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.
Contact Camera Staff Writer Erica Meltzer at 303-473-1355 or firstname.lastname@example.org.