[bouldercouncilhotline] Hotline: re: Proposed Changes to 55th and Arapahoe Annexations.

[cmosupport at bouldercolorado.gov]

Sender: Carr, Thomas

Mary,

Thanks for the opportunity to review your proposals.  As you requested, we will have a version of the ordinance including your proposed changes available for council on the dais tonight.  As I mentioned, we have some concerns about your proposals and what we see as far reaching effects.  I have provided brief responses below.

Proposals:
1. That businesses be allowed to transfer or sell a license in whole for the duration of the two years in which the businesses are allowed to come into city code compliance.
    a. the city will develop a process for managing the transfer and sale of a license

We prohibit transfer because we wanted  MJ licenses to be a license, not a property right.  Making it a property right will expose the city to additional liability.  We also do not want to get involved in the terms of a sale, so don't want to regulate that.  If we have to allow transfer, we would probably recommend to do so in a way that continues the legislative intent that MJ business licenses are not a property right to mitigate the exposure of the city.

2. That the exemption to city codes include chapters 6, 13 and 14a in addition to chapters 8-11

      The exemptions proposed have profound effects, primarily prohibiting the city from any enforcement of any MJ violations in that area for 2 years.  Specifically:
a.      The exemption to Section 6 takes away the city's review of any individual that owns or has a financial interest in or manages the enclave businesses.  The state only does cursory background checks on FBI and CBI reports, but does not look at other licenses they hold or may have held, whether they have violated other laws (so employees not allowed at in-city businesses can go work at the enclaves), misdemeanors that affect good moral character, and has licensed people that they city would not who later pled to drug charges related to cartels.
b.      The exemptions to Section 13 re prohibited acts prevents the city from being able to enforce anything against these businesses, so there might as well be no requirements on them.  Of course we couldn't enforce those from which the enclave businesses are specifically excepted, but to not be able to enforce violations of other applicable laws (state and county) means we put all enforcement in the state's hands.  They don't have the capacity to do that level of enforcement.  To not be able to enforce egregious violations, like selling to a minor, have MJ in public, be under the influence while in control of a business, or how they sell or distribute MJ.
c.      The exemptions to 14.a. prohibit the city from being able to suspend or revoke any of the licenses of the enclave businesses for any reason and would only allow fines, if OK'd by the municipal court of up to $5,000 per violation.


3. That the businesses be granted a conditional city MJ license on Day 1 of the annexation
        a. the city will develop a process for enforcing state code

      This city has already arranged the process with the state for local licensing until the businesses actually qualify for a city license.  It is the same procedure we used in 2010.   The state sent them all individual letters yesterday confirming the procedure because the global letter the state had sent earlier was not satisfactory to them.   If we have to issue a conditional license, we cannot later revoke or suspend it because of exception 2.c. above.  Regardless of the quality of their applications, we could not deny them because a conditional license would have already been issued.  Denying an application is a more streamlined process than the process to revoke or suspend a license.


4. The city will re-convene the Marijuana Advisory Panel (MAP) to address the following:
    a. licensing requirements within the city for laboratory operation
    b. other items that may be identified between now and the MAP convening

      As explained in the Agenda Memo, the purpose of the MAP was to have all parties affected by MJ, not just MJ businesses come together to work out solutions.  They have worked since February doing that, presented their recommendations to Council at a study session in August, which were accepted, and the ordinance is set for first reading on November 15 and public hearing on December 6.  Their recommendation for the next Panel is more of the general public, not more marijuana businesses, because they felt the Panel was lopsided.  Re-opening MAP undoes all of that work by those citizens and delays the accomplishments they reached.  The reasons listed are too vague for even the enclave businesses to know how they should be changed since they will not be operating under Boulder's regulations, so have no real perspective.  The staff proposal was that they be allowed to present recommendations at the next MAP meeting in the fall of 2017, and receive MAP communications from staff of recommended changes during the interim.


5. Allow for permanent grandfathering of existing building layouts

Grandfathering existing building layouts takes away all planning opportunities for this area for the future and other unintended consequences that I would have to have a Planner address.

6. Allow for changes to building layouts if the proposed layout moves towards conformance with code and that such conformance does not affect the two year conditional license

I'm not sure what this means.  If they want to expand building footprints or square footage or spend any amount of money on remodeling, they can do that under the existing ordinance.  If the exception is to get around the utility connection requirement, that would affect the time when these businesses have safe, potable water

Tom Carr
City Attorney
(303) 441-3020

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