May 20, 2019

Archives for February 22, 2013

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

By Shawn Coleman

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

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

The Governors A64 Task Force

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

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

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

From Capitol Hill to Capitol Hill

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

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

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

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

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

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

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

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

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

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

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

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

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

Colorado Court of Appeals: Announcement Sheet, 2/21/13

On Thursday, February 21, 2013, the Colorado Court of Appeals issued no published opinions and 39 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 2/21/13

On Thursday, February 21, 2013, the Tenth Circuit Court of Appeals issued no published opinions and one unpublished opinion.

Chimera v. Lockhart

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

SB 13-119: Clarifying Requirement that Title Insurance Company Obtain a Tax Certificate when Issuing an Owner’s Policy

On Tuesday, January 29, 2013, Sen. Matt Jones introduced SB 13-119 – Concerning Clarification of the Requirement for a Certificate of Taxes Due in Connection with Title Insurance. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill clarifies the requirement that a title insurance agent or title insurance company obtain a tax certificate when issuing an owner’s policy of title insurance by:

  • Clarifying that the requirement only applies with respect to the sale of residential real property; and
  • Requiring the commissioner of insurance to promulgate rules that identify alternative documentation that a title insurance agent or title insurance company may use and rely upon when a certificate of taxes due cannot be obtained from the county treasurer or the county treasurer’s authorized agent.

On February 15, the bill passed 2nd Reading in the House.

Since this summary, the bill passed Third Reading in the Senate and was introduced in the House and assigned to the Local Government Committee.

SB 13-116: Authorizing Certain Licensed Psychologists to Perform Mental Health Evaluations to Determine a Criminal Defendant’s Sanity or Impaired Mental Condition

On Tuesday, January 29, 2013, Sen. Jessie Ulibarri introduced SB 13-116 – Concerning the Authority of Forensic Psychologists to Conduct Mental Health Evaluations Under Article 8 of Title 16, Colorado Revised Statutes. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Current law authorizes psychiatrists to perform evaluations to determine a criminal defendant’s sanity or impaired mental condition. The bill authorizes certain licensed psychologists who have additional certifications in forensic psychology to perform such evaluations. On February 12 the Senate gave final approval to the bill; the bill is assigned to the House Judiciary Committee.

SB 13-111: Requiring Certain Mandatory Reporters to Report Suspected Abuse of Persons 70 Years of Age or Older

On Friday, January 25, 2013, Sen. Evie Hudak introduced SB 13-111 – Concerning Abuse of At-Risk Adults. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Current law states that specified professionals who have reasonable cause to believe that a person 18 years of age or older who is susceptible to mistreatment, self-neglect, or exploitation because the individual is unable to perform or obtain services necessary for his or her health, safety, or welfare or lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his or her person or affairs (at-risk adult) should report that fact to a county department of social services (county department) or a local law enforcement agency.

Under the bill, on and after July 1, 2014, certain professionals (mandatory reporters) who observe the abuse or exploitation of a person who is 70 years of age or older (at-risk elder) or who have reasonable cause to believe that an at-risk elder has been abused or has been exploited and is at imminent risk of abuse or exploitation are required to report such fact to a law enforcement agency within 24 hours after making the observation or discovery. A mandatory reporter who fails to report commits a class 3 misdemeanor.

Within 24 hours after receiving a report of abuse or exploitation of an at-risk elder, a law enforcement agency shall notify the at-risk elder’s county department and district attorney’s office of the report. The law enforcement agency shall complete a criminal investigation when appropriate. Upon completion of an investigation, the law enforcement agency shall provide a report of the investigation to the at-risk elder’s county department and a district attorney’s office.

A person who reports an incident of abuse or exploitation to a law enforcement agency is immune from a civil action or criminal prosecution if the report was made in good faith. A person who knowingly makes a false report commits a class 3 misdemeanor.

The new reporting duty does not increase the professional duty of care, if any, that is owed to an at-risk elder by a mandatory reporter.

The bill adds physical therapists, emergency medical service providers, chiropractors, and clergy to the list of professionals who are currently urged to report the mistreatment, self-neglect, or exploitation of an at-risk adult. These professions are also included within the new list of mandatory reporters.

A person who exercises undue influence to convert or take possession of an at-risk elder’s money, assets, or other property commits statutory theft.

On or before January 1, 2014, the peace officers standards and training board (P.O.S.T. board) shall create and implement a training curriculum to prepare peace officers to recognize and address incidents of abuse and exploitation of at-risk elders. On and after January 1, 2015, each county sheriff and each municipal law enforcement agency of the state shall employ at least one peace officer who has successfully completed the training curriculum. The P.O.S.T. board may charge a fee to each peace officer who enrolls in the training curriculum. The amount of the fee shall not exceed the direct and indirect costs incurred by the P.O.S.T. board in providing the curriculum.

On and after January 1, 2014, the state department of human services (state department) shall implement a program to generate awareness among:

  • The residents of the state regarding the mistreatment, self-neglect, and exploitation of at-risk adults;
  • The professionals who are urged to report the mistreatment, self-neglect, or exploitation of an at-risk adult; and
  • Mandatory reporters.

On or before December 31, 2016, the state department shall prepare and deliver to the joint budget committee and to the health and human services committee of the senate; the health, insurance, and environment committee of the house of representatives; and the public health care and human services committee of the house of representatives, or to any successor committee, a report concerning the implementation of mandatory reports of abuse and exploitation of at-risk elders.

Under current law, for the purposes of enhanced penalties for offenses committed against at-risk adults, an at-risk adult is defined as any person 60 years of age or older or any person 18 years of age or older who is a person with a disability. The bill changes this definition to raise the minimum age of 60 years of age to 70 years of age.

The bill repeals provisions concerning protection against financial exploitation of at-risk adults.

The bill repeals the elder abuse task force.

The bill is assigned to the Judiciary Committee and is scheduled for committee review on Wednesday, February 20 at 1:30 p.m.

Since this summary, the Senate Judiciary Committee amended the bill and referred it to Appropriations.

HB 13-1082: Setting Parameters for Expungement of Juvenile Delinquency Records

On January 16, 2013, Rep. Jeanne Labuda introduced HB 13-1082 – Concerning Juvenile Delinquency Records. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

A court that adjudicates a person a juvenile delinquent shall consider initiating expungement proceedings for the person’s records not more than 30 days after the person’s sentence is discharged.

A court that adjudicates a person an aggravated juvenile offender or a violent juvenile offender, or that adjudicates a person a juvenile delinquent for a felony offense of unlawful sexual behavior, shall consider initiating expungement proceedings for the person’s records not more than 5 years after the person’s sentence is discharged.

The bill permits a court to order a petitioner’s records expunged in cases where the petitioner has been convicted of a misdemeanor since the termination of the court’s jurisdiction or the petitioner’s unconditional release from parole supervision.

Under current law, the public has access to arrest and criminal records information, including a physical description, that concerns a juvenile who is adjudicated a juvenile delinquent or is subject to a revocation of probation for:

  • Committing the crime of possession of a handgun by a juvenile;
  • Committing an act that would constitute a class 1, 2, 3, or 4 felony; or
  • Committing an act that would constitute any crime that involves the use or possession of a weapon if such act were committed by an adult.

The bill limits the public’s access to include only arrest and criminal records information, including a physical description, that concerns a juvenile who is adjudicated a juvenile delinquent or is subject to a revocation of probation for:

  • Committing the crime of possession of a handgun by a juvenile; or
  • Committing an act that would constitute a class 1 felony.

The bill is assigned to the Judiciary Committee.

HB 13-1079: Creation of the Joint Technology Committee in the House and Senate

On January 14, 2013, Rep. Max Tyler and Sen. Linda Newell introduced HB 13-1079 – Concerning the Creation of the Joint Technology Committee of the Senate and House of RepresentativesThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill creates the joint technology committee of the Senate and House of Representatives, which functions during legislative session and during the interim.

The joint technology committee will have oversight over and may review:

  • The office of information technology;
  • The chief information security officer and his or her duties related to information security;
  • Any telecommunications coordination within state government that the chief information officer performs pursuant to state law;
  • The general government computer center;
  • The government data advisory board and any of its subcommittees;
  • The actions of the statewide internet portal authority;
  • Any information technology purchased or implemented by a state agency that is not being managed through the office of information technology;
  • Any information technology that a state agency has purchased or implemented that does not follow the standards as set by the office of information technology;
  • Any information technology that a state agency has purchased or implemented that will have the same function as information technology that the office of information technology has already created, purchased, or implemented.

The bill also requires the legislative and judicial department, the department of law, the department of state, and the department of the treasury to each submit a written report to the committee that details all information technology that such department purchased or implemented. Assigned to the State, Veterans, & Military Affairs Committee and is scheduled for committee review on Wednesday, February 20 upon morning adjournment.

Since this summary, the House State, Veterans, & Military Affairs Committee amended the bill and sent it to the Appropriations Committee.

HB 13-1077: Allowing Drivers to Challenge Initial Contact When Charged with DUI, DUI Per Se, and DWAI

On January 14, 2013, Rep. Joe Salazar introduced HB 13-1077 – Concerning a Driver’s Right to Challenge the Lawfulness of a Law Enforcement Officer’s Initial Contact in an Administrative Proceeding for a Revocation of a Driver’s LicenseThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

An administrative proceeding for a revocation of a driver’s license, a driver may challenge the validity of the law enforcement officer’s initial contact with the driver and the driver’s subsequent arrest for DUI, DUI per se, or DWAI. The hearing officer shall consider such issues when a driver raises them as defenses. On February 5 the Judiciary Committee amended the bill and sent it to the Appropriations Committee to consider the fiscal impact to the state.