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Thursday, November 12,2009

Recent legal tangles leave medical marijuana dispensaries in haze

By Jeff Dodge and David Accomazzo

Pierre Werner, owner of DrReefer.com in Boulder, moved from Nevada to Colorado a month ago to set up a dispensary offering marijuana-growing courses. As the Clendenin case came down and as the city of Boulder began considering placing additional legal restrictions on dispensaries, he was forced to find a bigger retail space so that he could expand his dispensary to offer other services, such as massage and acupuncture, for his patients.

“I wasn’t counting on all the wellness stuff,” he concedes. But ultimately, he says, he will do whatever it takes to adhere to the law. “I’m willing to comply with whatever they need. I’m just wanting to pay my taxes and be left alone.”

Laurel Alterman of AlterMeds in Louisville says being allowed to simply offer the additional services makes more sense than forcing patients to buy a package of services they don’t need when all they want is the marijuana. She recently sent a questionnaire to her 40 patients to find out what other services they are interested in, but so far, all of the patients she has spoken to just want a safe, clean, professional place to buy locally grown medical marijuana.

“Nobody’s said, ‘I need my house cleaned,’” she says.

“A pharmacist at a regular pharmacy is not expected to clean these folks’ houses.”

Still, Alterman says she will comply with the new legal interpretation by offering non-marijuana services.

“It’s a new game, but whatever it is, I’ll do what it takes to remain compliant,” she says. “We’ll put a massage chair in here. But I would just like to see this ruling reversed and stop the nonsense. It’s not a moral issue.”

She is considering outsourcing those additional services to an external organization, such as the Colorado Patients and Providers Collective or the Cannabis Therapy Institute.

The Cannabis Therapy Institute recently launched a “Colorado Patient Services” program as a referral service that can connect patients with the additional services they need. Dispensaries pay a $100 application fee to sign up for the program. Then they enroll their patients, and the patients receive a call from the program to find out what additional services they want. The patients pay directly for any additional service, and the program reports regularly back to the caregiver about what their patients have chosen.

Laura Kriho, public relations coordinator for the Cannabis Therapy Institute, says the referral service is, in part, “a network of patients helping patients.” The network also includes a growing number of professionals, from massage therapists and acupuncturists to carpenters and interior designers. “We are looking at this as a good thing, that it’s going to double or quadruple the number of businesses involved in medical marijuana,” Kriho says.

She acknowledges that it’s still unclear whether simply referring patients to services fulfills the legal requirement for caregivers to provide more than marijuana.

“It was a quick way for us to get something out there to dispensary owners who were worried about complying with the new world order,” Kriho says. “We’re excited to bring in all of these new businesses. They thought [the ruling] would hurt us, but it’s only made us stronger.”

She says about a half dozen dispensaries have contacted her about the program so far. Like Alterman, Kriho questions why dispensaries are being treated differently than pharmacies. “What does your Walgreens pharmacist do for you?” Kriho asks. “Mow your lawn?” And she questions the alarmist attitude toward a drug that has proved to be much less fatal than alcohol. “We’re still looking for a dead body, after 10,000 years of consistent human use,” Kriho says.

Nick Cokas, owner of Boulder dispensary Colorado Care, says a friend is setting up a similar referral service in which patients will be able to register their needs online and have vendors bid for their business. In addition to participating in that service, he says, he is partnering with a gym that gives his patients a discount. But Cokas adds that most patients can’t afford the additional services, and it is an unfair burden to ask dispensaries to supply them. “My biggest frustration is that we don’t ask liquor stores or pharmacies to do something like this,” he says. “I’m not a doctor. I’m not a chiropractor. I’m not a massage therapist. I’m a computer programmer.”

Cokas, a brain cancer survivor who had to return to work even though he was still vomiting regularly from his chemotherapy treatments, says the issue shouldn’t be about making dispensaries jump through more hoops, but about what is best for the patients.

“Instead of setting up regulations that don’t help people, let’s help people,” he says. “What’s the real goal here? That’s what I’m curious about. But I’ll do whatever my lawyer tells me to do. We will comply with any law, whatever they throw out there.”

Still, he says, it will take time for dispensaries to adjust to the new legal landscape, just as it took years for institutions to adhere to the requirements of the Americans with Disabilities Act by installing wheelchair ramps and elevators.

Another dispensary representative who did not want to be identified says his clinic is not inclined to change its offerings until things settle down.

“We’re in limbo right now,” he told Boulder Weekly.

“We don’t want to take a course of action that could change in three or four weeks.”

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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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