The Clear Heads in the Medical Marijuana Battle

03/18/2010 05:12 am ET | Updated May 25, 2011

Last Saturday I found myself atop Blue Sky Basin at Vail resort, enjoying my first "real" day of skiing this season. I made the mistake of taking a day off and simply relaxing after a hectic few months fighting for Colorado's Medical Marijuana industry.

The most current draft of Sen. Romer's regulatory scheme certainly was not perfect and contained a few serious issues yet to resolve; but as I stood on top of that mountain it really sunk in that if this draft became law, we would have the most advanced, and honest, medical marijuana regulations of any state in the country.

The Romer Bill
The privacy protection afforded to patients on the state marijuana registry would be expanded to cover the caregivers. In exchange for minimal reporting of monthly sales and plant counts, the state would officially recognize medical marijuana growers as legitimate businesses and allow them to operate as a distinct piece of the overall supply chain. Local governments would receive clarity on the overarching rules of our state's system and would have clear authority over traditionally local issues. Law enforcement would receive a bright line clarification between illegal and legal grow operations without unnecessarily having to execute a search warrant.

At one point in the negotiations, Sen. Romer went so far as to suggest that the state provide total indemnification from federal prosecution and pay the legal expenses of any Colorado caregiver charged federally despite compliance with state rules. Needless to say, this is a revolutionary proposal in the world of medical marijuana policy.

Sen. Romer's Withdrawal
Little did I know that a few hours later I would get a call from one of our organization's lobbyists informing me that Sen. Romer had decided to withdraw his proposed bill and that instead Rep. Massey would be introducing a bill based on Attorney General Suthers' "5 patient cap" proposal. Once again, instead of talking like adults about what regulations are proper to insure the health and safety of our patients, we are forced to address this "5 patients per caregiver" concept.

Why a 5 Patient Cap will not work for anyone; Patients or Law Enforcement
At least you would think that John Suthers would have done the math on his own proposal. By his own admission the state has been adding roughly 600 new licensed patients a day since late July. To accommodate the roughly 60,000 patients currently covered by Amendment 20, we would need 12,000 people to secretly grow marijuana in their basements and gardens and we would need to add 120 new caregivers to that list every day. Those numbers start to make 600 or so dispensaries statewide look a lot more attractive.

Has Suthers not read the text of Amendment 20? The only time the word "five" is mentioned is when requiring the state health agency to issue a medical marijuana registry card within "five days" of verifying a patient's application. Perhaps he just skimmed the definition of "primary care-giver" in section 1(f) and failed to remember the legal definition of "person." Certainly the public can be forgiven for not fully understanding this nuanced legal argument, but shouldn't the state's top attorney be able to remember that the legal definition of "person" is

Person n. 1) a human being 2) a corporation treated as having the rights and obligations of a person.

I could go on detailing all the ways that a "5 patient cap" is simply unworkable in practice and extremely detrimental to our patients; but we just need to realize this idea is simply silly. It wasn't prescribed by the voters in 2000, it isn't being demanded by the voters today, and chasing this law enforcement fantasy only distracts us from the real work to be done.

The Word "Dispensary" is not in Amendment 20
It is true that Colorado's Amendment 20 doesn't include the word "dispensary," but that's only because the word was not used in relation to medical marijuana over a decade ago when this amendment was being drafted. However, if the lawyers who originally drafted Amendment 20 had intended for "primary care-givers" to be limited only to people acting on their own, it stands to reason they would have chosen the legally correct term "natural person" instead:

Natural Person n. a real human being, as distinguished from a corporation, which is often treated at law as a fictitious person.

The Denver City Ordinance
In contrast, the Denver City Council on Monday passed a set of regulations that, while certainly not perfect or complete, take a decisive step in the direction of reasonable regulation of medical marijuana dispensaries. During the council's public forum I rose to speak in support of the regulations, despite open concern on certain specifics of those rules. Rather than rant against the proposal, I choose to "trust and verify." After sitting through hours of council committee meetings on the regulations, and even more time one-on-one with members of the council discussing the proposals, I believe that the city wants to make a good faith effort to implement the rules fairly and transparently rather than this being a secret ploy to shut us all down on March 1.

For example, Denver's newly approved regulations prohibit dispensaries from operating in a "residential zone district." If this is strictly interpreted to mean houses, duplexes, condos and apartments (typically zoned R1, R2 and R3) then I think there is near universal agreement from the industry. But, if the phrase "residential zone district" is interpreted to be any zone where housing was only one of the allowable uses, then huge swathes of Multi-use and "R4" zoned properties, traditionally used for commercial purposes, become prohibited and hundreds of legitimate businesses are forced to either apply for rezoning, sue the city or otherwise waste time and money to simply keep their business open.

Despite legitimate issues still to be addressed in the implementation of Denver's new regulations, the patients Amendment 20 protects are better served when we encourage all cities to talk openly and honestly about medical marijuana rather than hide under a rock with moratoriums and bans. The specifics of Denver's new medical marijuana regulations are certainly not appropriate to carbon copy everywhere around the state, but they do provide an excellent approach for other local governments to follow when regulating caregivers.

The Federal Government's Marijuana Policy
2009 was certainly a transformative year, both for the state of Colorado and the rest of the country. However, while citizens in other states grew increasingly concerned about layoffs, falling property values and decreasing job opportunities; the citizens of Colorado rose up en masse to create an industry supporting the constitutionally protected rights of our patients to medical marijuana. This growth took place without a single dollar of federal stimulus funding. It was financed by savings accounts and hard work rather than exotic financial derivatives or accounting tricks. And most importantly, it has been overwhelmingly embraced by our patients in a way the "you're no longer illegal, but you still have to hide" caregiver system from 2001-2008 never was.

The difference between Colorado and those other states was that on February 25, 2009, Attorney General Eric Holder made a brief statement in a press conference that it would be his Justice Department's policy not to prosecute medical marijuana patients and providers. For states without medical marijuana laws, or medical marijuana laws specifically prohibiting dispensaries or the sale of marijuana to a patient, this announcement meant very little.

But for Colorado, with an established 8-year old constitutional amendment both allowing medical marijuana and specifically not prohibiting sales or dispensaries, this press conference marked a watershed moment for our economy. Over the coming months thousands of Coloradans from every walk of life came out of the shadows to create their own medical marijuana business. In the process, we have poured millions into local economies securing and remodeling previously vacant retail space. We have leased out large amounts of previously vacant warehouses and then spent tens or hundreds of thousands of dollars converting those warehouses into properly equipped indoor farms. We have hired real estate agents, insurance agents, lawyers, business consultants, electricians, carpenters, and graphic designers not to mention the growers and dispensary employees receiving a paycheck, a W-2 and paying payroll taxes.

In this process, Colorado's medical marijuana industry has become an accidental laboratory in federalism. In Gonzales v. Raich, the most recent case regarding medical marijuana to be heard by the Supreme Court, Justice O'Connor began her dissenting opinion with the following quote:

One of federalism's chief virtues, of course, is that it promotes innovation by allowing for the possibility that 'a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.

When Attorney General Holder announced the federal government's new medical marijuana policy, he opened the door for Colorado's citizens to determine, for ourselves, what proper medical marijuana policy should be and to conduct our experiment in public policy without intervention from the federal government. Like any experiment, this process will be unpredictable and, at times, probably a bit messy. But however stressful or difficult the process of inventing a medical marijuana regulatory scheme may be, the payoff is more than worth it.

What you can do to support Amendment 20
If you are a patient who believes that a regulated dispensary system is better than a private individual caregiver, call your elected officials and tell them so. If you own a dispensary serving seriously ill patients, help them to stand up and speak on our behalf. And if you have nothing to do with medical marijuana but still support a well-regulated medical marijuana industry, please call your elected officials. If we are going to put this idea of a "5 patient cap" to rest once and for all, this is the time to step up and show why it's an inferior proposal. Only then can we get back to discussing a real plan to improve patient safety, public safety and to create a well-regulated medical marijuana industry.