Die Geschichte wiederholt sich immer zweimal – das erste Mal als Tragödie, das zweite Mal als Farce.
— The first sentence of the 1852 essay, “Der 18te Brumaire des Louis Napoleon” by economist Karl Marx.
A rough translation of the quote above: “History always repeats itself twice — the first time as Tragedy, the second time as Farce.”
These two forms of theatrical storytelling — Tragedy and Farce — may have special meaning for me, because my father taught Drama at Oakland High School for about 30 years, and was always happy to explain the technical difference between Tragedy and Comedy, and the various types of Comedy, including Farce.
I’m not sure which phase of history we’re in, presently, here in Archuleta County — Tragedy, or Farce? — regarding marijuana regulation and enforcement.
The Archuleta Board of County Commissioners (BOCC) will be meeting tomorrow, Tuesday April 5, for a regular meeting, and have on their agenda the following public hearing:
A. Public Hearing Of Proposed Amendments To The Land Use Regulations
Amendments to the Land Use Regulations are being proposed regarding standards for personal use and caregiver medical use marijuana cultivation (Secs 3, 5, and 11), building on slopes (Sec 5 and 11), and enforcement options outlined in the regulations (Sec 1). These proposed amendments have been through the Planning Commission and have all been recommended to be brought forth the BOCC for final approval.
The recommended land use regulations were developed by County Development Director Pamela Flowers and her team, following a BOCC work session presentation last December by Emergency Operations Director Mike Le Roux, Undersheriff Derek Woodman, and Ms. Flowers. During that work session, the BOCC was encouraged the development of amendments to the County Land Use Regulations as a way to discourage marijuana cultivation in the unincorporated county. (Mr. Le Roux has since been promoted to Undersheriff, and Mr. Woodman has been promoted to County Administrator.)
You can read my op-ed about the December presentation here.
While considering the motivation behind these proposed land use rules, we need to consider that private marijuana cultivation is not merely ‘legal’ in Colorado — it is actually a protected right written into the Colorado Constitution. The ballot language of Amendment 64, approved in November 2012, begins with this wording:
(1) Purpose and findings.
(a) In the interest of the efficient use of law enforcement resources, enhancing revenue for public purposes, and individual freedom, the people of the State of Colorado find and declare that the use of marijuana should be legal for persons twenty-one years of age or older and taxed in a manner similar to alcohol.
As we know, the production of alcoholic beverages went through their own period of prohibition during the 1920s, until our federal and state governments realized their mistake, and began raking in the tax revenues from their sale.
In its voter-approved version, Article XVIII, Section 16 of our Constitution guarantees the following protections:
(3) Personal use of marijuana. Notwithstanding any other provision of law, the following acts are not unlawful and shall not be an offense under Colorado law or the law of any locality within Colorado or be a basis for seizure or forfeiture of assets under Colorado law for persons twenty-one years of age or older:
(a) Possessing, using, displaying, purchasing, or transporting marijuana accessories or one ounce or less of marijuana.
(b) Possessing, growing, processing, or transporting no more than six marijuana plants, with three or fewer being mature, flowering plants, and possession of the marijuana produced by the plants on the premises where the plants were grown, provided that the growing takes place in an enclosed, locked space, is not conducted openly or publicly, and is not made available for sale.
(c) Transfer of one ounce or less of marijuana without remuneration to a person who is twenty-one years of age or older.
(d) Consumption of marijuana, provided that nothing in this section shall permit consumption that is conducted openly and publicly or in a manner that endangers others.
We note that this is not a ‘law’ passed by the Colorado Assembly, which can be rescinded by a vote of senators and representatives… nor is this a ‘law’ passed by county commissioners. This is a constitutional right, established by “We the People”, and — so long as it remains part of the Constitution — no “Colorado law or the law of any locality within Colorado” may infringe upon this right.
Theoretically.
Of course, governments — federal, state and local — often pass laws that infringe upon our rights, and occasionally, those laws get tossed out by federal or state courts because they appear to violate the federal or state Constitution.
As I read the words of our Constitution — in particular, these words…
(b) Possessing, growing, processing, or transporting no more than six marijuana plants, with three or fewer being mature, flowering plants, and possession of the marijuana produced by the plants on the premises where the plants were grown, provided that the growing takes place in an enclosed, locked space, is not conducted openly or publicly, and is not made available for sale.
… this section seems to be saying that I have a protected constitutional right, as a citizen of Colorado over the age of 21, to grow, possess, and use up to six cannabis plants, and furthermore, that doing so “shall not be an offense under Colorado law or the law of any locality within Colorado or be a basis for seizure or forfeiture of assets under Colorado law.”
Do these words have a clear meaning, insofar as protecting my rights? And do the proposed changes to the Archuleta County Land Use Regulations appear to violate those constitutional rights?
For example, if the proposed amendments make it difficult or impossible to grow marijuana on my own private property without violating Archuleta County Land Use Regulations, are these rules unconstitutionally infringing upon my rights?
You can download the proposed changes to the Land Use Regulations here. The proposed changes are shown in ‘red’.
Colorado already has state laws that define certain limits on personal cultivation of cannabis. Those same laws generally define violations of those limits as petty offenses, so long as the alleged violator is not selling the fruits of his/her labors.
So that leaves us with another question, begging to be answered. Why would the BOCC want to use Land Use Regulations, of all things, to limit marijuana cultivation?