Discussions focus on caregiver model
Some Colorado Springs residents are exploiting a loophole in the state’s primary caregiver model for medical marijuana — and local officials believe they could be violating the city’s code.
At least that was the consensus following the City Council-appointed Marijuana Task Force’s first meeting last week.
After the November approval of a six-month moratorium on new medical marijuana facilities, the 14-member group was appointed by City Council President Merv Bennett to “review, study, develop [and] evaluate … laws and regulations pertaining to marijuana businesses, including, but not limited to, location and licensing criteria, fees, advertising, and other time, place, manner and number regulations,” according to task force documents.
“The focus of the task force will be the medical marijuana business licensing model and the primary caregiver model, to include land use/zoning, enforcement, dispensaries and home and commercial grow operations,” said Councilor Larry Bagley in the city’s documents. Bagley is chairman of the task force and co-sponsored the moratorium.
While the temporary ban affects all medical marijuana industries — to include dispensaries, grow operations and infused-product manufacturers — those topics were not the task force’s primary focus last week. Instead, they talked about the far-less-regulated primary caregiver model, which isn’t included in the moratorium.
State law allows a caregiver, one who is allowed to grow and transport marijuana for patients, to have up to six plants for up to five patients plus the caregiver, for a total of 36 plants. However, caregivers can ask for an exemption from the patient’s doctor, and are often allowed to have up to 99 plants before the DEA could become involved, said Sgt. Roger Vargason, Metro Vice, Narcotics and Intelligence with the Colorado Springs Police Department.
The city, however, decided to limit the number of allowable plants to six per patient, regardless of physicians’ exemptions. Vargason said the rule is often ignored.
“We’re called to residential grows weekly,” Vargason said. “I’ve got a hundred open complaints from citizens about residential grows.”
Most of those complaints are related to the odor of the marijuana grows, but he says he has little enforcement authority over caregivers.
“The state has the [Marijuana Enforcement Division], and the city really doesn’t have anything in place to enforce those laws,” he said.
‘No enforcement mechanism’
The Colorado Department of Public Health and Environment currently oversees a voluntary registry for caregivers.
As of Jan. 1, 2017, the registry becomes mandatory for all caregivers who transport and cultivate marijuana, the result of a new law passed in 2014. That registry will be maintained by the MED and the Department of Revenue.
The goal is to make sure patients don’t have more than one primary caregiver or use both a caregiver and a dispensary for medical marijuana. The law will also include some enforcement capabilities, but implementation is still more than year away.
“There’s no enforcement mechanism at all,” said Dr. Larry Wolk, executive director and chief medical officer for the CDPHE regarding the caregiver model. “We don’t send nurses into homes to count plants and issue fines.”
Wolk added that public health regulations within the medical model don’t carry over to caregiver supplies.
“Pesticide use applies to stores, but not the caregiver,” he said. “As of today, [a caregiver] can’t bring in their product to a state-certified lab and have it tested for potency or contaminants. From a public health standpoint, we’d want everything tested.”
Despite the leniency afforded caregivers, Wolk said he is not aware of any broad public health concerns as a result of the model.
“It hasn’t proven itself to be a danger,” he said. “It’s certainly less verifiable [than a licensed dispensary,] and I know people have gotten sick from products, to include an increase in [emergency department] and hospital visits related to marijuana. Anecdotally, people are more apt to get sick from the stuff we can’t test.”
Knocking and talking
Task force members were less concerned with patients’ consumption of unregulated caregiver-provided marijuana (which by law cannot be sold) and more concerned with the effect marijuana grow operations have on neighborhoods, as well as each community’s ability to regulate marijuana operations.
According to John Harding, a Realtor and resident in northeastern Colorado Springs, a home[resident] on his street is growing marijuana, creating a nuisance.
Vargason said the police department has been to that home and, like many others, it far exceeded the city’s 36 plant maximum.
“The state told the municipalities to handle it,” Vargason said. “The city put a law on plant counts in home grows because they were overwhelming neighborhoods with the smell as well as destruction of property.
“We need to regulate them. If you’re going to grow an excessive number of plants, we need to move that grow to a commercial zone that can handle that. We want to give them alternatives. The county has done a good job keeping commercial and industrial [marijuana industries] in the same areas. … I would like to see the city do that. I’d like to see an area zoned specifically for medical marijuana.”
Upon receiving a citizen complaint, Vargason said, the department will perform a “knock and talk” at the residence. He said they are also on the lookout for residences with extensive ventilation systems, commercial air conditioners, taped windows and high electricity usage.
“Growers will find a 4,000-square-foot house in the Springs and tell the owner they want to rent it. They’ll ask how much the rent is. ‘It’s $2,000? How about I offer you $4,000 and grow a little marijuana?’ Renters take the bait and rent the house to a person who will then go into the basement or garage and seal it. Then they hang lights, ballasts, watering and fertilizer systems. They’ll have a 50-gallon container filled with water and chemicals.
“They look at it like growing tomatoes.”
‘Name the issues’
The task force was created to look into medical marijuana industry operations, after City Council agreed to a six-month moratorium on new businesses in order to examine concerns.
That’s why the caregiver discussion perplexed task force member and dispensary owner Dale Hecht. The moratorium doesn’t affect caregivers, but impacts all other facets of the medical marijuana industry, businesses active since the 2000 passage of Amendment 20, which paved the way for the medical marijuana industry.
Hecht owns Green Pharm medical dispensary located near the intersection of Platte Avenue and Academy Boulevard. He said home grows are a problem, but he believes the moratorium was an unnecessary overreach by City Council.
“My whole frustration with [City Council] is the moratorium is across the industry,” Hecht said. “I kept trying to get council members to name the issues and … determine if their issues are within our space. I kept saying that if the issues need to be addressed in the broader medical industry space, name them and we’ll take care of them.
“I’m all for protecting neighborhoods,” he added. “We all live in neighborhoods. I understand the nuisance, the smell, the traffic — everything else. It’s a danger when people are not using residences as they were designed.”
When asked if the moratorium was necessary to address residential grow operations, Bagley said yes, but did not elaborate.
City officials didn’t provide numbers regarding commercial complaints, but said caregivers and potentially illegal grows make up the bulk of complaints.
“The city of Colorado Springs may receive marijuana or medical marijuana complaints from the public or through multiple agencies (i.e., [the Colorado Springs Police Department], [the Colorado Springs Fire Department], Land Use and Planning, the State Marijuana Enforcement Division, etc.),” according to an emailed statement by Lee McRae, a license enforcement officer in the city clerk’s office. “Due to the fact that multiple agencies can be involved, it is not appropriate for the City Clerk’s Office to speak for those agencies or to any ongoing enforcement tactics or efforts.
“That said, the majority of complaints received directly from the public to this office are regarding potential illegal or caregiver grows in residential areas and, as the City Clerk’s Office has no regulatory authority for either residential or caregiver activities, these are forwarded to the appropriate agencies.
“Complaints that the City Clerk’s Office receives directly from the public regarding MMJ licensees are nearly exclusively odor related, which are handled directly with the licensee and Land Use through education and remediation efforts.”
Bagley added, “We’re looking at illegal operations, and I think most legal marijuana businesses comply with the regulations and ordinances.” He thinks exploring zoning for caregivers and the medical industry would be one way to address the concerns.
“We will have to have zoning clarifications as to where you can do commercial grows,” he said. “There should be some discussion of criminalization. If police have to go and respond [to complaints], but they don’t have the tools to address it; it’s a wasted trip. We need some sort of enforcement tool for officers.”
Task Force: Who, What, Why
The Colorado Springs City Council Marijuana Task Force was developed “to review, study, develop, evaluate and review [sic] laws and regulations pertaining to marijuana businesses, including but not limited to location and licensing criteria, fees, advertising, and other time, place, manner, and number regulations,” according to a news release provided by the city.
The task force will convene several times and will present draft ordinances and recommendations to City Council on March 21. City Council will vote on any adoption of new ordinances and, according to Councilor and Task Force Chairman Larry Bagley, the recommendations will be voted upon by the members of the task force. City officials will help guide the process, Bagley said, and there will be meetings that allow public comment in the future.
Task force members: Energy Distribution Manager Brian Anderson, Colorado Springs Utilities; Jan Doran, chairwoman of the El Paso County Citizen Outreach Group and director emeritus of the Council of Neighbors and Organizations; Realtor John Harding, John Harding & Company, RE/MAX Real Estate Group; Dale Hecht, owner, Green Pharm dispensary; Charles Houghton, attorney at Charles T. Houghton P. C.; Lynette Crow-Iverson, president and CEO of Conspire! [a drug screening company] and member of Colorado Springs Forward; City Clerk Sarah Johnson; Colorado Springs Fire Marshal Brett Lacey; Commander Sean Mandel, Colorado Springs Police Department; Colorado Springs City Attorney Wynetta Massey; Tom Scudder, owner, A Wellness Centers; Colorado Springs Deputy Chief of Staff Bret Waters; and Peter Wysocki, Colorado Springs planning director.