April 24, 2014

Comment [14] Added to Colo. RPC 1.2 Regarding Advising Marijuana Businesses

The Colorado Supreme Court adopted Rule Change 2014(05) on Monday, March 24, 2014, effective immediately. The rule change amends the Colorado Rules of Professional Conduct by adding Comment [14] to Rule 1.2 to read:

A lawyer may counsel a client regarding the validity, scope, and meaning of Colorado constitution article XVIII, secs. 14 & 16. and may assist a client in conduct that the lawyer reasonably believes is permitted by these constitutional provisions and the statutes, regulations, orders, and other state or local provisions implementing them. ln these circumstances, the lawyer shall also advise the client regarding related federal law and policy.

Justice Coats and Justice Eid would not adopt Comment [14].

Governor Hickenlooper Signs Marijuana Packaging Bills and More into Law

As the 2014 legislative session continues, Governor Hickenlooper continues to sign bills into law. To date, he has signed 82 bills into law. Some of his most recent legislative decisions are summarized below.

Governor Hickenlooper signed two bills on Monday, March 17, 2014.

  • HB 14-1122Concerning Provisions to Keep Legal Marijuana from Underage Persons, by Rep. Daniel Kagan and Sen. Linda Newell. The bill requires that all medical marijuana be sold in child-proof packaging unless the patient has a doctor’s note explaining why he or she cannot open child-proof packages. It also changes the classification of the crime of selling recreational marijuana to someone under age 21 to a Class 1 misdemeanor.
  • HB 14-1229Concerning Authorizing Sharing Information Between State and Local Government Agencies Related to Legal Marijuana, by Reps. Daniel Kagan and Jared Wright and Sens. Mike Johnston and Steve King. The bill conforms retail marijuana licensing law to medical marijuana licensing law by allowing local districts to submit persons applying for retail marijuana establishment licenses to a CBI background check.

Governor Hickenlooper signed 13 bills on Thursday, March 20, 2014.

  • SB 14-043Concerning the Inclusion of Certain Land Areas Used to Grow Products that Originate Above the Ground Within the Classification of “All Other Agricultural Property” for Property Tax Purposes, by Sen. Kevin Grantham and Rep. Kevin Priola. The bill specifies that greenhouses, nurseries, and other horticultural and agricultural operations are classified as “all other agricultural property” and is assessed according to the market value of other agricultural land within the county.
  • SB 14-048Concerning Use of the Most Recent United States Census Bureau Mortality Table as Evidence of the Expectancy of Continued Life of Any Person in a Civil Action in Colorado, by Sen. Lucia Guzman and Rep. Mark Waller. The bill repeals the mortality table included in Colorado law and requires courts to use the U.S. Census Bureau life expectancy information in civil actions.
  • SB 14-052Concerning Actions Taken to Remediate Soil Erosion Creating Property Damage, by Sen. Larry Crowder and Rep. Jerry Sonnenberg. The bill allows counties to consult with specialists regarding soil erosion, and to recover monies from landowners failing to treat soil erosion.
  • SB 14-083Concerning Reimbursement to be Paid by a County to the State for Costs Incurred by the State in Connection with the Reappraisal of Property in the County, by Sen. Larry Crowder and Rep. Mark Ferrandino. The bill authorizes the State Board of Equalization to waive the requirement that a county reimburse it for costs involved with reappraisal of property.

Governor Hickenlooper signed 10 bills on Friday, March 21, 2014.

  • SB 14-059Concerning Eliminating the Statute of Limitations for Offenses that Accompany Sex Offenses that are Not Subject to a Statute of Limitations, by Sen. Lucia Guzman and Rep. Polly Lawrence. The bill removes the statute of limitations for offenses that accompany sex offenses not subject to a statute of limitations.
  • SB 14-097Concerning the Immunity of Public Agencies Against Liability Arising from the Wildfire Mitigation Activities of Insurance Companies, by Sen. Lois Tochtrop and Rep. Millie Hamner. The bill clarifies that public agencies are not responsible for the actions of insurance companies or their representatives, and clarifies that insurance companies are not immune from liability under the Colorado Governmental Immunity Act.
  • HB 14-1052 - Concerning an Increase in the Enforcement Authority of Ground Water Management Districts, by Rep. Randy Fischer and Sen. Matt Jones. The bill allows ground water management districts to enforce permits, issue orders, collect fines, and collect court costs and attorney fees.
  • HB 14-1215Concerning the Ability of a Federal Home Loan Bank to Enforce its Rights with Regard to Collateral Subject to a Security Agreement, by Rep. Joann Ginal and Sen. Lois Tochtrop. The bill prohibits a receiver or liquidator of an insolvent insurer from avoiding obligations to a federal home loan bank regarding collateral under a security agreement.

For a list of Governor Hickenlooper’s legislative decisions, click here.

SB 14-155: Creating a Grant Fund to Study Health Effects of Medicinal Marijuana

On March 10, 2014, Sen. Pat Steadman and Rep. Jenise May introduced SB 14-155 - Concerning Grant Funding for Medical Marijuana Health Effects Studies. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Joint Budget Committee

The bill creates a health research subaccount (subaccount) in the medical marijuana program cash fund (cash fund). The subaccount provides funding for medical marijuana health research. The department of public health and environment (department) may transfer moneys from the cash fund to the subaccount and has continuous spending authority over the subaccount. No more than $10 million may be transferred to the subaccount.

The bill creates a medical marijuana research grant program (grant program) in the department. The grant program will provide the framework for funding research to ascertain the general medical efficacy, and appropriate administration of marijuana. The state board of health (state board) shall promulgate rules for the administration of the grant program, including:

  • The procedures and timelines for applying for grants;
  • Grant application contents;
  • Criteria for selecting grantees and determining the amount and duration of the grants; and
  • Reporting requirements for grantees.

The bill creates a scientific advisory council (council) to evaluate research proposals seeking a grant from the grant program. The executive director of the department shall appoint the members of the council, and the chief medical officer of the department will also serve on the council and act as chair. The members will serve two-year terms that may be reappointed and will be reimbursed for travel expenses.

The grant recommendations will be submitted to the state board for a final determination.

The grant program shall report annually to the state board on the progress of the medical marijuana studies.

The bill directs the attorney general to seek federal authority to allow Colorado institutions of higher education to cultivate marijuana for research funded by this bill.

The bill is assigned to the Health & Human Services Committee.

HB 14-1229: Allowing Fingerprint-Based Background Checks for Applicants for Marijuana Establishment Licenses

On January 30, 2014, Rep. Elena Kagan and Sen. Michael Johnston introduced HB 14-1229 - Concerning Authorizing Sharing Information Between State and Local Government Agencies Related to Legal MarijuanaThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

For retail marijuana licensing purposes, the bill allows a local jurisdiction to submit fingerprints for purposes of conducting a criminal history background check or to acquire a name-based criminal history check if the licensee’s fingerprints are unclassifiable.

The bill passed out of both houses and was sent to Gov. John Hickenlooper on March 12.

The governor signed this bill into law on March 17, 2014.

Colorado Court of Appeals: Convictions for Marijuana Charges Reversed Due to Application of Amendment 64

The Colorado Court of Appeals issued its opinion in People v. Russell on Thursday, March 13, 2014.

Marijuana Possession—Retroactive Application of Amendment 64—Police Officer Testimony—Lay Witness.

Defendant and her husband (father) brought their infant son to the hospital, where he was diagnosed with a spiral fracture on his left femur. After suspecting abuse, a social worker from the Grand County Department of Social Services (DSS) interviewed defendant and subsequently obtained a court order to perform a urinalysis on her. Defendant tested positive for amphetamine, marijuana, and methamphetamine. The police searched defendant’s home pursuant to a warrant and seized several items, including drug paraphernalia, miscellaneous containers containing marijuana, marijuana concentrate, and methamphetamine. Following a jury trial, she was acquitted of the child abuse charge, but was found guilty of possession of one gram or less of a schedule II controlled substance (methamphetamine), possession of marijuana concentrate, and possession of less than one ounce of marijuana.

On appeal, defendant contended that Amendment 64 of the Colorado Constitution should be applied retroactively and that her convictions for possession of marijuana concentrate and possession of less than one ounce of marijuana should be vacated. The quantity of marijuana and marijuana concentrate possessed by defendant fell within the safe harbor established by § 16(3)(a) of Amendment 64. Because defendant’s convictions were pending appeal when Amendment 64 became effective, her convictions for possession of marijuana concentrate and less than one ounce of marijuana were reversed and vacated.

Defendant further argued that her methamphetamine conviction should be reversed because the trial court erred by allowing a police officer to testify regarding the physical effects of methamphetamine use without requiring that the officer be qualified as an expert pursuant to CRE 702. A lay witness may express an opinion as to whether a defendant was under the influence of drugs, provided that a proper foundation has been laid. As a lay witness, the officer was permitted to testify about his observations based on his eleven years of experience as a police officer. Although the officer didn’t base his testimony on any specialized training, any error was harmless because the officer’s testimony was cumulative of other evidence. Therefore, the trial court did not abuse its discretion in admitting the officer’s testimony.

Summary and full case available here.

Colorado Court of Appeals: Medical Necessity Report Obtained After Seizure of Marijuana Plants Not Admissible as Defense

The Colorado Court of Appeals issued its opinion in People v. Fioco on Thursday, March 13, 2014.

Medical Marijuana Amendment—Affirmative Defense.

After defendant’s medical marijuana card expired, he was arrested and his marijuana plants were seized. Defendant later obtained a certification from a second physician describing certain medical conditions, on the basis of which defendant “needs 25 plants.” Defendant relied on this certification to assert an affirmative defense pursuant to § 14(4)(b) of the Medical Marijuana Amendment (Amendment). The jury was instructed on this defense, but implicitly rejected it by returning a guilty verdict.

On appeal, defendant did not dispute that he cultivated marijuana plants, but contended that the prosecution failed to prove that he cultivated more than the six marijuana plants allowed by § 14(4)(a)(II) of the Amendment. However, defendant’s counsel conceded during closing argument that defendant cultivated more than six marijuana plants.

Defendant also contended that even if the prosecution proved he cultivated more than six marijuana plants, his conviction must be set aside because the prosecution failed to disprove his affirmative defense that “such greater amounts were medically necessary to address [his] debilitating medical condition.” Section 14(4)(b) of the Amendment creates an affirmative defense to the offense of cultivating marijuana, where the plants are needed for medical use. This defense, however, cannot be asserted based on a physician’s assessment obtained after the offense has been committed. Because the second physician’s certification that defendant “needs 25 plants” was obtained after defendant had committed the offense, he should not have been allowed to raise the 14(4)(b) defense. Therefore, even if the prosecution’s evidence was insufficient to disprove this defense, any error was harmless because the defense should not have been permitted in the case.

Summary and full case available here.

HB 14-1196: Creating a Task Force to Study Marijuana’s Impact on Local Government

On January 30, 2014, Rep. Cheri Gerou and Sen. Cheri Jahn introduced HB 14-1196 - Concerning the Creation of a Local Government Impacts Task Force. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

As introduced, the bill creates the marijuana impacts task force (task force) in the department of local affairs to study the local government impacts related to the cultivation, testing, sale, consumption, and regulation of retail marijuana and retail marijuana products. The task force consists of 17 members who represent specified local government interests, state government agencies, the marijuana community, and public defenders.

The task force is required to meet during the 2014 interim and may solicit input from various state and local government entities, public and private organizations, and private citizens. The bill specifies that members of the task force serve without compensation and that all staff needed to assist the task force will be provided by the department of local affairs.

The task force is required to evaluate the impacts that the cultivation, testing, sale, consumption, and regulation of retail marijuana and retail marijuana products have on the services provided by local governments and on local governments’ budgets. In addition, the task force is required to develop recommendations that may be implemented at the state or local level to help address such impacts.

On Feb. 20, the Local Government Committee heard testimony and amended the bill; the final decision on the bill will be determined by the committee at a later date.

SB 14-129: Amending Criminal Provisions Related to Marijuana

On Monday, January 27, 2014, Sen. Pat Steadman introduced SB 14-129 – Concerning Changes to Criminal Provisions Related to Marijuana. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill adds consumption and possession of marijuana and possession of marijuana paraphernalia to the crime of underage possession or consumption of alcohol. The bill changes the penalty structure for the crime as follows:

  • For a first offense, there is a fine of up to $100 or a requirement to attend substance abuse education classes;
  • For a second offense, there is a fine of up to $100; a requirement to attend substance abuse education classes; if appropriate, an order for a substance abuse assessment and any treatment recommended by the assessment; and up to 24 hours of public service; and
  • For a third or subsequent offense, there is a fine of up to $250, an order for a substance abuse assessment and any treatment recommended by the assessment, and up to 36 hours of public service.

Under current law, the P.O.S.T. board is encouraged to offer an advanced roadside impaired driving training course at basic academy training. The bill encourages the P.O.S.T. board to offer the course as an elective to basic field sobriety training recertification.

The bill changes the open marijuana container crime to require that prosecution prove that the container has a broken seal, that the contents were partially removed, and that there is evidence that marijuana was consumed in the vehicle. Current law only requires proof of one of those three elements. The bill makes conforming amendments.

On Feb. 12 the Judiciary Committee amended the bill and referred it to the Finance Committee. The Finance Committee approved the bill on Feb. 18 and sent it to the Appropriations Committee for consideration of the Fiscal Impact. On Feb. 21 the Appropriations Committee amended the bill and sent it to the full House for 2nd Reading.

Since this summary, the bill passed the Senate on Second Reading, with amendments.

e-Legislative Report: February 24, 2014

CBA Legislative Policy Committee

For readers who are new to CBA legislative activity, the Legislative Policy Committee (LPC) is the CBA’s legislative policy-making arm during the legislative se ssion. The LPC meets weekly during the legislative session to determine CBA positions on requests from the various sections and committees of the Bar Association.

Action taken at Feb. 21 LPC meeting:

  • The Committee voted to support HB 14-1073. Concerning the recording of legal documents.
  • The Committee voted to oppose HB 14-1162. Concerning protection of the victim of a sexual assault in cases where a child was conceived as a result of the sexual assault, and, in connection therewith, making legislative changes in response to the study by and the report of the recommendations from the task force on children conceived through rape. A bill summary is below.
  • The Committee voted to oppose HB 14-1061. Concerning sentences imposing monetary payments in criminal actions, and, in connection therewith, eliminating prison sentences for persons who are unable to pay criminal monetary penalties.

At the Capitol—Week of Feb. 17

A scorecard of the committee and floor work follows.

In the House

Monday, Feb. 17

Passed 3rd Reading:

  • SB 14-19. Concerning the state income tax filing status of two taxpayers who may legally file a joint federal income tax return. Vote: 37 yes, 26 no and 2 excused.
  • HB 14-1117. Concerning the creation of the Colorado premature birth commission. Vote: 50 yes, 13, no and 2 excused.
  • HB 14-1060. Concerning the authority of a municipality to compensate members of a municipal planning commission. Vote: 41 yes, 22 no, and 2 excused.
  • HB 14-1166. Concerning the renewal of concealed handgun permits by Colorado county sheriffs. Vote: 63 yes, 0 no, and 2 excused.
  • SB 14-25. Concerning grants for domestic wastewater treatment works for small communities. Vote: 63 yes, 0 no, and 2 excused.
  • HB 14-1132. Concerning the ability of a local government to establish the hours during which alcohol beverages may be sold for consumption on a licensed premises. At the request of the sponsor the bill was defeated. Vote: 3 yes, 60 no, and 2 excused.
  • HB 14-1125. Concerning the circumstances under which a unit owners’ association may disclose contact information for members and residents under the “Colorado Common Interest Ownership Act.” Vote: 63 yes, 0 no, and 2 excused.

Tuesday, Feb. 18

Passed 3rd Reading:

  • HB 14-1080. Concerning a sales and use tax exemption for the Colorado Ute Indians. Vote: 63 yes, 0 no, and 1 excused.
  • HB 14-1040. Concerning criminal provisions relating to drug testing. Vote: 58 yes, 5 no, and 1 excused.
  • HB 14-1174. Concerning the sunset review of the natural areas council. Vote: 54 yes, 10 no, 1 excused.
  • HB 14-1107. Concerning the authority of the department of revenue to offer taxpayers the option to receive electronic notices. Vote: 64 yes, 0 no, and 1 excused.
  • HB 14-1183. Concerning the reinstatement of the authority for active military personnel to practice professionally. Vote: 53 yes, 10 no, and 2 excused.

Wednesday, Feb. 19

Passed on 3rd Reading:

  • HB 14-1177. Concerning requirements governing meetings of the boards of county commissioners of the larger counties. Vote: 65 yes and 0 no.
  • HB 14-1194. Concerning the recreation of the legislative digital policy advisory committee. Vote: 64 yes and 1 no.
  • HB 14-1121. Concerning notice requirements for county highway contract bid solicitations, and, in connection therewith, increasing the threshold value of a contract for which a county must advertise in a newspaper in the county or post notice in the county courthouse from five thousand dollars to the amount at which a contract requires a contractor’s bond. Vote: 40 yes and 25 no.
  • HB 14-1215. Concerning the ability of a federal home loan bank to enforce its rights with regard to collateral subject to a security agreement. Vote: 65 yes and 0 no.
  • HB 14-1126. Concerning the requirement to include notification to a patient regarding the patient’s breast tissue classification with the required mammography report. Vote: 52 yes and 13 no.

Thursday, Feb. 20

Passed on 3rd Reading:

  • HB 14-1172. Concerning exempting certain public safety departments from certain statutory requirements related to the impact of a criminal conviction on state employment opportunities. Vote: 65 yes and 0 no.

Friday, Feb. 21

Passed on 3rd Reading:

  • HB 14-1229. Concerning authorizing sharing information between state and local government agencies related to legal marijuana. Vote: 63 yes, 0 no, and 2 excused.
  • SB 14-47. Concerning the payment of death benefits for seasonal wildland firefighters killed in the line of duty. Vote: 63 yes, 0 no, and 2 excused.
  • HB 14-1224. Concerning a set aside goal in state procurement for service-disabled veteran owned small businesses. Vote: 56 yes, 7 no, and 2 excused.

In the Senate

Monday, Feb. 17

Passed on 3rd Reading:

  • SB 14-132. Concerning the repeal of the requirement that a soldier be killed while deployed to a combat zone to issue a fallen soldier license plate. Vote: 35 yes and 0 no.
  • HB 14-1081. Concerning the motor carrier safety fund, and, in connection therewith, creating the fund, transferring money from the hazardous materials safety fund to the motor carrier safety fund, and specifying that any excess uncommitted reserves in the public utilities commission motor carrier fund be transferred to the motor carrier safety fund. Vote: 35 yes and 0 no.
  • Upon a motion for reconsideration, HB 14-1031. Concerning the weight of motor vehicles that are subject to rate regulation when being towed without the owner’s consent. Vote: 29 yes and 6 no.
  • SB 14-138. Concerning civil immunity for community volunteers assisting at an emergency. Vote: 35 yes and no.
  • HB 14-1004. Concerning emergency management, and, in connection therewith, eliminating and reorganizing two entities within the division of homeland security and emergency management in the department of public safety and authorizing the governor to provide individual assistance during a disaster absent a presidential declaration of the same. Vote: 35 yes and 0 no.

Tuesday, Feb. 18

Passed on 3rd Reading:

  • SB 14-126. Concerning the reclassification of the state lottery division as a type 1 agency. Vote: 28 yes and 7 no.
  • SB 14-101. Concerning establishment of the unauthorized use of certain veterinary technician titles as a deceptive trade practice under the “Colorado Consumer Protection Act.” Vote: 18 yes and 17 no.
  • SB 14-137. Concerning certification of workers’ compensation insurance forms. Vote: 34 yes and 1 no.

Wednesday, Feb. 19

Passed on 3rd Reading:

  • SB 14-97. Concerning the immunity of public agencies against liability arising from the wildfire mitigation activities of insurance companies. Vote: 35 yes 0 no.
  • SB 14-121. Concerning financial assistance for local governments after a declared disaster emergency. Vote: 35 yes and 0 no.
  • SB 14-103. Concerning the phase-out of the sale of certain low-efficiency plumbing fixtures. Vote: 19 yes and 16 no.

Thursday, Feb. 20

Passed on 3rd Reading:

  • SB 14-43. Concerning the inclusion of certain land areas used to grow products that originate above the ground within the classification of “all other agricultural property” for property tax purposes. Vote: 34 yes and 0 no.
  • SB 14-135. Concerning the repeal of certain provisions concerning the purchasing of firearms in states that are contiguous to Colorado. Vote: 34 yes, 0 no, and 1 excused.

Friday, Feb. 21

Passed on 3rd Reading:

  • HB 14-1086. Concerning a requirement that a legal notice published in a newspaper is also published on a statewide web site maintained by a majority of Colorado newspapers. Vote: 30 yes and 5 no.
  • HB 14-1035. Concerning collection of restitution ordered pursuant to a deferred judgment. Vote: 35 yes and 0 no.

Stay tuned for 10 bills of interest.

HB 14-1122: Requiring Medicinal Marijuana Products to be Sold in Childproof Packaging

On January 15, 2014, Rep. Daniel Kagan and Sen. Linda Newell introduced HB 14-1122 - Concerning Provisions to Keep Legal Marijuana from Underage Persons. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, medical marijuana-infused products must be sold in either child-proof packaging or in packaging warning “medicinal product—keep out of reach of children”. The bill removes the option of selling the products in the packaging with the warning. The bill makes an exception to the child-proof packaging if the purchaser has a doctor’s note explaining he or she has a condition that makes opening the child-proof packaging difficult.

The bill gives a retail marijuana store the ability to confiscate a fraudulent identification and detain and question the person who provided the fraudulent identification. The bill makes selling marijuana to a person under 21 years of age at a retail marijuana store a class 1 misdemeanor and creates the various licensing penalties for selling to an underage person.

The bill was amended in the Judiciary Committee and on the House floor on 2nd Reading; the bill passed out of the House on Friday, Feb. 14 on a 63 yes, 0 no, and 2 excused vote.

Since this summary, the bill was introduced in the Senate and assigned to the Judiciary Committee.

Marijuana Matters: Has your association taken a shot at regulating pot?

By Suzanne M. Leff

As you’re probably aware, effective January 1, 2014, recreational pot became legal in Colorado. This new law is already affecting homeowners associations. While some associations started planning for pot smoking residents last year when the law was passed, not every community association moved quickly to adopt rules and regulations or amend restrictive covenants to address anticipated issues related to recreational pot smoking. If your association has not yet considered whether the new marijuana laws will affect your community, or if you’re thinking about how to tackle problems before they occur, here are some things to consider:

Shared spaces. Most associations have the authority to create rules and regulations that control activities in outdoor and indoor common area spaces. If your association already regulates tobacco smoking in these areas, the association, through board of director action, may consider extending those smoking policies to marijuana use. Associations should also evaluate the extent to which local laws interact with association rules and regulations and seek to fill any regulatory gaps that warrant attention in specific communities. Boards will want to pay particular attention to areas of their communities where use of marijuana will impact other residents. For example, with tobacco smoke, smoking near doorways and windows of other units are areas that typically result in complaints from residents.

Limited common area patios and balconies. Association boards can often regulate activities within limited common areas, but you will need to look to your documents to determine the extent to which your association can adopt rules affecting these areas. Patios and balconies in close proximity to other units are certain to give rise to complaints from residents affected by smoking neighbors. Associations should carefully consider how enforcement will take place if marijuana use is regulated in these areas.

Private residences. In contrast to associations’ ability to regulate activities in shared common areas, associations are not typically empowered to impose rules and regulations on how owners and residents behave inside their homes—at least not where private activities do not impact neighbors’ use and enjoyment of their homes. If your association’s recorded covenants do not prohibit smoking and a resident chooses to smoke in his or her home, the association board of directors most likely cannot simply adopt a rule that prevents that resident from lighting up. In most cases, the owners will need to approve an amendment to the declaration to restrict smoking within the units. It remains to be seen whether Colorado courts will allow associations to rely solely on nuisance provisions in their covenants as a way of prohibiting marijuana smoking within private residences. However, based on other related nuisance court cases, a Colorado court would probably only allow an association to rely on a nuisance provision under extenuating circumstances. If your covenants prohibit residents from doing anything that violates federal law, your association may determine that regulation of marijuana activities within the units is permissible without first amending the covenants.

Other considerations for resident rules. The new marijuana laws do not address use alone. Cultivation of marijuana is another factor for boards to consider. In addition, state and local fair housing laws come into play in the context of medicinal marijuana cultivation and use.

Employees. Associations with employees should implement policies concerning marijuana use on the job and showing up to work under the influence of marijuana. Court cases concerning employment practices suggest that employers are permitted to prohibit marijuana use by their employees.

Enforcement. As your association considers how to regulate marijuana activities in your community, give careful thought to how the association will enforce any new restrictive covenants or rules and regulations. Now that pot is legal in Colorado, local law enforcement may not be there to help. Associations will best position themselves for effective enforcement by creating rules with clear violations and not violations based on one person’s opinion. To the extent your association can document violations, you will have a better chance of holding the violator accountable. That accountability can come in several forms, including fines, suspension of privileges, and, in the more extreme cases, court-ordered injunctions.

Consult with legal counsel. The number of issues for boards to consider is too numerous to address completely here, and your community and its unique needs should inform how marijuana activities are regulated. Associations should always consult with legal counsel before adopting rules or imposing restrictions related to marijuana.

Suzanne M. Leff is a partner at Winzenburg, Leff, Purvis & Payne, LLP. She provides general counsel to community associations, and focuses on general business representation, document drafting and interpretation, contract review, covenant enforcement, and governance practices. She presents educational seminars to property managers, board members, and other attorneys who work with community associations. Suzanne writes articles for the firm’s blog on topics such as changes to legislation affecting community associations, fiduciary duties of board members, the practical application of laws affecting associations, and alternative dispute resolution. This article originally appeared on her firm’s blog on January 21, 2014.

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.

Colorado Court of Appeals: Colorado Constitution Protects Medical Marijuana Patient’s Cultivation of Plants and Controlled Substances Act Does not Preempt

The Colorado Court of Appeals issued its opinion in People v. Crouse on Thursday, December 19, 2013.

Medical Marijuana—Colo. Const. art. XVIII, § 14(2)(e)—Controlled Substances Act—Supremacy Clause.

During a search of defendant’s home, Colorado Springs police officers seized marijuana and marijuana plants. The prosecution charged defendant with one felony count of cultivation of more than thirty marijuana plants and one felony count of possession of between 5 and 100 pounds of marijuana with the intent to distribute. At trial, defendant raised an affirmative defense that Colo. Const. art. XVIII, § 14 (MM Amendment) expressly authorized his possession, because he was a medical marijuana patient and the marijuana that he possessed was medically necessary to treat his condition. The jury acquitted him of both charges.

Relying on § 14(2)(e) of the MM Amendment, defendant moved the trial court to order the police to return the seized marijuana plants and marijuana. Section 14(2)(e) requires the return of marijuana seized from a medical marijuana patient to the patient if a jury acquits the patient of state criminal drug charges arising from the seized marijuana (return provision). The trial court agreed and ordered the police to return the seized items, which they did.

On appeal, the prosecution contended that the Controlled Substances Act (CSA), 21 USC §§ 801 et seq., preempts the return provision. The Court of Appeals rejected this contention for three reasons. First, the CSA cannot be used to preempt a state law under the obstacle preemption doctrine. Second, even if obstacle preemption applies, CSA § 885(d), which prevents federal prosecution of “any duly authorized officer of any State . . . who shall be lawfully engaged in the enforcement of any law . . . relating to controlled substances,” would preclude applying prohibitions in other CSA sections to police officers complying with a court order issued under the return provision. Third, and making the same assumption, the recipient patient’s involvement in the return process also does not create obstacle preemption because the federal government could not commandeer state officials to seize and hold marijuana, and the MM Amendment does not require patients to either demand return or accept returned marijuana. Therefore, the trial court’s order was affirmed.

Summary and full case available here.