HomeMy WebLinkAbout20102431 HEARING CERTIFICATION
RE: VIOLATIONS OF THE WELD COUNTY CODE -ZONING AND BUILDING INSPECTION
A public hearing was conducted on October 12, 2010, at 10:00 a.m., with the following present:
Commissioner Douglas Rademacher, Chair
Commissioner Barbara Kirkmeyer, Pro-Tem
Commissioner Sean P. Conway
Commissioner William F. Garcia
Commissioner David E. Long
Also present:
Acting Clerk to the Board, Tonya Disney
Deputy Clerk to the Board, Jennifer VanEgdom
Assistant County Attorney, Stephanie Arries
County Attorney, Bruce Barker
Planning Department representative, Bethany Salzman
Planning Department representative, Peggy Gregory
Building Official, Ken Swanson
The following business was transacted:
I hereby certify that a public hearing was conducted to consider whether to authorize the County
Attorney to proceed with legal action against the individuals named for violations of the Weld County
Zoning Ordinance. Cases were heard as follows:
ZCV#0900204-STEELY: Commissioner Conway moved to refer ZCV#0900204 against Rodney
and Karen Steely back to the Department of Planning Services. The motion was seconded by
Commissioner Garcia, and it carried unanimously.
VI #0500004 — RICHARD/B & J AUTO: Commissioner Conway moved to refer VI #0500004
against Bruce and Janet Richard/B & J Auto back to the Department of Planning Services. The
motion was seconded by Commissioner Garcia, and it carried unanimously.
ZCV#1000090— BANNER GROUP LLC: Commissioner Conway moved to refer ZCV#1000090
against Banner Group LLC back to the Department of Planning Services. The motion was
seconded by Commissioner Garcia, and it carried unanimously.
VI #0700069 -SMITH: Commissioner Conway moved to refer VI #0700069 against Dean Warren
and Deborah Smith back to the Department of Planning Services. The motion was seconded by
Commissioner Garcia, and it carried unanimously.
BCV#0800170-RAMIREZ: Peggy Gregory, Department of Planning Services, presented the case
report for the record and pursuant to the case file, this property is in violation of various sections of
the Weld County Code, as detailed in staffs case summary. She stated a permit was issued on
May 25, 2007, for an addition and remodel of the existing dwelling, and an extension was granted;
however, the permit expired, with only setbacks and footings approved. She further stated a new
permit was issued March 5, 2009, and an extension was approved for that permit which has since
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October 12, 2010 2010-2431
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expired. She clarified the Weld County Code indicates that if the buildings or the work authorized by
a building permit does not receive final inspection on, or before, the permit expiration date,the work
shall cease until a new permit is issued. In response to Commissioner Long, Ms. Gregory indicated
the matter must be determined by the Board as both permits issued have expired, and the property
owners have expressed the willingness to obtain a new permit, if allowed. Further responding to
Commissioner Long, Ms. Gregory clarified that the property owners received the original permit,with
an extension, and a second permit, which has also been extended.
Amelia Cedillo, daughter of Jose Ramirez, confirmed that if her father is allowed to obtain an
additional permit, he will have adequate time for the completion of the project as well as having the
final inspection conducted. In response to Commissioner Kirkmeyer, Ms. Cedillo stated she is
willing to go to the Planning Department today to initiate the process for a new permit.
Chair Rademacher provided the opportunity for public testimony; however, none was given.
Commissioner Conway indicated the Board should extend the opportunity for the property owner to
come into compliance and 30 days should be adequate. Commissioner Long moved to refer
BCV#0800170 against Jose Ramirez to the County Attorney for legal action,with the instruction to
delay action until November 12, 2010, to allow adequate time for Mr. Ramirez to obtain a new
permit. The motion was seconded by Commissioner Conway, and it carried unanimously.
ZCV#1000101 -ARNOLD: Bethany Salzman, Department Planning Service, presented the case
report for the record and pursuant to the case file, this property is in violation of various sections of
the Weld County Code, as detailed in staffs case summary. She stated this property consists of
approximately 138.96 acres in size, the certified mail sent on September 20, 2010, was received
signed on September 28, 2010, and this case was brought to the attention of the Department by the
Sheriff's Office and through reports from surrounding property owners that horse racing events were
happening at the property without the proper zoning permits. She indicated September 2,2010,the
property owner met with several county staff members to discuss the necessary permits to bring the
property into compliance; however, at the meeting, the property owner indicated to Michelle Martin,
Planner, the process to obtain these permits was too labor intensive and expensive, therefore they
would not hold any more horse races. She clarified on September 18, 2010, three separate calls
were received by Weld County Dispatch, indicating the presence of approximately 500 people at a
horse racing event. Ms. Salzman further clarified the Department received an anonymous letter on
September 30, 2010, indicating the presence of two occupied and skirted recreational vehicles(RV)
hidden behind trees. She confirmed the utilization of RV's and/or camping trailers as a dwelling unit
is not an allowed use in the Weld County Code, unless the units are situated in an approved
camping facility. To bring the property into compliance, all horse racing operations shall immediately
cease, and/or a Use by Special Review application shall be completed and submitted, and the RV's
shall be removed from the property. She indicated staff requests that this matter be referred to the
County Attorney's Office for immediate legal action. Neither the property owner nor a representative
was present, and Chair Rademacher provided the opportunity for public testimony, however, none
was given.
Commissioner Garcia moved to refer ZCV#1000101 against Boyd and Helen Arnold to the County
Attorney for immediate legal action. The motion was seconded by Commissioner Conway, and it
carried unanimously.
ZCV #1000084 - MOSSBERG/MOSSBERG FAMILY FARM LLP: Ms. Salzman presented the
case report for the record and pursuant to the case file, this property is in violation of various
sections of the Weld County Code, as detailed in staffs case summary. She stated the property
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consists of approximately 161.95 acres, the certified mail sent on July 29, 2010, was received
signed on August 10, 2010, and the property is in violation due to the failure to re-justify the existing
Accessory to the Farm Permit which is required annually. Ms. Salzman clarified property owner
Jerry Mossberg indicated the mobile home is no longer livable, and that on July 27, 2010, staff
received a letter from the family indicating that the mobile home would be demolished after harvest.
During a visual inspection of the property on Friday, October 8, 2010, Ms. Salzman found a camper
trailer and/or a recreational vehicle on the property, which were apparently being utilized as a
dwelling unit, and she reiterated the utilization of a camper trailer or RV as a dwelling unit is not an
allowed use, unless it is situated in an approved camping facility. To bring the property into
compliance,the mobile home, believed to be sitting vacant, and the camper trailer shall be removed
from the property. She confirmed staff recommends this case be referred to the County Attorney's
Office with the delay of legal action until November 12, 2010.
In response to Commissioner Conway, Ms. Salzman stated that the letter received stated the mobile
home would be demolished after harvest, and for the record, Chair Rademacher confirmed the
harvest season is still in effect.
In response to Chair Rademacher, Jerry Mossberg, property owner, confirmed he is still in the
middle of harvest season; however, he is willing to demolish the mobile home, if necessary. Mr.
Mossberg indicated it was his understanding that he could continue to have someone living in the
mobile home as long as farming was taking place and the tenant was helping with the farm. He
questioned whether the mobile home could be utilized as storage or possibly as an office.
Jan Sherrod-Mossberg explained her brother is currently living in the camper since he is on disability
and does not have a home, and they are looking at different ways they may be able to help him.
She confirmed they are able to move the camper off the property, and they usually have one of the
milkers living in the mobile home; however, no one has lived there for over a year. She requested
clarification regarding the options for the mobile home, specifically if it could be utilized as storage or
an office, or if her brother could live in the mobile home.
Chair Rademacher indicated the property owners should have been working with the Department so
these questions could have been addressed and he confirmed the work allowed to be done on the
mobile home will depend on the year the mobile home was constructed.
In response to Commissioner Kirkmeyer, Mr. Mossberg stated that the mobile home has been on
the property for approximately 10 years and there is some work that needs to be done; however,the
mobile home is livable. Mr. Mossberg indicated the mobile home has a permitted septic system and
is connected to water; however, some pipes which previously froze need to be replaced. Further
responding to Commissioner Kirkmeyer, Ms. Sherrod-Mossberg confirmed her brother helps on the
farm.
Commissioner Kirkmeyer suggested that the matter be referred back to the Department of Planning
Services so that the owners can discuss the options of the mobile home. She stated it may be
possible for the brother to help on the farm and live within the mobile home, and Chair Rademacher
concurred.
Commissioner Garcia clarified that the RV/camper trailer may be stored on the property; however,
no may live within the camper trailer.
Mr. Mossberg acknowledged his property is in violation; however, he and his wife have been trying
to figure out how to help out a family member. Commissioner Conway confirmed helping a family
member is a noble thing to do, and he concurred with Commissioner Kirkmeyer that the case should
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October 12, 2010 2010-2431
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be referred back to the Department of Planning Services. He reiterated the camper trailer may be
stored on the property as long as it is not occupied.
Chair Rademacher provided the opportunity for public testimony; however, none was given.
Commissioner Kirkmeyer moved to refer ZCV#1000084 against Mossberg/Mossberg Family Farm,
LLP, back to the Department of Planning Services. The motion was seconded by Commissioner
Garcia, and it carried unanimously.
Upon request from the audience, Commissioner Garcia moved to reconsider ZCV#1000101 for
Boyd and Helen Arnold. The motion was seconded by Commissioner Long, and it carried
unanimously.
ZCV #1000101 - ARNOLD: At the request of Chair Rademacher, Ms. Salzman reiterated the
background of the case, as previously presented.
Boyd Arnold, property owner, stated he was not aware of the violation concerning the campers on
the property; one camper is his, and the other two campers are being stored for friends of his. In
response to Chair Rademacher, Ms. Salzman stated there is not a limit to the number of camper
trailers allowed to be stored on a property as long as Mr. Arnold is not charging for the storage.
Ms. Salzman clarified a complaint was received stating the camper trailers are skirted and occupied;
however, the pictures taken at the site do not provide clarification.
Mr.Arnold confirmed the campers are not skirted or occupied and he is unaware of who would have
made the complaint. Ms. Salzman clarified the letter was anonymous.
Mr. Boyd stated that he gave his son, Andy Arnold, and his friend permission to bring their horses
out to the property and ride around, and they do occasionally race; however,they are safe and there
is not any alcohol involved. Mr. Boyd clarified most of the people that come out are of Hispanic race
and have no other place to go and hang out due to the fact most of them speak very little English.
Mr. Boyd further clarified the property has never had 500 people at one time. Chair Rademacher
stated his concern is the amount of people that are allowed on the property, and having a few
friends isn't an issue; however, even if 100 people congregate, the neighbors are going to be
concerned. Mr. Boyd stated he feels that what happens at the property is not any different than
someone else having a team roping event on their property, and that the Hispanic people are just
looking for a place to have some fun with their families.
Chair Rademacher stated Mr. Boyd may obtain permits to hold these types of events on his
property, if the events are taking place only a couple of times a year; however, if they are expected
to happen frequently, Mr. Boyd needs to work with the Department of Planning Services to obtain a
USR permit.
Mr. Boyd stated that he has told his friends they may come to his property and ride around whenever
they would like as long as they are not causing any trouble. He clarified many of them come to ride
on the weekends and throughout the week, as well.
Commissioner Conway read a portion of the deputy's report, indicating there were approximately
300-400 people, along with approximately 100 vehicles. He continued to say that the issue creates
public safety concern, and the Board does not intend to make it difficult for people to get together
and have a good time.
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October 12, 2010 2010-2431
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In response to Commissioner Conway, Ms. Salzman stated that if there are less than ten(10)events
per year Mr. Boyd could apply for a Temporary Assembly permit; however, if they plan on having
more than ten (10) events per year, Mr. Boyd will need to obtain USR permit.
In response to Commissioner Conway, Martin Oaxaca confirmed he suggested to Mr. Boyd that,
because he has a good amount of land, maybe they could go out and ride their horses on his
property and Mr. Boyd agreed. He stated that some of his cousins and friends come out and run
their horses, and both Mr. Boyd and Mr. Oaxaca made it clear the activities are safe and controlled
and there is no alcohol on the premises.
Commissioner Conway stated that he would like to find a way for Mr. Boyd to continue providing a
place for his friends to ride and spend time with their families in a safe manner that will not
negatively affect and impact the neighbors. In response to Commissioner Conway, Ms. Salzman
explained there are two different choices to explore; one of which is the USR permit, which has
already been explained by staff and is the best option since it does not have to be renewed; or, they
may qualify for a Temporary Assembly permit, which is obtained through the Office of the Clerk to
the Board.
Commissioner Kirkmeyer confirmed the impacts will have to be addressed through either process
and the Board must also consider the concerns of the neighbors. Mr.Arnold confirmed he will shut
down operations if there are complaints and he does not want to spend a large amount of money to
complete the permit process.
The Board concurred that until Mr. Boyd meets with staff to determine the correct process, he
should not allow any more gatherings to take place on the property, which includes no racing or
gambling activities. Commissioner Kirkmeyer indicated the matter should be referred back to the
Department, and clarified the camper trailers may be stored on the property as long as they are not
occupied. Andy Arnold clarified the deputy who came to the site confirmed the site did not appear to
be dangerous and there was no evidence of alcohol found on the site. Chair Rademacher clarified
the neighbors were obviously upset if they provided complaints, and in response, Mr. Arnold
indicated most of the neighbors attend the events.
Chair Rademacher provided the opportunity for public testimony; however, none was given.
Commissioner Garcia expressed his appreciation to Mr. Arnold for his attendance and confirmed he
accepts the testimony provided at face value, that he is being a good neighbor by allowing these
events to happen. Commissioner Garcia confirmed the Board has had to address the legal horse
racing activities, gambling, and drugs within previous matters, and the requests for USR permits
have failed due to the inability to control negative impacts. He clarified big money can be made from
these events, and even though he believes Mr. Arnold is not involved, there could be illegal activity
occurring. Commissioner Garcia indicated Mr.Arnold needs to proceed with the permitting process
immediately, and no more events should occur until a permit is granted. He confirmed these type of
events are to be taken seriously by the County, and he recommended the matter be referred to the
County Attorney's Office, with a delay of action for 30 days, to determine if any other races are
occurring. Commissioner Kirkmeyer indicated the matter will remain open for review if it is referred
back to the Department, and if there are additional events, the matter may be brought back to the
Board for review. Ms.Arries clarified the racing season may have already passed,therefore, it may
not be appropriate to delay action to determine if more races are occurring.
In response to Chair Rademacher, Ms. Salzman stated that it has been hard to pin down exactly
how many complaints have been received; however,the direct complaint came from a neighbor who
would not leave his name, She indicated the reason horse racing has become a hot topic is due to
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the fact that approximately one year ago, the death of a horse jockey occurred, and in this matter,
the complainant said that if something was not done, he would take care of it "the old-fashioned
way."
Upon further discussion, Chair Rademacher clarified that until the issue is resolved, there should
only be normal ranching activity and the exercising of the family horses on the site, with no more
racing activities. Mr. Boyd acknowledged that he understood.
Commissioner Long stated that this is a very serious issue and there have been at least three (3)
similar USR permits which have been denied because of the safety concerns. He clarified there are
other counties which allow horse racing without any kind of permit, and if this is something Mr.
Oaxaca is passionate about, maybe he should pursue the option of starting an operation elsewhere.
In response to Mr. Arnold, Chair Rademacher indicated Mr. Oaxaca could hold similar events in
Adams County if he still has the proper permits.
Commissioner Kirkmeyer moved to refer ZCV #1000101 against Boyd Arnold back to the
Department of Planning Services. The motion was seconded by Commissioner Conway, and it
carried unanimously.
ZCV #1000066 — CAMPBELL/GILL: Ms. Salzman presented the case report for the record and
pursuant to the case file,this property is in violation of various sections of the Weld County Code,as
detailed in staffs case summary. She stated the property consists of approximately 15.28 acres,
certified mail was sent on August 26, 2010, and was received signed on August 31, 2010. She
indicated the violation was initiated upon the complaint received that there were approximately six
cargo containers on the property, and upon inspection of the property, she found at least five
containers. She further indicated an additional email stated there were at least eight cargo
containers. Ms. Salzman stated that the property owners had made contact with the Department of
Planning Services and indicated that they planned to construct a cargo container home and did
submit the initial basic set of plans; however, not enough information has been submitted to issue a
building permit, and there has been no structural change to any of the containers. She confirmed up
to two cargo containers,with a building permit, are allowed and more than two requires the issuance
of a USR permit. She stated, until the cargo containers are altered and turned into a home, the
Department only allows two cargo containers. Ms. Salzman clarified she did notice a For Sale sign
on the property which she did not previously notice on her first site visit, and since the property
owners have made no progress on the home, nor have they made any contact with the Department,
she recommended the matter be referred to the County Attorneys' Office for immediate legal action.
Neither the property owner nor a representative was present, and Chair Rademacher provided the
opportunity for public testimony; however, none was given.
Commissioner Conway moved to refer ZCV#1000066 against David Campbell and Laura Gill to the
County Attorney for immediate legal action. The motion was seconded by Commissioner Garcia,
and it carried unanimously.
ZCV#1000094—TAUFER: At the request of staff, Commissioner Kirkmeyer moved to continue
ZCV #1000094 against Kirsten Taufer to November 9, 2010, at 10:00 a.m. The motion was
seconded by Commissioner Conway, and it carried unanimously.
ZCV #1000113 — CUNNINGHAM: Ms. Salzman presented the case report for the record and
pursuant to the case file,this property is in violation of various sections of the Weld County Code, as
detailed in staffs case summary. She confirmed it was brought to her attention that there are three
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tenants on the property, who currently have a lease with an option to purchase the property from
Ms. Cunningham. She indicated the site is 3.19 acres in size, staff has held several conversations
with the tenants regarding the use of the site, and during a recent inspection, she discovered 19
non-mature marijuana plants, 27 mature plants, and there was no cut marijuana storage on the site.
She clarified another growing operation has been removed from the upstairs portion of the building
since her previous inspection, the number of mature plants was reduced from 42 to 27, and the
number of non-mature was reduced from 28 to 19. She indicated this property is in violation of the
Weld County Code, based upon the number of plants, and the maturity level of the plants. She
displayed photographs of the site, and stated, to bring the property into compliance, the property
must comply with Colorado Revised Statues(C.R.S.)and the Colorado Constitution, by reducing the
number of marijuana plants on the property. Ms. Salzman explained the Affirmative Defense option
indicates possession of excess amounts of marijuana may be medically necessary; however, it is
the opinion of the Department and the County Attorney that the defense only applies to criminal
proceedings, and not to civil cases, such as this case. She confirmed if the number of allowable
plants is referred to be determined by a medical doctor, patient, or caregiver, it will be nearly
impossible for staff to determine when a site is out of compliance. She further confirmed it is staffs
interpretation that a caregiver is allowed up to six (6) plants, per patient, not to exceed five (5)
patients, with three (3) or fewer plants being mature, flowering plants, and no more than two (2)
ounces of marijuana in a useable form, to be kept on the property, in accordance with
Section 14-4(a) of the Colorado Constitution. She clarified the total number of allowable plants on
this site is 30 plants, with the understanding that fifteen (15) or fewer of the plants may be mature,
flowering plants, and a total of ten (10)ounces of usable marijuana may be maintained on the site at
any given time. She recommended the matter be referred to the County Attorney's Office for legal
action, and she confirmed the tenants and their attorney are present today. In response to Chair
Rademacher, Ms. Salzman indicated the following case is for the same property, regarding the
issuance of building permits; however,the outcome of this case will determine if the property tenants
intend to proceed with obtaining a building permit, therefore, she recommended the matters be
considered separately. Responding to Commissioner Conway, Ms. Salzman explained this violation
was initiated after the tenants applied for a Non-Conforming Use permit in June, 2010, and the
permit was denied due to complications with the lease. She confirmed the tenant qualifies as a
caregiver,which allows for a reduced amount of plants, and staff completed random inspections on
facilities which were denied the Non-Conforming Use permit to ensure the operations were in
compliance with State laws.
Chris Matz, Attorney, represented Travis Peonio, one of the three tenants of the property, and
confirmed Mr. Peonio is the specified caregiver, and is also a patient. He clarified the previous
application made for a Medical Marijuana Center with Infused Products was denied for other
reasons, and Ms. Salzman indicates that Mr. Peonio must comply with caregiver status. He stated
Section 25-1.5-106, C.R.S., does not provide a limitation for the number of plants, and indicates a
primary caregiver may cultivate or provide for medical use to patients. He confirmed Mr. Peonio is in
compliance with State law, and he is listed as a caregiver for only five patients; however, each
patient has a recommendation from a physician for an excess of six plants each. He clarified the
code references within C.R.S. do not specify a specific number of plants, rather,the language refers
to an amount which can be determined to be medically necessary. He indicated the limitation of a
caregiver's ability to administer a lesser amount of medication than what is recommended by a
physician interferes with the doctor/patient relationship, and the limitation of access to the medicine
infringes upon a patient's constitutional rights for both access and privacy. He clarified privacy rights
should be protected for the use of the medicine as well as access to the medicine, therefore, the
limits should not be reduced for patients who have proper recommendations for a specific amount.
Mr. Matz confirmed all of Mr. Peonio's patients live within Weld County and do not have adequate
access to any other centers. He clarified making enforcement easier for staff is not a sufficient
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reason to infringe upon the rights of the patients to receive adequate amounts of medicine,
recommended by a physician, and allowed by State law.
In response to Commissioner Garcia, Mr. Matz stated Amendment 20 addresses the ability for a
physician to recommend what is believed to be medically necessary. He further stated there has not
been any further determination as to what the outer limit of medical necessity is. Further responding
to Commissioner Garcia, Mr. Matz stated it is not his position that the Constitutional amendments
limit the power of the Board of Commissioners to be able to regulate zoning regulations, rather, he is
speaking to the fact that the Weld County Code and C.R.S. do not indicate a specific limit of plants.
Bruce Barker, County Attorney, indicated he disagrees with the issue of a physician being able to
determine what is medically necessary. He clarified the Constitution indicates an affirmative
defense allows for a physician to indicate what is medically necessary; however, it does not say that
it is an exception to the limitation which is previously stated and may be used within a proposed
violation of State law. He stated the limit is not modified to the amount a physician recommends,
rather, if a person is being prosecuted for a criminal offense, the definition of medically necessary
may be utilized as a defense within criminal prosecution. He indicated he does not agree that the
constitutional provisions indicate a patient may have up to six plants, or an excess amount, if
recommended by a physician. He confirmed the affirmative defense may only be utilized if a patient
is charged with violating the constitutional provision, and the issue before the Board today is purely
for zoning purposes, not criminal prosecution. Mr. Matz confirmed the matter is not discussed within
Senate Bill #1284, which was passed and will be codified, therefore, the matter is no longer only
referred to as an affirmative defense. He further confirmed there are additional references of when
a physician may make recommendations of increased medication. He clarified he does not believe
this is a matter of affirmative defense, rather, his position is that a zoning violation should not occur
since each of the patients have a valid recommendation from a physician and the Weld County
Code does not reference a specific limit for the number of plants allowed. In response to Chair
Rademacher, Mr. Barker clarified the affirmative defense stands, with respect to what is stated
within the Constitution, and the main question to be answered should be the status of the individual
who is completing the growing operations. Responding to Commissioner Conway, Mr. Matz
confirmed he is not trying to insinuate that Senate Bill #1284 trumps what is already within the
Constitution, rather, it makes a few modifications and additions. Further responding to
Commissioner Conway, Mr. Barker clarified the Board must make a decision of whether to allow an
individual who oversees the growing operations to go above the allowable number of plants for up to
five patients. Mr. Matz clarified he is trying to indicate that the Board has the authority to do so.
Mr. Peonio clarified he has been diagnosed with chronic pancreatitis; his father,who is a patient, is
paralyzed from the waist down from the result of a vehicle accident; another patient has burns which
cover 94 percent of his body; another patient suffers with muscular dystrophy, and his last patient is
his mother, who sustained major back and neck injuries from the same vehicle accident his father
was involved in. He clarified the plants do not always grow at the same rate, and after he is able to
give all of his patients their recommended portions, he is out of medicine. He confirmed he cannot
keep up with the needs of his patients with the restriction of fifteen flowering plants. In response to
Commissioner Conway, Mr. Peonio confirmed his patients would be able to purchase additional
medicine at a licensed dispensary; however, most of his patients have financial difficulties, and
cannot afford to purchase additional medicine. In response to Commissioner Kirkmeyer, Mr. Peonio
confirmed he is considered a co-owner of the property because he has a valid lease-to-own
arrangement for the property, and the current property owner, Doris Cunningham, is not a licensed
caregiver. He clarified John Mosser is also listed as a tenant within the lease-to-own agreement,
and he is a previous patient. He further clarified Geoffrey Cavalier is not currently a licensed
caregiver; however, he and Mr. Mosser were previously licensed by the State as caregivers, and
Ms. Cunningham has never been a licensed caregiver. Commissioner Kirkmeyer referenced
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Section 25-1.5-106(9)(b), C.R.S., and indicated two or more caregivers cannot join together for
cultivation. Mr. Peonio explained he is the only licensed caregiver at the facility, and the lease is a
lease-purchase agreement with Ms. Cunningham.
Mr. Mosser indicated he has burns over 90 percent of his body, and he confirmed three flowering
plants is not enough for his needs. He clarified he ingests the marijuana in edible forms, and it
takes a lot more product to convert into edibles, sometimes up to four times as much product. He
confirmed he is requesting to be allowed a total of twelve plants for his needs, which is double the
amount currently allowed; however, the additional plants will be adequate enough for each patient to
obtain enough product during each plant cycle. He clarified the amount produced on each plant is
variable, and sometimes plants do not produce enough to make the necessary medication.
Mr. Mosser confirmed there are no licensed dispensaries within the surrounding area, and the cost
of dispensaries is too expensive for his disability income. In response to Chair Rademacher,
Mr. Barker clarified a caregiver with five patients is allowed a total of 30 plants, and once a patient
designates a caregiver, a patient loses the ability to grow their own plants. Mr. Matz clarified these
patients do not have the physical ability to grow the necessary plants which is why they utilize a
caregiver. Mr. Barker reiterated the Board must decide whether more than six plants will be allowed,
per patient, based upon the statement from a physician that more plants are medically necessary.
He clarified the affirmative defense does not necessarily automatically allow a patient to grow the
amount recommended by a physician, and the Board must remember this matter is a zoning
violation, not a matter of criminal offense. He confirmed the Weld County Code does not specifically
state the number of plants which are allowed, so there is some level of interpretation allowed.
Andrew Hodson indicated he is a patient of Mr. Peonio and he confirmed he cannot afford to
purchase his medicine at a licensed dispensary. He expressed his concerns regarding the quality of
the medication at some dispensaries and he confirmed he trusts the quality of the plants grown by
Mr. Peonio since he utilizes specific nutrients during the growing process. He indicated he also
prefers edible products, which require more product to create, and being allowed a higher plant
count, as recommended by a physician, will help provide the necessary quantity of product. He
clarified it takes an average of three months for a plant to become mature and be harvested, and
occasionally plants do not complete a specific growing cycle, and patients are stranded with even
less product. He indicated a higher plant count per patient will allow Mr. Peonio to utilize the
necessary amount of product to create edibles and will reduce the chance that patients may have to
go without medicine. In response to Commissioner Conway, Mr. Hodson confirmed he suffers from
a rare form of muscular dystrophy and the marijuana products help him to manage his chronic pain.
He clarified, at a dispensary, four jolly rancher candies cost$12.50, and an ounce of tincture costs
$40.00, which is a significant cost. Further responding to Commissioner Conway, Mr. Peonio
clarified he is able to harvest between two and four ounces of product from a single plant; however,
he needs approximately seven ounces to create edible products since he is only able to get
approximately seven grams of usable product, per ounce, once the product is cooked. He
confirmed seven grams of cooked product will provide between four and eight one-ounce bottles of
a glycerin-based medicine.
Dr. Jeanette Mercer indicated she is a family physician, practicing in the City of Windsor, and she
has known Mr. Peonio since he was a high school student. She confirmed Mr. Peonio contacted
her last year regarding providing recommendations for patients, and she did not hesitate after
meeting the patients. She clarified the medical profession does not like smoke, since it is bad for
the lungs; therefore, it is a much better practice for the patients to ingest the medicine so that the
benefits may be provided without the harmful side effects caused by smoke. She explained there is
an expensive prescription drug on the market named Marinol,which she has prescribed to patients
in the past; however, it proved to be worthless and did nothing to help with appetite or pain levels.
She confirmed she believes the process the pharmaceutical company completes to convert the
Hearing Certification, Zoning Violations
October 12, 2010 2010-2431
Page 9 PL0824
medicine into a pill form has ruined the medicine's ability to help patients, and she is pleased to be
able to recommend the natural product for patients. Dr. Mercer clarified this zoning violation
process has impinged on her ability to provide adequate care for her patients,especially since more
product is required to be able to create ingestible products for these patients. She confirmed the
product will taste horrible and cannot be adequately ingested unless it is melted down the correct
way, and in order to make the product palatable, more product must be used. She indicated she
knows what amounts are necessary for her patients to utilize, in order to be helped; however, it
appears the patients are limited to less than her recommendation, which limits her doctor/patient
relationship. She further indicated she has been told her patients do not have access to the
medicine for a period of 35 days, and one of her terminal patients will most likely not even be alive
35 days from now, and she is upset that she cannot provide medication to help with the pain.
Dr. Mercer expressed her concerns regarding the ability of all of her patients to have adequate
access to the necessary amounts of medication, especially since most of them cannot afford to
obtain their medication from a pharmacy or dispensary and they are not allowed to grow their own
supply. She explained she is forced to impinge on her patient's privacy because she is required to
indicate why each patient is receiving the medication. She confirmed she is trying to comply with the
law while helping her patients, and she is deeply concerned that her patients do not have adequate
access to their medication if there are restrictions on the amount of medicine allowed.
Mr. Matz clarified the Weld County Code does not currently specify a quantity of plants allowed, and
limiting the amount allowed for enforcement purposes directly interferes with the patient's care since
these patients do not have the ability to obtain their medicine from other sources, and he believes
the Board has the ability to provide enforcement without interfering with the patients rights.
Responding to Chair Rademacher, Mr. Matz confirmed each of these patients have a
recommendation of the need for twelve plants from Dr. Mercer.
Commissioner Long indicated the Weld County Code is not specific; however,the State Constitution
is specific and the Board is not allowed to circumvent state law. Mr. Barker clarified Section 14(4)(a)
of the Constitution states, "A patient may engage in the medical use of marijuana, with no more
marijuana than is medically necessary to address a debilitating medical condition." He further
clarified the limitations listed are six marijuana plants, with three or fewer being mature, flowering
plants, and no more than two ounces of a useable form of marijuana. He read Section 14(4)(b)for
the record, indicating a patient or a care-giver may raise an affirmative defense of more product
being medically necessary; however, it is difficult from a zoning standpoint because it will be
necessary for staff to view each patient's card to affirm what is being recommended. He confirmed
it was Weld County's original intent to follow the listed State limitation, which is currently six plants;
however,the Board must decide whether the argument presented that whatever is recommended as
medically necessary should be allowed, or, if for zoning purposes, the total should be limited to six,
as listed within the State Constitution. He confirmed his recommendation is that the Board, for
zoning purposes, only allow up to six plants per patient so that staff is not required to view every
patient's card to determine what has been recommended. He further confirmed the affirmative
defense is only utilized for criminal prosecution, not for zoning purposes. In response to
Commissioner Garcia, Mr. Barker clarified the affirmative defense may be utilized by a patient or a
primary caregiver.
Commissioner Kirkmeyer expressed her concern regarding the Board allowing a caregiver to have
more than six plants per patient when the Constitution clearly indicates up to six plants per patient
are allowed. In response to Commissioner Kirkmeyer, Mr. Barker clarified a caregiver does not have
to be a property owner, and through the USR process,the Board allows tenants to conduct specific
uses on properties which are owned by a different party, and in cases of violation, both the tenant
and the property owner are listed within the violation. He confirmed a tenant on a property is not
limited from acting as a caregiver. Commissioner Kirkmeyer reviewed Section 25-1.5-106(9)for the
Hearing Certification, Zoning Violations
October 12, 2010 2010-2431
Page 10 PL0824
record,which states, "A primary caregiver may not delegate to any other person his or her authority
to provide medical marijuana to a patient nor may a primary caregiver engage others to assist in
providing medical marijuana to a patient" In response to Commissioner Kirkmeyer, Mr. Barker
confirmed the caregiver may not seek assistance with the growing of the plants, and it may be
necessary for the Board to obtain more information regarding the role of the other tenants and
owner of this property. He clarified it appears there is one primary caregiver operating at this
property, who is listed as a tenant, and there are two other tenants who are patients of the caregiver.
Mr. Matz clarified the other two tenants are listed on the lease purely for financial reasons,since it is
a lease-to-purchase option, and he confirmed the other two tenants are only involved with the
aspect of the purchase of the property. Mr. Barker clarified he does not believe the tenants are in
violation of the section reference listed by Commissioner Kirkmeyer since the other tenants do not
assist with the operation provided by the caregiver. Commissioner Kirkmeyer clarified the financial
assistance regarding the purchase of the property could be interpreted as assistance, and Mr.
Barker concurred the Board could make that interpretation.
In response to Dr. Mercer, Mr. Barker indicated the County is not limiting the amount of marijuana a
doctor is able to recommend, since the recommendation should be for whatever is medically
necessary. He clarified, because this property is located within the A(Agricultural)Zone District,the
zoning ordinance ties into State law, and staff is not indicating that a doctor is prohibited from
making an adequate recommendation; rather, that a caregiver may not be allowed to cultivate the
recommended amount. Further responding to Dr. Mercer, Mr. Barker clarified the County is not
superceding a doctor's definition of what is medically necessary because a caregiver can conduct
the same operation at a location within another municipality or County where there are no
restrictions on the number of cultivated plants. He reiterated, for this location,the zoning ordinance
restricts the number of plants allowed on the site, and a patient is allowed to further fulfill the
recommendation provided by the doctor at another location.
In response to Dr. Mercer, Mr. Matz clarified if the recommendations for each of the patients were
posted by the caregiver, it would be easier for staff to provide enforcement measures. Mr. Barker
clarified Dr. Mercer is recommending twelve plants per patient; however, in the next case, a doctor
could recommend 100 plants as medically necessary for specific patients, and he questioned if
there are limitations to the amount a doctor can recommend. In response, Dr. Mercer indicated
there are no studies which provide a maximum limitation to a recommendation, and she confirmed
each plant will yield a different amount of product to be utilized during each growing cycle. She
clarified the State of Colorado leaves the amount of recommendation to be determined by a licensed
physician because physicians take specific oaths and are trusted with the prescription of narcotics
and other controlled substances. She confirmed the ethics and the morals of the physician should
also be relied upon for the use of medical marijuana, and the patients who are trying to remain in
compliance with all of the regulations should be rewarded. In response to Commissioner Conway,
Dr. Mercer clarified the dispensing of marijuana is not covered under the same federal guidelines for
narcotics, and there are no specific written guidelines for the use of medical marijuana. She further
clarified she does have the ability to prescribe medications which are considered to be"off-label" in
many situations, including specific medication which have more than one use.
Commissioner Kirkmeyer clarified the Constitution utilizes the word "lawful," which it indicates that
no more than six plants, with three plants being mature and flowering, is lawful; however, she
questioned whether it is considered unlawful if a caregiver has more plants than six. In response,
Mr. Barker stated the Board may indicate, for the purposes of zoning within Weld County, the
number of plants allowed is concurrent with the recommendation made by the physician. He
clarified the County's land use powers follow the Constitution and State law and if an individual was
going to be prosecuted for having more than six plants, the affirmative defense would be the
recommendation of twelve plants made by a qualified physician. He further clarified the County is
Hearing Certification, Zoning Violations
October 12, 2010 2010-2431
Page 11 PL0824
not necessarily prohibited from allowing a doctor's recommendation to be utilized as the limit, for
zoning purposes, since the Weld County Code does not reference a specific number of plants. He
indicated this is the first instance in which the Board has been requested to make a determination of
the standard for what is allowed and what is not allowed for the zoning determination. He confirmed
a determination of a property being allowed to keep the number of plants recommended by a
physician will not violate the Constitution or State law. Commissioner Kirkmeyer clarified the
physician has recommended that each of the patients be allowed twelve plants, with six being
mature, flowering plants. Mr. Peonio clarified, before Senate Bill #1240 passed, he had a total of
almost 40 patients; however, he reduced his patient load to the numbers required, and kept the
patients which were in the worst condition. Commissioner Conway clarified the caregiver is
requesting to be allowed to keep a total of 60 plants to be utilized for the five patients, and
Mr. Peonio confirmed 30 of the 60 plants will be mature, flowering, plants.
Ms. Salzman requested clarification regarding the amount of useable marijuana allowed to be kept
on the site since the current limitation is listed as two ounces. In response to Mr. Barker, Dr. Mercer
confirmed her recommendation is also for the allowance of up to four ounces of usable marijuana,
per patient. She clarified it takes approximately three months to grow a plant, and one plant may
yield one or two ounces of usable product; however, it takes one ounce to make a small amount of
edible medication. Mr. Matz clarified the Board does not necessarily have to claim a maximum limit
of the allowable number of plants, and hopefully Dr. Mercer was able to adequately indicate that
most physicians are not recommending a very large amount of medication for their patients. In
response to Commissioner Kirkmeyer, Ms. Salzman confirmed there is not a copy of the written
recommendation from Dr. Mercer within the file, due to privacy laws; however, she can confirm that
she has visually seen a recommendation during an inspection.
Commissioner Long indicated he understands the concerns and need presented by the patients;
however, he does not know how staff will provide enforcement of a moving target if the Board
agrees to expand the allowable amount of product to match a recommendation provided by a
physician. He confirmed he is uncomfortable with a caregiver being allowed to have more product
on a property than State law allows, and staff will have a hard time determining how much product
should be allowed on a specific site if the patient's confidentially must be protected. He further
confirmed allowing more than six plants per patient will open a loophole,which will create additional
problems, including safety concerns. Commissioner Garcia indicated he concurs with the
interpretation provided by Mr. Barker, especially concerning that a caregiver may only use an
affirmative defense of having no more than what is medically necessary within criminal proceedings.
He clarified the affirmative defense is not to be utilized as a opportunity to increase the amount of
product, rather, as a opportunity for a caregiver or patient to avoid criminal prosecution. He
confirmed the Board does not have a strong leg to stand on with the authority to exceed the
numbers listed within the Constitution.
Commissioner Kirkmeyer explained that the Constitution indicates the use of marijuana is allowable
for what is medically necessary to address a debilitating condition, and the next sentence clarifies
what is"lawful,"which is six plants and two ounces. She further explained the next section indicates
that if a physician indicates that twelve plants per patient are medically necessary, then it is her
interpretation that the amount of twelve plants is lawful. She confirmed if a recommendation is
made in writing by a physician, the Board should rely on a medical opinion because they are
charged with taking care of the health of their patients. Chair Rademacher concurred and indicated
the loophole was created by the State within the Constitution. Commissioner Long clarified he is not
willing to delegate land use authority within Weld County to the medical community since the
authority ultimate resides with the Board of County Commissioners. He confirmed setting a
precedence in this matter will create more problems than it will solve. Commissioner Kirkmeyer
questioned the reasoning for having a zoning ordinance which provides a specific limit on the
Hearing Certification, Zoning Violations
October 12, 2010 2010-2431
Page 12 PL0824
number of allowable plants, and if there is enough reasoning, a specific number of plants should be
specified within the Weld County Code; however, the specific justification for doing so will need to
be provided. She clarified the Constitution indicates it is possible to rely on a physician
recommendation.
Commissioner Garcia moved to refer ZCV #1000113 against Doris Cunningham to the County
Attorney for immediate legal action. Commissioner Long seconded the motion. Commissioner
Conway indicated he is uncomfortable with the potential loophole created by the Constitution;
however, the Board cannot avoid the specific reference of six plants and two ounces. He clarified
he respects the opinion of the physician, indicating up to twelve plants are medically necessary;
however,there are other avenues for patients to access additional amounts of medication and he is
also not comfortable with the Board giving away the land use authority for Weld County to a medical
professional. Commissioner Kirkmeyer questioned what happens if the matter is referred to the
County Attorney's Office, and the caregiver brings up the affirmative defense within a future court
case regarding the zoning violation. In response, Mr. Barker clarified if the Board makes the
determination that the allowable amount is six plants, the court will not be able to make the
determination that the allowable amount is more than six since the Board of County Commissioners
interprets its own Ordinance,which references State statute. He confirmed it is his recommendation
that the Weld County Code be amended to indicate the limitation of six plants, if that is the desire of
the Board. Further responding to Commissioner Kirkmeyer, Mr. Barker clarified the County will not
violate the Constitution by allowing the Weld County Code to be more restrictive, for zoning
purposes. He further clarified the Board will not be indicating that a caregiver or patient cannot grow
more than six plants, at another location; rather,for the purposes of zoning within Weld County,this
activity may be limited within specific Zone Districts. He confirmed the Board has the complete and
sole authority, through Title 30, to make this determination.
Commissioner Conway clarified the Board previously decided against placing a specific limitation
within the Weld County Code because it was assumed the limitation would be a moving target within
state legislation. He confirmed if the legislation changes at some point in the future, the Weld
County Code will still be consistent if it does not provide a specific limitation. Mr. Barker clarified the
Weld County Code is consistent with current State law; however, a specific limitation is not called
out within the Weld County Code. He confirmed it is the interpretation of the Board of what
constitutes a zoning violation. Commissioner Conway clarified current State law indicates up to six
plants per patient is allowed, and Weld County is not prohibited from increasing this amount if the
number allowed through State law in increased. There being no further discussion, the motion
carried three to two, with Commissioner Kirkmeyer and Chair Rademacher opposed.
BCV #1000087 — CUNNINGHAM: Ms. Gregory presented the case report for the record and
pursuant to the case file, this property is in violation of various sections of the Weld County Code,as
detailed in staff's case summary. She indicated the property has gone through a Change of Use
without obtaining the proper building permits, which was brought to staffs attention through the
submittal of the Non-Conforming Use application. She indicated, to bring the property into
compliance,the required building permit and applicable documentation for the Change of Use must
be submitted, fees paid, the permit issued, and an inspection completed by the Department.
Ken Swanson, Building Official, confirmed he visited the site, and it appears the site has been
modified from an S Occupancy to an F-1 occupancy, therefore, a Change of Use permit is required.
Mr. Matz clarified upon receipt of the letter notifying Mr. Peonio of the violation, an architect was
hired to draw up the necessary plans so that the permit could be applied for. He confirmed there
Hearing Certification, Zoning Violations
October 12, 2010 2010-2431
Page 13 PL0824
has been no construction activity at the site since the letter was received, and, based upon the
decision of the zoning case just completed, he is not entirely sure Mr. Peonio will be going forward at
this property. He requested an extension of the matter since a decision needs to be made about the
business operating at the property. Chair Rademacher indicated the Board could refer the matter to
the County Attorney's Office,with a delay of action for 30 days. Responding to Chair Rademacher,
Mr. Swanson indicated it takes approximately 20 days to review the application materials for a
Change of Use permit. In response to Commissioner Kirkmeyer, Mr. Swanson clarified the uses on
the site should not be occurring at this time since there is not a valid Certificate of Occupancy.
Responding to Commissioner Kirkmeyer, Mr. Barker confirmed the tenant will be able to obtain a
Certificate of Occupancy for the growing of six plants per patient. Further responding to
Commissioner Kirkmeyer, Mr. Peonio confirmed a period of 30 days will be adequate for him to
decide whether he desires to continue business operations at this location.
In response to Mr. Barker, Ms. Arries indicated it will take approximately two to three weeks to
initiate a court case for the zoning violation. She clarified this issue, the building violation, is not
about the tenant being in compliance with the number of plants allowed, rather, that the building
being utilized has changed from an agricultural use. Mr. Swanson confirmed the item(s) being
grown on the site are not relevant to the building permit issues; however, the occupancy of the
building has changed because the tenant is conducting processing activities, and a Change of Use
permit must be applied for. Ms. Gregory clarified the first letter notifying Mr. Peonio of this violation
was sent on July 14, 2010.
Commissioner Kirkmeyer moved to refer BCV#1000087 against Doris Cunningham to the County
Attorney for legal action, with the instruction to delay action upon such referral until November 12,
2010, to allow adequate time for the tenant to submit the necessary application paperwork for a
Change of Use permit. The motion was seconded by Commissioner Garcia and it carried
unanimously.
There being no further discussion, the hearing was completed at 12:15 p.m.
Hearing Certification, Zoning Violations
October 12, 2010 2010-2431
Page 14 PL0824
This Certification was approved on the 12th day of October, 2010.
BOARD OF COUNTY COMMISSIONERS
ELD COUNTY, COLORADO
i
ATTEST i aw Y.�. _ • �.��i� .
h'i'I\� 'i: . :s Rade cher, Chair
Weld County Clerk to the Bo 861 C's '2 I`
3 4
4 - y - em
J o ` tiara Kirkmeyer, P o-Tem
BY: �u 4 Lull > - C
Dep Clerk t t e Board i '""`-C C/ —-
Sean P. Qo way �\
I
APP ED M: � t(F.
it • F. Garcia
my Attorney J Crv1 ( ``
David E. Long
CD#2010-10(V)
Hearing Certification, Zoning Violations
October 12, 2010 2010-2431
Page 15 PL0824
§ 25-1.5-106. Medical marijuana program--powers and duties of state health agency--
medical review board--repeal
(1) Legislative declaration. (a) The general assembly hereby declares that it is necessary to
implement rules to ensure that patients suffering from legitimate debilitating medical conditions
are able to safely gain access to medical marijuana and to ensure that these patients:
(I) Are not subject to criminal prosecution for their use of medical marijuana in accordance with
section 14 of article XVIII of the state constitution, this section, and the rules of the state health
agency; and
(II) Are able to establish an affirmative defense to their use of medical marijuana in accordance
with section 14 of article XVIII of the state constitution, this section, and the rules of the state
health agency.
(b) The general assembly hereby declares that it is necessary to implement rules to prevent
persons who do not suffer from legitimate debilitating medical conditions from using section 14
of article XVIII of the state constitution as a means to sell, acquire, possess, produce, use, or
transport marijuana in violation of state and federal laws.
(2) Definitions. In addition to the definitions set forth in section 14(1) of article XVIII of the
state constitution, as used in this section, unless the context otherwise requires:
(a) "Bona fide physician-patient relationship", for purposes of the medical marijuana program,
means:
(I) A physician and a patient have a treatment or counseling relationship, in the course of which
the physician has completed a full assessment of the patient's medical history and current
medical condition, including an appropriate personal physical examination;
(II) The physician has consulted with the patient with respect to the patient's debilitating medical
condition before the patient applies for a registry identification card; and
(III) The physician is available to or offers to provide follow-up care and treatment to the
patient, including but not limited to patient examinations, to determine the efficacy of the use of
medical marijuana as a treatment of the patient's debilitating medical condition.
(b) "Executive director" means the executive director of the state health agency.
(c) "In good standing", with respect to a physician's license, means:
(I) The physician holds a doctor of medicine or doctor of osteopathic medicine degree from an
accredited medical school;
(II) The physician holds a valid, unrestricted license to practice medicine in Colorado; and
(III) The physician has a valid and unrestricted United States department of justice federal drug
enforcement administration controlled substances registration.
(d) "Medical marijuana program" means the program established by section 14 of article XVIII of
the state constitution and this section.
(e) "Registry identification card" means the nontransferable confidential registry identification
card issued by the state health agency to patients and primary caregivers pursuant to this
section.
1
(f) "State health agency" means the public health related entity of state government designated
by the governor by executive order pursuant to section 14 of article XVIII of the state
constitution.
(g) "Primary caregiver" means a natural person, other than the patient or the patient's physician,
who is eighteen years of age or older and has significant responsibility for managing the well-
being of a patient who has a debilitating medical condition.
(3) Rule-making. (a) The state health agency shall, pursuant to section 14 of article XVIII of
the state constitution, promulgate rules of administration concerning the implementation of the
medical marijuana program that specifically govern the following:
(I) The establishment and maintenance of a confidential registry of patients who have applied for
and are entitled to receive a registry identification card. The confidential registry of patients may
be used to determine whether a physician should be referred to the Colorado board of medical
examiners for a suspected violation of section 14 of article XVIII of the state constitution,
paragraph (a), (b), or (c) of subsection (4) of this section, or the rules promulgated by the state
health agency pursuant to this subsection (3).
(II) The development by the state health agency of an application form and the process for
making the form available to residents of this state seeking to be listed on the confidential
registry of patients who are entitled to receive a registry identification card;
(III) The verification by the state health agency of medical information concerning patients who
have applied for a registry identification card or for renewal of a registry identification card;
(IV) The development by the state health agency of a form that constitutes "written
documentation" as defined and used in section 14 of article XVIII of the state constitution, which
form a physician shall use when making a medical marijuana recommendation for a patient;
(V) The conditions for issuance and renewal, and the form, of the registry identification cards
issued to patients, including but not limited to standards for ensuring that the state health
agency issues a registry identification card to a patient only if he or she has a bona fide
physician-patient relationship with a physician in good standing and licensed to practice medicine
in the state of Colorado;
(VI) Communications with law enforcement officials about registry identification cards that have
been suspended when a patient is no longer diagnosed as having a debilitating medical
condition;
(VII) The manner in which the state health agency may consider adding debilitating medical
conditions to the list of debilitating medical conditions contained in section 14 of article XVIII of
the state constitution; and
(VIII) A waiver process to allow a homebound patient who is on the registry to have a primary
caregiver transport the patient's medical marijuana from a licensed medical marijuana center to
the patient.
(b) The state health agency may promulgate rules regarding the following:
(I) What constitutes "significant responsibility for managing the well-being of a patient"; except
that the act of supplying medical marijuana or marijuana paraphernalia, by itself, is insufficient
to constitute "significant responsibility for managing the well-being of a patient";
(II) The development of a form for a primary caregiver to use in applying to the registry, which
form shall require, at a minimum, that the applicant provide his or her full name, home address,
2
date of birth, and an attestation that the applicant has a significant responsibility for managing
the well-being of the patient for whom he or she is designated as the primary caregiver and that
he or she understands and will abide by section 14 of article XVIII of the state constitution, this
section, and the rules promulgated by the state health agency pursuant to this section;
(III) The development of a form that constitutes "written documentation", as defined and used in
section 14 of article XVIII of the state constitution, which form a physician shall use when
making a medical marijuana recommendation for a patient; and
(IV) The grounds and procedure for a patient to change his or her designated primary caregiver.
(c)(I) The state health agency shall conduct a public review hearing with the department of
revenue by September 1, 2010, to receive public input on any emergency rules adopted by the
state health agency and be provided with an update from the industry, caregivers, patients, and
other stakeholders regarding the industry's current status. The state health agency shall provide
at least five business days' notice prior to the hearing.
(II) This paragraph (c) is repealed, effective July 1, 2011.
(4) Physicians. A physician who certifies a debilitating medical condition for an applicant to the
medical marijuana program shall comply with all of the following requirements:
(a) The physician shall have a valid, unrestricted Colorado license to practice medicine, which
license is in good standing.
(b) After a physician, who has a bona fide physician-patient relationship with the patient applying
for the medical marijuana program, determines, for the purposes of making a recommendation,
that the patient has a debilitating medical condition and that the patient may benefit from the
use of medical marijuana, the physician shall certify to the state health agency that the patient
has a debilitating medical condition and that the patient may benefit from the use of medical
marijuana. If the physician certifies that the patient would benefit from the use of medical
marijuana based on a chronic or debilitating disease or medical condition, the physician shall
specify the chronic or debilitating disease or medical condition and, if known, the cause or source
of the chronic or debilitating disease or medical condition.
(c) The physician shall maintain a record-keeping system for all patients for whom the physician
has recommended the medical use of marijuana, and, pursuant to an investigation initiated
pursuant to section 12-36-118, C.R.S., the physician shall produce such medical records to the
Colorado state board of medical examiners after redacting any patient or primary caregiver
identifying information.
(d) A physician shall not:
(I) Accept, solicit, or offer any form of pecuniary remuneration from or to a primary caregiver,
distributor, or any other provider of medical marijuana;
(II) Offer a discount or any other thing of value to a patient who uses or agrees to use a
particular primary caregiver, distributor, or other provider of medical marijuana to procure
medical marijuana;
(III) Examine a patient for purposes of diagnosing a debilitating medical condition at a location
where medical marijuana is sold or distributed; or
(IV) Hold an economic interest in an enterprise that provides or distributes medical marijuana if
the physician certifies the debilitating medical condition of a patient for participation in the
medical marijuana program.
3
(5) Enforcement. (a) If the state health agency has reasonable cause to believe that a
physician has violated section 14 of article XVIII of the state constitution, paragraph (a), (b), or
(c) of subsection (4) of this section, or the rules promulgated by the state health agency
pursuant to subsection (2) of this section, the state health agency may refer the matter to the
state board of medical examiners created in section 12-36-103, C.R.S., for an investigation and
determination.
(b) If the state health agency has reasonable cause to believe that a physician has violated
paragraph (d) of subsection (4) of this section, the state health agency shall conduct a hearing
pursuant to section 24-4-104, C.R.S., to determine whether a violation has occurred.
(c) Upon a finding of unprofessional conduct pursuant to section 12-36-117(1)(mm), C.R.S., by
the state board of medical examiners or a finding of a violation of paragraph (d) of subsection
(4) of this section by the state health agency, the state health agency shall restrict a physician's
authority to recommend the use of medical marijuana, which restrictions may include the
revocation or suspension of a physician's privilege to recommend medical marijuana. The
restriction shall be in addition to any sanction imposed by the state board of medical examiners.
(d) When the state health agency has objective and reasonable grounds to believe and finds,
upon a full investigation, that a physician has deliberately and willfully violated section 14 of
article XVIII of the state constitution or this section and that the public health, safety, or welfare
imperatively requires emergency action, and the state health agency incorporates those findings
into an order, the state health agency may summarily suspend the physician's authority to
recommend the use of medical marijuana pending the proceedings set forth in paragraphs (a)
and (b) of this subsection (5). A hearing on the order of summary suspension shall be held no
later than thirty days after the issuance of the order of summary suspension, unless a longer
time is agreed to by the parties, and an initial decision in accordance with section 24-4-105(14)
C.R.S., shall be rendered no later than thirty days after the conclusion of the hearing concerning
the order of summary suspension.
(6) Renewal of patient identification card upon criminal conviction. Any patient who is
convicted of a criminal offense under article 18 of title 18, C.R.S., sentenced or ordered by a
court to drug or substance abuse treatment, or sentenced to the division of youth corrections,
shall be subject to immediate renewal of his or her patient registry identification card, and the
patient shall apply for the renewal based upon a recommendation from a physician with whom
the patient has a bona fide physician-patient relationship.
(7) A parent who submits a medical marijuana registry application for his or her child shall have
his or her signature notarized on the application.
(8) Notwithstanding any other requirements to the contrary, notice issued by the state health
agency for a rulemaking hearing pursuant to section 24-4-103, C.R.S., for rules concerning the
medical marijuana program shall be sufficient if the state health agency provides the notice no
later than forty-five days in advance of the rulemaking hearing in at least one publication in a
newspaper of general distribution in the state and posts the notice on the state health agency's
web site; except that emergency rules pursuant to section 24-4-103(6). C.R.S., shall not require
advance notice.
(9) Primary caregivers. (a) A primary caregiver may not delegate to any other person his or
her authority to provide medical marijuana to a patient nor may a primary caregiver engage
others to assist in providing medical marijuana to a patient.
(b) Two or more primary caregivers shall not join together for the purpose of cultivating medical
marijuana.
4
(c) Only a medical marijuana center with an optional premises cultivation license, a medical
marijuana-infused products manufacturing operation with an optional premises cultivation
license, or a primary caregiver for his or her patients or a patient for himself or herself may
cultivate or provide marijuana and only for medical use.
(d) A primary caregiver shall provide to a law enforcement agency, upon inquiry, the registry
identification card number of each of his or her patients. The state health agency shall maintain a
registry of this information and make it available twenty-four hours per day and seven days a
week to law enforcement for verification purposes. Upon inquiry by a law enforcement officer as
to an individual's status as a patient or primary caregiver, the state health agency shall check
the registry. If the individual is not registered as a patient or primary caregiver, the state health
agency may provide that response to law enforcement. If the person is a registered patient or
primary caregiver, the state health agency may not release information unless consistent with
section 14 of article XVIII of the state constitution. The state health agency may promulgate
rules to provide for the efficient administration of this paragraph (d).
(10) Patient--primary caregiver relationship. (a) A person shall be listed as a primary
caregiver for no more than five patients on the medical marijuana program registry at any given
time; except that the state health agency may allow a primary caregiver to serve more than five
patients in exceptional circumstances. In determining whether exceptional circumstances exist,
the state health agency may consider the proximity of medical marijuana centers to the patient.
A primary caregiver shall maintain a list of his or her patients including the registry identification
card number of each patient at all times.
(b) A patient shall have only one primary caregiver at any given time.
(c) A patient who has designated a primary caregiver for himself or herself may not be
designated as a primary caregiver for another patient.
(d) A primary caregiver may not charge a patient more than the cost of cultivating or purchasing
the medical marijuana, but may charge for caregiver services.
(e)(I) The state health agency shall maintain a secure and confidential registry of available
primary caregivers for those patients who are unable to secure the services of a primary
caregiver.
(II) An existing primary caregiver may indicate at the time of registration whether he or she
would be willing to handle additional patients and waive confidentiality to allow release of his or
her contact information to physicians or registered patients only.
(III) An individual who is not registered but is willing to provide primary caregiving services may
submit his or her contact information to be placed on the primary caregiver registry.
(IV) A patient-primary caregiver arrangement secured pursuant to this paragraph (e) shall be
strictly between the patient and the potential primary caregiver. The state health agency, by
providing the information required by this paragraph (e), shall not endorse or vouch for a
primary caregiver.
(V) The state health agency may make an exception, based on a request from a patient, to
paragraph (a) of this subsection (10) limiting primary caregivers to five patients. If the state
health agency makes an exception to the limit, the state health agency shall note the exception
on the primary caregiver's record in the registry.
(f) At the time a patient applies for inclusion on the confidential registry, the patient shall
indicate whether the patient intends to cultivate his or her own medical marijuana, both cultivate
his or her own medical marijuana and obtain it from either a primary caregiver or licensed
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medical marijuana center, or intends to obtain it from either a primary caregiver or a licensed
medical marijuana center. If the patient elects to use a licensed medical marijuana center, the
patient shall register the primary center he or she intends to use.
(11) Registry identification card required--denial--revocation--renewal. (a) To be
considered in compliance with the provisions of section 14 of article XVIII of the state
constitution, this section, and the rules of the state health agency, a patient or primary caregiver
shall have his or her registry identification card in his or her possession at all times that he or
she is in possession of any form of medical marijuana and produce the same upon request of a
law enforcement officer to demonstrate that the patient or primary caregiver is not in violation of
the law; except that, if more than thirty-five days have passed since the date the patient or
primary caregiver filed his or her medical marijuana program application and the state health
agency has not yet issued or denied a registry identification card, a copy of the patient's or
primary caregiver's application along with proof of the date of submission shall be in the patient's
or primary caregiver's possession at all times that he or she is in possession of any form of
medical marijuana until the state health agency issues or denies the registry identification card.
A person who violates section 14 of article XVIII of the state constitution, this section, or the
rules promulgated by the state health agency may be subject to criminal prosecution for
violations of section 18-18-406. C.R.S.
(b) The state health agency may deny a patient's or primary caregiver's application for a registry
identification card or revoke the card if the state health agency, in accordance with article 4 of
title 24, C.R.S., determines that the physician who diagnosed the patient's debilitating medical
condition, the patient, or the primary caregiver violated section 14 of article XVIII of the state
constitution, this section, or the rules promulgated by the state health agency pursuant to this
section; except that, when a physician's violation is the basis for adverse action, the state health
agency may only deny or revoke a patient's application or registry identification card when the
physician's violation is related to the issuance of a medical marijuana recommendation.
(c) A patient or primary caregiver registry identification card shall be valid for one year and shall
contain a unique identification number. It shall be the responsibility of the patient or primary
caregiver to apply to renew his or her registry identification card prior to the date on which the
card expires. The state health agency shall develop a form for a patient or primary caregiver to
use in renewing his or her registry identification card.
(d) If the state health agency grants a patient a waiver to allow a primary caregiver to transport
the patient's medical marijuana from a medical marijuana center to the patient, the state health
agency shall designate the waiver on the patient's registry identification card.
(e) A homebound patient who receives a waiver from the state health agency to allow a primary
caregiver to transport the patient's medical marijuana to the patient from a medical marijuana
center shall provide the primary caregiver with the patient's registry identification card, which
the primary caregiver shall carry when the primary caregiver is transporting the medical
marijuana. A medical marijuana center may provide the medical marijuana to the primary
caregiver for transport to the patient if the primary caregiver produces the patient's registry
identification card.
(12) Use of medical marijuana. (a) The use of medical marijuana is allowed under state law to
the extent that it is carried out in accordance with the provisions of section 14 of article XVIII of
the state constitution, this section, and the rules of the state health agency.
(b) A patient or primary caregiver shall not:
(I) Engage in the medical use of marijuana in a way that endangers the health and well-being of
a person;
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(II) Engage in the medical use of marijuana in plain view of or in a place open to the general
public;
(III) Undertake any task while under the influence of medical marijuana, when doing so would
constitute negligence or professional malpractice;
(IV) Possess medical marijuana or otherwise engage in the use of medical marijuana in or on the
grounds of a school or in a school bus;
(V) Engage in the use of medical marijuana while:
(A) In a correctional facility or a community corrections facility;
(B) Subject to a sentence to incarceration; or
(C) In a vehicle, aircraft, or motorboat;
(VI) Operate, navigate, or be in actual physical control of any vehicle, aircraft, or motorboat
while under the influence of medical marijuana; or
(VII) Use medical marijuana if the person does not have a debilitating medical condition as
diagnosed by the person's physician in the course of a bona fide physician-patient relationship
and for which the physician has recommended the use of medical marijuana.
(c) A person shall not establish a business to permit patients to congregate and smoke or
otherwise consume medical marijuana.
(13) Limit on cultivation of medical marijuana. Only registered patients, licensed primary
caregivers, medical marijuana-infused products manufacturing operations with an optional
premises cultivation license, and licensed medical marijuana centers with optional premises
cultivation licenses may cultivate medical marijuana.
(14) Affirmative defense. If a patient or primary caregiver raises an affirmative defense as
provided in section 14(4)(b) of article XVIII of the state constitution, the patient's physician shall
certify the specific amounts in excess of two ounces that are necessary to address the patient's
debilitating medical condition and why such amounts are necessary. A patient who asserts this
affirmative defense shall waive confidentiality privileges related to the condition or conditions
that were the basis for the recommendation. If a patient, primary caregiver, or physician raises
an exception to the state criminal laws as provided in section 14(2)(b) or (c) of article XVIII of
the state constitution, the patient, primary caregiver or physician waives the confidentiality of his
or her records related to the condition or conditions that were the basis for the recommendation
maintained by the state health agency for the medical marijuana program. Upon request of a law
enforcement agency for such records, the state health agency shall only provide records
pertaining to the individual raising the exception, and shall redact all other patient, primary
caregiver, or physician identifying information.
(15)(a) Except as provided in paragraph (b) of this subsection (15), the state health agency shall
establish a basic fee that shall be paid at the time of service of any subpoena upon the state
health agency, plus a fee for meals and a fee for mileage at the rate prescribed for state officers
and employees in section 24-9-104, C.R.5., for each mile actually and necessarily traveled in
going to and returning from the place named in the subpoena. If the person named in the
subpoena is required to attend the place named in the subpoena for more than one day, there
shall be paid, in advance, a sum to be established by the state health agency for each day of
attendance to cover the expenses of the person named in the subpoena.
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(b) The subpoena fee established pursuant to paragraph (a) of this subsection (15) shall not be
applicable to any federal, state, or local governmental agency.
(16) Fees--repeal. (a) The state health agency may collect fees from patients who, pursuant to
section 14 of article XVIII of the state constitution, apply to the medical marijuana program for a
registry identification card for the purpose of offsetting the state health agency's direct and
indirect costs of administering the program. The amount of the fees shall be set by rule of the
state health agency. The state health agency shall also promulgate rules that allow a patient to
claim indigence as it relates to paying the fee approved pursuant to this subsection (16). The
rules shall establish the standard for indigence, the process the state health agency shall use to
determine whether a patient who claims indigence meets the standard for indigence, and the
process for granting a waiver if the state health agency determines that the patient meets the
standard for indigence. The amount of the fees set pursuant to this section shall reflect the
actual direct and indirect costs of the state licensing authority in the administration and
enforcement of this article so that the fees avoid exceeding the statutory limit on uncommitted
reserves in administrative agency cash funds as set forth in section 24-75-402(3), C.R.S. All fees
collected by the state health agency through the medical marijuana program shall be transferred
to the state treasurer who shall credit the same to the medical marijuana program cash fund,
which fund is hereby created.
(b)(I) The fees collected pursuant to paragraph (a) of this subsection (16) may be used for the
direct and indirect costs to the state board of medical examiners associated with investigating
and prosecuting up to five of the referrals of physicians received per year from the state health
agency in relation to the medical marijuana program.
(II) This paragraph (b) is repealed, effective July 1, 2012.
(17) Cash fund--repeal. (a) The medical marijuana program cash fund shall be subject to
annual appropriation by the general assembly to the state health agency for the purpose of
establishing, operating, and maintaining the medical marijuana program. All moneys credited to
the medical marijuana program cash fund and all interest derived from the deposit of such
moneys that are not expended during the fiscal year shall be retained in the fund for future use
and shall not be credited or transferred to the general fund or any other fund.
(b) Deleted by Laws 2010, Ch. 355, 6 2. eff. July 1, 2010.
(b.5) Notwithstanding any provision of paragraph (a) of this subsection (17) to the contrary, on
June 30, 2011, the state treasurer shall deduct three million dollars from the medical marijuana
program cash fund and transfer such sum to the general fund.
(c)(I) The state health agency shall transfer from the medical marijuana program cash fund to
the department of regulatory agencies for allocation to the state board of medical examiners
moneys to cover the direct and indirect costs associated with investigating and prosecuting up to
five of the referrals of physicians received per year from the state health agency in relation to
the medical marijuana program.
(II) This paragraph (c) is repealed, effective July 1, 2012.
(18) This section is repealed, effective July 1, 2019.
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§ 14. Medical use of marijuana for persons suffering from debilitating medical
conditions
(1) As used in this section, these terms are defined as follows:
(a) "Debilitating medical condition" means:
(I) Cancer, glaucoma, positive status for human immunodeficiency virus, or acquired
immune deficiency syndrome, or treatment for such conditions;
(II) A chronic or debilitating disease or medical condition, or treatment for such
conditions, which produces, for a specific patient, one or more of the following, and for
which, in the professional opinion of the patient's physician, such condition or conditions
reasonably may be alleviated by the medical use of marijuana: cachexia; severe pain;
severe nausea; seizures, including those that are characteristic of epilepsy; or persistent
muscle spasms, including those that are characteristic of multiple sclerosis; or
(III) Any other medical condition, or treatment for such condition, approved by the state
health agency, pursuant to its rule making authority or its approval of any petition
submitted by a patient or physician as provided in this section.
(b) "Medical use" means the acquisition, possession, production, use, or transportation of
marijuana or paraphernalia related to the administration of such marijuana to address
the symptoms or effects of a patient's debilitating medical condition, which may be
authorized only after a diagnosis of the patient's debilitating medical condition by a
physician or physicians, as provided by this section.
(c) "Parent" means a custodial mother or father of a patient under the age of eighteen
years, any person having custody of a patient under the age of eighteen years, or any
person serving as a legal guardian for a patient under the age of eighteen years.
(d) "Patient" means a person who has a debilitating medical condition.
(e) "Physician" means a doctor of medicine who maintains, in good standing, a license to
practice medicine issued by the state of Colorado.
(f) "Primary care-giver" means a person, other than the patient and the patient's
physician, who is eighteen years of age or older and has significant responsibility for
managing the well-being of a patient who has a debilitating medical condition.
(g) "Registry identification card" means that document, issued by the state health
agency, which identifies a patient authorized to engage in the medical use of marijuana
and such patient's primary care-giver, if any has been designated.
(h) "State health agency" means that public health related entity of state government
designated by the governor to establish and maintain a confidential registry of patients
authorized to engage in the medical use of marijuana and enact rules to administer this
program.
(i) "Usable form of marijuana" means the seeds, leaves, buds, and flowers of the plant
(genus) cannabis, and any mixture or preparation thereof, which are appropriate for
medical use as provided in this section, but excludes the plant's stalks, stems, and roots.
(j) "Written documentation" means a statement signed by a patient's physician or copies
of the patient's pertinent medical records.
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(2)(a) Except as otherwise provided in subsections (5), (6), and (8) of this section, a
patient or primary care-giver charged with a violation of the state's criminal laws related
to the patient's medical use of marijuana will be deemed to have established an
affirmative defense to such allegation where:
(I) The patient was previously diagnosed by a physician as having a debilitating medical
condition;
(II) The patient was advised by his or her physician, in the context of a bona fide
physician-patient relationship, that the patient might benefit from the medical use of
marijuana in connection with a debilitating medical condition; and
(III) The patient and his or her primary care-giver were collectively in possession of
amounts of marijuana only as permitted under this section.
This affirmative defense shall not exclude the assertion of any other defense where a
patient or primary care-giver is charged with a violation of state law related to the
patient's medical use of marijuana.
(b) Effective June 1, 1999, it shall be an exception from the state's criminal laws for any
patient or primary care-giver in lawful possession of a registry identification card to
engage or assist in the medical use of marijuana, except as otherwise provided in
subsections (5) and (8) of this section.
(c) It shall be an exception from the state's criminal laws for any physician to:
(I) Advise a patient whom the physician has diagnosed as having a debilitating medical
condition, about the risks and benefits of medical use of marijuana or that he or she
might benefit from the medical use of marijuana, provided that such advice is based upon
the physician's contemporaneous assessment of the patient's medical history and current
medical condition and a bona fide physician-patient relationship; or
(II) Provide a patient with written documentation, based upon the physician's
contemporaneous assessment of the patient's medical history and current medical
condition and a bona fide physician-patient relationship, stating that the patient has a
debilitating medical condition and might benefit from the medical use of marijuana.
No physician shall be denied any rights or privileges for the acts authorized by this
subsection.
(d) Notwithstanding the foregoing provisions, no person, including a patient or primary
care-giver, shall be entitled to the protection of this section for his or her acquisition,
possession, manufacture, production, use, sale, distribution, dispensing, or transportation
of marijuana for any use other than medical use.
(e) Any property interest that is possessed, owned, or used in connection with the
medical use of marijuana or acts incidental to such use, shall not be harmed, neglected,
injured, or destroyed while in the possession of state or local law enforcement officials
where such property has been seized in connection with the claimed medical use of
marijuana. Any such property interest shall not be forfeited under any provision of state
law providing for the forfeiture of property other than as a sentence imposed after
conviction of a criminal offense or entry of a plea of guilty to such offense. Marijuana and
paraphernalia seized by state or local law enforcement officials from a patient or primary
care-giver in connection with the claimed medical use of marijuana shall be returned
immediately upon the determination of the district attorney or his or her designee that
the patient or primary care-giver is entitled to the protection contained in this section as
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may be evidenced, for example, by a decision not to prosecute, the dismissal of charges,
or acquittal.
(3) The state health agency shall create and maintain a confidential registry of patients
who have applied for and are entitled to receive a registry identification card according to
the criteria set forth in this subsection, effective June 1, 1999.
(a) No person shall be permitted to gain access to any information about patients in the
state health agency's confidential registry, or any information otherwise maintained by
the state health agency about physicians and primary care-givers, except for authorized
employees of the state health agency in the course of their official duties and authorized
employees of state or local law enforcement agencies which have stopped or arrested a
person who claims to be engaged in the medical use of marijuana and in possession of a
registry identification card or its functional equivalent, pursuant to paragraph (e) of this
subsection (3). Authorized employees of state or local law enforcement agencies shall be
granted access to the information contained within the state health agency's confidential
registry only for the purpose of verifying that an individual who has presented a registry
identification card to a state or local law enforcement official is lawfully in possession of
such card.
(b) In order to be placed on the state's confidential registry for the medical use of
marijuana, a patient must reside in Colorado and submit the completed application form
adopted by the state health agency, including the following information, to the state
health agency:
(I) The original or a copy of written documentation stating that the patient has been
diagnosed with a debilitating medical condition and the physician's conclusion that the
patient might benefit from the medical use of marijuana;
(II) The name, address, date of birth, and social security number of the patient;
(III) The name, address, and telephone number of the patient's physician; and
(IV) The name and address of the patient's primary care-giver, if one is designated at the
time of application.
(c) Within thirty days of receiving the information referred to in subparagraphs (3)(b)(I)-
(IV), the state health agency shall verify medical information contained in the patient's
written documentation. The agency shall notify the applicant that his or her application
for a registry identification card has been denied if the agency's review of such
documentation discloses that: the information required pursuant to paragraph (3)(b) of
this section has not been provided or has been falsified; the documentation fails to state
that the patient has a debilitating medical condition specified in this section or by state
health agency rule; or the physician does not have a license to practice medicine issued
by the state of Colorado. Otherwise, not more than five days after verifying such
information, the state health agency shall issue one serially numbered registry
identification card to the patient, stating:
(I) The patient's name, address, date of birth, and social security number;
(II) That the patient's name has been certified to the state health agency as a person
who has a debilitating medical condition, whereby the patient may address such condition
with the medical use of marijuana;
(III) The date of issuance of the registry identification card and the date of expiration of
such card, which shall be one year from the date of issuance; and
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(IV) The name and address of the patient's primary care-giver, if any is designated at the
time of application.
(d) Except for patients applying pursuant to subsection (6) of this section, where the
state health agency, within thirty-five days of receipt of an application, fails to issue a
registry identification card or fails to issue verbal or written notice of denial of such
application, the patient's application for such card will be deemed to have been approved.
Receipt shall be deemed to have occurred upon delivery to the state health agency, or
deposit in the United States mails. Notwithstanding the foregoing, no application shall be
deemed received prior to June 1, 1999. A patient who is questioned by any state or local
law enforcement official about his or her medical use of marijuana shall provide a copy of
the application submitted to the state health agency, including the written documentation
and proof of the date of mailing or other transmission of the written documentation for
delivery to the state health agency, which shall be accorded the same legal effect as a
registry identification card, until such time as the patient receives notice that the
application has been denied.
(e) A patient whose application has been denied by the state health agency may not
reapply during the six months following the date of the denial and may not use an
application for a registry identification card as provided in paragraph (3)(d) of this
section. The denial of a registry identification card shall be considered a final agency
action. Only the patient whose application has been denied shall have standing to contest
the agency action.
(f) When there has been a change in the name, address, physician, or primary care-giver
of a patient who has qualified for a registry identification card, that patient must notify
the state health agency of any such change within ten days. A patient who has not
designated a primary care-giver at the time of application to the state health agency may
do so in writing at any time during the effective period of the registry identification card,
and the primary care-giver may act in this capacity after such designation. To maintain
an effective registry identification card, a patient must annually resubmit, at least thirty
days prior to the expiration date stated on the registry identification card, updated
written documentation to the state health agency, as well as the name and address of the
patient's primary care-giver, if any is designated at such time.
(g) Authorized employees of state or local law enforcement agencies shall immediately
notify the state health agency when any person in possession of a registry identification
card has been determined by a court of law to have willfully violated the provisions of this
section or its implementing legislation, or has pled guilty to such offense.
(h) A patient who no longer has a debilitating medical condition shall return his or her
registry identification card to the state health agency within twenty-four hours of
receiving such diagnosis by his or her physician.
(i) The state health agency may determine and levy reasonable fees to pay for any direct
or indirect administrative costs associated with its role in this program.
(4)(a) A patient may engage in the medical use of marijuana, with no more marijuana
than is medically necessary to address a debilitating medical condition. A patient's
medical use of marijuana, within the following limits, is lawful:
(I) No more than two ounces of a usable form of marijuana; and
(II) No more than six marijuana plants, with three or fewer being mature, flowering
plants that are producing a usable form of marijuana.
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(b) For quantities of marijuana in excess of these amounts, a patient or his or her
primary care-giver may raise as an affirmative defense to charges of violation of state
law that such greater amounts were medically necessary to address the patient's
debilitating medical condition.
(5)(a) No patient shall:
(I) Engage in the medical use of marijuana in a way that endangers the health or well-
being of any person; or
(II) Engage in the medical use of marijuana in plain view of, or in a place open to, the
general public.
(b) In addition to any other penalties provided by law, the state health agency shall
revoke for a period of one year the registry identification card of any patient found to
have willfully violated the provisions of this section or the implementing legislation
adopted by the general assembly.
(6) Notwithstanding paragraphs (2)(a) and (3)(d) of this section, no patient under
eighteen years of age shall engage in the medical use of marijuana unless:
(a) Two physicians have diagnosed the patient as having a debilitating medical condition;
(b) One of the physicians referred to in paragraph (6)(a) has explained the possible risks
and benefits of medical use of marijuana to the patient and each of the patient's parents
residing in Colorado;
(c) The physicians referred to in paragraph (6)(b) has provided the patient with the
written documentation, specified in subparagraph (3)(b)(I);
(d) Each of the patient's parents residing in Colorado consent in writing to the state
health agency to permit the patient to engage in the medical use of marijuana;
(e) A parent residing in Colorado consents in writing to serve as a patient's primary care-
giver;
(f) A parent serving as a primary care-giver completes and submits an application for a
registry identification card as provided in subparagraph (3)(b) of this section and the
written consents referred to in paragraph (6)(d) to the state health agency;
(g) The state health agency approves the patient's application and transmits the patient's
registry identification card to the parent designated as a primary care-giver;
(h) The patient and primary care-giver collectively possess amounts of marijuana no
greater than those specified in subparagraph (4)(a)(I) and (II); and
(i) The primary care-giver controls the acquisition of such marijuana and the dosage and
frequency of its use by the patient.
(7) Not later than March 1, 1999, the governor shall designate, by executive order, the
state health agency as defined in paragraph (1)(g) of this section.
(8) Not later than April 30, 1999, the General Assembly shall define such terms and enact
such legislation as may be necessary for implementation of this section, as well as
determine and enact criminal penalties for:
5
(a) Fraudulent representation of a medical condition by a patient to a physician, state
health agency, or state or local law enforcement official for the purpose of falsely
obtaining a registry identification card or avoiding arrest and prosecution;
(b) Fraudulent use or theft of any person's registry identification card to acquire, possess,
produce, use, sell, distribute, or transport marijuana, including but not limited to cards
that are required to be returned where patients are no longer diagnosed as having a
debilitating medical condition;
(c) Fraudulent production or counterfeiting of, or tampering with, one or more registry
identification cards; or
(d) Breach of confidentiality of information provided to or by the state health agency.
(9) Not later than June 1, 1999, the state health agency shall develop and make available
to residents of Colorado an application form for persons seeking to be listed on the
confidential registry of patients. By such date, the state health agency shall also enact
rules of administration, including but not limited to rules governing the establishment and
confidentiality of the registry, the verification of medical information, the issuance and
form of registry identification cards, communications with law enforcement officials about
registry identification cards that have been suspended where a patient is no longer
diagnosed as having a debilitating medical condition, and the manner in which the agency
may consider adding debilitating medical conditions to the list provided in this section.
Beginning June 1, 1999, the state health agency shall accept physician or patient initiated
petitions to add debilitating medical conditions to the list provided in this section and,
after such hearing as the state health agency deems appropriate, shall approve or deny
such petitions within one hundred eighty days of submission. The decision to approve or
deny a petition shall be considered a final agency action.
(10)(a) No governmental, private, or any other health insurance provider shall be
required to be liable for any claim for reimbursement for the medical use of marijuana.
(b) Nothing in this section shall require any employer to accommodate the medical use of
marijuana in any work place.
(11) Unless otherwise provided by this section, all provisions of this section shall become
effective upon official declaration of the vote hereon by proclamation of the governor,
pursuant to article V, section (1)(4), and shall apply to acts or offenses committed on or
after that date.
§ 25-1.5-106. Medical marijuana program--powers and duties of department
(1) The department shall, pursuant to section 14 of article XVIII of the state constitution,
promulgate rules of administration concerning the implementation of the medical
marijuana program established by such section and that specifically govern the following:
(a) The establishment and maintenance of a confidential registry of patients who have
applied for and are entitled to receive a registry identification card;
(b) The development by the department of an application form and making such form
available to residents of this state seeking to be listed on the confidential registry of
patients who are entitled to receive a registry identification card;
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(c) The verification by the department of medical information concerning patients who
have applied for a confidential registry card;
(d) The issuance and form of confidential registry identification cards;
(e) Communications with law enforcement officials about confidential registry
identification cards that have been suspended where a patient is no longer diagnosed as
having a debilitating medical condition; and
(f) The manner in which the department may consider adding debilitating medical
conditions to the list of debilitating medical conditions contained in section 14 of article
XVIII of the state constitution.
(2) The department may collect fees from patients who, pursuant to section 14 of article
XVIII of the state constitution, apply to the medical marijuana program established by
such section for a marijuana registry identification for the purpose of offsetting the
department's direct and indirect costs of administering the program. The amount of such
fees shall be set by rule of the state board of health. All fees collected by the department
through the medical marijuana program shall be transferred to the state treasurer who
shall credit the same to the medical marijuana program cash fund, which fund is hereby
created.
(3)(a) The medical marijuana program cash fund shall be subject to annual appropriation
by the general assembly to the department for the purpose of establishing, operating,
and maintaining the medical marijuana program established by section 14 of article XVIII
of the state constitution. All moneys credited to the medical marijuana program cash
fund and all interest derived from the deposit of such moneys that are not expended
during the fiscal year shall be retained in the fund for future use and shall not be credited
or transferred to the general fund or any other fund.
(b) Notwithstanding any provision of paragraph (a) of this subsection (3) to the contrary,
on the effective date of this paragraph (b), the state treasurer shall deduct two hundred
fifty-eight thousand seven hundred thirty-five dollars from the medical marijuana
program cash fund and transfer such sum to the general fund.
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