LAWS PRESCRIBE MARIJUANA

State Lawmakers Struggle at Least 10 Years to Clarify Legal Medical Uses

DENVER - State Sen. Chris Romer attempted a little drug humor just
before the Senate passed his bill on marijuana dispensaries in May.

"For six months, this has been a long, strange trip," said Romer,
D-Denver, quoting a Grateful Dead song.

Actually, the long, strange trip has lasted for 10 years, and it's not
over yet. It began with a voter-approved constitutional amendment and
has taken Colorado to today's state of affairs, where a conservative
town like Cortez has half a dozen businesses selling medical marijuana.

Along with California, Colorado now ranks as the national capital of
medical marijuana.

Voters, lawsuits, activists, a new president and the state Legislature
all acted to set up today's system of legal dispensaries.

The starting point was Amendment 20, which Colorado voters approved on
a 53 percent to 46 percent vote in 2000. It gave Coloradans with
certain medical conditions a constitutional right to medical marijuana.

"Colorado's the hot spot because, on paper, we have the strongest
medical marijuana law in the country," said Rob Corry, a prominent
lawyer who specializes in marijuana law. "It's enshrined in the
constitution rather than in statute."

For years, no one contemplated a retail industry that, depending on
the estimate, ranges from 500 to 1,000 marijuana stores.

Amendment 20 did not mention dispensaries, and the Legislature never
thought to ban them.

Whenever the voters adopt a constitutional amendment, the Legislature
has to pass "enabling legislation" to tell state departments how to
comply with the details. The 2001 enabling bill for Amendment 20 -
House Bill 01-1371 - was short on details and left it up to the
Colorado Department of Public Health and Environment to pass detailed
rules.

No one was talking about over-the-counter sales.

"I had no thought of that," said one of the sponsors, former Sen.
Norma Anderson, R-Lakewood.

Corry was the lawyer for the state's first dispensary in 2004, the
Colorado Compassion Club, which operated in a downtrodden neighborhood
on West Colfax Avenue in Denver. It is now out of business, but
another dispensary has taken its place.

"They were buying and selling marijuana legally, and doing it all the
time," Corry said. "It was very interesting to be part of it."

But for years, few doctors - sometimes only one in the whole state -
were willing to recommend medical marijuana, Corry said. Amendment 20
requires a doctor's recommendation to get a medical marijuana card.

A letter to doctors from former Gov. Bill Owens and former Attorney
General Ken Salazar warned of federal prosecution for recommending
marijuana. The letter had a "massive chilling effect" and kept the
state registry of legal marijuana users small, Corry said.

Amendment 20 opponents, like current Attorney General John Suthers,
warned of pot businesses running amok, but for nearly a decade, those
warnings did not come true.

"We were somewhat pleased and surprised that we didn't develop the
problems we now have after Amendment 20 passed," Suthers said.

Meanwhile, a small group of pro-marijuana lawyers began chipping away
at the medical marijuana rules adopted by Owens' health department.

In 2007, marijuana advocates sued the health department over its rule
that medical marijuana suppliers - legally known as "caregivers" -
could serve only five patients. Denver District Court Judge Larry
Naves ruled that if the department wanted to keep the rule, it would
have to do a legal rulemaking at its Board of Health.

In July 2009, the Board of Health voted against the department and
threw out the five-patient cap. It also redefined "caregiver" to
include someone who merely provides medical marijuana.

"That really opened up the industry," said Brian Vicente of Sensible
Colorado, one of the victorious lawyers in the 2007 case. "Prior to
that, it was somewhat questionable."

Suthers agrees.

"That's what really blew open the door," he said. "That's when
dispensaries really proliferated, under the notion that these guys
were caregivers."

The definition lasted for only about four months, until the Board of
Health hastily arranged a meeting to undo the rule in response to a
state Court of Appeals ruling.

The court case upheld the conviction of Longmont marijuana grower
Stacy Clendenin, who argued she should not be charged with
drug-dealing because she was a "caregiver" to her customers, some of
whom she had never met.

Medical marijuana advocates again took the Board of Health to court
and again won in Naves' courtroom.

The Clendenin case remains the highest court decision on Colorado's
medical marijuana law. The state Supreme Court declined to take a
final appeal.

Another event in 2009 really took the lid of the industry - the
inauguration of President Barack Obama, who had expressed support for
medical marijuana during his campaign.

After Obama was elected, his attorney general, Eric Holder, said on
camera in February 2009 that the Justice Department would ease up on
medical marijuana prosecutions.

The department made it official with an Oct. 19, 2009, memo to lawyers
with U.S. Attorneys offices, telling them not to devote resources to
prosecuting medical marijuana cases in states where it is legal.

Because of all the legal uncertainty last fall, health department
officials decided to ask the Legislature for a solution, said Ned
Calonge, chief medical officer of the Colorado Department of Public
Health and Environment.

The Legislature responded with two bills. Senate Bill 109 focuses on
the relationship between doctors and marijuana patients, and House
Bill 1284 deals with dispensaries.

Under the new law, dispensaries are no longer defined as "caregivers."
Instead, they have a new system of licensing by local governments and
the state Department of Revenue.

Suthers and local law enforcement officials lobbied against HB 1284.
District attorneys were getting ready to start prosecuting
dispensaries, said Kevin Bommer, a lobbyist for the Colorado Municipal
League who worked on the bill.

"Personally, I think they had a shot," Bommer said. "But I think the
collective reasoning was the genie was out of the bottle. The
political will for saying no to medical marijuana was not there."

Despite the Legislature's actions, the legal standing of medical
marijuana is not secure. Federal law does not recognize any such thing
as medical marijuana. But 16 states now allow it, said Karmen Hanson,
who tracks the issue for the National Conference of State
Legislatures.

"The (presidential) administration could just change its mind
tomorrow, and then what are all of these people going to do? It's such
a complicated topic," Hanson said. "I can't think of anything else
that's illegal on a federal level and legal on a state level."