By Dani Gruber, special to Mountain Valley News
On July 20, 2010, the Delta City Council voted not to seek a public vote on opting out of allowing new medical marijuana dispensaries in their jurisdiction. The savings from not putting the issue on the ballot is estimated to be $3,500-5,000.
City Attorney Mike Schottelkotte said the council could adopt an ordinance outright, have public discussion to get input from the community, or send out questionnaires with the utility bills among other options. “The whole purpose would be saving the cost of the election. The cost estimate of $5,000 was out there and it might be a large waste. There has not been any public interest at all in the public moratorium meetings in the past,” said Schottelkotte.
Downfalls of avoiding a vote include not getting broad-based community input. One area of public concern was with sick individuals, or those that care for them, growing their own marijuana. “The council cannot do anything about that. That will remain forever there, unless there is another amendment,” said Schottelkotte, adding that the constitution said nothing about private interests.
It is a fine line for communities to resist expanding the constitutional mandate, an option which was not extended to individual communities. “That's the prerogative that you have. You can take it head on, without public input. You'll probably want some, but it doesn't have to be in an election. If you take the option to opt out, the people can have it considered by the whole electorate—at someone else's expense,” said Schottelkotte.
Such a situation could arise if the public petitioned to change regulations that already exist.
Many communities are looking to neighboring communities in the hope that another community will generate meaningful legislation on the matter. Such duplication of legislation is often more cost effective with a presumed lower risk of litigation. Toward that end, Delta contacted various municipalities and the results varied greatly.
Delta City Clerk Jolene Nelson said that one community was thinking that they would allow the existing dispensary to stay, but that if it went out of business, future dispensary applications would be denied.
Schottelkotte said he thought jurisdictions who were adopting plans to allow dispensaries to operate until they failed and then not to let other dispensaries operate were “on slippery ground.” “You cannot legislate to create a monopoly,” he said.
Schottelkotte said that he thought any community who did exercise their option to opt out would be on good solid ground. “This is not part of the constitutional mandate. There is no conflict,” he said adding that there was more time to address the issue. The only time pressure was if the council wanted to put it to a vote of the people because ballot wording deadlines are imminent.
City Manager Joe Kerby agreed that if putting the issue on the ballot was not chosen, then there was no rush. “There is a moratorium until May next year,” he said, adding that it would behoove the marijuana businesses to know where the legislation was going to land. “There may be expense that they would go to that if you weren't going to allow it would be wasted money on their behalf,” said Kerby.
John Thomas, who operates Green Solutions, spoke to the council saying that he would have state licensing fees due soon. “As of September 1, they want to see if the dispensary is growing 70 percent of their product,” said Thomas, adding that the state licensing fees to operate a dispensary could run as high as $27,000. Thomas said that his business will be grandfathered in since it was already in existence, but that he is still required to provide background checks and routine security data to the authorities.
“If he's able to generate 70 percent (of the marijuana he sells which is grown on site, or on an approved off-premises site), and that he opened before the moratorium, he's free,” said Schottelkotte. “He can't apply for any type of building permit, or development, expansion, variance, or taps, that would create some sort of expansion of the existing building without violating the moratorium,” said Schottelkotte, adding that the moratorium legislation was insufficient. “It's wide open for anyone else. It's a mess,” said Schottelkotte.
The Council decided not to incur the expense of putting the issue to a vote of the people.They will consider their options until the May moratorium deadline forces the next round of decisions.
