Boulder leaning in right direction

Posted by Jeff Gard on November 6, 2009 · Leave a Comment 

Thanks to the efforts of the MMJ patients and advocates, the Boulder City Council declined last night to enact an emergency moratorium on new dispensaries. The matter will again be considered on Tuesday, 11/10. However, the City Council is seeking input from people who may adversely be impacted by MMJ businesses. In view of the fact that the City Council appears to be leaning against stringent regulations, I suggest that we respect the rights of those opposed to MMJ to have their say. By being respectful of such opinions, our position is made that much stronger. Let’s practice tolerance, in a situation where we require tolerance. Good job everyone.

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Practical Tips to Comply with Clendenin case

Posted by Jeff Gard on October 30, 2009 · Leave a Comment 

Dear Friends,

As I stated yesterday, 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 patient’s rights and it is much more difficult for a primary caregiver to avoid prosecution. The case can be read at: http://www.cobar.org/opinions/opinion.cfm?opinionid=7372&courtid=1.

Accordingly, it is critical to view the MMJ laws as conservatively as possible. As I tell my clients, caregiving means more than cultivating and/or providing MMJ to your patient and the Court of Appeals has made my opinion the law for MMJ in Colorado. Also, you must only cultivate and provide MMJ to patients who designate you as their primary caregiver. As I predicted, the Court of Appeals has ruled that caregiving requires a personal relationship with the patient and providing MMJ 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.

Accordingly, all caregivers should immediately align themselves with other services including, but not limited to, housekeeping, home-delivery, handyman, meal delivery, lawn maintenance and other such services to offer your clients as part of your caregiving business. I suggest you immediately write/email each of your patients and offer such services (and any others you think of). Document that you offer such services and keep a copy of any responses from your clients. Actively encourage your clients to accept such additional services, so that you can demonstrate, if needed, that you are a caregiving service, with MMJ being only one part of that business. Be creative and be safe.

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Court of Appeals guts MMJ Amendment

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.

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Medical marijuana dispensaries are legal

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

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