New medical marijuana laws: trouble ahead

Industry panelists point to inconsistencies, power grabs

| May 28, 2010

THE EXPERTS: Panel of medical marijuana business experts met in Denver May 24. Pictured: (L to R): Jeff Gard, Danyel Joffe, Tae Darnell, Ann Toney, Richard Gee, Craig Small, Lauren Davis, Cliff Black, Jessica Corry, Charles Houghton (Photo:
Colorado Springs attorney Cliff Black summed up the good things about the state’s new medical marijuana statute, due to be signed into law by Bill Ritter in the coming days, this way: “One very good thing (about HB 1284) is they kept Chris Romer’s promise to keep the ‘thugs and knuckleheads’ out of the business. The law says that police, sheriffs and other law enforcement officers cannot own dispensaries.”

His comment captured the mood of the evening at the Loew’s Denver Hotel Monday night, May 24, where a panel of 10 attorneys specializing in medical marijuana spoke to an audience of industry professionals, patients and caregivers.

The event, moderated by Laura Kriho, long-time medical marijuana advocate and director of the Cannabis Therapy Institute, and co-hosted by Cheryl Brown, director of the Medical Marijuana Business Alliance, was part of a series of events sponsored by the Alliance to unite the MMJ industry — or perhaps the section of it concerned with legal compliance in the face of daunting obstacles.

Chris Romer, the Democratic Senator from South Denver, was the legislative point man throughout the new law’s creation.

Two weird “70-percent rules”

Tae Darnell, an attorney whose firm represents about a hundred growers and dispensaries, cited several difficult facets of the new law, and noted the overall effect was that of a “law enforcement legislative action.” For example, the law has a “completely arbitrary” set of percentages growers and dispensaries must meet in order to legally sell product at all. If you own a dispensary, you will now be required to grow at least 70 percent of your own product; and likewise, growers must sell 70 percent of their own product through one dispensary. Scores of growers and dispensaries do not presently meet this requirement; thus, if they can’t afford to make the jump to growing and selling their own product, they’ll either be diving through bureaucratic hoops to try and avoid prosecution, or they’ll be shutting down.

Darnell and several of the other attorneys are preparing to move forward with a legal challenge to the new law, citing its heavy encumbrance to Amendment XX, the voter-approved constitutional provision protecting medical marijuana patients. Ann Toney, a Denver criminal defense attorney, noted that lawmakers will have plenty of explaining to do to their constituents when the state starts spending millions of tax dollars defending lawsuits from businesses that were legal prior to the new law.

Richard Gee, an attorney specializing in incorporating dispensaries and other caregiving businesses, and also a candidate for Gilpin County Commissioner, noted that there was “no rational basis” for the 70/30 provision, not to mention the fact that caregivers are not allowed to work cooperatively. Marijuana co-ops are a standard feature in the California MMJ landscape; under the new Colorado law, they’re banned.

Making it harder for patients

Additionally, both local and state laws will further slow the progress of not just “the industry,” but patients as well, according to several of the attorneys. For instance, in Boulder, if you are a caregiver providing care to more than one patient, you’re on the hook for a $5,000 license fee. (In Denver, you can still have five patients without need of a license.) Many at the event signaled their opposition to features likely only to raise costs for patients, and make legal medicine less available.

Jeff Gard, a Boulder attorney who specializes in advising medical marijuana dispensaries, declared Boulder the “cannabis capital of Colorado” and noted a variety of ways the new law and local ordinances trip up medical marijuana patients. Those areas include employment drug policies that outlaw cannabis, when there are no studies to correlate negative performance with cannabis in one’s system, since having it in one’s system does not necessarily indicate being under its influence while working. Additionally, there are still people losing public housing, paid for with Federal dollars, due to their medical marijuana use, and police still call social services when a small legal grow operation is found in a home with children (for possible removal of the children).

“Who are you going to sue?” he rhetorically asked, indicating that the approach of fighting a case in one county, and then having to go to another to fight a similar case over again would likely be less effective than consolidating cases as class actions.

“Gang fight”

Colorado Springs attorney Charles Houghton put it in slightly different terms: “This is a gang fight. The city and county attorneys will have to learn that when they fight us, they’re fighting every one of us, not just a single case.”

Denver Attorney Danyel Joffe drew a laugh, stating she prepared for the night’s meeting by watching Miami Vice. She also recommended that people take an interest in Federal bill HR 3939, sponsored by Rep. Jared Polis and currently languishing in the House Judiciary Committee. That bill stipulates that anyone with an affirmative defense (possession of a state medical marijuana license in a state where medical marijuana is legal) would not be found in violation of Federal law.

Laura Kriho’s final remarks included a forward-looking reference to a possible 2012 legalization initiative in Colorado. Although most in the audience responded warmly to the idea, there’s no telling what further impact that initiative might have on an industry that has been growing — kind of like a weed — all by itself until now.

For further info, contact: The Cannabis Therapy Institute or The Medical Marijuana Business Alliance