Weekly Register-Call/ Gilpin County News

Regulating Medical Marijuana – the real cost and benefits

Over 30,000 folks have applied for a little card enabling them to use medical marijuana to alleviate their various medical conditions. Perhaps someone you know holds such a card. It has to be vouched for by a physician and issued by Ann Hause’s Office down at the Colorado Department of Public Health and Environment. There are seemingly frantic efforts underway to somehow limit the dozen or so doctors who account for half of the medical marijuana certificates. Still, any M.D. can write one, and the new dispensaries can supply the drug. Dispensaries for medical marijuana exist now in Nederland and I predict some will be opening fairly soon in Gilpin County also. Nederland and other cities are apparently befitting from sales tax on the substance. One councilman joking said that pot could save their budget this year. Even in jurisdictions where the locals haven’t figured out how to tax the leafy plant the state still collects its’ sales tax revenue. The state insists on the usual retail sales license issued by the Colo. Dept. of Revenue. So, is this sales tax money needed? Will this new source of sales tax help out our desperate financial crunch in 2010?

Colorado needs the revenue

This sales tax revenue is very welcome at the state level. Colorado is 47^th among the 50 states in tax revenue. The many web sites devoted to “shirking” government rejoice in this fact, and the gang at the Independence Institute cheers loudly, but state officials know the real cost. There’s a real possibility that Colorado will give no more than a token amount of money to all of higher education next year. Some junior colleges around the state are just barely keeping their doors open. Already the accreditation of our largest medical school is under a cloud because of lack of state support. Business leaders know that once a state starts to slip into a second rate system of higher education then investment in that state slips too. We’ve depended on our mountains to lure business in the past, but as we start to degrade our institutions of higher education, business will definitively look elsewhere. Even good skiing won’t change that equation. That’s not to mention our deteriorating state highways. Gov. Ritter was recently asked if he’d drive over our 150 highway bridges rated in “very poor condition.” He declined to comment, but then seriously said he’d have to think twice before crossing.

Who can buy legal marijuana?

The law is pretty clear about who you can give a New Year’s gift of legal pot to. Your friend is not having a happy life if they get a medical marijuana card. They’ll have glaucoma, HIV, AIDS, severe pain, multiple sclerosis, severe nausea and/or possibly be seeing their last New Year. The friend you think about gifting with some cannabis will probably not be having a jolly New Year’s holiday. Not only that, they can’t have much pot in their cupboard either. Two ounces is the most either the patient or his/her caregiver may hold. One would wonder what the fuss is about, but some governmental agencies are, indeed, doing more than fussing. Except for the feds that is.

Federal efforts to regulate the medical weed

On Oct. 19, 2009 the U.S. Deputy Attorney General issued a statement saying that the federal government would not investigate or prosecute for medical marijuana. Basically that ruling says that the feds want to stay out of the whole thicket of state’s rights vs. federal law in this area. They don’t want to go to the supreme court on something this trivial. If your friend does get some pot from the local dispensary the feds won’t come knocking at the door. The state of Colorado is another mater.

Ah, the confusion

At the state level, confusion reigns. The state board of health recently held hearings to define a “caregiver” who can give out marijuana under the law. The person who sells medical marijuana in a dispensary thinks of themselves as a “caregiver” for the person they sell to. They probably say they offer group “positive think” discussion meetings, alternative ways to ingest the drug, holiday meals, maybe massage, certainly “health pep talks” and the like. That’s how they claim to be “true caregivers”.  The State Board of Health, on the other hand, thinks that the caregiver needs to do a lot more.  After the hearings that board made some very restrictive rules about caregivers. But, those rules were thrown out by a district court apparently because the hearings themselves were not done according to Hoyle. Also, another court had ruled that the Board of Health didn’t have that kind of authority so conflicting rulings were cited.

Meanwhile Stacy Clendenin of Boulder County was hauled into court for growing medical marijuana.  The judge there narrowed the definition of caregiver and, depending on how you read the ruling, said that Stacy never intended to be a true “caregiver”. Her case should be an interesting appeal. The judge there also asked the state General Assembly to take up the whole question when it meets again in January. The rumors are that the legislature will consider strict standards for caregivers and hence for marijuana dispensaries. Possibly those rules would look a lot like current liquor retail licensing laws. That would probably put lots of little “one caregiver” medical marijuana dispensaries out of business. The fees for liquor licenses are high and paperwork required is fairly complex.

Enter the cities and the counties

There is some strange behavior going on in Colorado right now at the city and county level. The cities and counties are entering the whole medical marijuana debate under zoning laws. Commerce City recently passed a zoning ordinance restricting medical marijuana dispensaries to essentially the same rules as liquor stores. They went much further, however, and put in a number of regulations for security, advertisements, ventilation, view into the interior etc. Likely someone will challenge those rules under equal protection statutes.

Already we’re hearing that proposed rules in Eagle County are being considered “onerous regulations”, “denial of liberty”, “preemption” and so on. The Eagle County attorney is going to have his hands full defending those regulations once the county commissioners adopt them (if they do). He’s meeting with the Planning Commission there to instruct them about how best to proceed and regulate within the law.

Probably the most bizarre situation occurs in Centennial, Colorado. There a dispensary has been closed under zoning laws and a trial is taking place. We haven’t seen too much jury tampering by elected officials in Colorado since Alfred A. Packer was accused of cannibalism. (eventually Packer wasn’t convicted of cannibalism but of building an unauthorized fire on federal land) Amazingly enough, the D.A. down there is threatening to arrest anyone who testifies on the stand that they use the medicinal weed.  Just how she justifies that I’ve no idea, but somehow it smacks of official jury tampering. She should read the Packer case.

But how much money will come in?

If you were planning on making a killing in 2010 by opening a medical marijuana dispensary think twice. A number have gone out of business already. The main reasons is that once overhead is paid, including auxiliary services (such as a hot tub, massage room etc.) the profit margin is slim. Still, some dispensaries are reporting modest sales taxes. Some hard strapped towns have been helped a little.  Nederland, Colorado is seeing a trickle of retail sales tax come in. But, my governmental source over there tells me it is simply no bonanza.

The state legislature may possibly give everyone a gift which could have unintended consequences for medical marijuana dispensaries. The possession of up to one ounce of marijuana is essentially decriminalized in Colorado now. It’s a misdemeanor like a traffic ticket, and in many jurisdictions law enforcement has decided to leave this particular victimless crime alone. One proposal up next legislative session would raise that misdemeanor limit to three ounces. That can only be a gift to the populous at large.

If that 3 ounce limit passes, more law enforcement officers would likely leave pot users alone. Better still, someone needing medical marijuana could posses three ounces of the drug. If cited they could go to court with card in hand and probably claim an “affirmative defense.” I’m betting many judges would let that “offender” walk.

One of my favorite poems says it all

This appeared in the Rocky Mountain Herald back during the times when alcohol was prohibited.

Prohibition is an awful flop.

We like it.

It can’t stop what it’s meant to stop. We like it.

It’s left a trail of graft and slime,

It don’t prohibit worth a dime,

It’s filled our land with vice and crime

Nevertheless we’re for it.

The legislature will soon come into session. With a huge budget crisis looming you’d think a minor item like medical marijuana would be given very little press. Not so. Legal pot seems to be getting all of the headlines in our fair state. Odd as it may seem, the legislators will be spending lots of time trying to regulate medical marijuana. Attempts to prohibit this herb have failed miserably. Probably the new rules will fail too. But, as the poem says about prohibition, “Nevertheless we’re for it.”