RECENT LEGAL TANGLES LEAVE MEDICAL MARIJUANA DISPENSARIES IN
HAZE

Editor's Note: Last week, we reported that a state legislator suggested CSU
grow pot for the entire state. Read that story by clicking here.

A busy week of legal developments has further muddied the
already-murky waters of the law governing medical marijuana
dispensaries.

Owners of dispensaries in Boulder County and around Colorado have been
scrambling to expand their services - adding everything from
housekeeping to lawn-mowing - in an effort to conform to a recent
court ruling that has modified the crucial definition of the
"caregiver."

The Oct. 29 Colorado Court of Appeals decision upheld the conviction
of Stacy Clendenin, the Longmont woman who was arrested in 2006 on
charges involving the cultivation, possession and distribution of
marijuana. Clendenin's medical-marijuana defense hinged on whether she
qualified as a "primary caregiver" under Amendment 20, which Colorado
voters passed in 2000.

The court ruled that, to qualify as a primary caregiver, "a person
must do more than merely supply a patient who has a debilitating
medical condition with marijuana." In defining a caregiver's
"significant responsibility for managing the well-being of a patient,"
the court ruled that such responsibility "involves more than being
accountable for just one aspect of a patient's well-being."

The ruling was a message to caregivers: You'd better be doing more for
your patients than just selling them marijuana.

The court decision prompted the Board of Health to host an emergency
rule-making hearing Nov. 3, where it decided to temporarily withdraw
its definition of a caregiver's "significant responsibility," to avoid
conflicting with the appellate court's new definition. The move
angered many of Colorado's medical marijuana activists, who saw the
board's definition, which was established at a contentious and
well-attended public meeting on July 22, as a victory for medical
marijuana suppliers. The board's decision was immediately challenged
and was overruled on Nov. 10.

Clendenin's lawyer, Robert Corry, who represents many Colorado
dispensaries, filed the injunction, claiming that the board had failed
to notify medical marijuana patients and caregivers of the emergency
meeting, as required in a settlement reached in a previous case.

"The way they held that hearing, by intentionally disenfranchising the
public, not allowing patients or the people that are affected, to
speak, we find to be entirely underhanded," says Brian Vicente,
executive director of Sensible Colorado, a pro-marijuana nonprofit
organization whose legal action in 2007 forced the health board to
reconsider its definition of "significant responsibility."

Now, after Chief Denver District Court Judge Larry Naves' decision to
force the Board of Health to reinstate its prior "significant
responsibility" definition, dispensary owners are left to grapple with
the conflicting definitions issued by the appellate court and the
Board of Health.

"It's been our opinion that the Colorado Court of Appeals was
essentially interpreting the constitution, and that clearly is more
binding than a rule or regulation from a state agency," says Mike
Saccone, communications director for Colorado Attorney General John
Suthers. "Ultimately, the legislature's going to have to step in."

Vicente disagrees. "I think the applicable standard would be the Board
of Health's rule," he says. "The issue with the Court of Appeals
decision is that it's not a final decision. It's under review, and
it's also being appealed to the Colorado Supreme Court."

In the meantime, dispensaries are left scrambling to comply with the
appellate court's new definition, in case that ends up being the final
word on the matter.

Boulder attorney Jeff Gard agrees that the Clendenin decision, not the
Board of Health definition, is the law of the land. He says he is
advising his marijuana-providing clients to start offering their
patients a host of other services - including meal delivery, grocery
shopping, lawn-raking, painting and snow-shoveling - so that they can
mount a defense if faced with criminal prosecution. He also says the
court decision requires caregivers to be able to demonstrate that they
have a relationship with their patients.

"This is going to make it very difficult for caregivers and
dispensaries to operate," he says.

One of the main questions about the court ruling is whether caregivers
can "outsource" the extra services for their patients by having third
parties provide them, or whether the caregivers have to perform the
services themselves. Another is whether caregivers are required to
deliver non-marijuana services to their patients, or whether they can
be compliant simply by offering their patients such services.

At the Nov. 3 Board of Health meeting, Corry petitioned the board to
amend the definition of "significant responsibility" to reflect the
latter. Under his definition, "significant responsibility for managing
the well-being of the patient" would mean more than merely providing
marijuana to a patient "if such non-medical marijuana products or
services are needed, requested and purchased by the patient." The
board refused to consider his submission.

"This lawsuit is really not aimed so much at the substance of what
they did but more the principle," Corry says. "When you're [making
rules] that affect patients' lives, you'd better consult with them or
at least hear from them, and that did not occur here. They just
slapped it down. They would not listen to anybody. It was
outrageous."