SAGUACHE — The town of Saguache will not have a marijuana retail sales and testing facility/manufacture issue on the ballot in November because the deadline passed for submission of the ballot language to the county.
Some familiar with state law, however, claim that even though the ballot resolution passed by the previous board was not signed by former Mayor Greg Terrell or the trustees who passed it, the initiative language still could have been submitted to the clerk’s office for placement on the ballot in November based strictly on the fact that it passed the vote. New city council members agree the initiative can be resubmitted next year.
But now that a new ballot initiative must be redrawn and the town’s attorney has resigned, there are concerns that possible mistakes made elsewhere in the Valley could be repeated in the re-drafting process.
As reported in the Monte Vista Journal last month by reporters Anthony Guerrero and Chelsea McNerny-Martinez, Monte Vista has been researching the retail marijuana issue for their own initiative, comparing it with the marijuana ballot question used by other towns, including Crestone. While researching its own initiative, Monte Vista discovered the question on the ballot must be divided into two parts, as TABOR laws require.
The language in the marijuana tax bill passed April 5, 2016 in Crestone poses only one question. It reads:
“Shall the Town of Crestone’s taxes be increased to an additional $50,000 per year commencing April 5 and ending Dec. 31, 2016, and by whatever additional amounts are raised annually thereafter through the adoption of a retail marijuana store tax in the amount of 5 percent on the price paid for the purchase of retail marijuana and marijuana infused products, with such revenue to be used for the additional costs incurred for adequate enforcement and administration of retail marijuana regulations and other general purposes of the town; and shall all revenues derived from such retail marijuana tax be collected and spent as a voter approved revenue change, notwithstanding any revenue or expenditure limitations contained in Article X, section 20 of the Colorado Constitution?”
The town of Del Norte also had a marijuana initiative on their ballot for 2016 with a single ballot issue, worded very similarly to Crestone's, but the measure failed to pass.
The Crestone Town Board drafted the resolution with the guidance of Town Attorney Eugene Farish. Now some Crestone residents fear that because the initiative was not a two-part question, the town could be open to litigation.
One resident commented that if the initiative that passed in April is ever deemed unconstitutional, the town would need to pay all the taxes collected so far back to shops now selling cannabis. At best, s/he said, the question needs to be rephrased and placed on a future ballot.
A source close to the legal community reported that at least one attorney may be considering filing suit against the town of Crestone, challenging the marijuana tax.
Town of Monte Vista discusses initiative wording
According to Monte Vista Journal reports, Planning and Zoning Commissioners Ruthanna Seger and Barbara Sears spoke to the Monte Vista council regarding the wording of the initiative for their town.
“Sears explained they were under the impression that because of TABOR rules, the question for a municipality to opt-in/out of marijuana sales and the sales tax question had to be different [two separate questions], but Crestone had combined the two into one question presented to voters. Seger explained she and Sears were afraid that “…some people [would] just see a tax increase [on the ballot] and mark ‘no,’” adding they wouldn’t want to see marijuana pass without the additional sales taxes that would benefit the city.
“Councilor Matthew Martinez acknowledged the reality of their concerns, noting the example of the town of South Fork, which had the opposite resolution, where the tax question passed but the opt-in status did not, making the former redundant. Neuerburg informed council they could table the resolution until the next meeting, giving Lintott the ability to review the legality of consolidating the question, so both options could be considered by council.”
At a meeting held earlier this month, discussion of how the initiative should be written continued. “After researching the issue, Lintott recommended the city separate the tax question from the allowance question. City Manager Forrest Neuerburg also conducted research and sought outside counsel from the Colorado Municipal League. According to their findings it was determined combining the question may be deemed unconstitutional and put the city at risk of a lawsuit.”
Examples of past initiative failures and how to avoid them were then discussed, such as voters agreeing to allow marijuana sales and cultivation but voting against taxation. Recently, in neighboring South Fork, a taxation measure passed but marijuana sales and cultivation continued to be illegal. A Monte Vista councilor proposed solving the issue as follows.
“Councilor Lorenz proposed that the city put forth the taxation question first and then return to the allowance of sales and cultivation question through a special election at a later date. He reasoned in this manner the city government would then know where they stood regarding taxation before allowing marijuana and avoiding the possibility that one question passes while the other fails.”
Lorenz’s motion to enact the proposal failed, and the council will continue their discussion.