City of Colorado Springs / Communications / Fact Check / Medical Marijuana

Medical Marijuana

Much is being discussed regarding medical marijuana in our city.  To hear the full discussion that occurred at City Council click here. In addition here is the City Code that staff was instructed to uphold until state and local regulations are more clearly defined and approved.

 

City Code § 7.2.109 states:  "Where any provision of this Zoning Code conflicts with any other provision of the City Code, or any other law or ordinance, the more stringent requirement, regulation, restriction or limitation shall apply."  (Emphasis added.)  Currently, there is no defined land use that recognizes the cultivation, possession or distribution of marijuana for any purpose.  Federal and state law, however, both prohibit the cultivation, possession and distribution of marijuana.  Based on the current wording of City Code § 7.2.109, the City cannot enact an ordinance that authorizes any business activity that conflict with these state and federal laws.  Therefore, these types of land uses are prohibited in any zone district in the City. 

 

The Colorado constitutional amendment pertaining to medical marijuana does create an affirmative defense to a criminal state cultivation, possession or distribution violation if the person charged is a patient or caregiver and otherwise is in compliance with the provisions of the amendment.  That affirmative defense can only be exercised after the criminal charge has been brought, and must be proved beyond a reasonable doubt.  If the affirmative defense is successful, the City would take no zoning enforcement action against a patient or caregiver in compliance with the constitutional amendment.

 

Interestingly, the Colorado Court of Appeals handed down a decision October 29, 2009 that upholds a conviction of cultivation, possession and intent to distribute.  The court rejected the defendant's affirmative defense and found that she did not qualify as a "primary caregiver" under the medical marijuana amendment.  You can read about that case by clicking on the pdf file below.

 

 

People v. Clendenin (medical marijuana).pdf (103.7KB)   People v. Clendenin Medical Marijuana Case

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