Canyon Professional Building
595 Canyon Boulevard
Boulder, CO 80302

Sunday, November 15, 2009

Interesting Wednesday!

Last Wednesday was an interesting day for me! I attended a Colorado Bar Association CLE regarding the legal chaos surrounding Colorado medical marijuana law.

Leonard Frieling and Ann Toney were the speakers and both of them did a great job identifying the issues and the law. I thoroughly enjoyed the seminar and it confirmed my legal take on the situation.

After their presentation I had an interesting conversation with the gentleman that sat to my right. We started talking about dispensaries and I kind of got on my pedestal about why dispensaries should be legal. I went into the usual arguments about free market forces, clean operations, professional services, responsible business owners, etc.

The gentleman asked for my card and if he could contact me if he had any more questions. I said sure and gave him my card. It wasn't until he turned to talk to another gentleman he knew that I noticed his name tag. I didn't catch the name but I saw that he was a State Senator!

How cool is it I got the chance to talk to an elected official about these issues! I hope he calls me for more discussions!

AMA votes to review marijuana's status as a Schedule I drug

I told you it was a big week! Now, I see that everything happened on Tuesday. Now, I have posted several items today and I am started to get tire and lazy. The following was cut and pasted from Newsweek's blog.

"[T]he AMA announced that, after 72 years, it was reversing its pot policy—and urged the federal government to do the same. Precipitated by a similar decision by the group’s Medical Student Section, the AMA resolved that “that marijuana’s status as a federal Schedule 1 controlled substance be reviewed,” with the goal of facilitating clinical research, and presented a new medical report, conducted by its Council on Science and Public Health, laying out the drug’s various medical benefits."

Check out the whole article by clicking here

This is a long overdue measure and a huge step in the right direction to determine marijuanas role in our society: be it complete legalization or for medicinal use.

Boulder City Counsel Votes 4-2 in favor of Emergency Medical Marijuana Dispensary Regulations

The same day Judge Naves issued his injunction, the Boulder City Counsel held an emergency vote on medical marijuana dispensary regulations. Their choices ranged from a complete prohibition to no regulations at all.

Yours truly attended this meeting and, as usual, the medical marijuana issue was towards the end of the agenda so the meeting lasted forever! The meeting started at 6 p.m. but the medical marijuana issue wasn't addressed until after 9 p.m. The council didn't vote on it until after midnight! However, once the city council started the discussion it was refreshing to hear a government entity have an honest (albeit legally incorrect) intellectual discussion regarding the pros and cons of dispensaries. Overall, it was an open and frank discussion of the issues.

The Council heard from the city attorney and their support staff but it was clear that neither the council nor their staff were familiar with the laws.

First, the city attorney and council staff testified that Colorado medical marijuana law grants primary care-givers and their patients an affirmative defense if they are in possession of 6 plants, 2 oz. or more if medically necessary. However, this is a blatantly incorrect reading of the law.

Colorado medical marijuana law grants TWO defenses: first, an exception to criminal prosecution under certain conditions and, second, an affirmative defense under a different set of conditions.

Second, at least one City Council member was concerned about reports that dispensary owners kept guns on the premises. However, no authority or evidence was presented to support these statements. It is disturbing that emergency regulations are being proposed to combat unsubstantiated concerns.

It's like that episode of the Simpson's where Springfield enacts anti-bear regulations because the preacher's wife kept shouting, "But who's gonna think of the children!"

That being said, let's give credit where credit is due. Three cheers to Councilwoman Lisa Morzel for asking the obvious question of why this is an emergency when medical marijuana has been legal in Colorado for almost ten years without any issues. She felt this matter is better handled through standard regulation proceedings rather than a misguided emergency measure. Unfortunately, she wasn't a to get a second on the motion and it died right there.

Kudos, to Councilman Macon Cowles who proposed that Boulder should seize this opportunity and encourage a city supported depository of medicinal marijuana for redistribution. He proposed a "Green" Ribbon Panel composed of various representatives to help guide dispensary operations. While I am a little unclear of his exact position, it was heartwarming to see a forward thinking government official.

When it came time for public comment, every speaker supported medical marijuana dispensaries with the exception of a few. While I applaud both sides for making their opinions known, it was clear that the people have spoken and they are for medical marijuana dispensaries.

As an advocate for medical marijuana dispensaries, I did take a turn and spoke on the record against any regulations that inhibits a patients right to medicine. In my brief speech, I stated that the issue is a patient's right to medicine. I am completely against any prohibition, moratorium or ban on medical marijuana dispensaries because it prohibits a patient's right to safe access to medicine. I am against any regulation of medical marijuana dispensaries that unreasonably interferes with a patient right to safe access to medicine. I am for any regulation that promotes a patients right to safe access to medicine.

I believe that the perceived woes surrounding medical marijuana will be partially dispelled by allowing market forces to determine which dispensaries succeed or fail. Any inhibitions on the market will only serve to limit the supply of medical marijuana to patients; thereby, keeping prices high and quality of service low. I say let the dispensaries compete with each other to provide the best quality of medicine and services for the lowest price.

I was even quoted in the Daily Camera! "Craig Small, an attorney who focuses on medical-marijuana law, asked the council to allow "free-market forces" to determine which dispensaries thrive or fail.

"All dispensaries are not created equally," he said."

How exciting!

I understand that this will be an issue of compromise and that neither side of the issue is likely to get their demands. It is unlikely we are going to see a complete decriminalization of marijuana on a wide scale. Further, I believe some form of regulation of dispensaries is appropriate to provide accountability for the safety of patients. It was refreshing to see a City Council that opposed any prohibition, ban or moratorium on medical marijuana and was willing to have an open and honest (even if legally incorrect) discussion on how best to proceed through regulations supporting medically marijuana dispensaries.

In the end the City Council did enact temporary emergency regulations to restrict dispensaries. Until March 31, 2010, no medical marijuana commercial operation can operate in a residential area. Further, no more than 3 dispensaries can operate within 500 feet of each another dispensary. Finally, no dispensary can operate within 500 feet of a school or licensed daycare center. These regulations will not apply to existing dispensaries. I am still trying to get a copy of the exact regulation to review its legal limits.

Of course, there are those that are opposed to any government action less than complete legalization of marijuana. After the city counsel voted, several people stormed out threatening to sue the city. Since the meeting, I haven't heard of any lawsuits actually filed.

Now I am no journalist and a mediocre writer. To read a professional article on this meeting and see this author quoted click on the following link:

Big Week in Colorado Medical Marijuana News!

A lot happened this week and it is hard to keep up. Seems like the state of medical marijuana is changing faster than we can keep up with it.

On Tuesday November 10, Denver District Court Judge Naves granted Rob Corry's request for an injunction against the Colorado Board of Health and Environment's emergency repeal of their decision the prior week to revoke their decision at their July meeting. Follow this link for more information:

Confused yet? Here is how it breaks down. In July the CDHE revised their regulations to allow primary care-givers to satisfy their care-giver roles by merely dispense medical marijuana to their patients.

Then the Colorado Court of Appeals in their Clendenin decision stated a primary care-giver needed to do more than merely dispense medical marijuana in order to qualify as a primary care-giver.

And then.....the CDHE held an emergency hearing to repeal their July decision to conform their regulations to the Clendenin decision. The problem was this emergency meeting was a cluster!@#$ and their was no opportunity for public comment; hence Rob Corry's injunction request.

This injunction re-establishes the CDHE's July position allowing primary care-givers to merely dispense medical marijuana to their patient's to satisfy their role as a care-giver.

So what is the current state of affairs? We are left with the same lack of clarity that led to the CDHE July decision in the first place.

I believe that the Clendenin decision only applies to dispensary operations prior to the CDHE's July decision but does not apply retroactively. Therefore, as of Judge Nave's injunction, Colorado medical dispensaries may satisfy their role as a primary care-giver to patients by merely dispensing medicinal marijuana.

However, on December 16 the CDHE will hold a full blown hearing to revisit this issue AND allow public comments. I encourage all to attend this meeting and speak their minds, even if it is just to state you are for or against a position.

Tuesday, November 10, 2009

Groundbreaking American Medical Association move!

The American Medical Association is finally revisiting the topic of marijuana's classification as a Schedule I drug. Under federal guidelines, a Schedule I drug is one that has no medical benefit and will cause harmed if used.

Although the AMA is not moving towards legalization of marijuana, this is a huge symbolic success for proponents of medical marijuana. For years, mmj supporters have been demanding marijuana be reclassified and the argument against reclassification is that there weren't enough studies to support the move.

Now, the AMA is proposing that these studies be conducted in order to considered reclassification of marijuana.

Read the full article here:

Friday, November 6, 2009

Boulder is seeing the light?

Congratulations to all who appeared at last nights Planning Board meeting in Boulder and spoke out!

In the end, the Planning Board recommended "that dispensaries not locate within 1,000 feet of a school, that the city limit the number of cannabis businesses within 1,000 feet of each other, and banning cannabis businesses as accessory uses in residential areas -- while the city takes a more detailed look at what regulations, if any, officials will implement. The board voted unanimously not to recommend a ban on marijuana dispensaries or even a moratorium."

On Tuesday the Boulder City Council will meet to discuss imposing a 4 month moratorium on dispensaries. I encourage everyone to attend!

City Council Meeting
Date 10 November 2009
Time 6:00 PM
Location 1777 Broadway Council Chambers

Wednesday, November 4, 2009

Boulder Planning Board to meet to consider MMD changes!

Call to arms! Call to arms!

The Boulder Planning Board will be meeting on November 5, 2009 to discuss proposals to regulate, OR BAN, medical marijuana dispensaries.

I encourage everyone to attend and speak their mind!

More information here:

DATE: November 5, 2009
TIME: 6 p.m.
PLACE: 1777 Broadway, Council Chambers

Tuesday, November 3, 2009

CDPHE Hearing was a hot mess!

Today's Colorado Department of Health and Environment's meeting to repeal their definition of "caregiver" was a hot mess.

I conferenced in 10:30 and nothing happened but static and echoes for 45 minutes. When the meeting finally began, someone conferenced in put their phone on hold with their muzak playing for 10 minutes. Because those conferenced in could be heard by the Board, the Board muted us out for about 10 minutes and we couldn’t hear anything. When we were finally able to hear what was going on, the Board proposed and seconded the motion to repeal the July 20th change in definition to comply with Clendenin.

No public comment was permitted. When Rob Corry tried to chime in, the Board President shut him down and exercised his “discretion” not to allow public comments. When Rob tried to continue to get his objections on the record and cite relevant law permitting the public to speak, I was told the police approached him (Rob, can you confirm this?) Last I heard was Rob stating his intentions to file a civil suit and the Board approved the motion and the July ruling was repealed with a December hearing date for public comment.

Here is the link to the release and I will post it below.


Tuesday, November 3, 2009

Board of Health Repeals Medical Marijuana Rule Allowing Primary Care-Givers to Solely Provide Medical Marijuana.

DENVER – Today the state Board of Health, in an emergency rulemaking hearing regarding medical marijuana, repealed its July 20 rule that adopted a definition of the “significant responsibility” that a caregiver has for a medical marijuana patient.

The board took action today to avoid conflict with the Oct. 29 Colorado Court of Appeals decision, People v. Clendenin, which ruled that for a person to be a primary caregiver as defined under Colorado Constitution Article XVIII, Section 14, the person must do more than simply provide medical marijuana to a patient with a debilitating medical condition.

In the board’s July ruling – which became effective Aug. 30 – the board adopted a rule that defined “significant responsibility for managing the well-being of a patient” as “assisting a patient with daily activities, including but not limited to transportation or housekeeping or meal preparation or shopping or making any necessary arrangement for access to medical care or services or provision of medical marijuana.”
The board determined that immediate repeal of this language regarding medical use of marijuana was imperative to comply with state law and the Colorado Constitution.
Jim Martin, executive director of the Colorado Department of Public Health and Environment, said, “Today the board took necessary action to eliminate any conflict between the Colorado Constitution as interpreted and applied by the Colorado Court of Appeals and the board’s rules regarding the medical marijuana program. It is my hope this will be one step toward clarifying the allowable medical use of marijuana in Colorado.”

The Court of Appeals’ decision in Clendenin did not directly address the board’s rule, which was adopted after the defendant’s criminal trial. However, the definition of “significant responsibility” in the Board of Health’s Medical Use of Marijuana Regulation 2A(iii) was in conflict with the Court of Appeals’ interpretation of the constitutional definition of primary caregiver. The Court of Appeals specifically ruled that “the act of supplying marijuana for medical use, by itself, is insufficient to constitute significant management responsibility for a patient’s well-being, and consequently is insufficient to constitutionally qualify a person doing so as a “primary caregiver.”

By adopting this emergency repeal of the definition of “significant responsibility,” the rules avoid conflict with the Court of Appeals ruling regarding the constitutional provisions. This action was necessary to eliminate the confusion created by having two separate, conflicting standards for people attempting to comply with state law, and to preserve public health, safety and welfare.

The board will consider a permanent rule on this matter at its Dec. 16 meeting.
Law Office of Craig Small