Posted by Jeff Gard on October 29, 2009 · Leave a Comment
Today, the Colorado Court of Appeals announced its decision in the case of People v. Clendenin, a case handled by attorney Robert Corry. The case dealt a serious blow to patients rights and casts doubt on whether a primary caregiver will receive any legal protection. The case can be read at: http://www.cobar.org/opinions/opinion.cfm?opinionid=7372&courtid=1.
It is more critical than ever to view the MMJ laws as conservatively as possible. Under the Clendenin case, the Court of Appeals ruled that the primary care-giver affirmative defense does not apply where the provision of marijuana is itself the substance of the relationship. As I have told prosective caregivers who seek my advice, caregiving means more than cultivating and/or providing MMJ to your patient and any such activities must be limited only to patients who have assigned you to be their caregiver (i.e., no walk-in business!). Caregiving requires a personal relationship and providing MMJ to your patient is only one small part of managing the patient’s well-being. In order to receive any protection a caregiver must (1) have a personal relationship with the patient; (2) be assigned the right to cultivate and provide MMJ by and on behalf of the patient; and (3) MMJ must only be a small part of your caregiving service.
Posted by Jeff Gard on September 10, 2009 · Leave a Comment
Are medical marijuana dispensaries legal? Yes.
A “dispensary” is a term of art, which defines a caregiver’s administration of his/her duties to the patient. Simply put, caregiving requires a basic business structure for reasons including collection and payment of sales tax, providing a place in which the patient can obtain medical marijuana (like a pharmacy) and to produce the medical marijuana on the patient’s behalf. This collection of activity, for lack of a better term, is currently deemed a ”dispensary.”
Briefly, under the terms of Amendment 20 only a patient and/or a caregiver assigned by the patient to provide medical marijuana may legally possess and/or cultivate medical marijuana. Per the terms of the Amendment, the patient and caregiver may collectively possess 6 plants and 2 ounces of medical marijuana. Accordingly, a “dispensary,” the business of a caregiver, must have a direct caregiver/patient relationship in order to fall under the Amendment’s protection. Providing medical marijuana to anyone without such a relationship falls outside of the Amendment’s protection. New Options Wellness Center and Boulder County Caregivers are two examples of caregivers who strictly comply with the terms of the Amendment.
Next, the issue of caregivers versus dispensaries recently was debated by the Colorado Department of Public Health and Environment and it was determined that “dispensaries” were necessary to effectuate the intent of the statute. How else are people able to obtain medical marijuana? Pharmacies do not carry medical marijuana. Not everyone wants to, or is capable of, cultivating medical marijuana. As such, in order for patients to procure their medicine, it is necessary for them to assign a caregiver to procure and/or cultivate medical marijuana on their behalf. As long as the limits (6 plants and 2 ounces per patient) are strictly observed by both the caregiver and patient, no state crime is committed – regardless of the opinions of Mr. Garnett.
Further, the fact that “dispensary” is not mentioned in the Amendment is a ”red herring” argument. There are a great many things not referenced in statutes, amendments, etc., that are deemed necessary to effectuate the intent of a written law. For instance, the use of computers and support staff by the District Attorney’s office are not specifically set forth in the statutes governing District Attorneys. The use of congressional staffers and Supreme Court law clerks are two other such examples.
Finally, Mr. Garnett as a matter of the constitutional separation of powers, is limited in his authority to enforcement of existing laws. It is for the legislature, through the Colorado Department of Public Health and Environment, not Mr. Garnett or other District Attorneys, to determine the intent of written law and to seek modification of Amendment 20. While he may not agree with the Amendment, it is Mr. Garnett’s job to set his personal feelings aside and enforce (or not) the will of the electorate and respect the determination of the Colorado Department of Public Health and Environment.
Jeff Gard
Boulder attorney
