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Possession and personal use of marijuana and accessories in Central City

Ignorance is no defense – it’s your responsibility to know the law

By John Hough

In the November 2012 election Colorado voters approved an amendment to the State Constitution that makes the personal possession, use and limited home-growing of small amounts of marijuana for individuals 21 years of age or older legal under Colorado law.  In light of the passage of that amendment, in February 2013 the City of Central City Council amended the City’s Municipal Code concerning the possession of marijuana and marijuana accessories to implement the intent of the State Constitution amendment.

To better understand the changes in the Municipal Code, it is first necessary to define “marijuana.” Under the Municipal Code, “marijuana” is defined as “…all parts of the plant of the genus cannabis, whether growing or not, the seeds thereof, the resin extracted from any part of the plant, and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or its resin, including marijuana concentrate.” With that definition in mind, it is a violation of the Municipal Code, and may subject a person to arrest and/or summons into Municipal Court, for any person to possess more than one ounce of marijuana but less than six ounces of marijuana. Possession of more than six ounces of marijuana could subject a person to arrest and/or summons into Gilpin County Court.

It is a violation of the Municipal Code for any person to purchase marijuana for consumption or possession by any person under the age of 21; to otherwise provide marijuana for consumption or possession by any person under the age of 21; or to sell marijuana to any person under the age of 21.

For persons under the age of 21, it is a violation of the Municipal Code for that person to possess, attempt to purchase, purchase or obtain marijuana directly or indirectly, through an intermediary, by misrepresenting his or her age or by any other means.

It is important to note that it is a violation of the Municipal Code for any person to possess, consume or use marijuana in a public place or on property owned, leased or operated by the State or any political subdivision or agency of the State. It is also a violation of the Municipal Code for any person to possess, consume or use marijuana on any property owned, leased or operated by the City of Central. Under the Municipal Code, a public place is defined as any place commonly or usually open to the general public or any resort or club accessible to members of the general public. For example, public places include, but are not limited to, public roads, streets, buildings, sidewalks, alleys, parking lots, retail stores and centers, shopping malls, places of business usually open to the general public and automobiles or other vehicles in or on any of those places. The Municipal Code restrictions do not apply to the interior or enclosed yard of private homes, residences, condominiums or apartments.

If an individual is permitted under Colorado or federal law to possess or use marijuana under the direction of a licensed medical or osteopathic doctor, that permission could be offered as a defense in a criminal case filed for a violation of the Municipal Code.

The Municipal Code defines “marijuana accessories” as any equipment, products or materials of any kind which are used, or designed for use, in planting, propagating, cultivating, growing, harvesting, composting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, re-packaging, storing, vaporizing or containing marijuana, or for ingesting, inhaling or otherwise introducing marijuana into a human body.

The Municipal Code was amended in February 2013 to permit the personal use or possession of marijuana accessories by any person 21 years of age or older to the extent permitted by the amendment to the State Constitution approved in November 2012.

In February 2013 the City of Central City Council also amended the City’s Municipal Code zoning regulations that apply to the cultivation and possession of marijuana plants by persons authorized to possess marijuana plants under the amendment to the State Constitution approved by the voters in November 2012. The Municipal Code regulations apply to growing marijuana, including medical marijuana, in residential dwellings by primary caregivers, patients or by any person 21 years of age or older who is permitted to grow or cultivate marijuana plants under the provisions of the amendment to the State Constitution. Any violation of the amended City Municipal Code in this area could result in arrest and/or summons into the Municipal Court.

Under the Municipal Code, all cultivation, processing and production of marijuana plants must be conducted entirely within a dwelling unit. A dwelling unit means one or more rooms and a single kitchen and at least one bedroom designed, occupied or intended for occupancy as separate quarters for the exclusive use of a single family for living, cooking and sanitary purposes, located in a single-family, two-family or multi-family dwelling or mixed use building.

Marijuana cannot be cultivated, processed or produced in an accessory structure; garage, whether attached or detached; shed; greenhouse; storage unit; or other structure other than a dwelling unit. Cultivation, possession or dispensing marijuana cannot occur in the common areas of a multi-family dwelling or attached residential building.

It is very important to note that no more than twelve marijuana plants regardless of size or stage of growth can be cultivated or kept within any single dwelling unit. The regulation is not twelve plants for each resident; it is twelve plants for a single dwelling unit. Whether a dwelling unit houses one or three residents, only a maximum of twelve marijuana plants can be cultivated or kept in that dwelling. What may be confusing is that no person who is cultivating marijuana plants for his or her own use may possess, grow, process or transport more than six marijuana plants. Of those six marijuana plants, only three or less may be mature plants.

For example, if a single dwelling unit houses three residents, two residents could cultivate six marijuana plants each for a total of twelve plants in the dwelling while the third resident could not cultivate any marijuana plants. Or all three residents could cultivate four marijuana plants each for a total of twelve plants in the dwelling. One resident could not cultivate twelve marijuana plants, even though twelve plants could be cultivated in the dwelling, because that one resident could not cultivate more than six plants.

No person who is a patient or primary caregiver may keep, cultivate, grow or process more medical marijuana than is permitted under the State Constitution.

Remember that local communities have adopted a wide range of regulations regarding marijuana, marijuana accessories and the cultivation of marijuana in the aftermath of the November 2012 passage of State Constitution amendment. What is permissible in one community under its local ordinances may not be permissible under another community’s local ordinances. Ignorance of the law, even widely varying local ordinances, is no absolute defense in a criminal case. If you have any questions regarding the regulations governing marijuana, marijuana accessories or the cultivation of marijuana in your community, check with the law enforcement agency serving your particular community to ensure that you are in compliance with those regulations. That is your responsibility.

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