Colorado’s Historic Amendment 64

By Mike Rosso

Election day in Salida was unusually bright and sunny. Since I’d already voted by mail, I decided to spend some time sipping coffee in the sun outside Café Dawn, chatting up some of the customers and passersby.

I started asking random folks how they voted, not on the general election – around which there was much anxiety – but how they voted on Amendment 64. “Which one was that?” was a common response, and when I mentioned it was about the statewide legalization of marijuana, most relaxed and their answers came as a surprise.

My strictly nonscientific poll of locals who happened to be on the streets downtown that day revealed a surprising number. Around 75% of them said “yes,” that they had voted to legalize marijuana, many quickly adding that although they themselves did not indulge, they considered it a right of the user. Some felt that too much money was spent housing nonviolent criminals for the simple act of possession of a weed.

I was taken by surprise at the responses and suddenly realized that Coloradans might be on the cusp of casting a historic vote, not just nationally but on a worldwide level. Other than Uruguay, which has recently announced plans to legalize the production and sale of marijuana under a state monopoly in an effort to reduce drug-related crimes, the plant remains illegal in democracies worldwide. The drug policy of the Netherlands allows for “cannabis clubs” for Dutch residents 18 and older, but in 2011 the Dutch parliament placed a ban on selling cannabis to nonresidents.

About 1.3 million Coloradans, or 54.9 percent of voters, said yes to the amendment. In fact, Amendment 64: The Regulate Marijuana Like Alcohol Act of 2012 (A64) received more votes in the state than the winner of the presidential election, Barack Obama. In Washington state, voters approved Initiative 502 by a margin of approximately 55 to 45 percent, legalizing small amounts of marijuana-related products for most adults, taxing it and designating the revenue for healthcare and substance abuse prevention and education. On Nov. 9, prosecutors in Washington’s King and Pierce counties announced they would dismiss nearly 225 pending marijuana possession cases.

The distinction in Colorado with this vote goes well beyond the medical dispensary model, created with the passage of Amendment 20 in 2000. That model allows residents to purchase from a licensed dispensary or grow small amounts of marijuana to treat illnesses, but only after getting a prescription from a doctor and purchasing a registration card, which includes having their name placed in a state database. A64 is an amendment to the Colorado state constitution specifically legalizing possession of up to an ounce of pot for adults 21 years and older as well as allowing for over-the-counter retail sales. It also allows for the possession of up to six plants, three or fewer being mature, flowering plants, as long as the growing takes place in an enclosed, secured space and the plants are not made available for sale. Additionally, it allows for the transfer of up to one ounce to residents 21 years of age or older. Driving under the influence of marijuana will remain illegal, and employers can restrict pot usage by their employees while on the job.

A64 sets parameters for the regulation, packaging and legal retail distribution of the product. An excise tax on wholesale sales of marijuana requires that the first $40 million in annual revenue from the tax be credited to the public school capital construction assistance fund. It also requires the state general assembly to enact legislation governing the cultivation, processing and sale of industrial hemp. Hemp, one of the earliest domesticated plants known, is a member of the Cannabis sativa family but with very low levels of tetrahydrocannabinol (THC), the psychoactive component of medicinal marijuana. Hemp is used in the production of textiles, paper, clothing and biodegradable plastics, as well as body products and health foods. Hemp is actually grown legally in countries such as Spain, Ireland, Japan and China, which happens to be the world’s leading producer of hemp. The production of hemp has the added bonus of requiring few pesticides and no herbicides.

But the biggest hurdle for A64 is the federal government. It still considers marijuana a controlled, illegal substance. This now opens up a huge can of worms at the state and federal levels. The Obama administration is expected to file a federal lawsuit at some point to challenge the measure and block aspects of the state-level legalization. Colorado could, on the other hand, eliminate penalties for possession so local law enforcement would not be doing the work of the feds.

In mid November, U.S. Rep. Diana DeGette (D) introduced bipartisan legislation requesting the federal government exempt Colorado from the Controlled Substances Act. Dubbed the “Respect States’ and Citizens’ Rights Act,” it also has the backing of U.S. Rep. Mike Coffman (R), an opponent of A64 who nonetheless supports the will of the voters. Also in November, a coalition of state lawmakers sent a letter to the U.S. Attorney General, Eric Holder, requesting he respect the voter-approved marijuana laws in Washington and Colorado.

A64 is not a green light to burn it down anywhere one likes. The Colorado Indoor Clean Air Act applies to cannabis as well, so no hash bars or cannabis cafes are on the horizon. Also, the amendment does not allow for public consumption, so no lighting up in parks or on sidewalks, either. Driving under the influence of THC will still be a crime; and if state legislators have their way, they hope to push through a law in early 2013 in which a simple blood test will be given for drivers under suspicion. This will not allow for them to prove their sobriety, unlike drivers who drink.

According to Chaffee County Sheriff Pete Palmer, “The amendment, coupled with the already complex and confusing medical marijuana regulations, simply increases the uncertainty about enforcement. There is also the question of community standards – what our constituents expect from us.” He added, “We’ll wait and see what the governor, the state legislature and the federal government do in the coming months before settling on any policy here at the sheriff’s office. In the interim, we’ll continue to enforce the laws as they exist at the moment.”

In the meantime, fans of the herb may want to pause before lighting up in celebration. Although the parts of the amendment having to do with individual behavior (i.e. smoking weed) will go into effect as soon as the governor certifies the election – required within 30 days – it could be a year or more before marijuana can be legally purchased by adults in a store. And that again depends on the reaction of the federal government. The Colorado Department of Revenue is required by A64 to adopt regulations governing the licensing of commercial marijuana businesses by July 1, 2013, and the DOR must begin processing applications by Oct. 1, 2013.

Visitors from out of state will be free to enjoy the benefits of the new amendment while they are here but will not be allowed to transport marijuana out of state. This has led some to believe that the state may enjoy a huge boom in herbal tourism, with vacationers eager to take advantage of the ease of acquisition and pot-friendly climate. (Tempting as it may be, we’ll not insert any mile-high jokes here.)

According to the Colorado Legislative Council, the fiscal impact of the amendment’s passage estimates sales taxes and licensing fees to garner between $5 million and $22 million annually. Cost of implementation to the state is estimated to be $1.3 million in the first year and around $700,000 per year after that.

The impacts of A64 on existing medical marijuana dispensaries are still unknown. But Kat McQuillan, co-owner of Tenderfoot Health Collective in Salida, says there will be separate licensing for retail and medicinal marijuana. Also, existing businesses such as hers will be given first retail rights in the event the state and feds work out all the details of production, retailing and taxing the product. She emphasized that current patients will likely continue to buy her products because they know them to be “safe, organic products” with a known origin and that their rights as patients are protected. She also said that Colorado cities and towns will still maintain the right to determine if they will allow the sale of marijuana in their communities.

Martin Woods, owner of Nature’s Medicine in Salida, says the “Retail Marijuana Code” has yet to be written, and the effect on his business remains to be seen. He explained that the excise tax will be imposed on the retailer on wholesale purchases, and that dispensaries will only be required to collect regular sales tax. The State of Colorado also allows a “tax exempt” status for patients under a given income level, allowing the medicine to be tax-free. He added, “Many things remain to be seen. If nothing else, it’s an interesting time for Colorado and the nation. It really doesn’t matter what people in the industry think; once again the people of Colorado have spoken. The governor wants to move forward by working together with the feds, so the best part is that $40 million a year to rebuild schools around Colorado can’t be a bad thing!”

With the passage of Amendment 64, Colorado is undoubtedly blazing a trail into a brave new world.