April 23, 2019

U.S. Justice Department Announces Update to Marijuana Enforcement Policy

On August 29, 2013, the U.S. Department of Justice announced an update to its federal marijuana enforcement policy in light of recent state ballot initiatives that legalize, under state law, the possession of small amounts of marijuana and provide for the regulation of marijuana production, processing, and sale.

In a new memorandum outlining the policy, the Department makes clear that marijuana remains an illegal drug under the Controlled Substances Act and that federal prosecutors will continue to aggressively enforce this statute. To this end, the Department identifies eight (8) enforcement areas that federal prosecutors should prioritize.  These are the same enforcement priorities that have traditionally driven the Department’s efforts in this area and include preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, or cartels and preventing marijuana from being diverted from a state where it is legal to a state where it is not.

For states such as Colorado and Washington that have enacted laws to authorize the production, distribution and possession of marijuana, the Department expects these states to establish strict regulatory schemes that protect the eight federal interests identified in the Department’s guidance. These schemes must be tough in practice, not just on paper, and include strong, state-based enforcement efforts, backed by adequate funding. Based on assurances that those states will impose an appropriately strict regulatory system, the Department has informed the governors of both states that it is deferring its right to challenge their legalization laws at this time.  But if any of the stated harms do materialize—either despite a strict regulatory scheme or because of the lack of one—federal prosecutors will act aggressively to bring individual prosecutions focused on federal enforcement priorities and the Department may challenge the regulatory scheme themselves in these states.

A copy of the memorandum, sent to all United States Attorneys by Deputy Attorney General James M. Cole, is available here.

SB 13-051: Requiring Annual Inspections of Certain Marijuana Cultivation Locations

On Wednesday, January 16, 2013, Sen. Randy Baumgardner introduced SB 13-051 – Concerning Fire Inspections for Marijuana Cultivation Locations. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill would require a local fire department to annually inspect each medical marijuana optional cultivation premises, each primary caregiver cultivation location, and each marijuana grow building in its jurisdiction. The fire chief may charge a fee of no more than $100 for the inspection. The bill is assigned to the Judiciary Committee.

Spark the Discussion: The “Amendment 64 Implementation Task Force”

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

By Joshua Kappel, Esq. and Rachelle Yeung

When Governor Hickenlooper signed Amendment 64 into law, proclaiming marijuana legal to use, possess and purchase for adults 21 years-old or older in Colorado, advocates barely paused to celebrate their victory – and opponents barely recognized their defeat.

Instead, all sides immediately began working on implementing this historic initiative through the Governor’s “Amendment 64 Implementation Task Force.” The Task Force, created by an Executive Order of the Governor, is comprised of 26 members, which were selected for their wide range of interests and expertise – from representatives of the Attorney General’s Office and the Department of Revenue to medical marijuana industry groups and other stakeholders.[1]

The Task Force is assisted by committees, or “Working Groups,” each of which is co-chaired by a member of the Task Force and made up of additional stakeholders and members of the public. The five Working Groups are:

  1. Regulatory Framework
  2. Local Authority and Control
  3. Tax/Funding and Civil Law
  4. Criminal Law
  5. Consumer Safety and Social Issues

The various Working Groups have discussed a large range of issues, some of the issues are already addressed in the text of Amendment 64 while other issues appear almost unrelated. A full list of all the issues discussed, agendas, meeting times, and audio recordings are available on the Department of Revenue’s Amendment 64 Task Force website. The Task Force is scheduled to make its recommendations to the Governor, the State Legislature, and the Department of Revenue by the end of February.

During its first meeting, members of the Criminal Law Working Group came to a consensus that they should avoid tackling issues of driving under the influence of drugs (DUID) and industrial hemp.  Despite being tasked with these issues, the Working Group decided discussing these would be a waste of valuable time and resources.  In fact, Brian Connors, co-chair of the Working Group and representative of the Public Defender’s Office, noted, revisiting the DUID issue would be not only time-intensive, but redundant. The legislature and the Colorado Commission on Criminal & Juvenile Justice have been researching the question for well over two years, and have developed far more familiarity with the topic. In fact, a marijuana related DUID bill was recently introduced in the state legislature that appears to strike a compromise between the various stakeholders.

Instead, the Criminal Law Working Group will focus on determining legal definitions and confronting law enforcement issues. For example, can evidence of marijuana alone be the basis for probable cause? In the event of a dismissal or ‘not guilty’ verdict, do law enforcement agencies have a duty to maintain seized marijuana plants? This Working Group has also veered off path to discuss completely unrelated issues such as requiring drug tests for all minors who apply for a driver’s license.

The Tax/Funding and Civil Law Working Group, among other things, addressed the issue of banking for state licensed marijuana businesses. Because marijuana is still illegal under federal law, most banks are fearful of handling funds related to marijuana. However, all parties involved, from marijuana business owners to representatives of the Colorado Bankers Association agreed that the fledgling marijuana industry could not depend entirely on cash transactions. Unfortunately, the Working Group was faced with a serious shortage of viable alternatives, and in the end, resolved only to write to the Federal Government, requesting further guidance.

The Regulatory Framework Working Group kicked off its first meeting by examining existing regulatory frameworks and deciding which framework to model recreational marijuana on – specifically, whether to base it on our medical marijuana code or our alcohol/liquor code. Amusingly, one of the first issues to come up was whether to require vertical integration, which the medical marijuana code mandates, or prohibit it, which is the case with liquor.

One suspect issue was also brought up by the Regulatory Framework Working Group: whether to recommend a residency requirement for those who are going to purchase marijuana from a licensed store.  This issue caught many people by surprise as Amendment 64’s personal protection clause makes clear that “possessing, using, displaying, purchasing, or transporting marijuana” is now legal under state law for persons over the age of 21. The plain language of Amendment 64 applies to all adults aged 21 or older.

In addition to the issues covered by the other Working Groups, the Local Authority and Control Working Group is working to resolve:  What can local jurisdictions regulate? What will be the local controls regarding advertising?  What/who is the local authority over fines and licensing?  Lastly, the Consumer Safety/Social Issues Working Group is working to resolve issues associated with: advertising and marketing to minors; product labeling and packaging; product testing; and consumer, public, and industry education.

Surprisingly, a significant number of vocal marijuana opponents managed to secure positions on the Governor’s Task Force and in the working groups; however, the Task Force is not supposed to debate the merits of Amendment 64 or impede its implementation. Additionally, not all issues discussed by the Task Force will or should become recommendations of the Task Force, let alone a bill or regulation. The Task Force should only make recommendations that are both legally sound and good public policy. For example, a residency requirement on marijuana purchases, although discussed by one of the working groups, would be bad public policy because it would only perpetuate another black market and derive the state of tax revenue – exactly what the voters of Colorado wanted to prohibit with Amendment 64. Additionally, such a significant statutory limitation on Amendment 64 may not withstand legal scrutiny.[2]

Considering the Task Force has a mandate from the 55% of our electorate that voted for Amendment 64 and that they have less than a month now to make their recommendations, we can only hope that the proponents and opponents of marijuana reform can work together, stay on track, and focus on implementing the will of the voters. Nonetheless, we will all have to wait and see on what the Task Force actually recommends.

 


[1] It is worth noting that the Task Force really doesn’t have to address any issues besides funding the Department of Revenue to make rules because Amendment 64 is self-executing.

[2] Generally in Colorado, self-executing initiatives cannot be narrowed, impaired, or limited by the legislature. Yenter v. Baker, 126 Colo. 232, 236-237 (Colo. 1952); See also Zaner v. City of Brighton, 917 P.2d 280, 283 (Colo. 1996).

Joshua Kappel, Esq. is the Associate Director of Sensible Colorado, the leading state-wide non-profit working to educate the public about sensible marijuana policy. Mr. Kappel is also the senior associate at Vicente Sederberg, the first nation-wide medical marijuana law firm.

Rachelle Yeung is currently in her third year at the University of Colorado School of Law and a law clerk at Vicente Sederberg LLC.

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.

Governor Hickenlooper Signed Amendment 64 Proclamation – Marijuana Legal in Colorado for Private, Personal Use

On Monday, December 10, 2012, Governor Hickenlooper signed an Executive Order that formalizes Amendment 64 as part of the Colorado Constitution. The Executive Order makes legal personal use and possession of small quantities of marijuana, as well as limited home-growing. It is still illegal to buy or sell marijuana, use it in public, or use it in a way that endangers others.

In addition to the Executive Order formalizing Amendment 64, Governor Hickenlooper signed another Executive Order to create a task force on the implementation of Amendment 64. The task force will create and enforce a regulatory structure. There will be 24 members of the task force, who were named by the governor in the Executive Order. The task force will be chaird by Jack Finlaw, the governor’s chief legal counsel, and Barbara Brohl, the Executive Director of the Colorado Department of Revenue.

The task force will address many issues related to the continuing regulation of marijuana, such as amending current laws regarding marijuana possession, sale, and distribution to reflect its legality; creating laws regarding security and labeling requirements for marijuana establishments; education efforts to address long-term health consequences of marijuana use; and the impact of Amendment 64 on employers and employees. The task force is expected to report back to the governor, the General Assembly, and the Attorney General by February 28, 2013.

The task force will also attempt to reconcile Colorado law with federal law so that the Colorado government and its employees will not be subject to prosecution. Governor Hickenlooper and Attorney General John Suthers wrote a letter to Eric Holder, the United States Attorney General, regarding the federal government’s position on Amendment 64, but the state has not yet received a response. Governor Hickenlooper stressed that he will attempt to retain as much flexibility as possible in order comply with federal laws.

For the governor’s complete press release, click here. To hear a panel discussion about the implications of Amendment 64 for Colorado, come to the live CLE program on December 18.

CLE Program: Marijuana and Hemp Law in Colorado – Amendment 64

This CLE presentation will take place on Tuesday, December 18, at 9:00 a.m. Click here to register or call (303) 860-0608. Can’t make the live program? Click here to register for the webcast.