Bill: Pot places must be nonprofit 'health centers'

By Ernest Luning
THE COLORADO STATESMAN

Communities could ban medical marijuana shops outright, and the ones that survive would have to reincarnate as nonprofit corporations subject to strict licensing and regulations under a bill unveiled by state lawmakers Wednesday.

Senate Bill 109, sponsored by Sen. Chris Romer, sets out stringent rules for the doctor-patient relationship, and passed that chamber on a 34-1 vote.

The long-anticipated bill by Rep. Tom Massey, R-Poncha Springs, and Sen. Chris Romer, D-Denver, would establish an 18-month moratorium on new marijuana businesses while allowing existing operations to transition over the same period into nonprofit “health centers” subject to rules modeled on the state’s liquor code. The bill was set to be introduced on Thursday and heard in the House Judiciary Committee on Monday.

“There’s a lot of compromises here,” Romer said at a packed Capitol press conference filled with nearly as many cannabis advocates as journalists.

If the definition of a successful compromise is one that makes no one happy, Romer and Massey may well have succeeded.

Patient advocates warn the bill goes too far clamping down on a booming business that has seen the number of card-carrying medical marijuana users grow by the tens of thousands in the last year while the number of retail dispensaries has kept pace.

Law enforcement officials, on the other hand, say the bill doesn’t go far enough stuffing the genie back in the bottle and would have preferred a bill that did away with storefront marijuana suppliers entirely.

While allowing they’re willing to work with lawmakers to “get this right,” leading medical marijuana advocates said the initial draft of the bill falls far short of expectations.

“This bill was drafted without ever considering the wants and the needs of patients,” said Brett Barney, attorney for Coloradans for Medical Marijuana Regulation, a coalition of patients and providers. “They’re heavily over-regulating a prosperous industry,” he said, “and there are a lot of things in the bill that are flat-out unconstitutional.”

Barney pointed to limits on the number of patients dispensaries could serve, restrictions on the doctor-patient relationship, and even the bill’s rules on advertising, which he said would infringe on “commercially protected free speech.” He cautioned against rushing the bill through the Legislature and then winding up bogged down in court battles for years.

The bill’s sponsors don’t get many points from the other side, either. Attorney General John Suthers on Thursday roundly rejected the dispensary framework proposed by Romer and Massey.

“I join many in law enforcement, health care and drug treatment in vehemently opposing any legislation that embraces the clinic or dispensary model for distribution of medical marijuana,” Suthers wrote in a letter he planned to have read into testimony at Monday’s committee hearing on the bill (Suthers will be out of town that day).

“To embrace commercial dispensaries or clinics as a means of distributing marijuana would go far beyond the intent of the voters. In my opinion, it would constitute de facto legalization,” Suthers says, noting that voters rejected a marijuana legalization measure by a 20-point margin in 2006. “I strongly believe the voters should have a say if the state is going to go beyond the parameters of Amendment 20.”

Romer blamed the two sides for refusing to compromise last month when he scrapped plans to introduce sweeping medical marijuana legislation regulating everything from commercial growers to the burgeoning dispensary business.

The House bill, sponsored by Rep. Tom Massey, incorporates the Senate bill and adds pages of regulations governing dispensaries.

Instead, Romer teamed with Massey to draft two smaller bills dealing with chunks of the medical marijuana question: Senate Bill 109 — which sets out stringent rules for the doctor-patient relationship, passed that chamber on a 34-1 vote Monday and heads to the House this week — and the House bill previewed Wednesday. The House bill, which hadn’t been assigned a bill number by press time, incorporates the Senate bill and adds pages of regulations governing dispensaries.

The House bill departs from an earlier draft proposed by the Colorado Sheriffs Association — dubbed the “law enforcement bill” throughout weeks of negotiations — that would have eliminated retail dispensaries altogether by restricting medical marijuana providers to five patients apiece. That arrangement — specified in the state constitution — will remain a way for patients and caregivers to organize themselves, but the Massey-Romer bill also establishes a framework for larger retail operations serving hundreds of patients.

“This is not the sheriff’s bill, this is not the Suthers bill, this is not the original Romer bill,” Romer said.

“If you want to organize a medical marijuana center, you’ll have to play
by the rules we set forth,” Romer said. Acknowledging that the caregiver model is enshrined in the constitution, Romer said small numbers of patients could continue getting their medicine that way, largely free of state
interference.

Meanwhile, medical marijuana activist Brian Vicente announced just prior to the bill’s debut that he plans to launch a ballot initiative aimed at establishing “sensible regulations for dispensaries.” The pending initiative is a tool to pressure lawmakers as they consider the dispensary bill, but, if that fails, Vicente said he’d be happy to let voters have the final say.

“We plan to lobby against any legislation that would hinder the operations of locally approved dispensaries,” Vicente said in his announcement. “And if we must, we will push for passage of this constitutional amendment.”

In order to make the November ballot, Vicente’s organization, Sensible Colorado Action, would have to gather roughly 75,000 signatures by July.

Josh Stanley, president of CMMR and a dispensary owner who serves 2,800 patients, cautioned against relying on a ballot measure to circumvent lawmakers.

“To drag this out further would be a travesty for the state,” he said. “I think we can find a middle ground now” through the legislative process. “Ballot initiatives can be sticky and are very expensive. It’s my hope we don’t have to go that route.”

Vicente’s group isn’t the only one threatening to take the question before voters if the Legislature passes bills deemed too harsh. Medical marijuana attorney Robert Corry has said he’s considering running a ballot measure to answer lawmakers and protect patients if he determines the Legislature infringes on constitutional rights.

In 2000, Colorado voters established access to marijuana for certain medical conditions by approving Amendment 20. For nearly a decade, the field simmered along until last year, when a series of state and federal moves stoked a full-blown industry from scratch. As many as 75,000 Coloradans could hold cards certifying their right to use medical marijuana by the time the law takes effect, according to state health officials.

Under the House bill, a newly created Medical Marijuana Licensing Authority would be required to deny a state license to doctors, minors, anyone owing back taxes or delinquent in student loans or child support, and applicants with felony convictions. The board would also have to deny applications if it “determines the licenses already granted for the particular locality are adequate for the reasonable needs of the community,” which could radically thin the number of dispensaries in some neighborhoods of Denver and Boulder.

Stanley said basing a licensing structure on liquor laws is a problem.

“There are no doctors involved in the whole sale of liquor,” he said. “It’s trying to compare apples to oranges, a recreational drug with something clearly voted into the constitution as a medical health benefit.”

While Romer compared the proposed medical marijuana authority with the way the state handles liquor licenses, he said the bill’s restrictions on advertising were more like those governing another vice, tobacco.

“Advertising needs to be sensitive and needs to be appropriate,” Romer said, noting that ads “targeted to teenagers” would be forbidden.

Also restricted would be “offensive types of advertising that tends to encourage the use of marijuana,” he said. He pointed specifically to distinctive, oversized pot leafs that have drawn complaints from parents who contend the images glorify an illegal drug.

Under the bill, centers couldn’t use “depictions of any part of the marijuana plant, the whole plant, marijuana leaves, or paraphernalia in [their] advertising,” and would be barred from listing prices or displaying any sort of logo.

“We don’t believe in tacky advertising,” Barney said. “We’re not in favor of marijuana leaves on the front windows of all these places, but [the bill’s restrictions are] something that do infringe on constitutionally protected speech.” He said he’d be surprised if the Legislature adopted the rules as proposed.

The bill would also ban consumption of marijuana at centers and restrict inventory to 3,000 pot plants and 1,000 ounces of the drug. Centers would also have to grow their own supply but would be able to exchange up to 10 percent of their inventory with other licensed centers.

The bill also incorporates a requirement approved in the Senate bill that patients age 18-21 get referrals from two doctors before qualifying for a medical marijuana card. Emancipated youth wouldn’t face this restriction.

“If this bill were to be passed, there are a good number of us who can stay in business,” Stanley said. “It’ll just be harder. My number one fear is that if this gets passed, you’ve got a lot of attorneys out there chomping at the bit to file all these injunctions. We’re the only state that has medical marijuana in its constitution — we have incredible opportunity here. It’s my hope we can whittle away at these things and come to some common sense conclusions.”

Ernest@coloradostatesman.com