Doctors and dispensaries – a “no-no”
In anticipation of SB109 or whatever it becomes, it is important for doctors to continue working with patients independent of any relationships the doctor or patients may have with a primary caregiver/primary caregiver business. It is unclear whether a doctor’s association with a referral business will be affected. The transaction between primary caregivers should be seperate from any renumeration to the doctor. Better yet that the patient pays the doctor directly for the examination. If the doctor is shareholder of such a business and primary caregivers/primary caregiver business is a source of revenue, it will be quite problematic.
Also, the doctor is not permitted to see patients at any dispensary. It is unclear whether an office rented or occupied by the referral business would permitted. As we seek to restore our image with the public, it is necessary that legitimate doctors are making independent medical marijuana recommendations for legitimate patients. Even the appearance of impropriety should be avoided. In doing so, we are helping patients and their caregivers stay legal and avoid further media criticism.
Stay legal!
Jeff
Selling medical marijuana
There are only two classes of person legally entitled to possess and cultivate medical marijuana: (1) the patient and, (2) if the patient assigns his/her right to cultivate to one other person, the Primary Caregiver. The Primary Caregiver is therefore limited to working only with the patients who designate him/her to be their Primary Caregiver – not anyone who happens to be a medical marijuana patient. Under the case, People v. Clendenin, the Court of Appeals clarified that a Primary Caregiver must have a personal relationship with their patients and that other daily activity caregiving services must be provided, including meals, housekeeping, grocery shopping, etc. Accordingly, a Primary Caregiver and/or Primary Caregiving business, a.k.a., dispensary, is limited to working only with patients who have assigned them the right to cultivate and possess medical marijuana. This means that any temporary assignment of primary caregiving falls short of constitutional protection. Simply put, you cannot have a temporary personal relationship and you cannot meaninfully provide other caregiving services on a temporary basis. As such, the use of temporary caregiver assignment agreements, found in many dispensaries, have little or no legal basis and, therefore, afford little or no legal protection from prosecution. In order to become and remain legal, a Primary Caregiver/Primary Caregiver business must educate the prospective patient about the limited rights afforded to primary caregivers and secure the assignment of primary caregivership BEFORE providing the patient with any medical marijuana.
Selling medical marijuana to dispensaries
Under Amendment 20(18), a patient has three rights. (1) to possess 2 ounces of medical marijuana; (2) to cultivate 6 medical marijuana plants; and (3) if the patient does not want to grow, he/she can appoint one other person to cultivate medical marijuana on their behalf. This person is deemed a Primary Caregiver and is assigned the right to cultivate and possess medical marijuana by their patient(s). This is the only legal basis for cultivating medical marijuana on behalf of patients. The assignment of rights to grow and possess medical marijuana is made by the patient and the Primary Caregiver, therefore, is limited, to acting with and on behalf of only their own patient(s). This limits the ability of the Primary Caregiver to provide medical marijuana only to their patient(s). This means that the Primary Caregiver cannot sell medicial marijuana to anyone other than their patients, including dispensaries. This also limits the Primary Caregiver business, a.k.a., dispensary, to selling only to the patients who have assigned their rights to cultivate and possess medical marijuana to the Primary Caregiver.
Romer withdraws bill
Medical marijuana law changed again over the weekend! Senator Chris Romer withdrew his medical marijuana regulation bill on Saturday. His reasoning was that neither law enforcement, nor the medical marijuana community provided the necessary support for his bill. Law enforcement is proposing their own bill to restrict primary caregivers to only working with five patients. If passed, this would eliminate both dispensaries and commercial medical marijuana cultivation. After all, who can afford such an investment with only five patients to purchase the medical marijuana? Accordingly, conservative interpretation of Amendment 20 (18) and the Clendenin case remain the best legal protection. Next, it is vital to contact your state representatives and let them know you oppose law enforcement’s bill, as it impacts the patient’s choice of who they want to to act as their primary caregiver. As always, Gard & Bond is here to help you start and maintain your medical marijuana business and to help patients get the legal help they need in these uncertain times. Stay safe!
Jeff Gard
Boulder limits business, protect primary caregivers
At the end of a long night, the Boulder City Council decided to adopt interim regulations for medical marijuana businesses, rather than impose a moratorium. Among other things, new MMJ businesses must have their permit application pending by 11/6 and be open for business by 12/1. There is a small window of opportunity to establish a new MMJ business. Your new MMJ business cannot be located within 500 ft. of an existing MMJ business, 1000 ft. of a school and cannot be located in a residential zoning area.
Of particular note is the fact that Boulder City Council exempted primary caregivers and patients from the definition of a MMJ business. As such, primary caregivers are not subject to the interim regulation. Be cautious! This may have been an oversight, as the BCC may not understand that, at least with respect to my clients, all such “businesses” are primary caregiver businesses. I suggest you lay low and be a good neighbor – not a test case!!!
Good work to all of the people who fought the good fight into the wee hours last night.
Court of Appeals guts MMJ Amendment
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.