New Regulations for Medical Marijuana in Colorado

Appeals court: "Caregiver" must do more than grow pot
The Denver Post
Posted: 10/29/2009 09:47:44 AM MDT

The Colorado Court of Appeals has upheld the marijuana cultivation conviction of a Longmont woman, ruling that a person designated as a medical marijuana "caregiver" must do more than just supply the drug to patients.

In a special concurring opinion, Judge Alan Loeb wrote that Colorado's consitutional amendment legalizing medical marijuana "cries out for legislative action."

The case involved a woman named Stacy Clendenin, who in 2006 was charged with cultivating marijuana in a Longmont home.

Clendenin argued that the marijuana she grew in the home was then distributed to authorized patients through marijuana dispensaries.

But the appeals court ruled that simply knowing that the end user of marijuana is a patient is not enough. Instead, the court said, a care-giver authorized to grow marijuana must actually know the patients who use it.

"We conclude that to qualify as a 'primary care-giver' a person must do more than merely supply a patient who has a debilitating medical condition with marijuana," the court ruled.

The ruling, if upheld on appeal, could change the process now in place to supply the burgeoning medical marijuana industry in Colorado â?? if the Colorado Legislature doesn't restrict it first.

Attorney General John Suthers applauded the decision.

"I am pleased to see the Court of Appeals' has provided legal support for our case that a caregiver, under Amendment 20, must do more than simply provide marijuana to a patient," Suthers said. "I also was pleased to see the assertion in the special concurrence that Amendment 20 'cries out for legislative action.' I could not agree more. I hope the legislature will act and create a regulatory framework that gives substance to the Court of Appeals' findings."

Rob Corry, who represented Clendenin, could not immediately be reached for comment. He had previously argued that by restricting the ability to grow marijuana for medical patients, the government would essentially be overruling the voters who approved medical marijuana in the first place.

State Sen. Chris Romer has said he plans to introduce some medical marijuana restrictions when the legislature convenes in January. But House Speaker Terrance Carroll has said he does not believe further regulation is a pressing issue in the state.

looks like the ones that whine will soon be seeing how bad they just made it for themselfs.i would think with a ruling like this it will end up putting alot of shops outta biz.most shops buy most of there product from growers and leftover from caregivers.looks like this will put a stop to that.how so you ask? how would the grower ever meet the patients that buy from these shops? the shops are'nt using it.i guess the peeps that complain will soon find out how green the grass really is in the other side.say byebye to the 20 or 40+ strains to choose from in shops.if you have to have a close relationship with each patient shops will go under.they would only be able to grow for there patients?

also seems like that would stop peeps from buying from other peeps when they are out? how will they be able to do this when you have to be so close to the patient?and they never said exactly how close or what you have to do?im guessing the law will want us to be so close as to bath the patient and wipe there arse too?

all you peeps that whine all the time about price are you happy now? this would mean that you can't shop jump and pick and choose your own meds based on price.look for price hikes if this shit keeps on.and you thought the prices were high b4 lmao.most growers would rather go back underground.

but then again what do i know but keep the whining up and you will see where it gets you.the law is on your side lmao they love peeps like you as they can use that to work out harsher laws for us all.

i wonder why they don't make docs and meds sellers follow there patients home for a "closer" relationship? the fact is the atty gen hate us and you peeps that keep bitching is helping there cause not ours so good job all you guys.

was she really on paper anyone's caregiver or did she grow with no dr.'s note and no caregiver designation - just knowing the meds were going to registered patients?

Palerider7(x4)....you are one angry stoner. chill out, bro. Things will be alright. In a few years you'll be able to go down to your local 7-11 and grab a pack of Marlboro Greens.

In the meantime, lets not turn this thread into another flame war.

Quote:

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Originally Posted by Dietblonde

Palerider7(x4)....you are one angry stoner. chill out, bro. Things will be alright. In a few years you'll be able to go down to your local 7-11 and grab a pack of Marlboro Greens.

In the meantime, lets not turn this thread into another flame war.

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besides my lil rant did you read any of it?like if you can only service a "patient" that you know really really really well like fam how are shops going to supply the mass crowd as they do now?

That's a great question...I really dont know. I'm going to see my caregiver probably tomorrow and ask him about it. I wonder if there are any loopholes in the new ruling. I wonder how it could be enforced? Is there any bite behind this thing.

I think you have valid concerns. I'd like to get the communities pulse on this.

it was my understanding that this particular case was "won" because she was arrested in 2006 and the clarification of the law that happened in denver a few months ago had not yet been addressed.
the state board *did* just vote against changing the definition of caregiver, right?!
as the law cannot be applied retroactively, she can't use the defense.
i'm not sure, but it's my opinion that this is an isolated case.
how can anyone prove how well anyone knows anyone else anyway?!?!

and palerider, as always, your negativity and poor spelling/grammar amaze me.

from the denver post, for what it's worth:


"Clendenin's attorney, Robert Corry, says he plans to appeal the ruling to the Colorado Supreme Court.

"This decision is quite limited and only applies to Stacy Clendenin and only applies to those who went to trial before July when the state board agreed that caregivers could simply provide marijuana," Corry said. "I am concerned that the court super-imposed California law on Colorado and I don't think California (medical marijuana) law is a shining star of success.""

well then, that sure is a positive spin on things. hopefully nothing more comes of this.

This is how I read the case. Since the defendant was attempting to introduce evidence necessary to an affirmative defense, that means that the patients she was providing mj to had NOT designated her as their caregiver. If they had, prosecution of her would have been barred, and she would not have been in court. Therefor, the Court's definition of "caregiver" ONLY applies in a situation where the defendant has not been designated. The Court did not attempt to find out if a person who had been designated as a caregiver was "really" one. In addition, the department of health has explicitly defined caregiver to include someone who "merely" provides mj. Unfortunately for Ms. Clendenin, that rule came out subsequent to her prosecution and the Court declined to give it retroactive effect. If the case is to be appealed, the last word is yet to come from the Colo. Supreme Court. If, in the meantime, the community changes its actions to fit the ruling, the practical effect will probably be that more dispensaries will require that one designate them as one's caregiver in order to purchase medicine from them, and growers, to be safe, will need to grow no more plants than 6x the number of patient designations that they have. I've always assumed the latter to be true anyway. Warren Edson (a local atty) has always advised that if you are going to grow for a dispensary, have a "pizza party" or a meet and greet with the appropriate number of patients and create a notebook with all their personal info in it to document the "relationship" that the Court did not find here. Once you can introduce even a small amount of evidence that an affirmative defense is applicable (a standard which the Court here held as a matter of law that the defendant could not meet) then the burden shifts to the prosecution to prove beyond a reasonable doubt that it was not "medical" mj.

Quote:

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Originally Posted by pfunk211

it was my understanding that this particular case was "won" because she was arrested in 2006 and the clarification of the law that happened in denver a few months ago had not yet been addressed.
the state board *did* just vote against changing the definition of caregiver, right?!
as the law cannot be applied retroactively, she can't use the defense.
i'm not sure, but it's my opinion that this is an isolated case.
how can anyone prove how well anyone knows anyone else anyway?!?!

and palerider, as always, your negativity and poor spelling/grammar amaze me.

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i knew if you popped up you would have sum stupid shit to say very simple minded you are.you talk about my spelling yet you say

spelling.grammar AMAZE me? should'nt that be amazes me? wow looks like you yourself need lessons too?sounds like your telling me to amaze you instead?you and jazz must already have one of those "real"close relationships that they are talking about huh?

In a special concurring opinion, Judge Alan Loeb wrote that Colorado's consitutional amendment legalizing medical marijuana "cries out for legislative action."


Attorney General John Suthers applauded the decision.

"I am pleased to see the Court of Appeals' has provided legal support for our case that a caregiver, under Amendment 20, must do more than simply provide marijuana to a patient," Suthers said. "I also was pleased to see the assertion in the special concurrence that Amendment 20 'cries out for legislative action.' I could not agree more. I hope the legislature will act and create a regulatory framework that gives substance to the Court of Appeals' findings

this was posted yesterday 09 not 06 seems they do infact or would like to use this as a witch hunt?since in fact the vote that happened a few months back was clearly shot down why would these 2 still say it crys for action?

Quote:

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Originally Posted by palerider7777

In a special concurring opinion, Judge Alan Loeb wrote that Colorado's consitutional amendment legalizing medical marijuana "cries out for legislative action."


Attorney General John Suthers applauded the decision.

"I am pleased to see the Court of Appeals' has provided legal support for our case that a caregiver, under Amendment 20, must do more than simply provide marijuana to a patient," Suthers said. "I also was pleased to see the assertion in the special concurrence that Amendment 20 'cries out for legislative action.' I could not agree more. I hope the legislature will act and create a regulatory framework that gives substance to the Court of Appeals' findings

this was posted yesterday 09 not 06 seems they do infact or would like to use this as a witch hunt?since in fact the vote that happened a few months back was clearly shot down why would these 2 still say it crys for action?

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If you read the opinion, you will find that Judge Loeb is talking about the fact that many transactions under the law, while legal for a patient or a "designated caregiver," are illegal for the supplier. This is in fact true, and is why the dispensaries are having a hard time keeping up with demand. The judge is right that it "cries out" to be fixed, but the idea that the legislature might be charged with the task doesn't thrill me.

Quote:

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Originally Posted by senorx12562

If you read the opinion, you will find that Judge Loeb is talking about the fact that many transactions under the law, while legal for a patient or a "designated caregiver," are illegal for the supplier. This is in fact true, and is why the dispensaries are having a hard time keeping up with demand. The judge is right that it "cries out" to be fixed, but the idea that the legislature might be charged with the task doesn't thrill me.

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i guess it depends on how the judge means it for there side or ours? maybe he is pro meds?

More likely, like most judges, he's pro clear rules. Most judges like clarity in rules governing our behavior, and that sensibility is offended by rules like amendment 20, that are unclear and/or contradictory.

I would have to be one to agree that crystal clear rules is the best for everyone operating in the MMJ field.

Feijao

quote from WARREN EDSON ::

I am just saying that if you do not offer wellness services as part of your "caregiving" package, you could be arrested tomorrow if you grow or distibute to others. The DA's could start filing cases tomorrow using the new definition without any legislation at all.



Warren Edson, Esq.
1490 Lafayette St., Suite 407
Denver, CO. 80218
(303) 831-8188
warrenedson.com


QUTOE FROM BRETT BARNEY ::

I concur with Warren on this matter. I think the decision is clearly indicative of the collective mind of the appellate panel, and how they will treat any future appeals, at least until the legislature acts. The Court?s specific holding in Clendenin was that ?to qualify as a ?primary caregiver?, a person must do more than merely supply a patient who has a debilitating medical condition with marijuana.? Unfortunately, or fortunately, the Court does not go on to say exactly how much more is required to be a ?primary caregiver? and therefore does little to help us understand to what extent one must be involved in the patients care regimen to be protected by the affirmative defense. What is clear is that those whose only service provided to a patient involves supplying medicine will be subject to prosecution, and will be unlikely to be permitted to avail themselves of the benefit of the affirmative defense in a manner that will be successful. This may vary from jurisdiction to jurisdiction at the trial court level, but on appeal, one can expect this result. At the trial level, the court acts as the finder of fact, and based on the facts presented, determines whether the defendant is entitled to present the affirmative defense at trial. The Appeals panel found no error in the Boulder trial court?s conclusion that Clendenin?s lack of personal relationship with her patients precluded her from asserting the defense, so from this decision, we can take away two pieces of knowledge; 1) caregivers should know their patients personally, and 2) they should be involved in the patients care in a way that involves more than ?merely supplying a patient ?with marijuana.?

Quote:

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Originally Posted by Feijao

quote from WARREN EDSON ::

I am just saying that if you do not offer wellness services as part of your "caregiving" package, you could be arrested tomorrow if you grow or distibute to others. The DA's could start filing cases tomorrow using the new definition without any legislation at all.



Warren Edson, Esq.
1490 Lafayette St., Suite 407
Denver, CO. 80218
(303) 831-8188
warrenedson.com


QUTOE FROM BRETT BARNEY ::

I concur with Warren on this matter. I think the decision is clearly indicative of the collective mind of the appellate panel, and how they will treat any future appeals, at least until the legislature acts. The Court?s specific holding in Clendenin was that ?to qualify as a ?primary caregiver?, a person must do more than merely supply a patient who has a debilitating medical condition with marijuana.? Unfortunately, or fortunately, the Court does not go on to say exactly how much more is required to be a ?primary caregiver? and therefore does little to help us understand to what extent one must be involved in the patients care regimen to be protected by the affirmative defense. What is clear is that those whose only service provided to a patient involves supplying medicine will be subject to prosecution, and will be unlikely to be permitted to avail themselves of the benefit of the affirmative defense in a manner that will be successful. This may vary from jurisdiction to jurisdiction at the trial court level, but on appeal, one can expect this result. At the trial level, the court acts as the finder of fact, and based on the facts presented, determines whether the defendant is entitled to present the affirmative defense at trial. The Appeals panel found no error in the Boulder trial court?s conclusion that Clendenin?s lack of personal relationship with her patients precluded her from asserting the defense, so from this decision, we can take away two pieces of knowledge; 1) caregivers should know their patients personally, and 2) they should be involved in the patients care in a way that involves more than ?merely supplying a patient ?with marijuana.?

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As I've said elsewhere however, this holding only applies to cases where the defendant seeks to rely on the affirmative defense, not the bar to prosecution also contained in the Amendment, at least until a case comes down with that fact situation.

That's the way I read this sumbitch. Did the courts just replace random harassment by the DEA with our own State and County law enforcement? Where I live on the Western Slope the local constabulary resembles a military unit; assault weapons in cop cars, sinister SWAT type black uniforms, and in numbers that seem to far outweigh the need for traffic enforcement and the occasional petty crimes that occur here. Garfield County Deputies have been known to kick down doors in full riot gear over a simple child welfare matter. That same department is being sued by the ACLU for torture in the new County Jail, now massively outsized relative to our population. I want to be a part of this industry, but not if it means giving our good ol' boy redneck sheriff permission to justify his miserable existance at my expense. Now our Constitutional Ammendment becomes a political football, where only those who operate outside the law will be able to make a profit?

Please tell me I'm reading this wrong.

Preach on, brother Joe6Pack. I agree with you, man. Well articulated! Yes, state and local authorities have taken it upon themselves to pick up the slack where the federal government left off.

Why the fuck does Garfield County need SWAT teams and riot gear? Nothing ever happens there! Does the police department get too much funding, or are they just reaping all the benefits of drug interdiction?

When did "protect and serve" become "law enforcement"? We're moving towards a police state. I think one solution is to have a bureau that polices the police, because the excessive force/brutality/harassment (tasing, beating, shooting unarmed civilians, sexual assaults, lying under oath, intimidation, etc) is getting way out of control. The ACLU can only do so much. Who else ain't tired of this shit?

The State and the cities are going to find their attempts at regulation, especially of growers, essentially useless if the risk of prosecution is the same as it always was. Who would be dumb enough to comply with a registration requirement as long as they are still busting growers?

Colorado Board Of Health Holds Emergency Meeting To Determine Definition Of Medical Marijuana "Caregiver" by Huffington Post

The Colorado Board of Health is planning to hold an emergency meeting Tuesday to discuss removing a regulation that defines who can legally sell marijuana. The meeting comes in response to a ruling by the Colorado Court of Appeals last week in which the court decided that, in order to qualify as a 'primary caregiver' who can sell medical marijuana, one must do more than simply sell pot to patients.

According to a document released by the court, the purpose of the meeting is "to remove the rule's conflict with the Colorado Court of Appeals decision." The rule currently states that "shopping or making any necessary arrangement for access to medical care or services or provision of medical marijuana" is enough to qualify as a legal provider.

Westword reports that the medical marijuana group Sensible Colorado is interpreting the meeting as a significant threat to medical marijuana in Colorado. The group's web-site declares "This is not a drill, people. Threat Level Red!"

Any new news yet?

this is getting outta control...very odd only days after obama told feds to step down now all this comes about hummm