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

December 18, 2012 by 1 Comment
Kimberlie Ryan Head Shot“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of marijuana law. This column is brought to you by Vicente Sederberg, LLC, the country’s first national medical marijuana law firm.

By Kimberlie Ryan, Esq.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

November 19, 2012 by Leave a Comment
“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of marijuana law. This column is brought to you by Vicente Sederberg, LLC, the country’s first national medical marijuana law firm.

By Joshua Kappel, Esq.

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

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

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

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

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

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

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

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

Joshua Kappel, Esq. is the Associate Director of Sensible Colorado, the leading state-wide non-profit working to educate the public about sensible marijuana policy. Mr. Kappel is also the senior associate at Vicente Sederberg, the first nation-wide medical marijuana law firm.The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.
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Amendment 64 Passed in Colorado: Now What?

November 13, 2012 by 1 Comment

On Tuesday, November 6, 2012, Colorado voters approved Amendment 64, and Washington state voters approved Initiative 502. In enacting these ballot measures, Colorado and Washington become the first states in the country to decriminalize marijuana outside of the medical marijuana context.

What does Amendment 64 mean for Colorado?

Amendment 64 has two basic parts: (1) within certain defined parameters, it decriminalizes adult possession, use and cultivation of marijuana for recreational purposes; and (2) creates a framework for the establishment of a regulated and taxed retail marijuana industry, which would include cultivation, marijuana-infused products manufacturing, and retail sales. Respectively, these can be described as the “decriminalization,” and “regulation” components of Amendment 64.

As an initial matter, it is important to note that Amendment 64 does not affect the federal prohibition on marijuana. Marijuana remains illegal for all purposes at the federal level, and possession of any amount can lead to serious federal civil and criminal penalties. Thus, it will still be a federal crime for adults in Colorado to possess, cultivate, or distribute marijuana. Indeed, Colorado law would be irrelevant, and likely inadmissible, in a federal criminal prosecution or asset forfeiture proceeding arising from federal marijuana charges.

The status of federal marijuana law will have a significant impact on what happens in Colorado, but the effect of the conflict between Colorado and federal law will likely play out differently with respect to different components of Amendment 64. Decriminalization will go into effect as soon as the results of the election are made official (which could take several weeks). At that time, Colorado law enforcement authorities will no longer be able to arrest or prosecute adults possessing small amounts of marijuana, or growing up to six plants for personal use, provided they are otherwise acting in compliance with the requirements of Amendment 64. Accordingly, though it is inaccurate to say that marijuana is “legal” in Colorado in light of continued federal prohibition, as a practical matter, Amendment 64 largely eliminates the risk that any adult acting within the limits of the amendment would be arrested or convicted of marijuana crimes in Colorado. There are simply not enough federal law enforcement authorities on the ground in Colorado to deter adult recreational use of marijuana, and federal authorities cannot force Colorado authorities to enforce federal law. This reduced practical risk of prosecution will certainly have an effect on people’s behavior, and there is likely little that federal authorities will be able to do to meaningfully enforce marijuana prohibition as it relates to adult personal use of the drug.

Regulation, however, is likely a different matter, and its success hinges greatly on the federal attitude and approach toward the creation of the first state-regulated recreational marijuana market in the country. Because of federal forfeiture laws, the implications of regulation will be of particular concern to real estate owners, landlords and real estate lenders who may be faced with the opportunities to provide industrial and retail space to this new industry. In a future post, I will discuss some of the real estate-related issues that will arise from regulation.

The critical period will be the next year or so, while the state enacts regulations, and possibly statutes, to control a newly created recreational marijuana industry. Implementing regulations are supposed to be approved by July of 2013, and it would likely be late 2013 or early 2014 before licenses would be issued to new marijuana businesses. Thereafter, licensed businesses would be able to cultivate marijuana, produce marijuana-infused products, and sell marijuana to persons 21 and over at retail stores. Until then, Colorado adults will have the benefit of decriminalization, and will be able to grow their own without violating Colorado law, but will not be able to purchase marijuana at a retail establishment for recreational use, nor will marijuana be taxed.

Given the uncertain federal reaction to Amendment 64, it remains to be seen whether such a regulated marijuana industry will even get off the ground in Colorado. Whereas federal efforts to mitigate personal marijuana use would likely be futile in light of state-level decriminalization, federal authorities would have very effective tools at their disposal if they were inclined to prevent the establishment of a regulated and taxed recreational marijuana market in Colorado.

As a legal matter, it is well-established that state law changes to marijuana laws have no effect on federal marijuana laws, and nothing prevents federal authorities from prosecuting what might appear to be otherwise law-abiding marijuana businesses. This power is already on display in the context of medical marijuana in Colorado. Colorado’s existing medical marijuana industry currently survives solely due to Department of Justice and the United States Attorney for Colorado’s restrained exercise of prosecutorial discretion. These federal authorities have generally not taken any action against licensed medical marijuana operations that are in compliance with Colorado’s extensive medical marijuana industry regulatory regime. However, earlier this year, the Colorado U.S. Attorney’s Office made a determination that its restraint in exercising its prosecutorial discretion would only go so far. Specifically, Colorado U.S. Attorney John Walsh has determined that his office will not tolerate the continued operation of medical marijuana businesses located near schools. Since the decision, his office has been successful in systematically shutting down such businesses merely by making threats of criminal prosecution and asset forfeiture.

In the circumstances, it is entirely reasonable to question whether federal authorities will allow the development of a regulated market for marijuana outside of the medical context. If national or Colorado-based federal authorities decide to draw a line in the sand on this issue, it could set up a significant conflict. Alternatively, if Colorado’s medical marijuana experience is any guide, federal authorities may decide to simply weigh in at the margins, thereby constraining the retail recreational marijuana industry in Colorado, without entirely foreclosing its development.

Colorado’s governor appears to recognize this distinction between the effect of decriminalization and regulation. Following the announcement of the voters’ approval of Amendment 64, Governor Hickenlooper made a statement strongly affirming Colorado’s intent to push forward with decriminalization, while expressing skepticism about the prospects for regulation:

I think the federal government is probably going to come down just like in prohibition–you can’t do it by state by state–but I think at the very minimum we should work aggressively to decriminalize it; make sure kids don’t get felony records. I mean, the voters–the voters are pretty clear what they feel and what they want, so within the limits of federal law and whatever the federal government will permit, we have to figure out what’s a–how are we going to go forward.

He continued, acknowledging the difficulties involved in regulation of marijuana:

If the federal government says its going to be illegal and they’re going to prosecute, we don’t have much of a voice there. We’re not going–we’re not going to secede from the union. But, we do recognize that the public has spoken loudly and we’re going to communicate that to our friends in Washington.”

It will be very interesting to see how this plays out over the next weeks and months.

Bill Kyriagis represents business and real estate clients in litigation, bankruptcy and land use matters. In the land use context, Bill counsels clients on a variety of local government issues, including posturing land use matters for potential litigation and pursuing claims when necessary. Bill has also developed expertise regarding the issues faced by landlords and  property owners related to Colorado’s medical marijuana industry. Bill has worked on a number of pro bono cases, including a successful First Amendment challenge to local government land use regulations, and assisting tenants in landlord/tenant disputes. Bill contributes to his firm’s blog, where this post originally appeared.

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.

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Colorado Court of Appeals: Board of County Commissioners Has Authority to Determine Permitted Uses of Property for Zoning Purposes

November 7, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Giuliani v. Jefferson County Board of County Commissioners on Thursday, November 1, 2012.

Medical Marijuana—Local Zoning—Summary Judgment—Colorado Constitution, Amendment 20—Mootness—Medical Marijuana Code.

In this action concerning whether a county may prohibit the operation of a medical marijuana dispensary as a non-permitted use under a local zoning plan, plaintiffs Marc Giuliani and Footprints Health and Wellness, Inc. (collectively, providers) and Christopher Peck and Frank Campbell (collectively, patients) appealed the trial court’s orders partially dismissing their claims and affirming the resolution of the Jefferson County Board of Adjustment (Board). They also appealed the trial court’s summary judgment in favor of defendants, the Jefferson County Board of County Commissioners (BOCC), the Board, and the Jefferson County Division of Planning and Zoning (collectively, County). The appeal was dismissed in part, the judgment was affirmed in part, and the order was affirmed.

The providers leased a commercial unit in a shopping center in unincorporated Jefferson County in September 2009 for the purpose of operating a medical marijuana dispensary. Believing this use would be compatible with the official development plan (ODP) of the shopping center, as zoned, the providers hired a contractor to perform tenant improvements and obtained various permits from Jefferson County.

The business opened in late October 2009. Two months later, the zoning administrator issued a zoning violation notice to the providers, stating the operation of a medical marijuana dispensary was not a permitted use in the zone district. The providers appealed to the Board, which affirmed the administrator’s conclusion.

In May 2010, the providers filed this action, seeking declaratory and injunctive relief and money damages. In March 2011, the patients were permitted to intervene and joined the providers’ claim that the County was preempted by Amendment 20 to the Colorado Constitution from interpreting its zoning regulations so as to impose a de facto ban on medical marijuana dispensaries.

The trial court granted in part the County’s motion to partially dismiss the complaint and denied the request for a preliminary injunction. It also affirmed the Board’s resolution that the dispensary was not a permitted use. It then granted the County’s motion for summary judgment on all remaining claims.

Amendment 20, passed in November 2000, permits patients to possess and use medical marijuana without criminal prosecution in certain circumstances. In the 2010 legislative session, the Colorado Medical Marijuana Code (Code) was enacted. Pursuant to authority granted in the Code, the BOCC approved a resolution in July 2010 prohibiting businesses that cultivate, manufacture, or sell marijuana or marijuana products within unincorporated Jefferson County. None of the parties addressed how the Code affected the issues they raised on appeal, and the Court of Appeals therefore requested supplemental briefing to determine whether the claims were moot in light of the Code’s enactment.

The County asserted that any claims for prospective relief were moot because the Code would prevent the providers from operating the dispensary in unincorporated Jefferson County. The Court agreed.

The Court held that even if it assumed that Amendment 20 created a constitutional right to distribute marijuana for medical use and to receive in from a provider of one’s choice, such rights are not unfettered. Here, the request for declaratory and injunctive relief would have no practical legal effect because of the County’s July 2010 ban on dispensaries and the Code’s requirement that all existing and new dispensaries operate their businesses in accordance with applicable state or local laws. Thus, even without the ban, the providers would have needed to apply and be approved by a local licensing authority. Such approval cannot be obtained under the ban; therefore, the claims for injunctive and declaratory relief are moot.

Alternatively, the patients and providers claimed they were “grandfathered” under CRS § 38-1-101. The Court disagreed. The statute limits the broad land-use-planning authority of counties by prohibiting a local government from enacting or enforcing an ordinance, resolution, or regulation in such a way that terminates or eliminates by amortization a nonconforming property use that was lawful at its inception. Here, assuming the statute applies, the dispensary was not lawful in 2009; therefore, there was no basis for it to be lawfully grandfathered.

The providers argued it was error to dismiss their equitable estoppel claim because the Colorado Governmental Immunity Act (CGIA) does not apply to claims seeking injunctive and declaratory relief. The Court disagreed. Equitable estoppel applies where a plaintiff detrimentally relies on a defendant’s misstatement of fact. It lies in tort. Here, the providers claimed the County led them to reasonably believe a dispensary was a permitted use on their property. Thus, the claim was a tort claim and it was not error to dismiss it under the CGIA (the nature of the damages sought is immaterial).

The providers also contended it was error to dismiss their money damages claims for the County’s violations of their due process, equal protection, and article XVIII, § 14, rights under the Colorado Constitution. The Court disagreed. The due process clause of the Colorado Constitution does not create an implied cause of action in damages. Equal treatment under the laws in Colorado is a right under the due process clause. The providers thus have no entitlement to money damages for state due process and equal protection claims.

The providers further argued that the Board impermissibly based its decision on a de facto ban on dispensaries. Because the Board reasonably concluded the dispensary was not a use expressly contemplated by the zoning resolution, the Court found no abuse of discretion. The appeal was dismissed with respect to the patients’ and providers’ claims for declaratory and injunctive relief. In all other respects, the judgment was affirmed.

Summary and full case available here.

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Spark the Discussion: Medical Marijuana and Contracts

August 27, 2012 by Leave a Comment
“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of medical marijuana law. This column is brought to you by Vicente Sederberg, LLC, a full-service, community-focused medical marijuana law firm.

By Brian Vicente, Esq. and Rachelle Yeung

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

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

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

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

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

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

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

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

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

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.
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Spark the Discussion: No Love Supreme – Colorado Courts Continue to Rule Against Medical Marijuana Patients

July 2, 2012 by Leave a Comment
“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of medical marijuana law. This column is brought to you by Vicente Sederberg, LLC, a full-service, community-focused medical marijuana law firm.

By Brian Vicente, Esq. and Rachelle Yeung

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

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

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

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

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

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

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

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

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

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

June 20, 2012 by Leave a Comment
“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of medical marijuana law. This column is brought to you by Vicente Sederberg, LLC, a full-service, community-focused medical marijuana law firm.

By Brian Vicente, Esq. and Rachelle Yeung

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

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

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

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

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

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

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

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

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

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

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.
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Governor Hickenlooper Signs More Bills, Including Industrial Hemp Bill

June 6, 2012 by Leave a Comment

In the past few weeks, Governor Hickenlooper has continued his efforts to sign bills into law. So far this legislative session, he has signed 278 bills into law.

Governor Hickenlooper traveled to Ft. Collins on May 22, 2012, to sign the following bill:

  • HB 12-1326 – Concerning Assistance to the Elderly, and, In Connection Therewith, Making an Appropriation.
    Sponsored by Rep. Cindy Acree and Sen. John Kefalas. The bill encourages the State Board of Health Services to raise the monhly Old Age Pension amount and also allows seniors with partial Medicaid eligibility to receive dental assistance and transfers funds to the Senior Services Account.

Governor Hickenlooper signed 29 bills into law on Thursday, May 24, 2012, including one that encourages Colorado’s use of clean energy alternatives. Five of the bills signed that day are summarized here.

  • HB 12-1315 – Concerning the Reorganization of the Governor’s Energy Office and, In Connection Therewith, Making an Appropriation.
    Sponsored by Rep. Jon Becker and Sen. Pat Steadman. The bill reorganizes and renames the Governor’s Energy Office and changes its statutory mission. The bill intends to promote clean and renewable energy.
  • HB 12-1346 – Concerning Sex Offender Registration.
    Sponsored by Rep. Bob Gardner and Sen. Steve King. The bill establishes requirements for sex offender registration for individuals who do not have a fixed residence.
  • HB 12-1328 – Concerning Exclusion from the “Uniform Commercial Credit Code” of Certain Charges by Persons Regularly Engaged in Making Contracts for Purchase of Tangible Personal Property in the Course of Business if Those Charges Do Not Exceed Amounts Permitted by Law.
    Sponsored by Rep. Kevin Priola and Sen. Angela Giron. The bill clarifies the appication of the pawnbroker exclusion to the UCCC.
  • HB 12-1307 – Concerning the Authority of a Nonlawyer Trustee of a Certain Size Trust to Represent the Trust Before the Board of Assessment Appeals.
    Sponsored by Rep. Jim Kerr and Sen. Ellen Roberts. The bill authorizes a nonlawyer trustee to represent its trust before the Board of Assessment Appeals if the total size if the trust is less than $3 million.
  • SB 12-009 – Concerning the Consolidation of Cash Funds Administered by the Division of Water Resources, and, In Connection Therewith, Making and Reducing Appropriations.
    Sponsored by Sen. Mary Hodge and Rep. Keith Swerdfeger. The bill creates the water resources cash fund, as recommended by the Water Resources Review Committee, and consolidates it into six branches.

On Tuesday, May 29, 2012, Governor Hickenlooper signed 14 bills into law. Four of them are summarized here.

  • SB 12-078 – Concerning Protections for At-Risk Adults.
    Sponsored by Sen. Evie Hudak and Rep. Sue Schafer. The bill clarifies definitions and modifies requirements regarding the mistreatment, self-neglect, and exploitation of at-risk adults.
  • HB 12-1237 – Concerning the Records Kept by Unit Owners’ Association of a Common Interest Community.
    Sponsored by Rep. Angela Williams and Sen. Ted Harvey. The bill identifies a list of the records required to be kept by a unit owners’ association for a common interest community.
  • HB 12-1263 – Concerning Reducing Barriers to Employment by State of Colorado Agencies for People with Criminal Records.
    Sponsored by Rep. Claire Levy and Sen. Pat Steadman. The bill prohibits state agencies from advertising in employment solicitations that people with criminal backgrounds may not apply, and prevents agencies from doing background checks unless a conditional offer has been given.
  • HB 12-1293 – Concerning Modifications to Procedures that Govern Recall Elections.
    Sponsored by Rep. Nancy Todd and Sen. Keith King. The bill makes various changes and clarifications to the rules governing recall elections.

On Wednesday, May 30, 2012, Governor Hickenlooper signed one bill into law.

  • HB 12-1278 – Concerning the Authorization of a Study of the South Platte River Alluvial Aquifer, and, In Connection Therewith, Making an Appropriation.
    Sponsored by Rep. Randy Fischer and Sen. Scott Renfroe. The bill requires the CWCB in connection with the State Engineer and the Colorado Water Institute to conduct a study to compile historical hydrological data for the South Platte River Basin.

Finally, on Monday, June 4, 2012, Governor Hickenlooper signed 17 bills into law. Four of them are summarized here.

  • HB 12-1261 – Concerning Effective Educators in Low-Performing, High-Needs Schools, and, In Connection Therewith, Making an Appropriation.
    Sponsored by Rep. Judy Solano and Sen. Bob Bacon. The bill requires that teachers and principals holding certification from the National Board for Professional Teaching Standards be awarded a stipend.
  • SB 12-068 – Concerning Prohibiting the Inclusion of Industrially Produced Trans Fats in Foods Made Available to Students by Public Schools, and, In Connection Therewith, Making an Appropriation.
    Sponsored by Sen. Lucia Guzman and Rep. Tom Massey. The bill prohibits public schools from making available foods or beverages that contain industrially produced trans fats. The bill requires districts with 1,000 or more students to comply and encourages districts with fewer than 1,000 students to comply.
  • HB 12-1099 – Concerning the Establishment of an Industrial Hemp Remediation Pilot Program to Study Phytoremediation Through the Growth of Hemp on Contaminated Soil, and, In Connection Therewith, Making an Appropriation.
    Sponsored by Rep. Wes McKinley and Sens. Lois Tochtrop and Suzanne Williams. The bill allows the Industrial Hemp Remediation Pilot Program to study how contaminated soils and water can be purified by the growth of industrial hemp.
  • HB 12-1314 – Concerning an Exception to the Requirement to File an Oil and Gas Severance Tax Return for a Person Who Has Less Than a Certain Amount Withheld, and, In Connection Therewith, Making an Appropriation.
    Sponsored by Rep. Jerry Sonnenberg and Sen. Cheri Jahn. The bill creates an exception from filing oil and gas severance tax returns and prohibits the DOR from sending non-filing taxpayers notices of liability unless certain requirements are met.

For a complete list of Governor Hickenlooper’s 2012 legislative decisions, please click here.

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Spark the Discussion: Hemp for Victory

May 16, 2012 by 2 Comments
“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of medical marijuana law. This column is brought to you by Vicente Sederberg, LLC, a full-service, community-focused medical marijuana law firm.

By Brian Vicente, Esq. and Rachelle Yeung

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

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

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

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

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

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

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

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

Brian Vicente, Esq., is a founding member of Vicente Consulting, LLC, a law firm providing legal solutions for the medical marijuana community. He also serves as executive director of Sensible Colorado, the state’s leading non-profit working for medical marijuana patients and providers. Brian is the chair of the Denver Mayor’s Marijuana Policy Review Panel, serves on the Colorado Department of Revenue Medical Marijuana Oversight Panel, and coordinates the Colorado Bar Association’s Drug Policy Project.The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.
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HB 12-1358: Making Transfers from the Medical Marijuana Cash Fund to the Departments of Revenue and Public Health and Environment

May 11, 2012 by Leave a Comment

On April 30, 2012, Rep. Tom Massey and Sen. Irene Aguilar introduced HB 12-1358 – Concerning Funding Issues Related to Medical Marijuana, and, In Connection Therewith, Making an Appropriation. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill transfers $7.7 million from the medical marijuana program cash fund to the department of revenue for use in the medical marijuana licensing program for fiscal years 2011-12 through 2014-15. Of the $7.7 million, $2 million will be held in a reserve account that cannot be accessed until the first $5.7 million is spent. If any portion of the $2 million is needed for medical marijuana enforcement or licensure, the director of the state licensing authority shall send notice to the state comptroller before spending any of the money in the reserve account. The bill transfers $2 million from the medical marijuana program cash fund to the department of public health and environment, division of prevention services, exclusively for prevention programs in the Tony Grampsas youth services program.

The state licensing authority shall collect both the application and licensing fee at the time of application and will refund the license fee if the applicant is denied a local license or withdraws the application.

The state licensing authority shall post a report on its web site by October 31, 2012, that shows the number of applications received, licenses granted, applications denied, applications withdrawn, and the results of enforcement efforts.

On May 3, the Appropriations Committee amended the bill and moved it to the full Senate for consideration on 2nd Reading. The Senate amended and adopted the bill on the bill on 2nd Reading on Friday, May 4. Today, the House adopted the bill on 3rd Reading on a vote of 43-21-1.

Since this summary, the bill moved through the Senate but the 3rd Reading was laid over until May 10.

Summaries of other featured bills can be found here.

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Spark the Discussion: When Life Gives You Lemons…

April 16, 2012 by Leave a Comment

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

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

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

Dear Mr. Walsh,

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

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

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

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

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

Sincerely,

Association of Cannabis Trades for Colorado (ACT4CO)

Cannabis Business Alliance (CBA)

Coloradans 4 Cannabis Patients Rights (C4CPR)

Colorado Springs Medical Cannabis Council (CSMCC)

Green Faith Ministry

In Harmony Wellness Services

Medical Marijuana Assistance Program of America (MMAPA)

Medical Marijuana Business Alliance (MMBA)

Sensible Colorado

Women’s Marijuana Movement

United Food and Commercial Workers Union:  Local 7

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

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.
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SB 12-154: Creation of Standards for Responsible Medical Marijuana Vendors and for Training of Medical Marijuana Vendors to Receive Responsible Vendor Designation

March 23, 2012 by Leave a Comment

On February 29, 2012, Sen. Lois Tochtrop introduced HB 12-1226 – Concerning Standards for Responsible Medical Marijuana Vendors. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

A person who wants to operate a responsible medical marijuana vendor server and seller training program must submit an application to the medical marijuana state licensing authority. The authority shall approve a program if the program contains, at a minimum, the following components:

  • Program standards that specify, at a minimum, who must attend, the time frame for new staff to attend, recertification requirements, record-keeping, testing and assessment protocols, and effectiveness evaluations; and
  • A core curriculum of pertinent statutory and regulatory provisions

The state medical marijuana licensing authority may grant a licensed medical marijuana business a “responsible vendor” designation. A business receives the designation if all employees who sell or handle medical marijuana, all managers, and all resident on-site owners successfully complete a program that the authority has approved. A designation is valid for 2 years from the date of issuance. If a licensing authority brings an administrative action against a business that has received the designation, the licensing authority shall consider the designation as mitigation. On March 14 the Business, Labor and Technology Committee amended the bill and moved it to the full Senate for consideration on 2nd Reading.

Since this summary, the bill passed a Second Reading with amendments, and on March 21, the bill passed a Third Reading in the Senate, but the Third Reading was reconsidered that same day.

Summaries of other featured bills can be found here.

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