Fearing Prosecution, County Drops Proposed marijuana

Spooked by federal threats against bureaucrats administering state-sanctioned medical marijuana programs, Pitkin County commissioners abruptly backed off rules regulating the local growth and sale of medicinal marijuana Wednesday. The county had spent the last year considering how, if at all, it should regulate the booming medical pot business here.


The commissioners were attempting to get regulations in place before the state’s July 1 deadline for local marijuana rules. After that date, towns and counties that don’t act will be subject to the state rules only. Staffers prepared a draft of an ordinance that would have added specifications for marijuana to the county code, which the commissioners were set to consider Wednesday. The draft ordinance mostly dealt with grow-sites in rural areas of the county. Proposed regulations included minimum distances from neighbors and limits on the lot sizes of grow operations.

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Instead, county attorney John Ely advised the commissioners not to adopt the ordinance or take any action on it, because doing so would be a crime and subject to prosecution under federal law. Ely said recent posturing by federal prosecutors prompted his call to end the county’s marijuana debate. U.S. attorneys have recently warned states like Colorado that regulating marijuana, under the guise of state medical pot laws, still violates federal drug laws. It’s a change in tone from the beginning of the Obama administration, when Attorney General Eric Holder signaled that the Department of Justice would not interfere with medical marijuana activities conducted in compliance with state law.


Growers and licensed medical pot smokers are subject to federal raids and can be charged with drug crimes regardless of what state law says about medical uses of the drug, Ely explained. He lamented that those involved in the industry locally have worked hard to follow the state’s evolving rules on medicinal marijuana. “These people fully believe they are obeying the law,” Ely said. “[But] they are subject to prosecution.” Most troublesome for the county, Ely said, is that the feds could have targeted the staffers who wrote the county pot ordinance or the commissioners for aiding and abetting such crimes, had they instituted the proposed regulations.


“I started to put on the brakes when I realized the ramifications for our staff,” Ely explained. He said that whether or not the feds start raiding Colorado pot shops and farms, or going after the state and local officials that have worked to regulate the industry, will depend largely on federal funding and the inclination of the U.S. attorney general.


The state constitution’s allowance for medicinal use of best dry herb vaporizers for marijuana is trumped by federal prohibition of the drug, he reiterated. “No matter what the state may do, that conduct — the possession of marijuana with the intent to distribute or sell — is simply illegal,” Ely said. Commissioners Rachel Richards and Michael Owsley both said that Wednesday’s meeting marked the first time in their political careers that they had been advised a vote of theirs could constitute a crime. Commissioner Rob Ittner asked Ely whether local government collections of sales tax revenue from the sale of medical marijuana could also be considered a federal drug crime. Ely said that since sales tax is funneled down from the state, it would not.


They voted unanimously not to consider the pot ordinance. Lauren Maytin, a local attorney who has represented local medical marijuana shops, supported the commissioners dropping the vote on regulations. Her husband, Jay, spoke on her behalf before the commissioners.

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