April 22, 2019

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.