May 4, 2016

HB 16-1427: Exempting Multi-Serving Liquid Marijuana Products from Sales Limits

On March 30, 2016, Rep. Dan Pabon and Sen. Owen Hill introduced HB 16-1427Concerning Exempting Multi-Serving Liquid Retail Marijuana Products from the Sales Equivalency Limitation. The bill was assigned to the House Public Health Care & Human Services Committee, where it was amended and referred to the House floor for Second Reading. It passed Second Reading with amendments and passed Third Reading with no further amendments. The bill was assigned in the Senate to the Business, Labor, & Technology Committee.

This bill exempts a multi-serving liquid retail marijuana product from the limit on equivalency sales if the product complies with all statutory and rule requirements regarding packaging of multi-serving edibles and the product: (1) is packaged in a structure that uses a single mechanism to achieve both child-resistance and accurate pouring dosing of each liquid serving in increments equal to or less than 10 milligrams per serving with no more than 100 milligrams total per package; and (2) the dosing component is within the child-resistant cap or closure of the bottle and not a separate component.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

HB 16-1359: Eliminating Exception to Prohibition on Restricting Probationers’ Medical Marijuana Use

On March 11, 2016, Rep. Joseph Salazar and Sen. Lucìa Guzman introduced HB 16-1359Concerning the Use of Medical Marijuana while on Probation. The bill was introduced into the House Judiciary Committee, where it was amended. It was again amended on Second Reading and passed Third Reading with no further amendments.

Current law prohibits a court from requiring that a person on probation refrain from possessing or using medical marijuana unless the person was convicted of a crime related to medical marijuana or, based on an assessment, the court determines that a prohibition against such possession or use is necessary to accomplish the goals of sentencing. This bill eliminates the exception related to the assessment, and instead, allows a court to consider “any material evidence” in determining whether a prohibition on the possession or use of medical marijuana by an individual on probation is necessary to accomplish the goals of sentencing.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

e-Legislative Report: Week of April 11, 2016

legislationWelcome to another edition of the e-leg report. We’re nearing the halfway point at the capitol, and that means the state budget debate is at hand. A number of bills that the CBA is working are subject to appropriations – and only after the budget debate is settled will we know whether they are likely to be funded or not.

Feel free to drop me a line on how we are doing or raise an issue on a piece of legislation. Contact me atjschupbach@cobar.org.

CBA Legislative Policy Committee

For followers who are new to CBA legislative activity, the Legislative Policy Committee (“LPC”) is the CBA’s legislative policy making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions from requests from the various sections and committees of the Bar Association. Members are welcome to attend the meetings—please RSVP if you are interested.

LPC Meeting Update

Here is a quick rundown of the bills on which we have recently taken a position.

HB 16-1211 – Marijuana Transporter License

The bill creates a retail marijuana transporter license and a medical marijuana transporter license. The license is valid for five years. A licensed marijuana transporter (transporter) provides logistics, distribution, and storage of marijuana and marijuana products. A transporter may contract with multiple businesses and may also hold another marijuana license. A transporter must be licensed by December 31, 2017, in order to continue to operate. The bill describes the circumstances under which a business can terminate a contract with a transporter.

The Bar’s Cannabis Law Committee is currently monitoring and preparing comments on this bill. The bill is working through its first chamber and has been greatly amended from its original form. The Legislative Policy Committee has not taken action on this bill.

HB 16-1235 – Commissions Evaluating State Judicial Performance

The bill makes revisions to various functions of the state commission on judicial performance (state commission) and the district commissions on judicial performance (district commission), referred to collectively as the “commissions.”

This bill was postponed indefinitely (killed) in the House State, Veterans and Military Affairs Committee. The Colorado Bar Association had many concerns with the cost and operation of the bill.

HB 16-1270 – Security Interest Owner’s Interest In Business Entity

Under current law, the Uniform Commercial Code (Code) invalidates contractual limits on the transferability of some assets that can be subject to a security interest. In 2006, the Colorado Corporations and Associations Act (Act) was amended to clearly and broadly exempt an owner’s interest in a business entity from these Code provisions to effectuate the “pick your partner” principle that allows small businesses to control their ownership. Section 3 of the bill narrows the exemption in the Act to that necessary for “pick your partner,” and sections 1 and 2 codify this narrowed exemption in the Code.

This bill, part of a four bill package of business entities clean up acts, was supported by the Bar and has passed the House and Senate and is on its way to be signed by the Governor.

HB 16-1275 – Taxation Of Corporate Income Sheltered In Tax Haven

The bill pertains to an affiliated group of corporations filing a combined report. In a combined report filing, the tax is based on a percentage of the entire taxable income of all of the includable corporations, but the tax is assessed only against the corporation or corporations doing business in Colorado. Including more affiliated corporations in the combined report may result in an increase in income subject to tax.

There are jurisdictions located outside of the United States with no tax or very low rates of taxation, strict bank secrecy provisions, a lack of transparency in their tax system operations, and a lack of effective exchange of information with other countries. There are several common legal strategies for sheltering corporate income in such jurisdictions, often called “tax havens.”

Notwithstanding a current requirement in state law that those corporations with 80% or more of their property and payroll assigned to locations outside of the United States be excluded from a combined report, the bill makes a corporation that is incorporated in a foreign jurisdiction for the purpose of tax avoidance an includable C corporation for purposes of the combined report.

The bill defines a corporation incorporated in a foreign jurisdiction for the purpose of tax avoidance to mean any C corporation that is incorporated in a jurisdiction that has no or nominal effective tax on the relevant income and that meets one or more of five factors listed in the bill, unless it is proven to the satisfaction of the executive director of the Department of Revenue that such corporation is incorporated in that jurisdiction for a legitimate business purpose.

The bill requires the state controller to credit a specified amount per fiscal year to the state education fund to be used to help fund public school education.

The bill requires the secretary of state to submit a ballot question, to be treated as a proposition, at the statewide election to be held in November 2016 asking voters:

  • To increase taxes annually by the taxation of a corporation’s state income that is sheltered in a foreign jurisdiction for the purpose of tax avoidance;
  • To use the resulting tax revenue to help fund elementary and secondary public school education; and
  • To allow an estimate of the resulting tax revenue to be collected and spent notwithstanding any limitations in section 20 of article X of the state constitution (TABOR).

The Tax Law section of the CBA voted to oppose this bill, which was postponed indefinitely (killed) by the Senate State Affairs Committee. The Bar had concerns over the cost of vague language in the bill as well as the impact on the courts and judicial system.

HB 16-1310 – Operators Liable For Oil And Gas Operations

Under current law governing relations between surface owners and oil and gas operators, to prevail on a claim the surface owner must present evidence that the operator’s use of the surface materially interfered with the surface owner’s use of the surface of the land. The bill amends this requirement to allow proof that the operator’s oil and gas operations harmed the surface owner’s use of the surface of the land, caused bodily injury to the surface owner or any person residing on the property of the surface owner, or damaged the surface owner’s property.

The Legislative Policy Committee voted to oppose this bill because it upends the burden of proof responsibility. The bill has passed the House and is moving on to the Senate, where it will be heard by the Agriculture Committee.

HB 16-1331 – Policies On Juvenile Shackling In Court

The bill requires restraints on a juvenile to be removed prior to any court proceeding, except when the court determines the restraints are necessary:

  • To prevent physical harm to the juvenile or another person;
  • To prevent disruptive courtroom behavior by the juvenile, evidenced by a history of behavior that created potentially harmful situations or presented substantial risk of physical harm; or
  • To prevent the juvenile from fleeing the courtroom, when there is evidence of an escape history or other relevant factors.

The prosecution, sheriff, or any other detention or pretrial personnel may request that an individual juvenile be restrained in the courtroom. The court shall provide the juvenile’s attorney an opportunity to be heard before the court allows the use of restraints on a juvenile. The court may conduct a hearing on the use of restraints without the juvenile being present.

The CBA supports this bill as good policy and an extension of the efforts the courts have made this past year. While the courts need discretion, we believe this bill strikes the right balance for outlining the policies on how and when juveniles should be subject to shackling.

HB 16-1346 – Open Records Subject To Inspection Denial

The bill allows a custodian to deny access to confidential personal information records and employee personal e-mail addresses. The provisions of the Colorado Open Records Act (CORA) that relate to civil or administrative investigations and trade secrets and other privileged and confidential information apply to the judicial branch.

The Bar Association opposed this bill because of constitutional and separation of powers concerns regarding the relationship between the judicial and legislative branches of government. In addition, we believe that the PAIRR rules issued by the Chief Justice, which closely mirror the text of CORA, are better suited to meet the information needs of requesters while maintaining the integrity of judicial records.

HB 16-1394 -Aligning Issues Around At-risk Persons

The bill implements the following recommendations of the at-risk adults with intellectual and developmental disabilities mandatory reporting implementation task force:

  • Standardizing statutory definitions among the Colorado Criminal Code, adult protective services in the department of human services, and the office of community living in the department of health care policy and financing;
  • Specifying that enhanced penalties for crimes against an at-risk person apply to all persons 70 years of age or older and to all persons with a disability; and
  • Clarifying and expanding the definitions of persons who are required to report instances of mistreatment of at-risk elders or at-risk adults with an intellectual and developmental disability (adults with IDD).

The bill also:

  • Reduces the time in which a law enforcement agency or county department is required to prepare a written report from 48 hours to 24 hours;
  • Specifies that a county department of human or social services is to conduct an investigation of allegations of mistreatment of an at-risk adult; and
  • Clarifies that the human rights committee is responsible for ensuring that an investigation of mistreatment of an adult with IDD occurred.

The Colorado Bar Association opposed the bill as written, but is working with stakeholders to review amendments from other stakeholder groups. We are working with and talking with the sponsors frequently.

SB 16-130 – Methods To Collect Consumer Use Tax

Consumer use tax is the complement to sales tax and is due on the purchases of goods where the retailer did not charge sales tax. For example, any time consumers make an Internet purchase and the out-of-state retailer does not charge sales tax, the purchaser should pay the equivalent amount of sales tax as consumer use tax directly to the Colorado Department of Revenue (department). The department has added a use tax line to the 2015 individual income tax return form in an effort to make self-reporting of use tax more convenient for consumers.

The bill specifies that after the 2015 income tax year the department is not allowed to add use tax reporting lines to the individual income tax return form for any reason. The bill also prohibits the department from auditing any taxpayer for any amount he or she reported on the use tax lines included in the 2015 individual income tax return form.

The CBA is monitoring this bill and has sought permission to make changes to the bill to ensure that collecting use taxes is efficient.

SB 16-131 Overseeing Fiduciaries’ Management Of Assets

The bill clarifies statutory language concerning the removal of a fiduciary to ensure that a fiduciary’s authority is suspended as soon as a petition to remove the fiduciary is filed. The bill adds a provision to the conservatorship statutes stating that an adult ward or protected person has a right to be represented by a lawyer of their choosing unless the trial court finds the person lacks sufficient capacity to provide informed consent for representation by a lawyer. The bill states that after a fiduciary receives notice of proceedings for his, her, or its removal, the fiduciary shall not pay compensation or attorney fees and costs from the estate without an order of the court.

This bill rearranges the existing responsibilities for fiduciaries managing assets. It is a cleanup and reorganization of these statutes and adds the right to legal counsel for wards and protected persons. The bill is scheduled for committee later this week.

SB 16-133 – Transfer Of Property Rights At Death

Under current law, a certificate of death, a verification of death document, or a certified copy thereof, of a person who is a joint tenant may be placed of record with the county clerk and recorder of the county in which the real property affected by the joint tenancy is located, together with a supplementary affidavit. The bill removes the requirement that the person who swears to and affirms the supplementary affidavit has no record interest in the real property. The bill includes inherited individual retirement accounts and inherited Roth individual retirement accounts as property exempt from levy and sale under writ of attachment or writ of execution.

The bill amends provisions concerning determination-of-heirship proceedings, as follows:

  • Clarifies the definition of “interested person” so that anyone affected by the ownership of property may commence a proceeding;
  • Describes when an unprobated will may be used as part of a proceeding;
  • Clarifies notice requirements; and
  • Ensures that a judgment and decree will convey legal title as opposed to equitable title.

The bill enacts portions of section 5 of the Uniform Power of Appointment Act, with amendments.
This bill, the second part of the Colorado Bar Association’s probate reorganization bills, has passed the legislature and will be sent to the Governor shortly.

Bills that the LPC is monitoring, watching or working on can be found at this link:
http://www.statebillinfo.com/sbi/index.cfm?fuseaction=Public.Dossier&id=21762&pk=996

SB 16-080: Enacting Requirements for In-Home Growing of Marijuana

On January 19, 2016, Sen. Linda Newell and Reps. Cole Wist & Dan Pabon introduced SB 16-080Concerning Secured Marijuana Cultivation Requirements. The bill was introduced in the Senate Business, Labor, & Technology Committee, where it passed unamended. The bill passed Second Reading in the Senate with amendments and was not further amended on Third Reading. In the House, the bill was approved by the Finance Committee with amendments. It was amended again on Second Reading in the House and passed through Third Reading. The bill is now back in the Senate for consideration of the House amendments.

C.R.S. § 18-18-406 sets forth the requirements to be met for persons cultivating adult-use marijuana at their residence. Under current law, if a person is growing adult-use marijuana in a residence where another person, who is under the age of 21, resides, the grow site must be in an enclosed and locked space.

Additionally, if no person under 21 years old lives in the residence, but a person under 21 years old enters the residence, the person growing the marijuana must ensure access to the grow site is reasonably restricted during the period the under-aged person is staying at the residence. The bill also applies the same conditions to a person growing medical marijuana.

Mark Proust is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

DOR Beneficiary Designation Bill, Medical Marijuana Testing Facility Licensing Bill, and More Signed

On Wednesday, March 23, 2016, Governor Hickenlooper signed 13 bills into law. To date, the governor has signed 59 bills this legislative session. The bills signed Wednesday include a bill requiring the Department of Revenue to create its own beneficiary designation form for vehicle ownership transfer on death, a bill allowing local licensing authorities to issue medical marijuana testing facility licenses, and more.

  • HB 16-1051 – Concerning the Issuance of Beneficiary Designation Forms to Facilitate the Transfer of Ownership of a Vehicle Upon the Death of an Owner, by Rep. Kevin Van Winkle and Sen. Chris Holbert. The bill requires the Department of Revenue to create its own beneficiary designation form for the transfer of vehicle ownership.
  • HB 16-1064 – Concerning Local Licensing of Marijuana Testing Facilities, by Rep. J. Paul Brown and Sen. Ellen Roberts. The bill allows a local medical marijuana licensing authority to issue medical marijuana testing facility licenses.
  • HB 16-1091 – Concerning a Change to the Biennial Filing Date for Rate-Regulated Electric Utilities to Submit Their Plans for Transmission Facilities to the Public Utilities Commission and, in Connection Therewith, Deleting the Requirement that the Commission Issue a Final Order within One Hundred Eighty Days After an Application for the Construction or Expansion of Transmission Facilities is Filed, by Reps. Dan Thurlow & Diane Mitsch Bush and Sen. Jerry Sonnenberg. Current law requires rate regulated electric utilities to submit plans and other documents to the PUC by October 31 of each odd-numbered year. The bill changes the requirement so that the PUC can set the date for plan submission.
  • HB 16-1119 – Concerning a Modification to the Number of Days that an Aircraft May Remain in the State After it is Purchased for Purposes of the Sales and Use Tax Exemption on the Purchase of Certain Aircraft, by Rep. Dan Thurlow and Sen. Chris Holbert. The bill expands the sales and use tax exemptions for aircraft.
  • SB 16-055 – Concerning the Conduct of Elections to Choose the Board of Directors of a Cooperative Electric Association, by Sen. Kevin Grantham and Rep. Dominick Moreno. Currently, cooperative electric associations may exempt themselves from regulation by the PUC, and may contract with third parties to collect and count the ballots for board elections. The bill allows the ballots to be mailed directly to the third party.
  • SB 16-063 – Concerning the Authority of a Local Government to Enter Into an Intergovernmental Agreement with an Out-of-State Local Government to Provide Critical Public Services, by Sen. Ellen Roberts and Rep. Edward Vigil. The bill authorizes local governments to contract with local governments in bordering states to provide emergency services.
  • SB 16-089 – Concerning the Establishment of an Alternative Maximum Reserve for the Department of State Cash Fund, by Sen. Kent Lambert and Rep. Millie Hamner. The bill allows an alternative maximum reserve for the Department of State Cash Fund equal to 16.5 percent of total expenditures plus an amount equal to any unexpended moneys from the previous year.
  • SB 16-090 – Concerning the Ability of the Department of Public Health and Environment to Collect Data on Marijuana Health Effects at a Regional Level, by Sen. Pat Steadman and Rep. Dave Young. The bill allows data regarding marijuana health effects to be reported at the regional level instead of only the county level.
  • SB 16-091 – Concerning Timing of the Statewide Discovery Sharing System, by Sen. Kent Lambert and Rep. Millie Hamner. The bill delays the start of the statewide eDiscovery sharing system from November 1, 2016 to July 1, 2017.
  • SB 16-092 – Concerning the Authorization of the State to Act Pursuant to the Federal “Oil Pollution Act of 1990,” by Sen. Kevin Grantham and Rep. Bob Rankin. The bill allows money recovered for damages pursuant to the federal Oil Pollution Act to be deposited in the Natural Resource Damage Recovery Fund.
  • SB 16-093 – Concerning Transfer of the Oversight of Independent Living Services from the Department of Human Services to the Department of Labor and Employment, by Sen. Kent Lambert and Rep. Dave Young. The bill transfers oversight of independent living services for persons with disabilities to the Department of Labor and Employment.
  • SB 16-095 – Concerning the Five-Year Appropriations Requirement for Bills that Change the Periods of Incarceration in State Correctional Facilities, by Sen. Pat Steadman and Rep. Dave Young. The bill modifies the manner in which fiscal notes and appropriations affecting the Department of Corrections are made.
  • SB 16-107 – Concerning the Regulation of Voter Registration Drive Circulators and, in Connection Therewith, Requiring Circulators to Complete Mandatory Training, by Sen. John Cooke and Rep. Dan Pabon. The bill requires voter registration drive circulators to meet training requirements established by the Secretary of State prior to circulating any voter registration applications.

For a complete list of Governor Hickenlooper’s 2016 legislative decisions, click here.

Governor Hickenlooper Signs Appropriations Bills and Marijuana Bonding Repeal Bill

On Friday, March 11, 2016, Governor Hickenlooper signed 15 bills into law. To date, he has signed 17 bills in the 2016 legislative session. Many of the bills signed Friday were supplemental appropriations bills, and the governor also signed one bill removing impracticable regulations from the marijuana industry. Links to the bills are available here.

  • HB 16-1041 – Concerning the Removal of Unreasonably Impracticable Financial Requirements Applicable to Marijuana Businesses that are Required to be Licensed, by Rep. Steve Lebsock and Sen. Chris Holbert. The bill removes the surety bonding requirement for licensure of medical marijuana and retail marijuana businesses.

The following bills supplement the fiscal year appropriations to the respective departments.

  • HB 16-1237 – Concerning a Supplemental Appropriation to the Department of Agriculture, by Rep. Millie Hamner and Sen. Kent Lambert.
  • HB 16-1238 – Concerning a Supplemental Appropriation to the Department of Corrections, by Rep. Millie Hamner and Sen. Kent Lambert.
  • HB 16-1239 – Concerning a Supplemental Appropriation to the Offices of the Governor, Lieutenant Governor, and State Planning and Budgeting, by Rep. Millie Hamner and Sen. Kent Lambert.
  • HB 16-1240 – Concerning a Supplemental Appropriation to the Department of Health Care Policy and Financing, by Rep. Millie Hamner and Sen. Kent Lambert.
  • HB 16-1242 – Concerning a Supplemental Appropriation to the Department of Human Services, by Rep. Millie Hamner and Sen. Kent Lambert.
  • HB 16-1243 – Concerning a Supplemental Appropriation to the Judicial Department, by Rep. Millie Hamner and Sen. Kent Lambert.
  • HB 16-1244 – Concerning a Supplemental Appropriation to the Department of Law, by Rep. Millie Hamner and Sen. Kent Lambert.
  • HB 16-1245 – Concerning a Supplemental Appropriation to the Department of Military Affairs, by Rep. Millie Hamner and Sen. Kent Lambert.
  • HB 16-1246 – Concerning a Supplemental Appropriation to the Department of Personnel, by Rep. Millie Hamner and Sen. Kent Lambert.
  • HB 16-1248 – Concerning a Supplemental Appropriation to the Department of Public Safety, by Rep. Millie Hamner and Sen. Kent Lambert.
  • HB 16-1249 – Concerning a Supplemental Appropriation to the Department of Regulatory Agencies, by Rep. Millie Hamner and Sen. Kent Lambert.
  • HB 16-1250 – Concerning a Supplemental Appropriation to the Department of Revenue, by Rep. Millie Hamner and Sen. Kent Lambert.
  • HB 16-1251 – Concerning a Supplemental Appropriation to the Department of the Treasury, by Rep. Millie Hamner and Sen. Kent Lambert.
  • HB 16-1252 – Concerning Funding for Capital Construction, and Making Supplemental Appropriations in Connection Therewith, by Rep. Millie Hamner and Sen. Kent Lambert.

For a list of all of Governor Hickenlooper’s 2016 legislative decisions, click here.

SB 16-040: Expanding Definition of “Owner” of Medical or Retail Marijuana Business

On January 19, 2016, Sen. Chris Holbert and Rep. Dan Pabon introduced SB 16-040Concerning Changes to the Requirements For Owners of A Licensed Marijuana Business. It was introduced into the Senate Business, Labor & Technology Committee and has since passed out of that committee and been referred to the Appropriations Committee.

This bill includes the definition of “owner”, in the medical and retail marijuana codes, a recipient of a commercially reasonable royalty associated with the use by a licensee of intellectual property and a licensed employee who receives a share of the profits from an employee benefit plan.

Under current law, an owner of a medical or retail marijuana business must have resided in Colorado for at least 2 years prior to applying for a license. The proposed bill would allow an owner to be either a 2-year resident of Colorado or a United States citizen on the date of the application for applications submitted on or after January 1, 2017. Additionally the bill would prohibit an owner from being a publically traded company and would require a controlling interest of the licensees to be Colorado residents and maintain that residency while holding a license.

The bill first proposes to add language to the definition of an “owner” under 12.3 of C.R.S. § 12-43.3-104 Definitions and 12 of C.R.S. § 12-43.4-103. The additional language would define an owner to be “a recipient of a commercially reasonably royalty associated with the use by a licensee of intellectual property; or a licensed employee who receives a share of the profits from an employee benefit plan.”

Second, the bill proposes to add Subsection XXI, which states “the parameters for a commercially reasonable royalty,” to C.R.S. § 12-43.3-202(2)(a) – Powers and Duties of State Licensing Authority. The bill proposes to add the same language to C.R.S. § 12-43.4-202(3)(a)(XVII).

Third, the bill proposes to remove subsection (m) of C.R.S. § 12-43.3-307(1) – Persons Prohibited as Licensees – and add subsection (n) “A publically traded company.” The bill proposes to add the same language to C.R.S. § 12-43.4-306(1)(l).

Additionally, the bill proposes the addition of the residency requirements discussed above under C.R.S. § 12-43.3-307.5 and the addition of the controlling interest language under C.R.S. § 12-43.3-310. The same language has been proposed to be added to C.R.S. § 12-43.4-306.5 and C.R.S. § 12-43.4-309.

Mark Proust is a 2016 J.D. candidate at the University of Denver Sturm College of Law.

Bad Faith? Marijuana Inventory Is Insurable (For Now)

Editor’s Note: This post originally appeared on Above the Law on Monday, February 29, 2016. Reprinted with permission.

Hilary-BrickenBy Hilary Bricken

I recently chaired a webinar about marijuana and insurance issues, and I have already been roped into doing another one. I am well aware of how cannabis and insurance are a legally charged combination, and I expect to see an increase of cannabis insurance cases very soon. A federal court in Colorado just came down with an important cannabis insurance ruling in the case of Green Earth Wellness Center, LLC v. Atain Speciality Insurance CompanyThe case involves a cannabis company that sued its insurance company for failing to pay on claims and for bad faith. It’s important to note that I’m not talking about a cannabis company seeking coverage on a general liability insurance policy for something like a slip-and-fall or for damage to grow lights. To the contrary, this case is a big deal because Colorado Federal District Court Chief Judge Marcia S. Krieger ruled on a summary judgment motion that the actual inventory itself (i.e., the cannabis) is insurable under a general liability insurance policy.

Green Earth, which operates a medical marijuana dispensary as well as a commercial cultivation facility, obtained a general liability insurance policy from Atain in 2012. A few days before securing that policy, “smoke and ash from [a nearby wild fire] overwhelmed [Green Earth’s] ventilation system, eventually intruding into the growing operation and causing damage to Green Earth’s marijuana plants.” Green Earth made a claim under its Atain policy for damage done to its plants. Atain then investigated the claim for several months, and denied the claim in July 2013. Also in July 0f 2013, Green Earth’s grow facility was robbed, and Green Earth filed another claim with Atain for the damage done to its facility by the burglars. Atain again denied the claim, determining that the damage done to the grow facility did not exceed the applicable deductible. On December 20, 2013, Green Earth commenced its lawsuit against Atain, asserting the following three claims:

(i) breach of contract for Atain’s failure to pay the claims Green Earth made under the insurance policy;

(ii) a bad faith breach of insurance contract claim under C.R.S. § 10-3- 1104(h)(VII); and

(iii) a claim for unreasonable delay in payment under C.R.S. § 10-3-1115.

Atain argued that it should be exempt from paying Green Earth’s claims because of a provision in the insurance contract excluding coverage for “[c]ontraband, or property in the course of illegal transportation or trade.” Atain also argued that “public policy requires that coverage be denied, even if the Policy would otherwise provide it.” In turn, Atain asked the Court to resolve two questions:

(i) Whether, in light of [Colorado’s Medical Marijuana Act], federal law, and federal public Policy, it is legal for Atain to pay for damages to marijuana plants and products, and if so, whether the Court can order Atain to pay for these damages; and

(ii) “Whether, in light of [those same authorities], the Policy’s Contraband Exclusion removes Green Earth’s marijuana plants and marijuana material from the Policy’s coverage.”

Atain argued that the answer to its first question is “no” and the answer to its second question is “yes.”

The first important point of the Court’s ruling is what law it applied to the insurance contract. That contract mandates that disputes “will be governed by the law of the state in which the suit is brought.” So, the Court applied state law — as opposed to federal law — which is huge as this meant that the Court did not throw out the policy altogether on the basis of its apparent illegality under federal law.

The Court then held that because the insurance policy failed to define “contraband,” and Atain failed to prove Green Earth violated Colorado’s marijuana laws, and because the federal government has been giving mixed signals about federal marijuana enforcement, the “policy’s “Contraband” exclusion is ambiguous. The Court then looked to the “intention” of the parties regarding coverage for finished inventory and harvested plants and found nothing in the factual record showing that Atain sought to specifically exclude such coverage. In fact, the Court found that Atain knew Green Earth was a cannabis business and yet it issued its insurance policy to Green Earth regardless of federal laws, without making any unequivocal exemption, even under the “Contraband” provision, for finished inventory or harvested plants.

Atain then sought to invoke the federal Controlled Substances Act to argue that its own insurance policy was technically an illegal contract. The Court’s response to Atain’s illegality argument was that “Atain, having entered into the Policy of its own will, knowingly and intelligently, is obligated to comply with its terms or pay damages for having breached it.”

This ruling is a big step forward for the enforceability of marijuana-related contracts and another nail in the coffin for the “illegal cannabis contract” theory. This ruling also highlights the paramount importance of the choice of law, jurisdiction, and venue provisions in a marijuana contract.

Hilary Bricken is an attorney at Harris Moure, PLLC in Seattle and she chairs the firm’s Canna Law Group. Her practice consists of representing marijuana businesses of all sizes in multiple states on matters relating to licensing, corporate formation and contracts, commercial litigation, and intellectual property. Named one of the 100 most influential people in the cannabis industry in 2014, Hilary is also lead editor of theCanna Law Blog. You can reach her by email at hilary@harrismoure.com.

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

e-Legislative Report: February 16, 2016

Welcome e-leg report readers to this week’s installment of the world under the Gold Dome. As always, we welcome your feedback, thoughts, comments and questions. This news report is designed to keep you up to date on activities at the capitol that are of interest to the bar association and to lawyers across practice areas.

Feel free to drop me a line on how we are doing or raise an issue on a piece of legislation. Contact me at jschupbach@cobar.org.

CBA Legislative Policy Committee

For followers who are new to CBA legislative activity, the Legislative Policy Committee (LPC) is the CBA’s legislative policy making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions from requests from the various sections and committees of the Bar Association. Members are welcome to attend the meetings; please RSVP if you are interested.

LPC Meeting Update

The following bills were discussed by the LPC. Other bills of interest from that agenda are tracked and updated below.

HB 16-1078 Local Government Employee Whistleblower Protection
The bill prohibits a county, municipality, or local education provider from imposing any disciplinary action against an employee on account of the employee’s statements to any person about the local government that the employee reasonably believes to show: a violation of a state or federal law, a local ordinance or resolution, or a local education provider policy; a waste or misuse of public funds; fraud; an abuse of authority; mismanagement; or a danger to the health or safety of students, employees, or the public. The bill permits an employee to file a written complaint with the office of administrative courts, for referral to an administrative law judge, alleging that a local government has imposed disciplinary action that violates this prohibition and seeking injunctive relief and damages. Employees who lose the administrative hearing may file a civil action in district court. The employee protection does not apply if the disclosure was false or made with reckless disregard for the truth or falsity thereof, or if it was of a protected public record or confidential information that was not reasonably necessary to show one or more of the identified circumstances. Administrative law judges are given jurisdiction to hear, determine, and make findings and awards on all these whistleblower cases. The director of the office of administrative courts is required to establish rules to govern these proceedings and hearings.
The LPC voted on the recommendation and request of the Government Counsel and Labor & Employment Law sections to oppose the bill.

HB 16-1154 Employer Definition Clarify Franchisee Status
The bill clarifies that the definition of “employer” only includes a person who possesses authority to control an employee’s terms and conditions of employment and actually exercises that authority directly. The bill specifies that a franchisor is not considered an employer of a franchisee’s employees unless a court finds that a franchisor exercises a type or degree of control over the franchisee or the franchisee’s employees not customarily exercised by a franchisor for the purpose of protecting the franchisor’s trademarks and brand.
The LPC voted to support the bill on the recommendation and presentation of the Franchise subsection of Business Law section.

HB 16-1232 Sunset DOR Private Letter Ruling & General Information Letter
Currently, the executive director of the department of revenue (department), or the executive director’s designee, is charged with issuing, on written request from a taxpayer, private letter rulings (binding determinations regarding the tax consequences of a proposed or completed transaction), and Information letters (nonbinding statements providing general information regarding any tax administered by the department). This duty is currently scheduled to sunset on September 1, 2016. The bill continues the requirement of the department to issue these letters until September 1, 2023. The bill also specifies that the department must track the total state full-time equivalent (FTE) personnel positions necessary and the hours dedicated by each FTE for the issuance, declination, modification, or revocation of all information letters or private letter rulings.
The LPC voted to support the bill and testify in favor of continuing the practice. The bill will be heard in committee next week.

SB 16-115 Electronic Recording Technology Board
The bill creates the electronic recording technology board (board) in the department of state. The board, which is authorized to issue revenue bonds, is established as an enterprise. So long as it constitutes an enterprise, the board is not subject to any provisions of section 20 of article X of the state constitution. The board sunsets in 6 years, but prior to that sunset, it is subject to a sunset review. The board is authorized to impose a surcharge of up to $2 on all documents that a clerk and recorder receives for recording or filing. If imposed, counties are required to collect the surcharge on behalf of the board and transmit it to the state treasurer for deposit in the newly created electronic recording technology fund (fund). The board is required to: develop a strategic plan incorporating the core goals of security, accuracy, sequencing, online public access, standardization, and preservation of public records; determine functionality standards for an electronic filing system that support the core goals; issue a request for proposal for electronic filing system equipment and software that will be available to counties on an optional basis; develop best practices for an electronic filing system; provide training to clerks and recorders related to electronic filing systems; and make grants to counties to establish, maintain, improve, or replace electronic filing systems for documents that are recorded with a clerk and recorder. In awarding grants, the board is required to give priority for grants to counties that do not have sufficient revenue from the surcharge proceeds to maintain their existing electronic filing systems. The money in the fund is continuously appropriated to the board to be used for these purposes. The bill repeals the secretary of state’s powers to ensure uniformity related to electronic filing systems, which powers become the board’s responsibility, and requires the department of state to prepare an annual report that is published online about the grants that the board made in the prior fiscal year. The bill also extends the one-dollar surcharge that a county clerk and recorder is currently required to collect and use for the county’s core or electronic filing system for 9.5 years. The definition of “electronic filing system” is expanded to include elements of the “core filing system,” which term is repealed.
The LPC voted on the recommendation of the Real Estate Section, which has been involved with the creation and drafting of the bill, to support the bill and testify in favor of its passage in committee.

SB 16-043 Student Loans Consumer Protections
The bill prohibits a private educational lender, as defined in the bill, from offering gifts to a covered educational institution, as defined in the bill, including public and private institutions of higher education, in exchange for any advantage or consideration related to loan activities or from engaging in revenue sharing. Further, the bill prohibits persons employed at covered educational institutions from receiving anything of  value from private educational lenders. The bill makes it unlawful for a private educational lender to impose a fee or penalty on a borrower for early repayment or prepayment of a private education loan and requires a lender to disclose any agreements made with a card issuer or creditor for purposes of marketing a credit card. The bill requires private educational lenders to disclose information to a potential borrower or borrower both at the time of application for a private education loan and at the time of consummation of the loan. The required disclosures are described in the bill and include, among other disclosures, the interest rate for the loan and adjustments to the rate, potential finance charges and penalties, payment options, an estimate of the total amount for repayment at the interest rate, the possibility of qualifying for federal loans, the terms and conditions of the loan, and that the borrower may cancel the loan, without penalty, within 3 business days after the date on which the loan is consummated.
The LPC voted to support this bill and to authorize the Juvenile Law section to testify in its favor in committee. This bill would help graduating lawyers, and future graduates, with the debt burden of school.

SB 16-084 Uniform Substitute Health Care Decision-making Documents
Colorado Commission on Uniform State Laws. The bill adopts, with amendments, the “Uniform Recognition of Substitute Health Care Decision-making Documents Act” as Colorado law. The bill establishes the circumstances under which a substitute health care decision-making document (document) is valid in this state. A person may assume in good faith that a document is genuine, valid, and still in effect and that the decision-maker’s authority is genuine, valid, and still in effect. A person who is asked to accept a document shall do so within a reasonable amount of time. The person may not require an additional or different form of document for authority granted in the document presented. A person who refuses to accept a document is subject to a court order mandating acceptance of the document and liability for reasonable attorney’s fees and costs incurred in an action or proceeding that mandates acceptance of the document. A person is not required to accept a document under certain described conditions.
The LPC voted to remain neutral on the bill, while authorizing the Health Law section to testify as to the specific concerns it raised in the context of medical practices.

SB 16-047 No Detention For Juveniles Who Are Truant
The bill prohibits a juvenile detention facility from receiving or providing care for a juvenile who violates a court order to attend school unless the juvenile is also adjudicated for a delinquent act and remains under the jurisdiction of the juvenile court for committing the delinquent act.
The LPC is concerned that the bill, by precluding a court from enforcing its own orders, is likely unconstitutional, and does not allow the judicial branch to complete the requirements and reports that were created by SB 15-184.

SB 16-103 Canadian Domestic Violence Protection Order Enforcement
Colorado Commission on Uniform State Laws. The bill enacts the “Uniform Recognition and Enforcement of Canadian Domestic Violence Protection Orders Act” as recommended by the national conference of commissioners on uniform state laws. The bill allows a peace officer to enforce a Canadian domestic violence protection order. The bill allows a court to enter an order enforcing or refusing to enforce a Canadian domestic violence protection order. The bill provides immunity for a person who enforces a Canadian domestic violence protection order.
The LPC voted to support this bill on the recommendation of the Family Law section.

Updates regarding bills the CBA is currently focused on:

HB 16-1145 Documentary Fee For Residential Real Property
The CBA was able to propose an amendment to the bill that moved us to “neutral” on this bill. It will be heard in committee this week.

SB 16-013 Clean-up Office Of The Child Protection Ombudsman
This sponsor has agreed to remove the language that the CBA was concerned about. With this amendment, the CBA can officially monitor the bill going forward.

SB 16-071 Revised Uniform Athlete Agents Act 2015
The LPC asked that this bill be reviewed for comment by the Lawyers Professional Liability Committee. Once that review is complete, the LPC will revisit the act.

SB 16-088 Revised Uniform Fiduciary Access To Digital Asset Act
The CBA voted to support the bill as written and is monitoring the bill for any additional amendments that may impact it.

New Bills of Interest

These are a few new bills recently introduced. They have been sent to CBA sections for review and comment. If you have any questions about these or any other bills, please drop me a line. I’m happy to help you however I can.

SB 16-120 Review By Medicaid Client For Billing Fraud
The bill requires the department of health care policy and financing (department), by a certain date, to develop and implement an explanation of benefits for medicaid recipients. The purpose of the explanation of benefits is to inform a medicaid client of a claim for reimbursement made for services provided to the client or on his or her behalf, so that the client may discover and report administrative or provider errors or fraudulent claims for reimbursement. The bill specifies certain information that must be included in the explanation of benefits. Specifically, the explanation of benefits must include information regarding at least one method for a medicaid client to report errors in the explanation of benefits. The department shall work with medicaid clients and medicaid advocates to develop an explanation of benefits and educational materials that are understandable to medicaid clients. The explanation of benefits must be sent to clients not less than bimonthly, and the department shall determine the most cost-effective means for producing and distributing the explanation of benefits, which means may include e-mail or distribution with existing communications to clients.

HB 16-1258 Court Clerks Posting Of Service
Under current law, if a respondent in a domestic relations action cannot be personally served and is served by publication, the clerk of the court is required to post a copy of the process on a bulletin board in his or her office for 35 days after the date of publication. The bill gives the clerk the option of posting the service online on the court’s website rather than on a bulletin board.

HB 16-1261 Retail Marijuana Sunset
Sunset Process—House Finance Committee. The bill implements the following recommendations from the sunset report for the retail marijuana program: extending the retail marijuana code until September 1, 2019; stating that regulation of labeling, packaging, and testing is a matter of statewide concern; and repealing the following provisions from the retail marijuana code: the requirement that a licensee post a surety bond as condition of licensure; the requirement that the executive director deny a license based on a previous denial at the same location; the proscription on the placement and sale of marijuana-themed magazines; and the authority to promulgate rules prohibiting misrepresentation and unfair practices. The bill creates two new retail marijuana licenses, a retail marijuana transport license and a retail marijuana operator license, and gives the state licensing authority rulemaking authority over those licenses. The bill conforms language in the retail marijuana code to language in the medical marijuana code related to mandatory testing, the confidentiality of licensee information, and limited access areas.

Top Ten Marijuana Law Programs and Homestudies

Colorado is in the forefront of the marijuana industry, and as such the need for legal guidance regarding medical and recreational marijuana has exponentially increased. In fact, the CBA has a new Cannabis Law Committee to further the legal profession’s understanding of marijuana law. Today’s Top Ten Programs and Homestudies feature marijuana law. (In case you missed it, we previously featured ethics, family law, trust and estate law, real estate law, litigation,business law, employment law, criminal law, and construction/environmental/oil and gas/water law.) Grab a snack and read on for the Top Ten Marijuana Law Programs and Homestudies:

10. Ethics 7.0 2014. Although not strictly a marijuana law program, the 2014 Ethics 7.0 program featured a discussion by Chief Deputy Regulation Counsel James Sudler on hot topics in attorney regulation, including marijuana. As a bonus, this program fulfills an entire compliance period’s ethics credits requirements. Seven general credits, including seven ethics credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

9. Marijuana in Estate Planning and Administration. Even trust and estate attorneys encounter marijuana-related issues. The recent addition of recreational marijuana rights to the already-existing medical marijuana industry means that estate and probate attorneys are almost certain to encounter marijuana-related issues in both estate planning and probate. This is a must-attend session dealing with everything from a joint found with a decedent’s personal property to an estate-planning client who owns a thriving, licensed marijuana business. One general credit; available as MP3 audio download and Video OnDemand.

8. Criminal Law Fall Update 2013. Amendment 64 provides for the regulation of marijuana like alcohol, and allows for the lawful operation of marijuana-related facilities. Amendment 64 presented issues of first impression in Colorado and in the United States, as no other state except Washington State at that time had legalized marijuana for non-medical, adult use in the face of federal legal restrictions. What are the implications for the criminal law landscape on the state and federal levels? What does it mean from a behavioral health perspective? Get answers to these questions and more. Seven general credits, including one ethics credit; available as CD homestudy, MP3 audio download, and Video OnDemand.

7. Lending Compliance Update: Appraisals, Marijuana, and More. As the Colorado marijuana industry flourishes, banking issues related to marijuana become more and more important. This program discusses banking compliance and provides a CPA’s perspective on the marijuana business and compliance issues. One general credit; available as MP3 audio download and Video OnDemand.

6. New Colorado Rule of Professional Conduct 1.2: Marijuana Law Update. On March 24, 2014, the Colorado Supreme Court adopted a comment to Colorado Rules of Professional Conduct 1.2. According to the comment, a lawyer may counsel a client regarding the validity, scope and meaning of Colorado’s marijuana laws and may assist a client in conduct the lawyer believes is permitted under state law. It’s important to know not only what the comment said, but what it didn’t say—and possible consequences for Colorado attorneys. Two general credits, including two ethics credits; available as MP3 audio download and Video OnDemand.

5. Banking for Marijuana Businesses — An Update. Get up to speed on banking for marijuana businesses! Learn about the Justice Department’s efforts to craft guidance for banks that work with marijuana businesses and how banking views those efforts. Learn what bank regulators, who aren’t bound by Justice Department actions, are doing. Are banks still at risk of racketeering charges if they knowingly handle money made from the sale of marijuana? Hear obstacles, potential solutions and potential best practices. One general credit; available as MP3 audio download and Video OnDemand.

4. The Business of Marijuana. In November 2012, Colorado voters passed Amendment 64, which makes the personal, non-medical use, possession, and limited home-growing of marijuana legal under Colorado law for adults 21 years of age and older. Amendment 64 presented issues of first impression in Colorado and in the United States, as no other state except Washington State had legalized marijuana for non-medical, adult use in the face of federal legal restrictions at that time. This 2013 program discussed tax, accounting and legal implications for people involved in marijuana-related businesses in light of Amendment 64. Six general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

3. Marijuana — The Colorado Model. Colorado pulled in $2 million in taxes related to the sale of recreational marijuana… in January 2014 alone. Combined with taxes on sales from medicinal marijuana, Colorado pulled in nearly $3.5 million in pot-related tax revenue. This growing industry and resulting revenue has created a myriad of legal, financial and regulatory issues for the State of Colorado. Hear from some of the State’s top regulatory and legal experts on what’s going on in the ever-changing marijuana industry. Seven general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

2. Medicolegal Aspects of Marijuana in Criminal Law, Civil Regulations, and Forensic Science. The legalization of both medical and later recreational possession of marijuana in Colorado has brought an abundance of new legal issues in criminal, civil and regulatory law. With a focus on the new book Medicolegal Aspects of Marijuana (Lawyers and Judges Publishing, 2015), the faculty explores both the forensic and legal issues of running a dispensary, drug testing for confirmation in narcotics cases and THC levels for DUI-D cases. Topics covered include land use and HOA laws, federal controlled substance laws, licensing and regulation, business regulation, and more. Eight general credits; available as live Video Replay in Denver on January 6, 2016, and also available as CD homestudy, MP3 audio download, and Video OnDemand.

1. The Colorado Marijuana Industry — Legal and Accounting Advice and Compliance. Colorado marijuana stores sold a record amount of marijuana in June 2015, a huge leap over the previous record set in March 2015. Recreational marijuana sales topped $50 million for the first time. Medical marijuana also had its biggest month in more than a year. Some owners reported seeing more than 300 customers a day. At the halfway mark of 2015, Colorado stores had sold nearly half a billion dollars in marijuana and paid about $60 million in taxes to the state. Clearly, the marijuana business is thriving in Colorado. But we as attorneys, accountants, business valuators, regulators, bankers and citizens still have a lot to learn about this fledgling industry. Find out what you need to know about marijuana law in Colorado at this important program. Seven general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

Top Ten Business Law Programs and Homestudies

The days keep marching forward, and the end of the compliance period looms large for many Colorado attorneys. If you still need some last-minute CLE credits, never fear—we are reviewing the Top Ten Programs and Homestudies in several areas of law. In case you missed it, we previously covered ethics, family law, trust & estate law, real estate law, and litigation. Today’s focus is on business law. Whether advising nonprofits, dealing with securities issues, or representing particular types of businesses, we have programs to fit your needs. Read on for the Top Ten Programs and Homestudies.

10. Banking for Marijuana Businesses. This short program discusses banking issues unique to marijuana businesses, including the Justice Department’s efforts to create guidance for banks that work with marijuana businesses. Learn about potential racketeering issues and potential solutions. One general credit; available as MP3 audio download and Video OnDemand.

9. Forming and Funding Early Stage Companies. Created for lawyers working with early stage companies, this program covers entity selection, vesting, key agreements, counseling clients on raising money, common securities law exemptions, and more. Two general credits; available as MP3 audio download and Video OnDemand.

8. Commercial Loan Documents — Important Covenants and Potential Modifications. Loan covenants are an important part of every loan document. This program discusses loan modifications generally sought by lenders and those requested by borrowers. Default is also discussed in this program. One general credit; available as MP3 audio download and Video OnDemand.

7. Boilerplate and Drafting Business Documents — 2014 Business Document Drafting Series. The first in a series of six programs, this program offers practical advice on the perils of using boilerplate in document drafting, including specific examples of drafting issues, the importance of keeping provisions current with the law, the value of silence, and much more. Two general credits; available as CD homestudy, MP3 audio download, and Video OnDemand. NOTE: This program is Part 1 of a six-part series. Click here for Part 2, click here for Part 3, click here for Part 4, click here for Part 5, and click here for Part 6.

6. Limited Liability Companies in Colorado. Because of the combination of limited liability for all owners of the LLC, pass-through tax treatment, and ease and flexibility in customizing the relationships between the owners, the LLC has been a very popular choice of entity for many types of businesses since the IRS adopted the “check the box” regulations in 1996. This program details advantages and disadvantages of LLCs, litigation issues, estate and tax planning, real estate development, and more. Attendees receive a PDF copy of the CLE book, Limited Liability Companies and Partnerships in ColoradoEight general credits, including one ethics credit; available as CD homestudy, MP3 audio download, and Video OnDemand.

5. Buying and Selling a Business. Need to know the ins and outs of buying and selling businesses? This program is for you! It provides practical advice on advising parties in M&A transactions, planning the exit, protecting your client in the sale, professional responsibility and ethics in business transactions, and more. Seven general credits, including one ethics credit; available as CD homestudy, MP3 audio download, and Video OnDemand.

4. Closely Held Businesses: Strategies for Tackling Key Issues. Advising closely held businesses requires attorneys to have a wide range of knowledge. This program addresses some of the issues that may arise in advising the closely held business, including family dynamics, the Affordable Care Act and its impact on small businesses, probate of business interests, charitable planning, small business financials and accounting, and securities issues. Seven general credits, including one ethics credit; available as CD homestudy, MP3 audio download, and Video OnDemand.

3. A Primer on Advising Nonprofit Organizations and 24th Annual Institute on Advising Nonprofit Organizations in Colorado. This annual program provides everything you need to know about advising nonprofits. Topics covered at the primer include formation and governance of nonprofit entities, obtaining and retaining tax-exempt status, operational issues for tax-exempt organizations, and taxation of unrelated business income. The Institute discusses fiduciary duties of for-profit boards, tax-exempt entity types, best practices for employee discipline and termination, volunteers, and more. Primer—four general credits; available as CD homestudy, MP3 audio download, and Video OnDemand. Institute—seven general credits; available as CD homestudy, MP3 audio download, and Video OnDemand. NOTE: These programs are repeated annually. Click here for the 2014 programs (Primer/Institute) and click here for the 2013 programs (Primer/Institute).

2. Annual Rocky Mountain Securities Conference. Co-sponsored by the U.S. Securities and Exchange Commission and the CBA Business Law Section, this program is the Rocky Mountain’s premier securities law update presented by the country’s top practitioners. Topics covered in the 2015 Conference included an enforcement update, a view from the defense, a conversation with the Division of Corporate Finance, ethical considerations with the SEC’s whistleblower program, hot topics regarding regulated entities, and much more. Nine general credits; available as CD homestudy, MP3 audio download, and Video OnDemand. NOTE: This program is repeated annually. Click here for the 2014 program and click here for the 2013 program.

1. Annual Business Law Institute. This two-day Institute provides everything you need to know for your business law practice. Get updates on case law and legislation, social responsibility, real world ethical dilemmas, business lawyers’ worst nightmares, forming and funding early stage companies, employment law update, marijuana investments in commercial banking, commercial insurance, and much more. Twenty-seven general credits, including two ethics credits; available as CD homestudy and MP3 audio download. NOTE: This program is repeated annually. Click here for the 2014 program and click here for the 2013 program.

Medicolegal Aspects of Marijuana: Issues Facing Colorado Practitioners

By Jay Tiftickjian

MedicolegalMJOn December 4, CLE in Colorado will present Medicolegal Aspects of Marijuana, an all-day event that focuses on the forensic and regulatory aspects of legal and medical cannabis in Colorado. The seminar will feature most of the authors of the textbook of the same name, available from Lawyers and Judges Publishing. This event is co-sponsored by the Colorado Bar Association Cannabis Law Committee.

Colorado voters approved Amendment 20 in 2000, making Colorado the only state at the time to legalize medical marijuana in its own constitution. Twelve years later, in 2012, Colorado citizens passed Amendment 64 with 55 percent of the vote, making Colorado the first state to legalize the recreational use of marijuana. Criminal, civil, and regulatory law has since been rapidly developing and changing in this area.

Because of these rapid changes, Colorado practitioners are faced with an ever-expanding array of marijuana-related issues:

  • Regulation of Marijuana Sales: Dispensaries must abide by strict and constantly evolving state and local laws and regulations. The program explores regulations that cover both medical dispensaries and recreational stores, and includes two major economic issues: I.R.C. 280E and the lack of access to banking.
  • Driving Under the Influence: Since recreational marijuana use was legalized by Amendment 64 for persons 21 and older, the issue of driving under the influence of drugs is in the law enforcement spotlight. Denver criminal defense attorney and program chair Jay Tiftickjian will explore the drug recognition examinations and more-permissive chemical testing that are being used, and will look at controversial studies and research regarding these methods.
  • Blood Testing for DUI-D Cases: The active substance in marijuana, THC, remains detectable in the blood for only a few hours, but some research has shown that residual levels can be found in chronic marijuana users for up to 24 hours. The program includes a discussion on blood testing for marijuana to help educate practitioners about the legal intricacies.
  • Employment Issues: In June, the Colorado Supreme Court, in Coats v. Dish Network, held that employers could terminate employees for using medical marijuana because it is illegal under federal law. The program includes a discussion of the impact this decision will have for hundreds, if not thousands, of employees who use medical and/or recreational cannabis.
  • Tension Between Federal and Colorado Controlled Substance Laws: Under federal law, the punishment for persons convicted of marijuana charges is steep, and possession continues to be a misdemeanor subject to up to one year’s imprisonment. Possession of larger quantities of marijuana could lead to a felony conviction and a substantial prison term. Even under Colorado law, illegal cultivation and distribution is a felony. Program presenters will review and contrast Colorado controlled substance law and the federal Controlled Substance Act.

Medicolegal Aspects of Marijuana will provide an extensive overview of the areas of law most affected by legal cannibals in Colorado. Colorado practitioners in all areas of the law are encouraged to attend this program. More information about the program can be found here.

CLE Program: Medicolegal Aspects of Marijuana in Criminal Law, Civil Regulations, and Forensic Science

This CLE presentation will take place Friday, December 4, 2015, in the CLE Large Classroom. Click here to register for the live program and click here to register for the webcast, or call (303) 860-0608.

Can’t make the live program? Order the homestudy here: CDMP3 audioVideo OnDemand.

 

Jay M. Tiftickjian, Esq., is widely considered one of the best DUI attorneys in Colorado. He was named “Barrister’s Best DUI Lawyer” by Colorado Law Week multiple times, voted “People’s Choice-Best DUI Lawyer” multiple times, is Preeminent AV® Rated by Martindale-Hubbell, and is listed in Super Lawyers. He is the elected Secretary of the Colorado Criminal Defense Bar and in succession to be the president in 2018, and has been published numerous times on the subject of DUI defense and drug law. Mr. Tiftickjian is the co-author of Colorado DUI Defense: The Law and Practice, and the editor of the Colorado Criminal Defense Bar’s DUI Defense Manual as well as Medicolegal Aspects of Marijuana. He frequently lectures to attorneys, judges, and students about criminal law, law practice management, and ethics, and provided legal expertise to The New York Times, The Denver Post, 9News, Colorado Public Radio, 850KOA, and many other local and national media outlets. Mr. Tiftickjian is president of Tiftickjian Law Firm, PC, which represents clients out of the firm’s offices in Denver and Aspen.