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Thursday, November 12,2009

Recent legal tangles leave medical marijuana dispensaries in haze

By Jeff Dodge and David Accomazzo

Editor's Note: Last week, we reported that a state legislator suggested CSU grow pot for the entire state. Read that story by clicking here.

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.”

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The little plant is called the DrReefer strain. The night before the poor thing was in a dirt pot now she's gone hydroponic. She's looking much better now.

Pierre Werner




Dispensaries are legal just like the Colorado Constitution says they are. Sale, distribution, and dispensing of medical marijuana are explicitly protected, legal activities. All patients and caregivers with legal registry ID may participate in the medical marijuana trade amongst themselves within legal limits. These are constitutional mandates.

With federal deference to state laws the medical marijuana trade has come out of the closet, and Colorado is convulsing out of difficulty recognizing what our constitution clearly says is legal. An additional twist was added by a court of appeals ruling which put the definition of "primary care-giver" under scrutiny. So what does the constitution say?

The fundamental legal change made by Amendment 20 is that it removed state-level criminal penalties for all people with legal registry identification to engage or assist in the medical use of marijuana. This created a distinction between legalmedicalmarijuana, and illegalmarijuana; understanding that difference is key for following the law.

What's the difference? Well, cannabis is cannabis, and medical marijuana is cannabis used to alleviate a debilitating medical condition, while marijuana is cannabis used for any other purpose. It all depends on who is using it, and why (similar to prescription drugs: legal when used as prescribed, illegal for any other use.)

The constitution is specific: legal medical use is defined as "the acquisition, possession, production, use, or transportation of marijuana or paraphernalia (used to) address... a patient's debilitating medical condition..." Medical use is the basis of legality. This is amplified by subsection (2)(d), which expressly states "sale, distribution, dispensing" among activities protected for legal medical marijuana, but prohibited for illegal marijuana.

The 2000 election "Blue Book" summary for voters was correct that marijuana distribution would remain illegal in Colorado. However it failed to draw attention to the clear legalization of the medical marijuana trade for people with registry identification, and left us with a supposed contradiction between legal acquisition of medical marijuana on one hand, and illegal distribution of marijuana on the other. There is no conflict. According to the constitution the two are mutually exclusive: medical marijuana is inherently legal because by definition illegal marijuana is non-medical.

We already go about our daily lives with this same kind of legal duality; for example, with motor vehicle laws. Every person with a legal driver's license is permitted to drive legally. Unlicensed or otherwise illegal drivers break the law and risk getting caught. Illegal drivers don't negate the legal ones, though, because you can't break the law by driving legally.

The registry identification card is the license to participate in the medical marijuana trade. The legal possession limit is 6 plants (three or less in the mature phase), and 2 oz. (of usable form) per patient, with affirmative defense for more if medically necessary.

Each patient has the limited authority to designate at most one person as a caregiver, who then shares the legal license. The patient is not restricted to assistance only from the caregiver they designated, and the caregiver is not limited to assist only their designating patients: it says so in subsection (2)(b).

The constitution specifies that any patient or caregiver named on a legal registry identification card may engage or assist. Dictionary definitions for the word "any" include "every", "all", and "unlimited in number or quantity". A limitation would require a distinctly different wording, like "each patient and his or her designated primary care-giver may engage or assist only with each other".

Anyone who doesn't have the registry ID may establish an affirmative defense for medical marijuana by meeting certain conditions. These are: if they show qualification for the ID with proof of medical necessity; and if they (with anyone acting as caregiver) are collectively in possession of amounts only as permitted.

Stacy Clendenin had no registry ID and claimed the affirmative defense caregiver status; but there was no proof that her patients had medical necessity. Considering her situation, the court of appeals then looked to the definition of primary care-giver to find out if she could qualify for the affirmative defense that way. Affirmative defense only applies to people without registry ID, or people justifying greater possession amounts.

Are people with a legal registry ID required by the constitution to meet the definition of "primary care-giver" in any way before providing medical marijuana? No. This particular definition only exists as part of the constitutional article exclusively concerned with the medical use of marijuana. The definition specifies responsibility for a patient with a "debilitating medical condition", which is defined as a "condition (which) may be alleviated by the medical use of marijuana." Fulfilling the caregiver definition in this case is not a precondition to provide medical marijuana, but a result of it. Caregiver evaluation is never mentioned in the constitution; though the idea may be worthwhile for self-regulatory trade organizations to explore.

To summarize what is CONSTITUTIONALLY LEGAL:

All residents of Colorado who are lawfully identified by a registry identification card are legally authorized to safely and confidentially engage or assist in the acquisition, possession, manufacture, production, use, sale, distribution, dispensing, or transportation of medical marijuana including any mixture or preparation thereof.

Medical Marijuana in Colorado exists in accordance with the Colorado Constitution; any legislative or regulatory discussion should be informed by what the constitution mandates - that all persons who are legally identified by the registry are constitutionally allowed to participate in the medical cannabis trade.

Medical marijuana patients as a group have a wide range of conditions to alleviate. This responsibility is met with a thriving diversity of options - from individual caregivers to comprehensive wellness centers.

For the well-being of all, it is time to move beyond any questions about whether the medical marijuana trade is legal and who may participate. Instead, we should use our efforts to ensure that taxes are properly collected and that standard health and safety codes are followed.



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