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Home / Articles / News / News /  Recent legal tangles leave medical marijuana dispensaries in haze
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Thursday, November 12,2009

Recent legal tangles leave medical marijuana dispensaries in haze

By Jeff Dodge and David Accomazzo

Ryan Hartman, co-owner of the Boulder Wellness Center, says his dispensary already offers a variety of services to patients, including massage, teas and balms, so the court ruling doesn’t affect him much. Still, he says his center wants to add some additional options, like a discount for an adjacent business that offers services like chiropractic, acupuncture and Rolfing sessions. Hartman also says his business will soon offer a discounted taxi service and yoga classes on-site.

Still, the new legal requirements are “ridiculous,” he says. “You don’t have to have a relationship with your pharmacist. You don’t have to have a relationship with your doctor.”

Hartman says one continuing gray area is whether the growers that supply a portion of the marijuana to dispensaries can be considered caregivers under the umbrella of the dispensary that distributes it, as opposed to requiring those operations to establish relationships with, and additional services to, patients as well.

But he says he has had fruitful discussions with key local players like District Attorney Stan Garnett, Cmdr. Tommy Sloan of the Boulder County Drug Task Force and City of Boulder Planning Board member KC Becker, who was just elected to City Council. Those talks, he says, convince him that there is a good chance Boulder County can “be progressive and still have regulations.”

Sloan told Boulder Weekly that the Court of Appeals ruling has not changed his department’s approach to medical marijuana cases, because the decision is likely to be appealed and because state legislation is expected to provide more guidance next year.

Asked about dispensaries scrambling to add non-marijuana services to their menu of offerings, he said it’s probably a good idea to do so, but not because Boulder County is going to be looking for those extra services in prosecuting cases.

“We’re not changing how we do things at all,” he says. “We are not going to be a regulatory arm for this. … We’re not overreacting to the court ruling at all.”

Moreover, Sloan says, local dispensary owners needn’t worry about being heightened targets for law enforcement. “We have no issues with any dispensaries in town,” he says. “If we did, we’d go to them first and talk about it and tell them they are on our radar. We’re not here to take them down.”

Plus, given the constantly shifting legal landscape of medical marijuana laws, prosecuting a dispensary even under the new appellate court definition remains difficult, Garnett says.

“I have stated in the past that I don’t intend to prosecute dispensaries, and I still don’t plan on prosecuting dispensaries, unless the law changes dramatically, because I think the legal situation is just too unclear,” Garnett says. “Nothing about the Clendenin case changes my office’s overall approach.”

While Garnett favors zoning regulations from the city that would effectively regulate the further growth of medical marijuana dispensaries, he says there is not enough legal guidance to bring any sort of winnable action against a dispensary.

“Everyone should agree on what the law is before the prosecution starts. Prosecution is about a factual issue of whether the defendant broke the law, not about what the law should be,” Garnett says. “The bottom line is, on a state level, the law is a mess. ... Even conservative prosecutors are very hesitant to pursue these cases.”

After hearing public comment at a packed Nov. 10 meeting, Boulder City Council voted 4-2 to approve an emergency ordinance enacting interim regulations for dispensaries that expire on March 31, 2010. While city staff had originally laid out a full spectrum of options, including a ban or a moratorium on dispensaries, council-members opted for a handful of less-stringent regulations proposed by the city Planning Board.

Those rules, which do not apply to dispensaries established before Nov. 6, prohibit new dispensaries from opening within 500 feet of a school or licensed daycare center, a requirement consistent with state law on liquor stores and a more lenient regulation than the 1,000-foot distance recommended by the Planning Board. In addition, new dispensaries may not open within 500 feet of three other dispensaries, or within residential zones.

Boulder attorney Gard says that municipalities and counties that have taken more drastic measures to limit or even ban dispensaries may see lawsuits, not just on the grounds that they limit patients’ rights related to access and choice under Amendment 20, but on the grounds of discrimination against people with certain disabilities, contrary to the Americans with Disabilities Act. He points out that the government does not restrict blind people’s access to guide dogs or physically disabled people’s access to wheelchairs, so why should qualified patients’ access to marijuana be limited?

As another example, Gard says, “Castle Rock can’t say, ‘We don’t want women to vote in our town.’” He predicts that lawsuits against jurisdictions that have enacted unreasonable regulations on medical marijuana will go all the way to the U.S. Supreme Court.

“It’s going to be ugly,” Gard says. “The first shoe to drop will be regulation. The second shoe to drop will be litigation.”

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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

DrReefer.com

 

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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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I like to post about the upcoming Cannabis event.  The RMCC.  This event is not putting much effort into the 'industry cause'.  Its back door agenda has been reveled.  The obvious lack of advertising & vendors registered (less than 50) and ticked sold (less than 300) show the direction of it’s efforts.  Plus there is more evidence the organizer is trying to hide money.

 

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A O

Here is my song in support of Amendment 64.

https://itunes.apple.com/us/album/i-got-that-64-goldfish-version/id582824298?i=582824468&ign-mpt=uo%3D4

http://www.youtube.com/watch?v=zkuNtkpvzsU&feature=plcp

 

I didn't win the Powerball, so I'm hoping enough will download this so I can get free "64" for life.  

 

 
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