Feb 1

Municipal Code Tune Up Time-Personal Use

By Maureen Juran

February 2013 7_MJMany, if not most, municipalities have prohibitions in their municipal codes against possession of small amounts of marijuana and/or drug paraphernalia. These are relatively common municipal ordinance citations written into the municipal court. Of particular importance to law enforcement, Amendment 64 changes existing Colorado law regarding personal use or possession of marijuana and marijuana accessories. Under Amendment 64 there can be no criminal penalties for:

  • Possession, use, display, purchase or transport of “marijuana accessories,” a subset of drug paraphernalia, for persons aged 21 and older;
  • Consumption of marijuana as long as such consumption is not conducted openly and publicly or in a manner that endangers others; or
  • Possession or distribution (without remuneration) of less than one ounce of marijuana a subset of drug paraphernalia, for persons aged 21 and older.

It is important to note, however, that Amendment 64 specifically does not require employers to permit or accommodate use, consumption, possession, transfer, display, or sale of marijuana in the workplace or to restrict employees’ from using marijuana. Likewise, the ability of the State to regulate against driving under the influence of marijuana is specifically not affected by Amendment 64. Finally, owners of private property retain their rights to prohibit or regulate the use, consumption, possession, transfer, display, or sale of marijuana on their property.

Review your Code. If your community hasn’t already, it’s time to do a Code review and determine whether changes are needed.

  • Is there a provision on possession or distribution of marijuana of under an ounce? If so, Amendment 64 undoubtedly renders it unenforceable in its current form against adults aged 21 and older.
  • Is there a provision on possession of drug paraphernalia? If so, it must be tweaked because Amendment 64 removes the community’s ability to place any criminal penalties on adults aged 21 and older for possession of items that the Amendment terms “Marijuana accessories.”
  • Does your Code have a separate section that lists out all criminal violations and associated penalties?

Consider these revisions. Your municipality should consider:

  •   Either repealing the Code provision prohibiting possession of marijuana and adopting a new provision making marijuana possession unlawful only by persons under age 21 or amending the existing provision to carve out an exception for persons aged 21 and older.
  • Repealing the provision prohibiting possession of drug paraphernalia and adopting a new provision making drug paraphernalia possession unlawful only by persons under age 21 and carving out an exception to allow persons aged 21 and older to possess marijuana accessories, a subset of drug paraphernalia.
  • Amending any provision listing all criminal violations and associated penalties, as needed.

Think about new additions to your Code. As marijuana possession is now regulated in similar manner to alcohol possession, your municipality should consider:

  • A   provision to make it unlawful for any person to purchase or provide or sell marijuana to any person under the age of twenty-one (21) years.
  • A provision to make it unlawful for any person under the age of twenty-one (21) years to attempt to purchase, purchase or obtain marijuana either directly or indirectly or through an intermediary by  misrepresentation of age or other means.
  • A provision making it unlawful for any person to display, consume or use marijuana openly in any public place and defining what a public place is for purposes of enforcement.

Undoubtedly, as cases are brought, courts will help to refine the definitions of terms not defined in the Amendment such as “openly and publicly” or “manner that endangers others.” While we await that guidance, however, it is necessary to take the initial steps to bring your Code into conformity with this new constitutional provision.

Amendment 64 Timeline

Timeline
Description
November 6, 2012
General Election
November 14, 2012
Governor and Attorney General sent letter to U.S. Attorney General Eric Holder for Clarification on the Federal Government’s Position on Amendment 64
December 10, 2012
Official declaration of the vote by proclamation of the Governor 1
December 10, 2012
Creation of Task Force for implementation of Amendment 64 2
January 2013
Drafting of enabling legislation begins (Legislative Session)
February 28, 2013
Task Force to report findings to Governor, General Assembly and Attorney General (unless terminated prior or further extended)
July 1, 2013
Department of Revenue (“DOR”) to adopt necessary regulations
October 1, 2013
Local Governments May Enact Licensing Ordinances
October 1, 2013
DOR must begin Accepting and Processing License Applications
January 1, 2014
DOR must begin Issuing Licenses (90 day requirement)
July 1, 2014
Deadline for Legislature to Enact Legislation to Govern Industrial Hemp
November 4, 2014
First Opportunity for Local Governments to Refer Retail Marijuana Prohibition Question to the Voters (General Election)

 

1 Declaration formalized Amendment 64 as part of the Colorado Constitution and makes legal the personal use, possession, and limited home-growing of marijuana under state law for adults 21 and older.

2 The Task Force will consider and resolve a number of issues involved in the implementation of Amendment 64.