COURT UPHOLDS POT GROWER'S CONVICTION

Longmont Provider Plans To Appeal To State Supreme Court

DENVER - The state appeals court upheld the conviction of a medical
marijuana grower Thursday in a ruling that did little to clarify the
legal situation for marijuana dispensaries.

Stacy Clendenin of Longmont had appealed her 2006 conviction for
marijuana growing, arguing that a Boulder County judge never let her
present evidence that she qualified as a "primary caregiver" under
the medical marijuana law Colorado voters adopted in 2000.

The Colorado Court of Appeals rejected that argument
Thursday.

The decision defines "primary caregiver" for the first time in
Colorado case law since medical marijuana became legal, and it
specifically excludes people who grow or supply marijuana only for
patients. Clendenin was a grower and had never met some of her clients.

The new definition will cause problems for medical marijuana
suppliers, Judge Alan Loeb wrote in a concurring opinion.

The 2000 constitutional amendment "has created a system by which
qualifying patients and their primary caregivers can legally use
medical marijuana (which includes the act of acquiring it) but they
still have to acquire it from someone who will violate the law by
selling or providing the marijuana to them," Loeb wrote.

Loeb agreed with Clendenin's conviction, but the caregiver definition
"cries out for legislative action," he wrote.

Dispensary owners breathed easier in August, when the state Board of
Health revised medical marijuana rules to include people who provide
patients with medical marijuana as primary caregivers.

Thursday's appeals court opinion stands at odds with the Board of
Health's new rule.

"We conclude that to qualify as a 'primary care giver' a person must
do more than merely supply a patient who has a debilitating medical
condition with marijuana," Appeals Judge Robert Hawthorne wrote in
Thursday's opinion.

Since Clendenin was convicted before the Board of Health rule took
effect, the three-judge appeals panel did not consider how the rule
applied to her case. The appeals court also did not take a stand on
whether the Board of Health's caregiver definition complies with the
state constitution.

Clendenin will appeal to the Supreme Court, said her lawyer, Robert
Corry. The district court sentenced her to unsupervised probation,
and she is fighting the case as a matter of principle.

Corry represents many of Colorado's medical marijuana suppliers and
users, and he's not advising his clients to do much different in
light of Thursday's ruling, other than making sure patients and
growers meet each other personally.

"I'm not advising anyone to cease operations," he said.

Marijuana dispensaries began cropping up around the state this year,
with four in Durango and one in Cortez. The Durango City Council and
Mancos Town Board have imposed moratoriums to let city planners
figure out how to deal with marijuana stores.

Attorney General John Suthers was happy with Thursday's ruling, and
he agreed with Loeb that the Legislature needs to clarify the situation.

"I could not agree more. I hope the Legislature will act and create a
regulatory framework that gives substance to the Court of Appeals'
findings," Suthers said in a news release.

Corry called the attorney general's statement "desperate," because
the case applies only to convictions before the Board of Health rule
took effect Aug. 30.

"He's trying to embrace this decision as far-reaching, when it
isn't," Corry said.

Corry hopes the Legislature will leave the Board of Health's ruling
alone.

Nevertheless, other medical marijuana advocates are working with
legislators, said Brian Vicente of Sensible Colorado.

"We've been in talks with numerous legislators about a bill to
regulate dispensaries. I think there's a good chance of a bill coming
forward," Vicente said.

As of July 31, more than 11,000 Coloradans had joined the registry
that lets them legally use medical marijuana, including 111 in La
Plata County and 31 in Montezuma County.