The URL can be used to link to this page

Home My WebLink About2.0 CorrespondenceI 2012 McALLISTER, DenxELL g AssoclArEs, P.c. .{ I'"1'( ) ltN F.\'S ;t l' t -A\Xi June 13, 2012 Garfield County Board of County Commissioners 108 8th st # 213 Glenwood Springs, CO 81601 Re: New Regulotions regarding OPCO for Medical Moriiuano Dear Board of County Commissioners, I represent Ted Mateja of Martin's Natural Medicinals. Mr. Mateja, along with others similarly situated, will be severely affected and irreparably harmed by the County's proposal to restrict Optional Premises Cultivation Operations (OPCOs) to provide only to centers in Garfield County. We oppose this ban. We respectfully ask the Board to consider the consequences of the ban detailed in this letter when considering this issue on June L8th. I have reviewed the Memorandum Re: Text Amendment to the Garfield County Zoning Resolution of 2008, os omended to add new regulations regarding an OPCO for Medicol Morijuona, dated June 4,2012. Page 4 of this memorandum contains the discussion of the Planning Commission's Review, which specifically addresses the OPCO restriction at issue. The memorandum details that the Commission's discussion regarding the restriction included that the regulation would "place a unique and undue restriction on a free market business model that does not exist for other businesses in Garfield County," and that this "appeared to be too burdensome since it was recommended that OPCOs be limited to only the Commercial and lndustrial Zone Districts by a Limited lmpact Review and that was enough of a restriction." I urge the Board to consider the logical rationale of the Planning Commission in that the proposed restriction would be a severe and burdensome restriction. lt is unnecessary due to the Phone: 303-575-5600 35 Steele Street - Suite #20O - Denver, Colorado 80205 Fax 720-542-8391 regulations recommended by the County that would effectively regulate OPCOs. Furthermore, there are several existing relationships between parties in Garfield County and other surrounding counties, such as piktin, Eagle, and Summit Counties. To change the rules now to extinguish these relationships would have far reaching impacts. Numerous Colorado counties have similar regulations to the Garfield County proposed draft regulations, which effectively regulate these facilities by imposing distance and security requirements, zoning restrictions, and subjecting them to Limited lmpact Review. These regulations have been effective in regulating grovrr facilities without placing undue, burdensome, costly, and unique restrictions on OPCOS. Furthermore, Mr. Mateja, and others similarly situated, have invested hundreds of thousands of dollars in their businesses in reliance on the law allowing OPCOs in Garfield county to provide medical marijuana to other regulated counties in Colorado. The proposed restriction would arbitrarily limit these businesses and cost them hundreds of thousands of dollars. The proposed restriction would also violate Mr. Mateja's property rights and would depart from permitted areas of land use regulation. ln investing hundreds of thousands of dollars into his business location, applying for and receiving a sales tax license, Mr. Mateja relied on unmistakable representations from the County that his business was properly operated pursuant to the planning and zoning rules of the County. To impose such a severe restriction on his business would amount to irreparable harm and a violation of the fundamental civil rights of a persons property, including an unjust and unconstitutional deprivation and unlawful taking of property. This restriction, if passed, would be grounds for legal claims. Furthermore, the structure and purpose of the Colorado Medical Marijuana Code is to allow OPCO's to wholesale 30% of their inventory to other licensed dispensaries. This percentage is a large portion of income and sustainability for many OPCOs. Restricting OPCOs in Garfield County to providing to centers only in Garfield County would cause irreparable harm to these OPCOs. As the Planning Commission stated, this is a restriction on a free market business model that does not exist for other businesses in the County and which is unnecessary due to the compi'ehensive regulations already iir place. The ban would have detrimental and far-reaching impacts as many of these OPCOs have existing relationships in other counties. ln light of the reasons set forth in this letter, my client opposes this motion. I hope that you consider the severe harm, far-reaching impact, and lack of necessity for the proposed ban. Please consider also that Mr. Mateja has consistently complied, in good faith, with the licensing requirements of the state and county and would like to continue operating his business in the County. Please do not hesitate to contact me at any time with any questions or concerns in this matter. Sincerely, Phone: 303-575-5600 36 Steele Street - Suite #200 - Denver, Colorado 80205 Fax:72O-542-8391 o% Sean McAllister, #3 I 350 McAllister, Darnell & Associates, P.C. CC: Garfield County Planning Department L08 8th St # 401 Glenwood Springs, CO 81601 CC: Garfield County Attorney L08 8th Street, Suite 219 Glenwood Springs, CO 81601 Phone:303-575-5600 36 Steele Street-Suite #2OO- Denver, Colorado 80206 Fax:720-542-8391 /Y>-6isr Sering Colotado's Counties County Commissioners, County Attomep CAPP Designated Comespondents Allen Chapman, CTSI Executive Director Indemnification - Medical Marijuana Licensing April79,2012 To: From: RE: As an additional precautionary measure aud to help limit potential risk exposure of the medical marijuana licensing process, it is our rrcommeirdation that counties consider securing a release of liability from license applicants. As zuch, we recommend that license applicants sign a waiver of liability containing language similar to the following: G) By applyrng for and accepting a license issued by the Board of County Commissioners, the licensee waives and releases the county, its officers, elected officials, employees, attorneys and agents from any liability for injuries, damages or liabilities of any kind that result from any arrest or prosecution of business own€trs, operators, employees, clients or customers for a violation of state or federal laws, rules or regulations. (b) By applyag for and accepting a lice,trse, all licensees, jointly and severally if more than one (1 ), agtee to indemniff, defend and hold haflnless the county, its officers, elected officials, e,mployees, attorneys, and agetrts against all liability, claims and demands on account of any ioj.rry, loss or damage, including without limitation, claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, of any other loss of any kind whatsoever arising out of or in anymanner conneoted with the operation of the medical marijuana buiness that is the subject of the license. Counties should work with their county attomeys to draft a release specific to their county and which may include a waiver from applicants in the eve,lrt the Board of County Commissioners does not issue a lice,nse or subsequently revokes a license previously iszued. Administration & Loss Prevention Phone: 303.861.0507 Fax: 303.E61.2832 Corurty Technical Selvices, Inc. 800 Grant Steet. Suite 400 Denver, Colorado ' 80203 email: ctsi@ctsi.org Claims (CAPP & CWCP) Phone 303.861.050? 1-800'544'7E68 Fax: 303.861.1022 /v>-e'isr Setving Colotado I s Counties April 18,2012 To:Commissioners, County AttomeYs CAPP Designated CorresPondents From: Allen chapman, crsl Executive Director / effi'-- RE: CAPP Coverage and Medical Marijuana Licensing A newspaper article appeared in the Durango Herald which suggested our excess carrier, OneBeacon, would nol provide uny corerag" regarding medical marijuana regulatory activities' This was not a legal opinion of coverage. It originated out of a question of a-non-employee acting * * *grot of the insured for the purpose of lice,nse review processes formedical marij-uana disfensaries. In this regard, the underwriter responded to an informal inqutry applicable to nor-"-ployees of the insured. As a precautionary advise,ment, the undetwriter guotd potential exclusionary language under the CAPP Insuring Agreement' CApp has obtained a legal review of coverage and would like to assrre its mernbers that it would treat land use, licensing-or zoning claims in the same manner regardless of the type of licensing process involved, i.e., iredical *-u.iiu*a dispensmies. Medig{ marijuana licensing in and of itself would not necessarily trigger ihe exclusions set forth within the CAPP policy. That being said, each land use zortrng,or licensing claim that comes forth would be analyzed based on the -oit -d content of the claim to determine if coverage is available and what coverage is afforded to the insured. It has and will continue to be our established practice to deternine coverage on a claim by claim basis after a thorough examination of its content. As always, we request that our members report to CAPP any claims coming forth as soon as possible. County Technical Serices, Inc. 800 Grant Stteet' Suite 400 Denvet, Colorado ' 80203 email: ctsi@ctsi.org Adminlstration & [,oss Prevention Phone: 303'861{507 Fax: 303.861'2E32 Claims (CAPP& CWCP) Phone: 303.861.0507 l-800'544'7E68 Fax: 303'861'1022 I ffi-P"*.m, John VU. HickenlooPer Governor Barbara J. KelleY Executive Director June 5,2012 Local MMC Licensing AuthoritY Garfield CountY Attn: Jean Alberico j alberi co @ garf,reld- c ounty. c om 1560 BroadwaY, Suite 1350 Fax 303.894.7692 Division of Registrations Gregory Ferland I nterim Division Director State Board of PharmacY Wendy Anderson Program Director VIA E-MAIL TRANSMISSION ONLY Dear Local Licensing AuthoritY: In recent months, the Colorado State Board of Pharmacy has received several citizen complaints concerning medical marijuana centers ("MMC's") which have incorporated various versions of the term ..phirmacy,, or similar references into their names and business advertisements' The individuals submitting these complaints have expressed concems about the perceived association of MMC,s with the phaimacy profession and industry, and the potential of that association to blur a critical distinction and lend an appearance of legitimacy beyond the originally intended, narrowly- drawn exception allowing tne aistriuution and consumption of an otherwise criminally prohibited Schedule I controlled substance. The pharmacy Board shares these concerns. MMC's and pharmacies represent two legally distinct areas of medicine. MMC's engage in possessing and dispensing a substance it remains illegal for phur.u.irt, and pharmacies to possess and dispense. The practice of pharmacy is a strictly iegulated profession which only includes the handling and dispensing of prescription orders issued b/practitioners for Schedules Ii through V controlled substances and other legal pharmaceuticals. However, the Board does not have jurisdictional authority over the licensing requirements of these entities. That power lies with you locally under Title l2-43.3-301, et. seq. of the Colorado Revised Starutes. Section lz-14.3-io1(zXul, C.R.S. provides local licensing authorities the latitude to adopt standards for the issuance of iicenses beyond those listed in statute. Section 12-43.3-310, C'R.S. vests the local licensing authority with broad discretion to prohibit or otherwise promulgate regulations restricting fiffrAC operations. Finally, Subsection 6.100 of the Colorado Medical Mirijua.ra Enforceme-nt Division Rules states that "[n]o MMC licensee shall display...any sign, advertisement...or other device which [is] inconsistent with the local laws and regulations in which the licensee oPerates." Denver, Colorado 80202 www.dora.state.co.us Phone 303.894.7800 V/TDD 7tt fr Consumer Prctectionl, rl RE: The Board is therefore making this outreach request to all county and municipal authorities responsible for the licensing of MMC's. We respectfully ask that you consider incorporating restrictions into your local MMC licensing ordinances and regulations, which prohibit the incorporation of any version of "pharmacy," "pharmacist," or terms of similar import, in the name and advertising practices of an MMC applying to you for licensure. Statutes in other states imposing similar prohibitions have been found constitutional and not a violation of free expression or other rights. See, e.g., Kansas State Board of Pharmacy v. Wilson d/b/a Nature's Farmacy, 657 P.2d 83 (Kan. App 1983). Regulating authorities have been held to possess a legitimate interest in avoiding the distortion of the signiflcance of terms referencing a licensed profession through similar usagesbyentitiesnotlicensedinthatprofession. Id.;seealsoStatev.Collins,297P.2d325(N.M. 1es6). The Board respectfully recommends the consideration of some version of the following language: The use of any version of the terms "pharmacy," "pharmacist," "pharmaceutical," "Rx," or any terms of similar import or modified spellings thereof in the name of the MMC are prohibited and any application for MMC licensure which indicates the intent to incorporate any version of said terms shall not be considered. All licensed MMC's shall refrain from using any version of said terms in the display of any sign, advertisement or other device. Your time and consideration of these issues are greatly appreciated. Sincerely, FOR THE COLORADO STATE BOARD OF PHARMACY &1*._ Wendy L. Anderson Program Director WLA/lc Cc: Julie Postlethwait Public Lnformation Offi cer Medical Marijuana Enforcement Division Colorado Department of Revenue 455 Sherman Street, Suite 390 Denver, CO 80203 JPostlethwait@sp ike.dor. state. co. Lts