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A busy week of legal developments has further muddied the already-murky waters of the law governing medical marijuana dispensaries.
Owners of dispensaries in Boulder County and around Colorado have been scrambling to expand their services — adding everything from housekeeping to lawn-mowing — in an effort to conform to a recent court ruling that has modified the crucial definition of the “caregiver.”
The Oct. 29 Colorado Court of Appeals decision upheld the conviction of Stacy Clendenin, the Longmont woman who was arrested in 2006 on charges involving the cultivation, possession and distribution of marijuana. Clendenin’s medical-marijuana defense hinged on whether she qualified as a “primary caregiver” under Amendment 20, which Colorado voters passed in 2000.
The court ruled that, to qualify as a primary caregiver, “a person must do more than merely supply a patient who has a debilitating medical condition with marijuana.” In defining a caregiver’s “significant responsibility for managing the well-being of a patient,” the court ruled that such responsibility “involves more than being accountable for just one aspect of a patient’s well-being.”
The ruling was a message to caregivers: You’d better be doing more for your patients than just selling them marijuana.
The court decision prompted the Board of Health to host an emergency rule-making hearing Nov. 3, where it decided to temporarily withdraw its definition of a caregiver’s “significant responsibility,” to avoid conflicting with the appellate court’s new definition. The move angered many of Colorado’s medical marijuana activists, who saw the board’s definition, which was established at a contentious and well-attended public meeting on July 22, as a victory for medical marijuana suppliers. The board’s decision was immediately challenged and was overruled on Nov. 10.
Clendenin’s lawyer, Robert Corry, who represents many Colorado dispensaries, filed the injunction, claiming that the board had failed to notify medical marijuana patients and caregivers of the emergency meeting, as required in a settlement reached in a previous case.
“The way they held that hearing, by intentionally disenfranchising the public, not allowing patients or the people that are affected, to speak, we find to be entirely underhanded,” says Brian Vicente, executive director of Sensible Colorado, a pro-marijuana nonprofit organization whose legal action in 2007 forced the health board to reconsider its definition of “significant responsibility.”
Now, after Chief Denver District Court Judge Larry Naves’ decision to force the Board of Health to reinstate its prior “significant responsibility” definition, dispensary owners are left to grapple with the conflicting definitions issued by the appellate court and the Board of Health.
“It’s been our opinion that the Colorado Court of Appeals was essentially interpreting the constitution, and that clearly is more binding than a rule or regulation from a state agency,” says Mike Saccone, communications director for Colorado Attorney General John Suthers. “Ultimately, the legislature’s going to have to step in.”
Vicente disagrees. “I think the applicable standard would be the Board of Health’s rule,” he says. “The issue with the Court of Appeals decision is that it’s not a final decision. It’s under review, and it’s also being appealed to the Colorado Supreme Court.”
In the meantime, dispensaries are left scrambling to comply with the appellate court’s new definition, in case that ends up being the final word on the matter.
Boulder attorney Jeff Gard agrees that the Clendenin decision, not the Board of Health definition, is the law of the land. He says he is advising his marijuana-providing clients to start offering their patients a host of other services — including meal delivery, grocery shopping, lawn-raking, painting and snow-shoveling — so that they can mount a defense if faced with criminal prosecution. He also says the court decision requires caregivers to be able to demonstrate that they have a relationship with their patients.
“This is going to make it very difficult for caregivers and dispensaries to operate,” he says.
One of the main questions about the court ruling is whether caregivers can “outsource” the extra services for their patients by having third parties provide them, or whether the caregivers have to perform the services themselves. Another is whether caregivers are required to deliver non-marijuana services to their patients, or whether they can be compliant simply by offering their patients such services.
At the Nov. 3 Board of Health meeting, Corry petitioned the board to amend the definition of “significant responsibility” to reflect the latter. Under his definition, “significant responsibility for managing the well-being of the patient” would mean more than merely providing marijuana to a patient “if such non-medical marijuana products or services are needed, requested and purchased by the patient.” The board refused to consider his submission.
“This lawsuit is really not aimed so much at the substance of what they did but more the principle,” Corry says. “When you’re [making rules] that affect patients’ lives, you’d better consult with them or at least hear from them, and that did not occur here. They just slapped it down. They would not listen to anybody. It was outrageous.”