June 25, 2019

Spark the Discussion: Medical Marijuana and Contracts

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

By Brian Vicente, Esq. and Rachelle Yeung

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

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

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

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

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

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

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

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

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

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

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

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

By Brian Vicente, Esq. and Rachelle Yeung

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

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

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

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

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

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

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

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

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

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

Spark the Discussion: Supreme Court Leaves Patients Behind

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

By Brian Vicente, Esq. and Rachelle Yeung

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

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

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

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

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

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

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

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

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

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

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

Spark the Discussion: Hemp for Victory

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

By Brian Vicente, Esq. and Rachelle Yeung

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

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

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

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

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

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

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

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

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

Spark the Discussion: When Life Gives You Lemons…

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

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

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

Dear Mr. Walsh,

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

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

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

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

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

Sincerely,

Association of Cannabis Trades for Colorado (ACT4CO)

Cannabis Business Alliance (CBA)

Coloradans 4 Cannabis Patients Rights (C4CPR)

Colorado Springs Medical Cannabis Council (CSMCC)

Green Faith Ministry

In Harmony Wellness Services

Medical Marijuana Assistance Program of America (MMAPA)

Medical Marijuana Business Alliance (MMBA)

Sensible Colorado

Women’s Marijuana Movement

United Food and Commercial Workers Union:  Local 7

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

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

Spark the Discussion: Amendment 64 and Medical Marijuana

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

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

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

Amendment 64 DOES:

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

Amendment 64 DOES NOT:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Spark the Discussion: The Inevitability of Marijuana Legalization

“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.

In an impressive step forward in citizen activism, advocacy groups in both Colorado and Washington recently turned in ample signatures to place marijuana legalization measures on the 2012 Presidential ballot in their respective states.  These measures, which seek to regulate marijuana like alcohol at the statewide level—limiting its use to those 21 and over and requiring sales to take place in strictly regulated stores—would shake the foundation of the nation’s long-standing and increasingly unpopular War on Drugs.  And here’s the kicker: these measures are likely to pass.

Both national and local polling shows the country trending toward marijuana reform.  For the first time in thirty years of polling, the Gallup poll showed a record-high 50% of Americans support making marijuana legal.  This data is matched by a series of regional polls that show western states, in particular, are ready to end the decades-old policy of marijuana prohibition.

Why this surge in support?  Increasingly, marijuana reform is being recognized as a pressing social justice issue that demands attention.  At a recent drug policy reform conference in Los Angeles, Ira Glasser, former head of the national ACLU, gave an impassioned speech citing the Drug War’s disparate impact of people of color and likening the nation’s drug laws with Jim Crow laws.  This sentiment has been echoed by the NAACP, who came out in support of a California measure to legalize marijuana in 2010 with Hilary O. Shelton, vice president of advocacy for the NAACP, saying “We are usually conservative in terms of the issues that we support, but disproportionate prosecution of [African-Americans for] drug-related offenses for marijuana has called us to fight for decriminalization in our community.”

Joining this call for reform are increasing numbers of Latinos, an important and growing section of the electorate, who are growing weary of racial profiling and the inescapable disproportionate racial impact of current drug laws.  Studies indicate that Latinos are arrested for marijuana possession at much higher rates than whites, despite their lower usage rate.  For major cities in California, the 2006-08 arrest rate for Latinos is two to three times higher than for whites.  In New York City, the rate is almost four times higher.  Minority communities are becoming increasingly weary of the collateral consequences experienced by those convicted of drug possession offenses, consequences like denial of federal student loan and housing benefits and lifelong difficulty in securing employment due to a lingering “criminal” record.

In Colorado, where 69% of people in state prisons for drug offenses are people of color, the pending Regulate Marijuana Like Alcohol Act is inspiring a coalition of supporters that includes leaders in the Latino community like Kim Cordova, president of the state’s largest union, and civil rights organizations like the ACLU and the Colorado Criminal Defense Bar.  Just last week, columnists from both sides of the political spectrum penned their support for legalization in both the conservative Colorado Springs Gazette and the mainstream Denver Post.

Together these groups represent the changing face of the drug policy reform movement with impacted parties, opinion makers, and civil rights defenders adding their voices to the call for systemic change.  Given national opinion trends and a growing and diverse coalition in support of reform, it seems increasingly likely that this targeted push back signals the beginning of the end of the failed policy of marijuana prohibition.

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

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

Spark the Discussion: Broken Promises and Federal Threats – A Roller Coaster for the Medical Marijuana Industry

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

By Christian Sederberg and Joshua Kappel

Medical Marijuana activists were ecstatic when President Barack Obama was elected in 2008 due to his campaign promises that an Obama administration would not use the U.S. Justice Department’s limited resources on circumventing state medical marijuana laws.

Shortly after President Obama’s inauguration, he appeared to be honoring that commitment. On October 19, 2009, then Deputy U.S. Attorney General David W. Ogden published a memorandum directing various U.S. Attorneys’ offices to not use “federal resources in [their respective] States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” In response, medical marijuana activists and patients in Colorado and around the country began to step out of the darkness in large numbers. In Colorado, tens of thousands of patients signed up to receive their state medical marijuana cards from the Colorado Department of Public Health and Environment and numerous individuals began opening up small businesses to help patients obtain the medicine that their doctor had recommended to them. Due in large part to the need to regulate this rapidly expanding industry, the Colorado state legislature passed strict laws in the 2010 legislative session that created a statewide regulatory scheme for medical marijuana businesses.  Several other states quickly followed suit, and the so-called “green rush” was in full force. After facing hundreds of raids under President Bush’s administration, there was a great sense that the future was bright for the nation’s medical marijuana community.

However, things started to change in the first two years of Obama’s presidency. In February of 2011, Melinda Haag, the United States Attorney for the Northern District of California, sent a memo threatening federal criminal enforcement in response to a proposal by the city of Oakland to license large scale medical marijuana cultivation facilities that seemed to be outside the scope of California’s medical marijuana laws. This sparked a flurry of similar memos from various U.S. Attorneys reaffirming their commitment to enforce the federal Controlled Substance Act (CSA), including a memo from the recently appointed Colorado U.S. Attorney John Walsh and another memo from the Deputy U.S. Attorney General, James Cole. All of these memos maintained that prosecuting patients and their immediate caregivers was not a high enforcement priority of the federal government, but emphasized that the federal government reserves the right to prosecute anyone who violates the CSA, particularly large-scale, commercial medical marijuana businesses.

During this tumultuous time, the Colorado medical marijuana industry remained hesitantly optimistic because the federal government had taken what appeared to be a “hands off” approach to the state’s closely-regulated medical marijuana industry.  On December 8, 2011, that optimism grew when U.S. Attorney General Eric Holder reaffirmed—while being questioned by Colorado’s Rep. Jared Polis– that targeting Colorado medical marijuana businesses conforming with state laws is not a high priority for the federal government.  Watch the video here.

In a striking turn, the following week various news agencies reported that a confidential federal official was claiming that the government was considering a “crackdown” in Colorado on any medical marijuana business located near a school, despite an express allowance in the Colorado Medical Marijuana Code, C.R.S. 12-43.3-101 et seq., permitting localities to allow such businesses within a 1000 feet of a school. The federal crackdown will reportedly take the form of “landlord letters”, similar to the letters sent to landlords in California earlier this year, demanding that the landlord evict their medical marijuana business tenants within 45 days or face federal asset forfeiture.

The most recent letters in California did result in many businesses closing their storefront operations or relocating, even though there has been little actual federal enforcement action.

Matt Cook, the former head of the Colorado Department of Revenue’s Enforcement Division and considered by some to be the father of Colorado’s Medical Marijuana Code, found a silver lining in the recent federal threats.  Mr. Cook told the Denver Medical Marijuana Work Group on December 14, 2011 that the federal government’s actions could be seen as an implicit endorsement of our highly regulated system, specifically as it relates to all medical marijuana businesses not within 1000 feet of a school.

If President Obama breaks his campaign promise to respect state medical marijuana laws and his local US Attorneys make good on their threats, the President risks losing the votes of over 88,000 Colorado medical marijuana patients, their families, and supporters– which could make his path to reelection much more difficult in this battleground state.

Christian Sederberg, Esq., is a founding member of Vicente Consulting, LLC, a law firm providing legal solutions for the medical marijuana community. Christian has focused his practice on representing small and medium sized businesses, with a primary focus on real estate, commercial and business transactions. In addition, he provides general guidance to medical marijuana businesses, ancillary businesses, and caregivers about local and state medical marijuana ordinances, regulations and laws.

Joshua Kappel, Esq., recently graduated in the top 10% of his class at the University of Denver, Sturm College of Law. While in law school, Josh received both the Patton Boggs Public Policy Fellowship and the Public Interest Law Clerkship to work for Sensible Colorado. Josh also  interned with the National ACLU’s Drug Law Reform Project in Santa Cruz and the Colorado Criminal Defense Bar. 

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

Spark the Discussion: Election Day 2011 – A Mixed Bag for Medical Marijuana in Colorado

“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.

Election day has come and gone and, once again, numerous Colorado towns weighed in on marijuana policy.  Most notably, four communities rejected bans on medical marijuana businesses (Steamboat Springs, Oak Creek, Routt County, and Palisade) and three areas endorsed bans (Fort Collins, Yampa, and Brush).  A number of communities (Breckenridge, Commerce City, and Palisade) voted to enact higher taxes on medical marijuana sales.

Colorado has a rich history of tackling marijuana policy in the voting booth and most of these reform measures make their way to voters through the ballot initiative process.  Ballot initiatives are a form of “direct democracy” where a group of citizens gather signatures to place a measure on a local or state ballot.  The first Colorado community to use this process to shape marijuana laws was Breckenridge which passed a pro-medical marijuana initiative in 1994.  Next up was Amendment 20, Colorado’s landmark medical marijuana constitutional measure, passed by 56% of voters in the year 2000.  After that we saw campus initiatives which “equalized” marijuana and alcohol penalties under the student code of conduct pass in 2005 at both Colorado University and Colorado State University.  That same year Denver became the first city in history to legalize possession of small amounts of marijuana under its city code, while Telluride narrowly rejected a reform measure. Winding up the decade, both Breckenridge and Nederland passed progressive reforms relating to adult marijuana possession by wide margins.

We are now witnessing a backlash where, after almost two decades of voters passing pro-marijuana reform measures,  citizens in certain communities are banding together to advance anti-marijuana initiatives.  Most of these initiatives seek to ban dispensaries and other medical marijuana business from operating in the targeted community.   As noted above, these “prohibition measures” have been met with mixed feelings by voters.  As an example, last week’s vote to ban medical marijuana businesses in Fort Collins was stunningly close, with only 52% of voters supporting it.

Moving forward, we are likely to see more bans and medical marijuana taxes appear on local ballots as Colorado communities continue to grapple with this new policy topic.  However, the true pulse of Colorado voters will be measured by their support (or rejection) of the statewide marijuana legalization measure, the Initiative to Regulate Marijuana Like Alcohol.  Proponents of this initiative, of which I am one, believe that Colorado would be better off with marijuana being treated like alcohol—taxed, sold from licensed stores, and limited to use by adults 21 and older.  With about 118,000 signatures in hand (and a goal of 145,000) the campaign is poised to place the measure on the 2012 presidential ballot, thereby continuing Colorado’s vibrant conversation about marijuana policy.

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

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

Spark the Discussion: Medical Marijuana Law and Policy

“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.

I’ll start with a bold prediction: marijuana reform and same-sex marriage are the two policy areas in which young lawyers will see major movement in their lifetimes. These two “controversial” topics stand at the crossroads of a shift in society, with the younger generation pushing for increased tolerance of alternative lifestyles—whether it’s marriage choice or an individual’s decision to medicate—or recreate—with marijuana—and older Americans increasingly accepting that, at least with these two topics, change is inevitable.

This article will focus on medical marijuana law and policy—a dynamic field that an increasing number of Colorado lawyers are facing in their everyday practice. Currently, sixteen states (and the District of Columbia) have passed statewide medical marijuana laws, and a half-dozen others are poised to take similar action. What started largely as an area within criminal law practice—a small number of lawyers defending medical marijuana patients accused of criminal violations—has expanded into a cottage industry impacting nearly every area of legal practice. This column will highlight some of those areas and discuss the future of this hot topic.

Before reading further, please note that while medical marijuana is legal in Colorado and a growing number of states, and literally thousands of doctors recommend it every year for sick patients, it remains firmly illegal under federal law. Given these conflicting state and federal stances, it’s crucial that lawyers practicing in this area closely follow emerging trends and policies.

  • Business Law:
  • Colorado and several other states have medical marijuana laws with provisions allowing for retail stores known as dispensaries to sell marijuana to qualifying patients.  Budding entrepreneurs need guidance from attorneys who understand not only medical marijuana laws, but also traditional business law. All facets of corporate law, from drafting  operating agreements to negotiating commercial transactions, come into play with the operation of dispensaries.
  • Family Law:
  • An increasingly common theme in the family law realm is the presence of medical marijuana in custody battles or divorce proceedings. Often these disputes arise not from actual neglect or abuse, but merely from the presence of marijuana in the home. Patients need solid guidance to keep this—and all medicine—firmly away from children. There is a desperate need for lawyers who understand both medical marijuana law and family law and can advocate appropriately when the two areas overlap.
  • Elder Law:
  • As medical marijuana patients age they often end up in nursing homes or in-patient hospice care. When Maine’s medical marijuana law changed last November, the state expressly permitted nursing homes and hospice workers to act as registered medical marijuana caregivers for patients. Other states are silent on this issue. Large questions remain about federal funding for this type of care and how one patient’s possession of a federally-illegal substance could place others at legal risk.
  • Civil Law:
  • Legal medical marijuana businesses have the same problems as other, more mainstream businesses, and partnership disputes by owners of such stores are commonplace in Colorado. Some owners came out of a less-mainstream past, and built a million-dollar business without signing an operating agreement. In these messy situations, civil litigation is often the only remedy.
  • Election and Municipal Law:
  • The passage of a statewide medical marijuana law is invariably followed by conservative municipalities attempting to ban sales and cultivation within municipal borders. When Colorado passed a dispensary law in 2010, around 50 municipalities put measures on their local ballots to ban these retail shops in their communities. Whether through ballot initiative or action by a government body, there is a real opportunity for lawyers who understand election and municipal law to engage in this area.
  • First Amendment:
  • The most common complaint from community members about dispensaries is that they have offensive signage. While polls consistently show that roughly 80% of Americans support medical marijuana, most citizens don’t want it shoved in their face. Medical marijuana business owners need lawyers to explain their rights—and encourage discretion.
  • Intellectual Property Law:
  • “Can we patent the recipe for my marijuana cheesecake?” This question may seem peculiar, but my office gets several calls a week of this nature. As more patients turn to alternate forms of administering medical marijuana, such as through edibles or tinctures, interesting questions arise concerning protecting the manufacturer’s recipes and formulas.
  • Criminal Law:
  • As long as federal law continues to classify marijuana as a Schedule I Controlled Substance—the most dangerous and addictive class of drugs—there will be work for criminal defense attorneys representing medical marijuana patients and providers in federal court. On the state and local level, authorities continue to zealously target adults for marijuana crimes,  arresting over 750,000 citizens for possession of marijuana annually. That’s the equivalent of arresting every man, woman, and child in the state of Wyoming once a year!

As young attorneys in Colorado, we have an incredible opportunity in the field of medical marijuana law. Unlike property law or criminal law, this area is new and has very little case precedent. The young idealist attorney will fight out these important cases in the courtroom and establish laws that make sense both for the patient and the community.

Many lawyers initially chose this patient-centered line of work because they believed the time had come to pursue a more common-sense approach to marijuana and drug policy in America. Now, as lawyers from a diverse range of practice areas are entering this arena, let’s hope all remain true to the core principles that attracted most of us to this work:

Patients before politics; patients before profits.
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.