Pubdate: Fri, 05 Oct 2012
Source: Daily Camera (Boulder, CO)
Copyright: 2012 The Daily Camera.
Contact:  http://www.dailycamera.com/
Details: http://www.mapinc.org/media/103
Author: Erica Meltzer

CITY OF BOULDER, MED-POT SHOP TUSSLE OVER PRODUCT

Police Inform DEA After Owners Refuse to Surrender Marijuana

Boulder officials want a dispensary that was denied a city license to 
turn over its marijuana, though the dispensary owner is appealing the decision.

Boulder police called the Drug Enforcement Administration earlier 
this week after representatives of Top Shelf Alternatives refused to 
cooperate with what was supposed to be a voluntary surrender of 
marijuana plants and dried marijuana Tuesday.

Police spokeswoman Kim Kobel said the threshold for federal 
involvement is 100 plants, and there were almost 400 plants at Top 
Shelf, as well as several pounds of marijuana product.

Because Top Shelf does not have a city license to operate a medical 
marijuana business, the marijuana is now illegal, Kobel said.

Kenneth Morris, an attorney for Top Shelf, said his clients will 
comply with the law, but they wanted modified language in the 
surrender agreement that recognizes they are still pursuing an 
appeal. They also didn't want to agree to have the marijuana 
destroyed, but they probably will have to accept that to resolve the issue.

Morris said the city's actions will destroy his clients' chances of 
running a successful business, even if they prevail in the appeal.

"In two or three weeks, we could get a final ruling that says, yeah, 
they should have a license, and it won't matter," Morris said.

A spokesman for the DEA in Denver said the agency is not aware of the 
case and hasn't taken any action against the dispensary or its owners.

Boulder police Sgt. Jeff Kessler said police and the City Attorney's 
Office are working with Top Shelf to coordinate another surrender of 
the marijuana.

Senior Assistant City Attorney Kathy Haddock said the city doesn't 
have the resources to store the marijuana during a possibly lengthy 
court battle.

"We don't have the facilities to grow pot," she said.

The city also does not want to appear to sanction illegal drugs by 
not confiscating and destroying them.

"It's illegal marijuana without the protection of the constitutional 
amendment, so we're condoning having illegal drugs," she said. 
"That's what we don't want to do."

Top Shelf found its license in danger after city officials said owner 
Michelle Tucker's past role as director of Resolve Credit Counseling 
showed she was of "low moral character."

Resolve was the subject of a Federal Trade Commission complaint of 
deceptive business practices. The company reached a settlement in 
which it agreed to pay $350,000 in fines (Tucker says they were 
"remedial fees") but didn't admit any fault.

Tucker contended the FTC complaint was a civil, not a criminal 
matter, and she wasn't found guilty. She said it shouldn't be 
relevant to her marijuana business application.

An administrative hearing officer agreed with Tucker and said the 
city couldn't use the FTC complaint as evidence of bad moral character.

The city still denied a business license to Top Shelf Alternatives, 
1327 Spruce St., on the grounds that it exceeded the maximum square 
footage allowed under city code, though Tucker said the extra space 
is just storage and she has reduced her business' footprint.

That appeal wended its way through Boulder County District Court and 
was remanded back to the city for another administrative hearing. 
District Judge Ingrid Bakke said in August that Top Shelf should have 
been allowed to submit an amended lease, but also that the hearing 
officer should have considered the moral character evidence from the FTC case.

Haddock said Top Shelf has not yet asked for the hearing to be 
scheduled. Even if Top Shelf prevailed, the city could appeal the 
granting of the license. Top Shelf is also pursuing a claim in the 
state Court of Appeals, Morris said.

In the meantime, Top Shelf had asked the court for an injunction 
allowing the business to stay open while it pursued its appeals. That 
request was denied in September, leading Boulder police to seek a 
voluntary surrender of the marijuana this week.
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MAP posted-by: Jay Bergstrom