August 2010
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Reefer madness: Confusion over Colorado's medical marijuana laws

By David Grant Long and Gail Binkly

This is the first in a two-part series about medical marijuana in Southwest Colorado.

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Gone are the days of her wild-eyed youth, when she was portrayed as an agent of the devil in government propaganda films like “Reefer Madness” (and simply being caught with her could earn you a prison sentence).

“Mary Jane” has grown up and become respectable — at least in the eyes of an increasing number of doctors and people who use marijuana legally to treat a variety of medical issues, from pain to lack of appetite.

Cannabis, a drug still classified by the federal government along with heroin as a Schedule I controlled substance having no medical use, is now legal to ingest as medicine in 14 states and at VA clinics within those states. Those include New Mexico and Colorado, where voters passed a constitutional amendment approving such use a decade ago.

Coloardo's new rules

House Bill 1284 and Senate Bill 109, passed this year, attempted to tighten the rules surrounding medical marijuana.

Some of their provisions are:

• Local municipalities and counties are given the authority to prohibit the establishment of dispensaries in their community.
• Dispensary owners are required to show by Sept. 1 of this year that they are growing 70 percent of the pot they sell - which for many will be difficult, considering that grow operations are banned in many places. Also, growers must sell at least 70 percent of their crop through one dispensary.
• In addition to a state license, MMJ retailers or grow operations must have a license from their local government.
• Physicians now may recommend cannabis therapy only to patients with whom they have had a prior counseling relationship, and they must conduct first a physical exam. Physicians are prohibited from having a financial relationship with a medical marijuana dispensary.
• A statewide moratorium on new licenses for MMJ centers and grow operations is in effect until July 1, 2011, while the Department of Revenue develops further regulations for the medical use of pot. Working groups are to be formed with
patient advocates, MMJ growers and center operators, representatives of government, law-enforcement officials, and attorneys.

But the devil has certainly proven to be in the details.

Today, local governments, law-enforcement agencies, and citizens are struggling to decide exactly when and where and how medical marijuana should be available.

It's a difficult task, particularly in Southwest Colorado, where traditional conservatism frowns on mood-altering substances but Libertarianism calls for small government and individual freedom.

Add to that the fact that medical-marijuana dispensaries offer economic benefits to revenue-hungry local governments, and you have a classic mix of conflicting interests.

In Cortez, home to a half-dozen MMJ centers, the questions raised are as thorny as anywhere else in the state.

"I've talked to a bunch of police officers,” said Cortez Mayor Dan Porter, “and one of them said to me, ‘We haven’t had a raise in how long and I’m sure these places are bringing in tax money — keeping us afloat right now,’ and (the officer) is absolutely right. Maybe not keeping us afloat, but it’s revenue.

“Then there’s the other side of that — is it right? Talk about a tough issue.”

Porter said while he knows there is some opposition to the use of marijuana for any purpose, he’s heard scant negative reaction to the city’s dispensaries, and some of that is misdirected.

“I get these people who are saying they’re a blight on Cortez and it looks bad, and then they point to our tobacco shops, which have hookahs in the windows, thinking those are the dispensaries,” he said. “I would tell them we could get rid of every dispensary and we'd still have tobacco shops selling hookahs in the windows.”

Porter said he does not have any objections to dispensaries in Cortez as long as the owners comply with regulations.

“If a person has been given a medicalmarijuana card for a valid purpose, I don't have any problem with them getting their medication,” he said. “But we need to make sure the people who get those cards are doing it for the reasons people voted this in in the first place.”

Confusion and conflicts

When Colorado's voters passed Amendment 20 back in 2000 with a 54 percent majority, few of them probably envisioned the confusion and conflicts it would engender.

The amendment to the state constitution allowed patients to use marijuana for certain debilitating conditions: cancer, glaucoma, HIV, cachexia (wasting), severe pain, severe nausea, seizures, or persistent muscle spasms such as those characteristic of multiple sclerosis.

Patients must have a doctor's recommendation and must apply to the state for a medical-marijuana card.

Unfortunately, the amendment didn't specify exactly how the patients were supposed to get the marijuana. It did provide that patients themselves, or “caregivers,” people different from physicians, could grow up to six plants at a time to provide pot for medical purposes.

For nearly a decade the number of MMJ patients and caregivers remained small.

Then, in 2009, the state’s marijuana industry exploded because of two factors: the Obama administration’s announcement that the feds would not seek to prosecute MMJ patients and providers in states where the substance is legal; and a state board of health decision not to limit the number of patients a marijuana-provider may care for.

Pot dispensaries began sprouting around the state. In addition, the number of MMJ patients increased; there are now an estimated 6,500 registered in Colorado.

According to the Durango Herald, there were seven dispensaries and one grow operation licensed with that city as of July 20, and one application for a dispensary was pending. In addition, eight complete applications for grow operations were returned to La Plata County in June, the Herald reported.

The town of Dolores has two dispensaries. Mancos, Dolores County and Dove Creek, however, have none.

The Wild West, anything-goes atmosphere raised concerns, and the state legislature scrambled to get the reins on MMJ.

This year, state legislature passed, and Gov. Bill Ritter signed, two bills that tightened the rules surrounding marijuana.

The bills required marijuana dispensaries (now renamed “centers”) to apply for state licenses by July 31 of this year and pay state licensing fees of $7,500 to $18,000. Owners of dispensaries cannot have been convicted of felonies in the last five years. If they have a felony drug conviction, they are banned for life from the medicalmarijuana business. (Peculiarly, convictions for other types of felonies such as theft and assault are deemed less serious; after five years, someone convicted of manslaughter or armed robbery can become a dispensary owner.)

The new law makes a distinction between dispensaries/centers and “primary caregivers,” the small-scale providers described in Amendment 20. Caregivers, whose role is considered protected by the state constitution, can serve no more than five patients and grow no more than six plants per patient, in almost all cases.

Anyone providing marijuana for more patients is considered a dispensary, or center, and is regulated by the Colorado Department of Revenue rather than the state health department.

The new rules triggered a stampede of applicants seeking to beat the deadline, after which a statewide moratorium on new dispensaries went into effect until July 1, 2011. According to the Denver Post, Department of Revenue officials were taking applications at their Commerce City office until 5 p.m. on Aug. 1, a Sunday.

Confusion and conflicts

Another new regulation set off a flurry of activity among local governments.

That was a provision allowing counties and municipalities to decide to “opt out” of allowing “medical-marijuana centers [dispensaries], optional premises cultivation operations, and medical marijuanainfused products” — either through a vote of the governing board or council, or through a vote of the people.

A municipality or county voting to opt out could thus not only prevent new marijuana dispensaries from opening, but close down existing ones.

This prompted hasty discussions among local boards about whether to (a) put the question to voters in November or (b) decide the matter themselves, and if (b), then whether to continue to permit the dispensaries or not.

It also caused some headaches for dispensary owners, who noted that in locations where the question was to be sent to voters, owners had to apply to the state — and pay the steep, non-refundable application fee — before they could even know whether voters would decide to allow MMJ centers.

So far, most boards in the area have decided the question themselves. La Plata County's commissioners voted 2-1 not to put the matter on the ballot.

The city of Durango likewise won’t put a halt to MMJ centers, but has moved to regulate them more strictly. On July 20, the council passed on first reading an ordinance that bans grow operations within the municipality, ups the city’s license fee to $1,500 and requires a thorough background check for dispensary owners.

In Dolores, the town board initially leaned toward putting the matter to a public vote, then decided against it, leaving Dolores as a place where dispensaries can operate, according to Town Clerk Lana Hancock.

The Mancos Town Board likewise isn’t putting the question to voters, according to Town Manager Tom Yennerell. Dispensaries can operate in Mancos, but there are none so far.

The Cortez City Council took up the question of whether to ask voters about MMJ at its July 13 meeting during a lengthy public hearing attended by about 70 people. The hearing demonstrated the deep division in sentiment among the citizenry on the issue.

“Marijuana has been used as medicine over 4,000 years,” said Retha Williams, who said she had been a nurse for 42 years and had worked 10 years at a drug and alcohol detox center. “It’s a natural product, not put together like many of the things put together by the pharmaceutical industry, like thalidomide,” she added, referring to a now-banned drug that was given to pregnant women and resulted in horrible fetal deformities.

“In my 10 years I never saw anyone admitted for marijuana abuse or addictions,” she said.

But Garth Greenlee, a Cortez resident and retired pilot, had a different view. “All these people are wanting is legal marijuana,” he said. “Why not meth?. . .

“They want to start stores all over our wonderful town. They want to put marijuana in cookies and candy and put a menu on the wall like McDonald’s and that’s not right, people.”

Sheryl McCutcheon of Cortez agreed. The 80-year-old made it clear that she opposes marijuana even for medical purposes, although she said, “I have never seen it. I don’t know anything about it.” She added, “I take one thyroid pill. That’s all I take.”

And Russell Wasley, Republican candidate for district attorney in the 22nd Judicial District, said, “There are many questions regarding the legitimacy, if any, of this business.”

But Chad Davis, a medical-marijuana patient who said he broke his back two decades ago at the age of 18 and has been in pain ever since, commented, “Anything —anything — that will take that pain away is a blessing.” He doesn’t tolerate narcotics well, he said, but pot gives him some relief.

A number of owners of dispensaries spoke about the economic and medical benefits they provide. Sherry Garcia, owner of the Medicine Man dispensary in Cortez, said that by hiring four employees, “We’re feeding four families. They have jobs.”

“We are providing a safe, reliable and legitimate means of access to medicine for patients,” said Travis Polluck, owner of Nature’s Own Wellness Center.

Others pointed out that, if dispensaries closed, there would have to be a lot of care givers, at just five patients per caregiver.

Ultimately council member Matt Keefauver argued that leaving dispensaries legal would make the marijuana industry more transparent and easier to police, and the majority of the council agreed. They voted 5-2 not to send the question to voters and to leave in place the status quo, meaning dispensaries can continue to operate in the city if they get both a state license and a city sales-tax license.

Concerns about safety

On July 19, the Montezuma County commissioners also opted to make the MMJ decision themselves rather than putting the question on the November ballot, an action that would cost the county several thousand dollars.

“Why spend the money when they pay us to make a decision?” asked Commissioner Steve Chappell.

The commissioners set a public hearing Monday, Aug. 30, at 10:30 a.m. to decide the issue, but the board’s comments about MMJ have been negative so far.

“Pharmaceuticals are strictly regulated by the FDA,” Chappell said during the discussion July 19. “There is no control over the quality [of medical marijuana], or whether it's even poison. If somebody dies after smoking it, who gets sued?”

“Those are all questions that weren't thought of back in 2000,” Sheriff Gerald Wallace answered the board.

Wallace told the Free Press he has no problems with people growing a few pot plants to treat the conditions outlined in Amendment 20, but he has concerns about the increasing number of dispensaries.

“It's taken on a whole new face,” he said.

Wallace said there have been problems associated with medical-marijuana dispensaries on Colorado’s Front Range. “I was talking to the sheriff of Adams County and he was saying the amount of crime increased dramatically,” Wallace said. “Within 10 days they had two gun battles outside the dispensaries.”

He also has concerns about the difficulties of testing marijuana patients who may drive under the influence of pot. Because it stays in the blood a long time — several days or more — a blood test that shows the presence of marijuana doesn’t necessarily mean the driver was high at the time he drove.

“Now, if we do a blood test and there is any evidence of marijuana in the system, it’s DUID [driving under the influence of drugs]. What is the limit you’re going to allow it to be? There are so many questions that are unanswered.”

But Wallace admitted it’s difficult to make a case that marijuana is a more dangerous drug than alcohol. “That is a very tough question,” he said. “Most drugs have their negatives. Alcohol is a big problem in this community. If you look at our [jail] inmates you can see that.”

Montezuma County Administrator Ashton Harrison said there are currently no dispensaries or grow operations in the unincorporated county. He said one such application was submitted to the county but the applicants chose to withdraw it.

Likewise, Dolores County has no MMJ operations. That county won’t be putting the question to voters. Commissioner Doug Stowe said other than having adopted a moratorium on dispensaries until regulations are better defined, the commission sees no need for more action at this time.

“We’re kind of in a holding pattern,” Stowe told the Free Press. “There will probably be a lot of litigation” challenging the state rules as well, he noted.

A checkerboard

So far, Cortez’s dispensaries have created no problems for the police, other than a break-in at one dispensary in which some marijuana was stolen, Chief Roy Lane said.

He noted that there is currently little in the way of laws pertaining to the clinics to enforce at any rate.

There’s also been no significant increase in police contacts with people obviously under the influence of marijuana since the medicinal dispensaries have opened locally, Lane said, “to my knowledge.”

So for now, Southwest Colorado and the Four Corners will remain a patchwork where larger, commercial MMJ operations are legal in some places, banned in others.

New Mexico already has a state-regulated medical-marijuana dispensary program, but is short of growers to supply the substance. Arizona and Utah do not allow MMJ operations.

Dispensaries are legal in La Plata County and Durango, legal in Cortez, Mancos and Dolores, but may be banned in Montezuma County. They have not been permitted so far in Dolores County.

And, of course, marijuana use is still prohibited under federal law.

Having pot be legal in some instances and not in others makes enforcing the law difficult, according to Lane, who advocates for consistency across the country.

“I’ve never seen checkerboard laws be effective,” he said. “Regardless of what the state of Colorado does, it is still against the law to do what they’re doing federally.

“Instead of having this checkerboard, we should do it one way or the other.”

Next month: Medical-marijuana growers, dispensary owners, and patients give their views.


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