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.”