October 22, 2014

Spark the Discussion: Amendment 64 — What a Long, Strange Trip It’s Been

Spark the Discussion” is a  Legal Connection column highlighting the hottest trends in the emerging field of marijuana law. This column is brought to you by Vicente Sederberg, LLC, the country’s first national medical marijuana law firm.

In November of 2012, 55% of Coloradans voted in favor of Amendment 64, making the personal use, possession, and limited home-growing of marijuana legal for adults 21 years of age and older under state law. Additionally, Amendment 64 creates a state-wide system of regulated retail marijuana establishments that can grow, sell, produce, and test marijuana and marijuana products. Under this system, local governments have wide discretion in determining whether and how to regulate marijuana establishments. However, they do not have the power to re-criminalize the limited adult use, possession, and cultivation of marijuana as permitted by the amendment.

Governor Hickenlooper signed a series of marijuana bills into law on May 28, 2013. Chief among them were House Bill 13-1317 and Senate Bill 13-283. HB 13-1317, along with SB 13-283 create the regulatory framework governing retail marijuana, including directing the Department of Revenue to enforce comprehensive “seed to sale” regulations and a robust licensing scheme. HB 13-1317 includes a nine-month transition period during which time only certain existing medical marijuana businesses can apply for a retail marijuana license. An applicant can either: (1) surrender his or her current medical marijuana license and apply for a retail marijuana license; (2) convert his or her medical marijuana license into a retail marijuana license; or (3) keep his or her current medical marijuana license and add a new retail marijuana license.  For a summary of the marijuana bills that were passed this legislative session, please see the table below.

It is important to note that Amendment 64 is self-executing, which means that certain activities are now legal without further government action. For example, even if a locality decides not to allow retail marijuana establishments in their community, individuals over the age of 21 still cannot be prosecuted under any state or local law for cultivating or possessing limited amounts of marijuana in compliance with the amendment. So, while certain elements of the retail licensing system have yet to go into place, other provisions of the law are already in effect.

Right now, the Marijuana Enforcement Division is crafting initial regulations for retail marijuana establishments. These regulations will include rules governing applications for new licenses, security requirements, labeling requirements and advertising restrictions, among others. These rules are being drafted on an emergency basis, and they will be published on or before July 1, 2013. This initial rule-making phase will not be open to additional input from the public. The permanent rule-making process will begin after July 1, 2013, and the public is encouraged to review the temporary emergency rules and participate in the permanent rule-making process.

After the permanent rule-making process is complete, the rules will be published and codified on or before October 1, 2013. Also, after October 1, 2013 local governments must appoint a local licensing authority to accept retail marijuana applications, provided, however, the locality has decided to allow retail marijuana establishments in their jurisdiction. As mentioned above, existing medical marijuana centers will have the choice to surrender their license or retain it.

In November of this year, there will be a statewide vote on an excise tax at 15% and a retail sales tax that can be up to 15% but will start at 10% with 15% of that 10% (1.5%) shared back to local governments where the business is located. This will allow local governments to receive a share of the revenue generated from retail marijuana establishments, but only if the local government allows retail marijuana establishments in its jurisdiction.

The first date a retail marijuana establishment can be licensed is January 1, 2014. This means that until that time, no retail marijuana stores will exist because it would be illegal to operate a retail establishment without a license. The first nine months of 2014 will allow existing medical marijuana businesses the opportunity to become licensed for retail operations. Remaining persons who would like to open a retail establishment can file a notice of “intent to apply” starting on January 1, 2014, but they will have to wait nine months in order to formally apply for a license.

In other marijuana related news, the state legislature also enacted House Bill 13-1325, which created a tougher DUI standard for driving while impaired. The passage of this legislation has been a long time coming in the eyes of many Colorado legislators, some of whom have been pushing for harsher DUI standards for driving while impaired for the past two legislative sessions, including last year’s special session.

Taken together, the recent bills passed by the Colorado legislature will help regulate and control marijuana responsibly. This is a crucial time for Colorado, as states across the county and places around the world are focused on our ability to regulate recreational marijuana. The legislature did a great job passing these laws, but it is up to the people of Colorado, both elected and unelected, to help implement a robust regulatory framework that will allow Colorado to be a model for drug policy change around the world.

Philip Snow is currently an associate at Vicente Sederberg LLC where he represents clients in licensing and transactional matters. 

Spark the Discussion: Colorado Marijuana Industry 2.0 (Beta Version)

By Shawn Coleman

Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of marijuana law. This column is brought to you by Vicente Sederberg, LLC, the country’s first national medical marijuana law firm.

As our shortest month draws to a close, so does the Amendment 64 Task Force.  While earnest work has been accomplished by the Task Force, there is still more to do.

The Governors A64 Task Force

Overall, the Task Force has tackled some fascinating issues, with a lot more to come. The Task Force has already adopted recommendations to maximize localities’ control over adult use marijuana establishments, establish consumer protections, and encourage our Congressional delegation to address banking and tax treatment for marijuana-related businesses. The Task Force has also recommended that the regulatory model for medical marijuana should be adopted for adult use marijuana. More importantly though, the Task Force recommended that out-of-state residents be allowed to purchase marijuana in Colorado from our regulated market—but only in small quantities.

Despite previous consensus from the Criminal Law Work Group that marijuana DUID would be impractical to consider, the main Task Force rejected that recommendation, instead supporting the DUID legislation introduced in the state house, HB 13-1114. The bill, introduced by Representatives Waller and Fields, is a revised version of a proposal that has been previously rejected by the General Assembly. Previous versions created a per se standard; this year’s bill instead establishes a permissible inference for individuals whose blood tests positive for 5 nanograms or more of THC. The bill also removes the presumption for alcohol DUI in cases of vehicular assault or homicide. Apparently the bill sponsors are taking “regulate like alcohol” seriously. A first hearing on the legislation was postponed because of the Judiciary Committee’s, and the entire House’s, focus on pending gun control legislation.

Currently on deck are over 20 Task Force recommendations, including recommendations related to marketing, establishing the enforceability of marijuana-related business contracts, and setting the excise tax rate. We fully expect the Task Force to find resolution on these issues.

From Capitol Hill to Capitol Hill

At the State of the State Address, the Governor Hickenlooper proclaimed, “As we regulate this industry, and any industry, let’s be sure we are fair, rational and science based.” Of course, he was specifically referring to the oil and gas industry; however, “any industry” should include the second edition of Colorado’s medical marijuana industry, also known as the Colorado Marijuana Industry 2.0.

As we all revisit marijuana regulation, the discussion must be rationally informed by the existing regulatory framework and the businesses that have complied with it. A fair, rational, and science-based approach makes sense, and is most easily accomplished by assessing the strengths and weaknesses of our current marijuana industry—the ongoing, and relatively successful, experiment known as the Colorado Medical Marijuana Code, C.R.S. §§ 12-43.3-101, et seq.

The General Assembly is tasked with building the fledgling marijuana industry while keeping Colorado’s best interest in mind. While the specter of federal intervention remains present, recent events may give lawmakers confidence to find solutions that work for Colorado.

Congressman Jared Polis (D-CO) has introduced H.R. 499, the Ending Federal Marijuana Prohibition Act, which would create the Bureau of Alcohol, Marijuana, Tobacco and Firearms to regulate marijuana federally while allowing states to continue marijuana prohibition within their borders. This bill has managed to get 11 co-sponsors of both parties representing every region of the nation. Meanwhile, medical or adult use marijuana legislation has been introduced in a growing number of states, in addition to the 18 states and Washington, D.C., where it is already legal. This evidences strength for the argument that civil matters, including marijuana, same-sex rights, and gun safety, will likely—as ought to—be resolved in state capitols.

Additionally, the president has spoken publicly of the need to harmonize state and federal laws, and the Department of Justice appears willing to wait and see. To that end, lawmakers here in Colorado must consider responsible regulations—possibly ones that even limit production—to guard against overproduction of marijuana. However, the only production within the state’s control is that which is produced by regulated businesses. Preventing unregulated large-scale production that could float across state lines is a challenge that is best addressed by moving deliberately on creating a consumer culture of acquiring marijuana through regulated stores, thus depriving the black market of a consumer base. Much like home brewing beer, the sooner marijuana for adults is available retail, the sooner home cultivation will be relegated to hobbyists and connoisseurs.

The passage of Amendment 64 by over 10 percentage points settles two important questions for the members of the 69th Colorado General Assembly:

  1. Marijuana reform is popular and politically safe.
  2. Marijuana as a regulated business is the intent of the voters.

During the legislative debate for the Colorado Medical Marijuana Code (originally HB 10-1284), a common reason to add heavy-handed regulations or vote against establishing the code was “the voters didn’t buy an industry with Amendment 20.” Now three years later, with the experience of marijuana storefronts, voters “bought” Amendment 64 with an industry as standard equipment. Interestingly, many of the counties with the most medical marijuana storefronts were greatly supportive of Amendment 64. November’s vote gave legislators a green light to enact sober and practical rules moving forward.

And it seems that members of the General Assembly have gotten the message.

The regulatory, excise tax, and criminal law bills to fully enact Amendment 64 may prove controversial yet; however, to date, the only thing more popular on the ballot than marijuana reform is marijuana legislation at the Capitol. The Colorado House has taken up two marijuana industry bills so far. The first, HB 13-1042 relating to state income tax (Rep. Kagan, Sen. Guzman), passed the Finance Committee unanimously. The second, HB 13-1061, the Responsible Vendor Bill, also passed unanimously in committee and has already passed the House on a vote of 55-9.

The Task Force is the beta test for Colorado Marijuana Industry 2.0. The legislature has the opportunity to experiment with this version and will hopefully be able to address any problems that arise. There is optimism that responsible marijuana laws may be the most sober conversation under the dome this year.

Shawn Coleman began working in cannabis policy as a Legislative Assistant for U.S. Representative Jared Polis in Washington D.C. He subsequently handled government affairs for Colorado Springs State Bank and served as Executive Director of the Cannabis Business Alliance. Shawn is currently a registered lobbyist with 36 Solutions and serves on the Board of Directors of the Colorado Youth Symphony and the U.S. Civil Rights Commissions Colorado Advisory Committee. 

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Spark the Discussion: The “Amendment 64 Implementation Task Force”

Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of marijuana law. This column is brought to you by Vicente Sederberg, LLC, the country’s first national medical marijuana law firm.

By Joshua Kappel, Esq. and Rachelle Yeung

When Governor Hickenlooper signed Amendment 64 into law, proclaiming marijuana legal to use, possess and purchase for adults 21 years-old or older in Colorado, advocates barely paused to celebrate their victory – and opponents barely recognized their defeat.

Instead, all sides immediately began working on implementing this historic initiative through the Governor’s “Amendment 64 Implementation Task Force.” The Task Force, created by an Executive Order of the Governor, is comprised of 26 members, which were selected for their wide range of interests and expertise – from representatives of the Attorney General’s Office and the Department of Revenue to medical marijuana industry groups and other stakeholders.[1]

The Task Force is assisted by committees, or “Working Groups,” each of which is co-chaired by a member of the Task Force and made up of additional stakeholders and members of the public. The five Working Groups are:

  1. Regulatory Framework
  2. Local Authority and Control
  3. Tax/Funding and Civil Law
  4. Criminal Law
  5. Consumer Safety and Social Issues

The various Working Groups have discussed a large range of issues, some of the issues are already addressed in the text of Amendment 64 while other issues appear almost unrelated. A full list of all the issues discussed, agendas, meeting times, and audio recordings are available on the Department of Revenue’s Amendment 64 Task Force website. The Task Force is scheduled to make its recommendations to the Governor, the State Legislature, and the Department of Revenue by the end of February.

During its first meeting, members of the Criminal Law Working Group came to a consensus that they should avoid tackling issues of driving under the influence of drugs (DUID) and industrial hemp.  Despite being tasked with these issues, the Working Group decided discussing these would be a waste of valuable time and resources.  In fact, Brian Connors, co-chair of the Working Group and representative of the Public Defender’s Office, noted, revisiting the DUID issue would be not only time-intensive, but redundant. The legislature and the Colorado Commission on Criminal & Juvenile Justice have been researching the question for well over two years, and have developed far more familiarity with the topic. In fact, a marijuana related DUID bill was recently introduced in the state legislature that appears to strike a compromise between the various stakeholders.

Instead, the Criminal Law Working Group will focus on determining legal definitions and confronting law enforcement issues. For example, can evidence of marijuana alone be the basis for probable cause? In the event of a dismissal or ‘not guilty’ verdict, do law enforcement agencies have a duty to maintain seized marijuana plants? This Working Group has also veered off path to discuss completely unrelated issues such as requiring drug tests for all minors who apply for a driver’s license.

The Tax/Funding and Civil Law Working Group, among other things, addressed the issue of banking for state licensed marijuana businesses. Because marijuana is still illegal under federal law, most banks are fearful of handling funds related to marijuana. However, all parties involved, from marijuana business owners to representatives of the Colorado Bankers Association agreed that the fledgling marijuana industry could not depend entirely on cash transactions. Unfortunately, the Working Group was faced with a serious shortage of viable alternatives, and in the end, resolved only to write to the Federal Government, requesting further guidance.

The Regulatory Framework Working Group kicked off its first meeting by examining existing regulatory frameworks and deciding which framework to model recreational marijuana on – specifically, whether to base it on our medical marijuana code or our alcohol/liquor code. Amusingly, one of the first issues to come up was whether to require vertical integration, which the medical marijuana code mandates, or prohibit it, which is the case with liquor.

One suspect issue was also brought up by the Regulatory Framework Working Group: whether to recommend a residency requirement for those who are going to purchase marijuana from a licensed store.  This issue caught many people by surprise as Amendment 64’s personal protection clause makes clear that “possessing, using, displaying, purchasing, or transporting marijuana” is now legal under state law for persons over the age of 21. The plain language of Amendment 64 applies to all adults aged 21 or older.

In addition to the issues covered by the other Working Groups, the Local Authority and Control Working Group is working to resolve:  What can local jurisdictions regulate? What will be the local controls regarding advertising?  What/who is the local authority over fines and licensing?  Lastly, the Consumer Safety/Social Issues Working Group is working to resolve issues associated with: advertising and marketing to minors; product labeling and packaging; product testing; and consumer, public, and industry education.

Surprisingly, a significant number of vocal marijuana opponents managed to secure positions on the Governor’s Task Force and in the working groups; however, the Task Force is not supposed to debate the merits of Amendment 64 or impede its implementation. Additionally, not all issues discussed by the Task Force will or should become recommendations of the Task Force, let alone a bill or regulation. The Task Force should only make recommendations that are both legally sound and good public policy. For example, a residency requirement on marijuana purchases, although discussed by one of the working groups, would be bad public policy because it would only perpetuate another black market and derive the state of tax revenue – exactly what the voters of Colorado wanted to prohibit with Amendment 64. Additionally, such a significant statutory limitation on Amendment 64 may not withstand legal scrutiny.[2]

Considering the Task Force has a mandate from the 55% of our electorate that voted for Amendment 64 and that they have less than a month now to make their recommendations, we can only hope that the proponents and opponents of marijuana reform can work together, stay on track, and focus on implementing the will of the voters. Nonetheless, we will all have to wait and see on what the Task Force actually recommends.

 


[1] It is worth noting that the Task Force really doesn’t have to address any issues besides funding the Department of Revenue to make rules because Amendment 64 is self-executing.

[2] Generally in Colorado, self-executing initiatives cannot be narrowed, impaired, or limited by the legislature. Yenter v. Baker, 126 Colo. 232, 236-237 (Colo. 1952); See also Zaner v. City of Brighton, 917 P.2d 280, 283 (Colo. 1996).

Joshua Kappel, Esq. is the Associate Director of Sensible Colorado, the leading state-wide non-profit working to educate the public about sensible marijuana policy. Mr. Kappel is also the senior associate at Vicente Sederberg, the first nation-wide medical marijuana law firm.

Rachelle Yeung is currently in her third year at the University of Colorado School of Law and a law clerk at Vicente Sederberg LLC.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Spark the Discussion: Top Five Myths About the Drug-Free Workplace Act

Kimberlie Ryan Head ShotSpark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of marijuana law. This column is brought to you by Vicente Sederberg, LLC, the country’s first national medical marijuana law firm.

By Kimberlie Ryan, Esq.

Headlines screamed across the country when Colorado became the first state to recognize the Constitutional right to use marijuana for any reason by adults ages 21 and older.

One headline reported a CEO’s panic that “legal pot will make it hard to hire, devastate the economy.”  This CEO claimed that “if you sell to the federal government or state government, you are required to certify that you have a drug-free workplace,” so “if you smoke pot, I still can’t hire you.”

These statements confirm a fundamental misunderstanding of the federal Drug-Free Workplace Act of 1988 (DFWA), and such proclamations perpetuate unfounded myths about this law.

Myths like these could deprive unwitting employers of excellent employees – and might give rise to legal claims against companies that violate workers’ rights.  Due to space constraints this article is limited to a discussion of the DFWA, so let’s get to it and set the record straight.

Before we get to the myths and the realities, a brief background on the DFWA is in order.  President Reagan signed the Drug-Free Workplace Act nearly 25 years ago in 1988.  The Act defines a “drug-free workplace” as a site for the performance of work done by a federal contractor or grantee in connection with a specific federal contract or grant at which employees are prohibited from engaging in the unlawful manufacture, distribution, dispensing, possession or use of any controlled substance.  At this time “controlled substance” still includes marijuana.  But that is not the end of the analysis.

By definition, the DFWA limits the “workplace” to the work site for certain “covered” employers and by its terms does not include any other location where work for the contract is not performed. It does not allow employers to prohibit the use of marijuana completely, and it does not apply to all employers or employees.  Now to the myths.

1. Myth #1 – The DFWA applies to all private employers.

Reality:  The DFWA only applies to certain federal contractors and grant recipients.  A company is subject to the Act only if the value of a single contract is more than $100,000, or if it has any federal grant.  Individuals with grants or contracts from any U.S. Federal agency are covered by the Act, regardless of dollar volume.  Last year, only 21.7% of federal contracting dollars went to small businesses.  Unless employers meet the specific requirements for coverage, the DFWA does not apply to them.  The Act does not apply to those that do not have contracts or grants from the federal government, and it does not apply to employees who are not directly engaged in the performance of the covered contract or grant.

2. Myth #2 – The DFWA requires employers to drug test employees. 

Reality: The DFWA does not require or authorize drug testing.  In fact, the legislative history of the Act indicates that Congress did not intend to impose any additional requirements beyond those set forth in the Act, which are very limited as discussed below. Specifically, the legislative history precludes the imposition of drug testing of employees as part of the implementation of the Act.

3.  Myth #3 – The DFWA requires employers to fire employees who use marijuana at home as authorized by Colorado Constitutional Amendments 20 and 64.

Nothing in the DFWA requires employers to fire workers for exercising their Constitutional rights to use marijuana while off-duty and outside the workplace.  The law requires only that in case of a conviction for a criminal drug offense resulting from a violation occurring in the workplace, the employer may take one of two types of action. The employer may take disciplinary action, which may be a less severe penalty than termination, or may refer the employee for rehabilitation or drug abuse assistance program. The choice of which basic course to choose, as well as the specific discipline or treatment option, is left to the employer’s discretion and may be made on a case-by-case basis, provided all state and local laws are followed.  “Conviction” is defined by the Act as limited to afinding of guilt, including a plea of no contest, or imposition of sentence, or both, by any judicial body charged with the responsibility to determine violations of the Federal or state criminal drug statutes.

4. Myth #4 – The DFWA requires employers to report positive drug tests to the federal government.

The Act does not require employers to report positive drug tests to the federal government.  The only reporting requirement is triggered solely if an employee is convicted of a drug offense occurring at the workplace.

5.  Myth #5 – The DFWA preempts state and local laws.

The requirements of the Act “coexist with state and local law,” according to the United States Department of Labor.  Colorado does not have any state statute governing drug testing in employment, and adults have a Constitutional right to use marijuana in Colorado.  The City of Boulder Ordinance 5195 prohibits employee drug testing except in clear cases of probable cause, and where a written policy has already been provided to the work force.  In general, Colorado employers should update their drug testing policies to account for the Constitutional right, or expect legal challenges.

6.  Bonus Myth #6 – Employers who recognize Colorado’s Constitutional right of employees to use marijuana at home while off duty will automatically lose federal contracts.

Nothing in the DFWA governs the use of marijuana outside of the covered workplace for companies.  A company that is covered by the DFWA will be subject to penalties only if: 1) it fails to implement the six steps required to establish a drug-free workplace; or 2) the head of the agency determines that the company employs a sufficient number of individuals convicted of a criminal drug offense occurring in the workplace to indicate that the contractor has failed to make a good faith effort to provide a drug-free workplace.  Even then, the head of the agency may waive any possible penalties in certain circumstances, and violations may not result in contract termination or loss of payments.

What does the DFWA actually require?  Only 6 steps. Covered employers must:

  1. Publish and give a policy statement to all covered employees informing them that the unlawful manufacture, distribution, dispensation, possession or use of a controlled substance is prohibited in the covered workplace and specifying the actions that will be taken against employees who violate the policy.
  2. Establish a drug-free awareness program to make employees aware of a) the dangers of drug abuse in the workplace; b) the policy of maintaining a drug-free workplace; c) any available drug counseling, rehabilitation, and employee assistance programs; and d) the penalties that may be imposed upon employees for drug abuse violations.
  3. Notify employees that as a condition of employment on a Federal contract or grant, the covered employee must a) abide by the terms of the policy statement; and b) notify the employer within five calendar days if he or she is convicted of a criminal drug violation in the workplace.
  4. Notify the contracting or granting agency within 10 days after receiving notice that a covered employee has been convicted of a criminal drug violation in the workplace.
  5. Impose a penalty on – or require satisfactory participation in a drug abuse assistance or rehabilitation program by—any employee who is convicted of a reportable workplace drug conviction.  The “penalty” is up the discretion of the employer, and it may consist of a disciplinary warning – termination of employment is not uniformly mandated to comply with the DFWA.  Employers should evaluate penalties on a case-by-case basis and seek legal counsel to avoid violating state law or the Americans with Disabilities Act in imposing any discipline.
  6. Make an ongoing, good faith effort to maintain a drug-free workplace by meeting the requirements of the Act.

Employers have wasted millions of dollars on ineffective, invasive, and unnecessary drug testing that is not required by the DFWA.  Drug tests cannot show impairment, if any, or even when marijuana use occurred. Many employers have relied on information provided by drug testing promoters who have an inherent conflict of interest on the topic.  It has long been recognized that widely cited cost estimates of the effects of drug use on U.S. productivity are based on questionable assumptions and weak measures, according to a report of the National Academy of Sciences.  It is a challenge to locate a single case that has imposed liability on a private employer for opting out of drug testing, and despite beliefs to the contrary, the preventative effects of drug testing programs have never been adequately demonstrated.

The use of marijuana is a Constitutional right in Colorado.  Companies should join employers who are embracing a more sensible approach to drug policies today and seek to understand what the Drug-Free Workplace Act really does – and does not – require.  Only then can they release the unfounded myths of yesterday and work with their employees for a more productive tomorrow.

Kimberlie Ryan is the founding member of Ryan Law Firm, LLC, where she practices all aspects of employment law and has represented workers and advised employers regarding medical marijuana and the workplace.  In addition to her law practice, she serves as a television legal analyst and is frequently called upon to write and speak about cutting-edge employment issues.  This article is for educational purposes only, and it should not be construed as legal advice for a particular situation.  Consult with competent legal counsel for specific questions.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Spark the Discussion: Amendment 64: The Ripples Here at Home

Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of marijuana law. This column is brought to you by Vicente Sederberg, LLC, the country’s first national medical marijuana law firm.

By Joshua Kappel, Esq.

On Election Day, the voters of Colorado made history with the passage of Amendment 64—the Regulate Marijuana Like Alcohol Act of 2012.

Amendment 64, which received 55% of the vote, legalizes marijuana under Colorado law for adults over the age of 21. Specifically, it removes all civil and criminal penalties under Colorado law for the limited possession, use, and cultivation of marijuana by adults over the age of 21. This measure also requires the Colorado Department of Revenue to create a regulatory system for the production and distribution of marijuana in a manner similar to alcohol.

The passage of Amendment 64 made waves across the world and made headlines from England to India.  Just this week, a handful of Latin America leaders called for a review of international drug policy in light of these measurers passing.  Politically, the 10 point passage of Amendment 64 has prompted other states to consider similar measures, and has even spurred bi-partisan action by Colorado’s congressional delegation to exempt states’ marijuana laws from the federal Controlled Substance Act.

This historic victory also made waves here in Colorado.  Colorado Governor Hickenlooper’s responded with his now infamous comments, telling voters not to “break out the Cheetos” yet because marijuana remains illegal federally.  The Governor’s comments hinted at a lack of interest in fighting on behalf of Colorado voters and led many to wonder what, if any, effect Amendment 64 will have here at home.

The state vs. federal nature of this law change will continue to be of great interest to both legal scholars and voters.  A full analysis of this issue will be saved for another post, but to be clear, the federal government cannot force our state to criminalize anyone – including those who use or produce marijuana.

The removal of criminal penalties for adults using, possessing and cultivating marijuana goes into effect once the election is certified (probably sometime around January 6th), although retail stores won’t be able to open until late 2013 or early 2014.

We still have time before the measure goes into effect, but already, Amendment 64 is making ripples in our communities. This week both the Boulder District Attorney and the Denver District Attorney announced they will dismiss all marijuana charges related to actions that would have been protected by Amendment 64.  In the interest of justice, we hope more District Attorneys follow suit. According to long standing Colorado law, a change in a criminal law that reduces a sentence or eliminates the violation all together should apply retroactively in the interest of justice to all convictions not yet final. C.R.S. § 18-1-410(1)(f); Colo. Crim. P. Rule 35; People v. Thomas, 185 Colo. 395 (1974).  Even if a stubborn district attorney was lucky enough to convict an adult for possessing marijuana now, the case should be dismissed by the trial judge or on appeal once Amendment 64 goes into effect.

Although Amendment 64 is not yet in effect, for the adults currently caught in the system for marijuana offenses, the ripples of last Tuesday are already being felt.

Joshua Kappel, Esq. is the Associate Director of Sensible Colorado, the leading state-wide non-profit working to educate the public about sensible marijuana policy. Mr. Kappel is also the senior associate at Vicente Sederberg, the first nation-wide medical marijuana law firm.The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Spark the Discussion: Medical Marijuana and Contracts

“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of medical marijuana law. This column is brought to you by Vicente Sederberg, LLC, a full-service, community-focused medical marijuana law firm.

By Brian Vicente, Esq. and Rachelle Yeung

If a contract is found to be valid under state law, one would assume a judge would order that both parties must carry out their legal obligations under that agreement.  However, one judge in Arapahoe County recently argued that this basic principle of contract law doesn’t apply to our state’s newest licensed businesses—if they sell medical marijuana.

Over a period of several months in 2010, a medical marijuana grower delivered approximately $40,000 worth of product to Blue Sky Care Connection, a regulated dispensary in Littleton. Blue Sky promised to compensate the grower either in cash or with a share of a potential business partnership. When Blue Sky did not follow through with either, the grower sued.

The judge quickly determined that the parties had indeed entered into a valid contract – applying a simple analysis from his first year law school days (offer, acceptance, and consideration). However, the Court complicated the straightforward dispute by inquiring sua sponte whether the contract should be found unenforceable for being against public policy.

The Court went on to reason that, despite medical marijuana being legal according to Colorado Law, the sale of medical marijuana is against public policy because it violates federal law. Though the Court’s analysis could have reasonably stopped there, it goes beyond the “case and controversy” and further finds that federal law preempts Colorado’s medical marijuana law.

Because this opinion was issued by a district court, its ruling is not binding. However, the opinion has left many within the medical marijuana industry wondering how far-reaching its effects could be. Does this opinion find that only this particular contract for this particular sale of medical marijuana was unenforceable? Or can it be expanded to be read that all contracts for the sale of medical marijuana are unenforceable? Or that all contracts related to medical marijuana are unenforceable?  This last scenario would effectively dismantle a regulated industry that both the Colorado legislature and the Colorado Department of Revenue have been carefully building for the past several years.

The people of Colorado voiced their opinion on the public policy of the state in support of medical marijuana in 2000, by the democratic adoption of Amendment 20. The legislative and executive branches further endorsed public policy in favor of medical marijuana by enacting and signing HB 10-1284, the Colorado Medical Marijuana Code, in 2010.  This Code, and implementing legislation and regulations, accounts for well over one hundred pages of strict rules governing every stage of transaction—from seed to sale—for these Colorado businesses.

Shockingly, the judge’s opinion failed to take into account the Colorado Medical Marijuana Code, which became effective July 2, 2010 – approximately one week after the grower made the first of several deliveries to Blue Sky. The Code actually requires certain legal relationships between growers and medical marijuana centers that would not be possible without enforceable contracts. Substantive issues aside, the fact that the Court fails to consider the most relevant piece of law in its analysis leaves one questioning the incomplete legal framework of the opinion.

There are currently seventeen states with medical marijuana laws.  Massachusetts, Arkansas, and North Dakota are primed to pass similar laws this November. Hopefully, one state judge’s hastily drafted opinion won’t pave the way to dismantle these compassionate-use laws.

Brian Vicente, Esq., is a founding member of Vicente Consulting, LLC, a law firm providing legal solutions for the medical marijuana community. He also serves as executive director of Sensible Colorado, the state’s leading non-profit working for medical marijuana patients and providers. Brian is the chair of the Denver Mayor’s Marijuana Policy Review Panel, serves on the Colorado Department of Revenue Medical Marijuana Oversight Panel, and coordinates the Colorado Bar Association’s Drug Policy Project.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Spark the Discussion: No Love Supreme – Colorado Courts Continue to Rule Against Medical Marijuana Patients

“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of medical marijuana law. This column is brought to you by Vicente Sederberg, LLC, a full-service, community-focused medical marijuana law firm.

By Brian Vicente, Esq. and Rachelle Yeung

Leonard Charles Watkins has long suffered pancreatitis, which causes him debilitating chronic pain and for which he has been hospitalized three times. Watkins’ doctor recommended he use marijuana to reduce his suffering, so Watkins lawfully applied and qualified to be a medical marijuana patient. In February 2012, the Colorado Court of Appeals revoked Watkins’ ability to treat his illness with this state-approved medicine.

In 2008, Watkins pled guilty to a class three felony – unrelated to any controlled substances – for which he received six years’ probation. His probation conditions required that Watkins “not use or possess any narcotic, dangerous or abusable substance without a prescription,” and that he “not commit another offense” for the duration of his probation. However, after Watkins explained his medical condition to his judge, the trial court issued an order approving his use of medical marijuana.

The Arapahoe District Attorney filed a motion to reconsider, which the trial court denied in an extensive written order. The Prosecution then appealed the denial and the Court of Appeals reversed the trial court’s order, thus denying Watkins the use of this medicine.

Under Colorado law, trial courts are required to set as a condition of probation that probationers “not commit another offense.” C.R.S. 18-1.3-204(1). The Court of Appeals wrote in its opinion that “[t]he Colorado statute itself does not define the term [offense].” People v. Watkins, — P.3d —, 2012 WL 310776 (Colo. App. 2012). However, the Colorado Criminal Code – where the probation statutes can also be found – defines “offense” as “a violation of, or conduct defined by, any state statute for which a fine or imprisonment may be imposed.” C.R.S. 18-1-104(1). It is undisputed that Watkins’ use of medical marijuana was permissible within state law. Yet, despite this straightforward practice in statutory interpretation, the Court of Appeals expanded the meaning of “offense” beyond its unambiguous definition and determined that it included violations of federal law.

To be clear, this is not a broad determination that federal law preempts state medical marijuana laws – simply that the Court of Appeals interpreted one particular statute to take federal prohibition into account.

Relying heavily on its recent decision in Beinor, the Court of Appeals affirmed that marijuana could not be legally “prescribed,” and that therefore Watkins’ lawful medical use of marijuana was a violation of the condition that he not use or possess “any narcotic, dangerous or abusable substance without a prescription.” Beinor v. Indus. Claim Appeals Office, 262 P.3d 970 (Colo. App. 2011). Without further reasoning, the Court of Appeals again echoed the Beinor opinion and held that Amendment 20, Colorado’s original medical marijuana law, did not extend a constitutional right to patients, but merely protected patients from criminal prosecution under limited circumstances.

Recently, the medical marijuana advocacy group, Sensible Colorado, teamed up with the ACLU to file an appeal on Watkins behalf. The Colorado Supreme Court denied this appeal and brandished Watkins, and other sick medical marijuana patients like him, probation violators if they use their doctor-recommended medicine. Specifically, the Watkins decision set forth a sweeping precedent that “neither Petitioner [Watkins] nor any other probationer in Colorado – regardless of the underlying offense, the circumstances of the probationer’s illness, or the trial court’s view – may use medical marijuana.” Petition for Writ of Certiori at 4, Watkins, — P.3d — (Colo. App. 2012).

Despite this seemingly bleak decision, medical marijuana patients are not always condemned to suffer while on probation. It is still the law that a trial court judge’s decision to not revoke probation cannot be appealed, regardless of any probation violations. It may be little comfort, but patients can still hope that sympathetic trial court judges will simply refuse to revoke their probation for medical marijuana use. The passage of Amendment 64, the Act to Regulate Marijuana Like Alcohol, which is on the statewide ballot this November, may further prompt the judicial branch to align their decisions with the will of the People.

Brian Vicente, Esq., is a founding member of Vicente Consulting, LLC, a law firm providing legal solutions for the medical marijuana community. He also serves as executive director of Sensible Colorado, the state’s leading non-profit working for medical marijuana patients and providers. Brian is the chair of the Denver Mayor’s Marijuana Policy Review Panel, serves on the Colorado Department of Revenue Medical Marijuana Oversight Panel, and coordinates the Colorado Bar Association’s Drug Policy Project.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Spark the Discussion: Supreme Court Leaves Patients Behind

“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of medical marijuana law. This column is brought to you by Vicente Sederberg, LLC, a full-service, community-focused medical marijuana law firm.

By Brian Vicente, Esq. and Rachelle Yeung

Jason Beinor was a street sweeper, assigned to sweep the 16th Street Mall with a broom and dustpan. He had a clean employment record, with no written reprimands or warnings. Yet he was fired from his job and disqualified from receiving unemployment benefits.

Beinor suffers from debilitating migraine headaches – a lasting, painful consequence of a prior assault. Like 96,000 other Coloradans, Beinor is a legal medical marijuana patient, and occasionally uses this substance in an off-work capacity to ameliorate his suffering. Unfortunately for Beinor, a random drug test in February 2010 tested positive for marijuana, costing him his job.

Beinor never used or possessed marijuana while on the job, and his private medical use never interfered with his job performance. However, under his employer’s zero-tolerance policy, the residual, non-psychoactive THC in Beinor’s system was considered an illegal drug, and Beinor was immediately terminated. Because Beinor believed he had been fired through no fault of his own – his marijuana had been doctor-recommended and lawfully-obtained – he filed for unemployment compensation benefits. He was denied, the Colorado Court of Appeals upheld the decision. Beinor v. Indus. Claim Appeals Office, 262 P.3d 970 (Colo. App. 2011). Recently, the Colorado Supreme Court denied to review the case.

Under Colorado statutes “[t]he presence in an individual’s system, during working hours, of not medically prescribed controlled substances” disqualifies that employee from benefits. Beinor had THC metabolites, the non-psychoactive reside of marijuana – in his system during working hours. But he thought he was safe because it had been medically recommended to him. Unfortunately, the written documentation physicians provide their patients recommending medical use of marijuana is specifically not a “prescription”. This is where federal law comes into play.

Doctors across the country must be registered with the Drug Enforcement Administration (DEA) in order to lawfully prescribe medication. However, because of marijuana’s classification as a Schedule I drug under the federal Controlled Substances Act, registered doctors cannot prescribe marijuana, but only recommend it. Indeed, their recommendations must clearly state, “[t]his assessment is not a prescription for the use of marijuana.” Thus, Beinor’s medical marijuana was considered “not medically prescribed.”

In the grand scheme of things, legal technicalities such as whether a doctor’s written recommendation is considered a “prescription” wouldn’t matter if Beinor and other patients had a constitutional right to use marijuana. However, the majority of the Colorado Court of Appeals in Beinor did not interpret Amendment 20, Colorado’s original medical marijuana law passed in 2000, to grant that right. Instead, it determined Amendment 20 only created limited exceptions to state criminal laws for patients, primary caregivers, and physicians concerning the medical use of marijuana.

The Court pointed specifically to a clause in Amendment 20 that reads: “Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place.” As Judge Gabriel, who dissented from the majority, astutely pointed out, Beinor never used marijuana in his work place, and that provision does not logically include “the presence of marijuana in one’s blood after the lawful use of medical marijuana at home.” Judge Gabriel further observes that, under such an interpretation of the law, “many patients who are eligible to use medical marijuana would likely abandon their right to do so, because even lawful use at home would put their benefits, and perhaps even their jobs, at risk.”

The majority’s decision has significantly deteriorated the rights and protections that medical marijuana patients believed they had. On a positive note, there is another case before the Colorado Supreme Court, regarding a patient whose probation was revoked due to his lawful, medical use of marijuana. If the Supreme Court grants review to that case, it may be able to begin reversing a dangerous growing trend of discrimination against medical marijuana patients, perpetuated by the Court of Appeals.

Another way to solidify the rights of patients would be the passage of Amendment 64, the Act to Regulate Marijuana Like Alcohol, which Coloradans will vote on in November. Unlike the medical marijuana amendment, whose ambiguous language left it vulnerable to manipulation, Amendment 64 clearly declares adult use of marijuana to be legal, thereby circumventing any restrictive interpretation such as was seen in the Beinor.

Brian Vicente, Esq., is a founding member of Vicente Consulting, LLC, a law firm providing legal solutions for the medical marijuana community. He also serves as executive director of Sensible Colorado, the state’s leading non-profit working for medical marijuana patients and providers. Brian is the chair of the Denver Mayor’s Marijuana Policy Review Panel, serves on the Colorado Department of Revenue Medical Marijuana Oversight Panel, and coordinates the Colorado Bar Association’s Drug Policy Project.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Spark the Discussion: Hemp for Victory

“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of medical marijuana law. This column is brought to you by Vicente Sederberg, LLC, a full-service, community-focused medical marijuana law firm.

By Brian Vicente, Esq. and Rachelle Yeung

In the final weeks of the Colorado legislative session, while House Democrats and Republicans were fiercely battling over same-sex civil unions, a landmark piece of drug policy reform legislation snuck through the Legislature nearly unopposed. The “Hemp Bill,” or HB 12-1099, sets up the framework for the study and use of industrial hemp, and seeks to use this “taboo” crop to clean up contaminated soil through a process called phytoremediation.

The passage of the Hemp Bill is a victory in a 70-year long battle against the prohibition of marijuana and a turning point towards a more sensible approach to drug policy. The regulation of marijuana is a topic of increasing importance to Colorado voters because of Amendment 64, the statewide ballot initiative to regulate marijuana like alcohol, which will be voted on in November. Amendment 64 would also make Colorado the first state in the nation to regulate the cultivation, processing, and sale of industrial hemp.

Historically, hemp production was encouraged in the United States – from being one of the most important crops in colonial America to being promoted by the federal government in a World War II film called “Hemp for Victory.” However, growing hemp has been outlawed since the Controlled Substances Act, because of its close association with marijuana.

Though it shares the same genus (“Cannabis sativa L.”) as its better-known cousin, industrial hemp is distinguished from marijuana by its low concentration of the psychoactive ingredient tetrahydrocannabinols, or THC. Industrial hemp contains no more than three-tenths of a percent of THC.

Several factors make Colorado a particularly compelling candidate for hemp-based phytoremediation. Extensive mining throughout the state has left vast tracts of land contaminated with toxic waste. Phytoremediation would remove those toxins from the ground, which could then be used for agriculture and cattle grazing which are cornerstones of the state’s economy. Finally, a plant requiring very little water to grow – like hemp – is a necessity in a water-constrained state like Colorado.

The use of industrial hemp in phytoremediation is not entirely novel. In 1986, the explosion at the Chernobyl Nuclear Plant caused severe radioactive contamination in areas up to 100 km away. Soil in that area became saturated with toxic waste and heavy-metals which rendered it useless for agriculture. In 1998, a group called PHYTOTECH began growing hemp in the area to decontaminate the soil and, according to Slavik Dushenkov, a research scientist with the company, “Hemp prov[ed] to be one of the best phytoremediative plants we have been able to find.”

Activists hope that phytoremediation is just the introduction of industrial hemp into mainstream use. Hemp is cheap and easy to grow, requiring few pesticides and no herbicides. It can be used in textiles, construction materials, paper products, and even body care products. Hemp seed is considered a “superfood” – a good source of protein and dietary fiber, high in B-vitamins and essential omega-3 and omega-6 fatty acids. Hemp can even be reduced to ethanol and biofuel, a boon to our petroleum-addicted society. Some activists go so far as calling hemp “the plant that could save the world.”

A similar bill was introduced in the Colorado Legislature in 1994 by then-Senator Loyd Casey, but received only a single, sad vote before disappearing into history. If Governor Hickenlooper gives this year’s HB-1099 his stamp of approval – and given its support in the Legislature, there is no reason he would not – Colorado could become the first state in the nation to grow industrial hemp since the 1930s.

Brian Vicente, Esq., is a founding member of Vicente Consulting, LLC, a law firm providing legal solutions for the medical marijuana community. He also serves as executive director of Sensible Colorado, the state’s leading non-profit working for medical marijuana patients and providers. Brian is the chair of the Denver Mayor’s Marijuana Policy Review Panel, serves on the Colorado Department of Revenue Medical Marijuana Oversight Panel, and coordinates the Colorado Bar Association’s Drug Policy Project.The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Spark the Discussion: When Life Gives You Lemons…

Colorado’s state-licensed medical marijuana businesses have recently come under attack by U.S. Attorney John Walsh for locating in areas he deems problematic—specifically being within 1,000 feet of universities and other schools. In the past three months, Walsh has issued 50 letters to targeted medical marijuana shops asking them to close or face federal criminal and civil sanctions. Not surprisingly, all of these state-licensed stores have chosen to move their locations or close their doors entirely.

Instead of lamenting this negative turn of events, Colorado’s various medical marijuana advocacy and industry groups—including the United Food and Commercial Worker’s Union—recently decided to publish a letter highlighting the positive things these businesses bring to communities in Colorado. This attempt to shift focus to the positive contributions of Colorado’s emerging medical marijuana community is re-printed in its entirety below.

A LETTER TO US ATTORNEY JOHN WALSH: “We Care about our Community, too”

Dear Mr. Walsh,

As parents, patients, business owners, and Colorado citizens, we are concerned by the recent letters sent by your office demanding certain state-approved medical marijuana businesses cease operations.

Since the dawn of this new health care field, we have worked closely with Colorado state and local governments to safely regulate medical marijuana sales and production, and have made great efforts – and gone to great expense — to establish a thorough and safe regulatory structure. Because of this collaboration between stakeholders and state and local officials, Colorado has emerged as the model among states that legally recognize the medicinal value of marijuana.

We stand in unison with patients and governing bodies across Colorado in our active commitment to continue the careful implementation of a secure and community-minded system of regulation. Here is a partial list of our contributions to the Colorado community:

  • We have provided vital medicine to 164,000+ sick and disabled Colorado citizens whose doctors have recommended medical marijuana to them.
  • We helped author and endorse SB 12-154– to establish a responsible vendor program similar to what many Colorado jurisdictions currently require for alcohol sales.
  • We are working with the Denver City Council to foster sensible regulations, including currently working on language to limit inappropriate advertisements, specifically public advertisements near schools and other sensitive areas.
  • We worked with local papers, like the Colorado Springs Gazette, to establish community-conscious advertising with a proper healthcare focus.
  • We employ over 5,000 Coloradans and provide them with a living wage so they can support their families. We also provide substantial support for ancillary businesses like electricians, carpenters, and engineers.
  • Our businesses produce tens of millions of dollars in tax revenue with the first $2 million earmarked annually for programs critical to helping Colorado fight addiction and accompanying mental health issues. The Circle Program at Pueblo’s Colorado Mental Health Institute was on its last legs before this new tax supported it.
  • We help create safer neighborhoods through the extensive use of security cameras and guards, by increased lighting in commercial areas, and by occupying otherwise vacant retail or warehouse space.

As committed members of the communities we live in, we believe in responsible regulation of this important, and growing, health care field. We also share your concern about teens accessing medical marijuana and have taken serious steps to reduce any redistribution. We welcome a thoughtful discussion about the potential areas for improvement in the current regulatory structure.

Sincerely,

Association of Cannabis Trades for Colorado (ACT4CO)

Cannabis Business Alliance (CBA)

Coloradans 4 Cannabis Patients Rights (C4CPR)

Colorado Springs Medical Cannabis Council (CSMCC)

Green Faith Ministry

In Harmony Wellness Services

Medical Marijuana Assistance Program of America (MMAPA)

Medical Marijuana Business Alliance (MMBA)

Sensible Colorado

Women’s Marijuana Movement

United Food and Commercial Workers Union:  Local 7

Brian Vicente, Esq., is a founding member of Vicente Consulting, LLC, a law firm providing legal solutions for the medical marijuana community. He also serves as executive director of Sensible Colorado, the state’s leading non-profit working for medical marijuana patients and providers. Brian is the chair of the Denver Mayor’s Marijuana Policy Review Panel, serves on the Colorado Department of Revenue Medical Marijuana Oversight Panel, and coordinates the Colorado Bar Association’s Drug Policy Project.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Spark the Discussion: Amendment 64 and Medical Marijuana

“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of medical marijuana law. This column is brought to you by Vicente Sederberg, LLC, a full-service, community-focused medical marijuana law firm.

It’s official.  Coloradoans will be voting this November on Amendment 64, the Regulate Marijuana Like Alcohol Act.  This landmark legislation raises many issues which will be widely debated (and discussed in this column) in upcoming months as Colorado considers becoming the first state in the nation—and the first geographic area in the world—to make the possession, use, and regulated production and distribution of marijuana legal for adults 21 and older.

How will this Constitutional amendment affect current medical marijuana users, medical marijuana businesses, and the lawyers that advise them?  Here are some quick bullet points which provide an overview of Amendment 64 and explore its relationship to Colorado’s existing medical marijuana laws.

Amendment 64 DOES:

  • Create legal marijuana retail stores that are authorized to sell to adults 21 and older.
  • License cultivation facilities, product manufacturing facilities, and testing facilities for this adult market with licenses expected to be issued in 2014.
  • Direct the Colorado Department of Revenue to regulate the cultivation, production (including infused products), and distribution of marijuana.
  • Allow local municipalities to ban or restrict these new business licenses at any time through a local governing body, but citizen-initiated bans can only go in front of voters in “even year” general elections.
  • Require the general assembly to enact an excise tax of up to 15 percent on the wholesale sale of non-medical marijuana applied at the point of transfer from the cultivation facility to a retail store or product manufacturer, with the first $40 million of revenue raised annually directed to the Public School Capital Construction Assistance Fund.
  • Allow for the cultivation, processing, and sale of industrial hemp.

Amendment 64 DOES NOT:

  • Change existing medical marijuana laws for patients, caregivers, and medical marijuana businesses.
  • Subject medical marijuana sales to the excise tax discussed above.
  • Change existing laws regarding driving under the influence of marijuana, or the ability of employers to maintain their current employment policies.

In summary, all medical marijuana laws—both statutory and Constitutional—will remain 100% intact if Amendment 64 passes.  Of course, the initiative does not change federal law, which has categorized marijuana—whether for medical use or not—as firmly illegal for decades.  Given this federal stance, combined with the fact that the federal government has allowed several hundred medical marijuana stores to thrive in Colorado, it is difficult to say how the federal government may react to Amendment 64’s passage.  Regardless, marijuana advocates have included a generous timeline in Amendment 64—no marijuana retail business licenses are required to be issued until 2014—which leaves ample time to “take the temperature” of the state and federal governments before anyone applies for these new licenses.

To read the full initiative see:  http://www.regulatemarijuana.org/about#Initiative

Brian Vicente, Esq., is a founding member of Vicente Consulting, LLC, a law firm providing legal solutions for the medical marijuana community. He also serves as executive director of Sensible Colorado, the state’s leading non-profit working for medical marijuana patients and providers. Brian is the chair of the Denver Mayor’s Marijuana Policy Review Panel, serves on the Colorado Department of Revenue Medical Marijuana Oversight Panel, and coordinates the Colorado Bar Association’s Drug Policy Project.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Spark the Discussion: Organize! The Rising Role of Unions in Colorado’s Medical Marijuana Industry

“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of medical marijuana law. This column is brought to you by Vicente Sederberg, LLC, a full-service, community-focused medical marijuana law firm.

Recently, the United Food and Commercial Worker’s Union, Colorado’s largest labor organization, announced it had unionized its first medical marijuana shop in Denver—with more than a dozen shops predicted to follow suit in the upcoming weeks.

According to Colorado’s UFCW President Kim Cordova, “the Union is committed to representing the hard working and compassionate workers in the Medical Cannabis retail centers and promoting guidelines to safeguard the interests of our members and the communities our members work in.”

What does it mean for Colorado’s medical marijuana industry to have union shops?

Colorado’s newest industry is in a tough position.  It faces near-constant attacks from various branches of the federal government including the IRS, Treasury, and, most recently, the Department of Justice.  Just last month, the United State attorney in Colorado, John Walsh, launched an attack on state-legal medical marijuana providers by sending 23 letters to centers, informing them that that were in areas deemed problematic by the federal government and would have to shut down in 45 days or face property seizure and criminal prosecution.

In the face of these mounting problems, the medical marijuana industry needs allies.  And they have found a powerful one in the Union.

At a basic level, labor unions allow workers to organize and engage in “collective bargaining” to promote better wages, benefits, and working conditions.  There is no denying the vast role that unions have played in positively shaping the American workforce with these organizations leading the charge to end child labor, secure a minimum wage and sick leave, and establish workplace safety measures as far back as the 1800’s.

But perhaps the most important role that unions play is their heavy influence over politics.  Beyond pushing for the interests of workers, unions have long been engaged in successful political campaigns, using lobbying and traditional campaign tactics to ensure the longevity of the industries they represent.  Through sophisticated political maneuvering, labor unions have played a crucial role throughout history in helping to establish and legitimize businesses—a lesson that medical marijuana shops may want to heed.   With the public backing of a state and national powerhouse like the UFCW, these fledgling businesses may be viewed in a new light by legislators, many of whom owe their elections in large part to the political backing of unions.

At the dawn of this new industry in Colorado, having mainstream partners such as labor unions may be crucial to the medical marijuana industry’s legitimacy and, quite possibly, its longevity.

Brian Vicente, Esq., is a founding member of Vicente Consulting, LLC, a law firm providing legal solutions for the medical marijuana community. He also serves as executive director of Sensible Colorado, the state’s leading non-profit working for medical marijuana patients and providers. Brian is the chair of the Denver Mayor’s Marijuana Policy Review Panel, serves on the Colorado Department of Revenue Medical Marijuana Oversight Panel, and coordinates the Colorado Bar Association’s Drug Policy Project.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.