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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.
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.
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.
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.”
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.
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.”
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.
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
is considering outsourcing those additional services to an external
organization, such as the Colorado Patients and Providers Collective or
the Cannabis Therapy Institute.
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.
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.
acknowledges that it’s still unclear whether simply referring patients
to services fulfills the legal requirement for caregivers to provide
more than marijuana.
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.”
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.
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.”
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.
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.”
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.
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.”
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.
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.”
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.
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.”
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.
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.
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
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.”
given the constantly shifting legal landscape of medical marijuana
laws, prosecuting a dispensary even under the new appellate court
definition remains difficult, Garnett says.
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.”
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.
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.”
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.
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.
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?
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.”