigations  ................................................................................115   Comments  .........................................................................................................................122   Sources  ...............................................................................................................................123     SECTION  8:  Diversion  by  Parcel  ................................................................ 127   Some  Findings  ..................................................................................................................127   Data  ....................................................................................................................................127   Parcels  Containing  Marijuana  Mailed  from  Colorado  to  Another  State  ........................ 127   Pounds  of  Colorado  Marijuana  Seized  by  the  U.S. Postal  Inspection  Service  .............. 128   Number  of  States  Destined  to  Receive  Marijuana  Mailed  from  Colorado  .................... 128   Private  Parcel  Companies  ...............................................................................................129   Some  Examples  .................................................................................................................129   Sources  ...............................................................................................................................132     SECTION  9:  Related  Data  ............................................................................ 133   Topics  .................................................................................................................................133   Some  Findings  ..................................................................................................................133   Crime  .................................................................................................................................134   Colorado  Crime  ...................................................................................................................... 134   City  and  County  of  Denver  Crime  ...................................................................................... 135   The  Legalization  of  Marijuana  in  Colorado:  The  Impact  Vol. 4/September  2016   Table  of  Contents  v   All  Reported  Crime  in  Denver  ............................................................................................. 136   Denver  Police  Department  Unlawful  Public  Display/Consumption  of  Marijuana  ...... 136   Boulder  Police  Department  Marijuana  Public  Consumption  Citations  ......................... 137   Related  Material  ..................................................................................................................... 137   Revenue  .............................................................................................................................13 9   Total  Revenue  from  Marijuana  Taxes, Calendar  Year  2015  ............................................. 139   Colorado’s  Statewide  Budget, FY  2016  ............................................................................... 140   Related  Material  ..................................................................................................................... 140   Event  Planners’ Views  of  Denver  ..................................................................................141   Negative  Meeting  Planner  Perceptions, 2014  .................................................................... 141   Homeless  ...........................................................................................................................143   Suicide  Data  ......................................................................................................................145   Average  Toxicology  of  Suicides  Among  Adolescents   Ages  10  to  19  Years  Old  ......................................................................................145   Average  Toxicology  Results  by  Age  Group, 2012 ‐2014  .......................................146   Environmental  Impact  .....................................................................................................146   THC  Potency  .....................................................................................................................148   National  Average  THC  Potency  Submitted  Cannabis  Samples  ...................................... 148   National  Average  THC  Potency  Submitted  Hash  Oil  Samples  ....................................... 149   Marijuana  Use  and  Alcohol  Consumption  ...................................................................149   Colorado  Consumption  of  Alcohol  ..................................................................................... 150   Colorado  Average  Consumption  of  Alcohol  ..................................................................... 150   Related  Material  ..................................................................................................................... 151   Medical  Marijuana  Registry  ...........................................................................................151   Percent  of  Medical  Marijuana  Patients  Based  on  Reporting  Condition  ......................... 152   Related  Material  ..................................................................................................................... 152   Colorado  Licensed  Marijuana  Businesses  as  of  January  2016  ...................................153   Business  Comparisons, January  2016  ............................................................................153   Colorado  Business  Comparisons, January  2016  ................................................................ 153   Demand  and  Market  Size  ...............................................................................................154   Third  Quarter  2015  Reported  Sales  of  Marijuana  in  Colorado   (January  – September) ...............................................................................................154   2014  Price  of  Marijuana  ...................................................................................................155   Local  Response  to  the  Medical  and  Recreational  Marijuana  Industry   in  Colorado  .................................................................................................................155   Sources  ...............................................................................................................................156        The  Legalization  of  Marijuana  in  Colorado:  The  Impact  Vol. 4/September  2016   Table  of  Contents  vi   SECTION  10:  Reference  Materials  ............................................................. 159   Reports  and  Articles  ........................................................................................................159   Government  ............................................................................................................................ 159   Youth  ........................................................................................................................................ 161   Driving  Under  the  Influence  of  Drugs  (DUID) .................................................................. 162   Health  ...................................................................................................................................... 164   Use  Surveys  ............................................................................................................................. 166   Miscellaneous  ......................................................................................................................... 167   Sources  ...............................................................................................................................168