Patients vs. prosecutors at medical marijuana hearing

A compromise bill that no one seems to like

By Ernest Luning
THE COLORADO STATESMAN

State lawmakers could be within shouting distance of a plan to regulate medical marijuana dispensaries with pending legislation that leaves hardly anyone happy. After hearing testimony late into the night on March 4, the House Judiciary Committee put off making any decisions about House Bill 1284, sponsored by Rep. Tom Massey, R-Poncha Springs, moving consideration of amendments and a committee vote to March 15.

Dr. Robert Melamede, CEO of Cannabis Science Inc., says the THC in medical marijuana unlocks therapeutic “cannabinoids” in the body.
Photo by Brad Jones/The Colorado Statesman

Noting the bill has been redrafted several times since he first unveiled it a month ago, Massey called his legislation a “significant compromise” and acknowledged few would find it entirely to their liking.

“Some will say it’s too restrictive, some will say it’s too open,” he said. “Everybody has felt the pain on this.” Still, he told the committee, allowing the status quo to continue without passing a bill was simply unacceptable.

“This is a balancing process,” admitted House Judiciary Chairwoman Claire Levy, D-Boulder. “We’re not going to make everybody happy. It’s impossible to thread that needle.”

Compared with earlier versions of the bill, the one lawmakers considered included several changes. Gone was the requirement medical marijuana centers be operated as nonprofit enterprises and stricken were a number of restrictions on advertising that opponents had warned could be unconstitutional. In addition, the current bill would let dispensaries acquire a higher percentage of the drug from outside suppliers than previous versions allowed. It would also establish a licensing system for operations making cannabis-infused edible products so every dispensary offering the treats wouldn’t have to have its own commercial kitchen.

Robert Corry, a prominent lawyer representing medical marijuana patients and dispensaries, says HB 1284 would significantly limit legitimate access to medical marijuana.
Photo by Brad Jones/The Colorado Statesman

It was the first public hearing on legislation that has been working its way through the process since last fall. After spending months negotiating an omnibus approach that tackled the medical marijuana industry from multiple directions, Massey’s co-sponsor, Sen. Chris Romer, D-Denver, threw up his hands in frustration and scrapped a lengthy draft bill near the start of the legislative session.

At the time, Romer complained the two most interested factions — law enforcement officials opposed to legitimizing the industry and medical marijuana advocates threatening to sue if constitutional rights were threatened — refused any compromise.

The same dynamic that frustrated Romer played out during hours of testimony concerning the House bill, which seeks to regulate how dispensaries — called “centers” in the bill — can operate.

One after another, prosecutors and police presented an unwavering front in opposition to Massey’s bill, stoking fears of marijuana-induced crime waves and potential harm to youngsters led to believe there’s nothing wrong with the drug.

Rep. Tom Massey, R-Poncha Springs, introduces HB 1284 to the House Judiciary Committee.
Photo by Brad Jones/The Colorado Statesman

Countering the cops, dispensary owners and patients told the committee a different story, extolling miracle cures and citing the Colorado Constitution as a backstop against plans to over-regulate dispensaries or restrict access to the drug for those who qualify.

Law enforcement officials — led by a representative of Attorney General John Suthers, who was unable to attend the hearing — also repeated their contention that the bill exceeds what voters intended when they approved medical marijuana.

Voters granted access to medical marijuana for certain ailments with the passage of Amendment 20 in 2000, making Colorado the only state to establish the right in its constitution. But the amendment didn’t create a framework for retail sales of the drug, instead requiring designated “caregivers” to supply limited amounts of marijuana to patients referred by doctors and approved by the state health department. Last year, when the health department declined to set a limit on the number of patients a caregiver could supply, and following a relaxation in federal law enforcement policy toward medical marijuana operations, Colorado’s dispensary industry took off like a weed.

Last month, the Legislature approved a less controversial bill aimed at regulating a narrow slice of Colorado’s blooming medical marijuana industry. Senate Bill 109, which awaits action by Gov. Bill Ritter, sets conditions on the doctor-patient relationship required to obtain a state license to use medical marijuana.

The Massey proposal, said Deputy Attorney General Geoff Blue, would amount to back-door legalization, circumventing the will of voters, who rejected a measure to legalize the drug entirely in 2006.

Aeryn Haze, at left, and Max Montrose, right, both of Denver, protest the state Legislature’s efforts to regulate medical marijuana dispensaries.
Photo by Brad Jones/The Colorado Statesman

“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,” wrote Suthers in a letter delivered to the committee.

“I strongly believe the voters should have a say if the state is going to go beyond the parameters of Amendment 20,” Suthers wrote.

It was a point Suthers’ fellow prosecutors made repeatedly.

“I don’t believe you have authority to regulate dispensaries,” said District Attorney Don Quick, a Democrat who represents Adams and Broomfield counties. Noting that he supported Amendment 20, Quick said the burgeoning retail industry selling medical marijuana that has sprung up in the last year isn’t what voters intended.

“Why did we not have dispensaries for the seven years following adoption of the amendment?” Quick asked rhetorically before urging lawmakers to “take it to the voters” rather than proceed on their own.

“The system worked for seven years, and now that the abuses come along, we’re saying we have to change the law to accommodate them,” Quick said.

“Legitimization of this industry would be very problematic,” said Thornton police officer Jim Gerhardt, who also warned that allowing dispensaries to flourish would invite “other organized crime elements into Colorado.”

“You have a choice to license and regulate dispensaries, or keep this disorganized, semi-chaotic system of caregiving operations,” countered Lauren Davis, an attorney who represents medical marijuana patients and caregivers and is a former deputy district attorney.

She pointed out that the number of authorized medical marijuana patients in Colorado – upwards of 60,000 by some estimates — would mean at least 12,000 individual caregivers growing marijuana for five patients apiece scattered throughout the state, “putting everybody at risk,” if dispensaries weren’t allowed to operate.

Davis, who testified more than six hours into the hearing, also put in a word for the medical marijuana patients who weren’t able to hold out that long to tell legislators their stories. Law enforcement officials were being paid over-time to testify, Davis said, and also had the opportunity to sign up in advance, a courtesy most patients weren’t allowed.

“I’m in a lot of pain and I ask you all to bear with me,” said Jessica LeRoux, a medical marijuana patient and owner of Twirling Hippy Confections, which makes cannabis-infused cheesecakes and other treats.

She echoed Davis’ criticism of the toll the lengthy testimony took on some patients.

“I represent every patient who was here today who felt they had something important to say to you but left due to the war of attrition sitting here through all our physical pain while the able-bodied people from law enforcement got to speak before us,” LeRoux said.

Levy said the committee heard testimony in the order witnesses signed up, but LeRoux said when she arrived — no more than a dozen witnesses in front of her — nearly half the 10-page witness list had already been filled out “with identical writing in ink before we even got here.”

Not every witness opposed the bill as strongly as the law enforcement camp and the more hard-line patients and caregivers.

“This (bill) gives a breath of fresh air to the industry and the general public as well,” said Brett Barney, attorney for Coloradans for Medical Marijuana Regulation, a coalition of patients and providers. “We view this regulation as a doorway to progress.”

Barney, who testified in general support of the bill, spoke with The Colorado Statesman on the morning after the committee hearing.

“Through that progress, through regulation and through that legitimacy,” he said, “we can move forward into research and development, safer medication, quality control measures.

“But if it remains without regulation, we’re always going to wake up in the morning and wonder, is this the day we have law enforcement knocking on our door.”

CMMR President Josh Stanley, who operates a dispensary in Denver, echoed Barney’s enthusiasm for regulation — and with it, legitimacy.

Stanley praised the bill’s authors for swapping out the nonprofit dispensary model from previous drafts of the bill, saying that was a fine idea if the state didn’t want to reap any taxes from the industry.

“I want to pay taxes,” Stanley said. “We feel it’s a privilege to pay taxes.”

Stanley told The Statesman he would be happy to work with legislators who have suggested they might take an excise tax on medical marijuana before voters.

“We’re not opposed to a reasonable excise tax,” Stanley said, “but it shouldn’t be something that’s excessive, because that’s just going to raise the cost to patients.” He said he’s had casual conversations with some legislators about the idea and wouldn’t be surprised to see the measure on the ballot this fall.

Barney said he was optimistic the House committee would address some of the concerns raised during testimony that fingered potential problems with the bill.

“We want regulation,” he said. “We just want regulations people can understand and comply with, one that’s not trying to be overly burdensome as far as expense, because ultimately all of these things do effect the cost and availability of care to the patients.”

Ernest@coloradostatesman.com