As Denver's annual 4/20 pot bacchanal was taking place at Civic Center Park yesterday, members of the Colorado House were once again amending House Bill 1284, a measure designed to regulate the state's medical marijuana industry.
Matt Brown, frontman for Coloradans for Medical Marijuana Regulation, isn't sure if one event influenced the other. But even he acknowledges that the bill that emerged by day's end "regresses" in some respects from the previous version.
Not that he's ready to throw himself into traffic. Indeed, he's dedicated to "defeating some of the hysteria that isn't grounded in fact" that's being propagated by other MMJ advocates, some of whom accuse him of ignoring the problems of small dispensaries while boosting big ones.
Brown spent four hours at the legislature yesterday, and by the end, even he wasn't sure precisely where certain issues stood -- chiefly the so-called "local option."
Initially, the bill gave municipalities the right to essentially ban dispensaries. That provision was subsequently taken out, but now it's back -- kind of.
"The way the amendments went through yesterday, the local option got split up," Brown says. "On the one hand, it looked like the amendment was saying a local government could put a ban on the ballot through the initiative process or refer the issue to the ballot, even though the default setting once the bill passes would be that dispensaries are allowed.
"But it looks like the wording may have allowed for an 'or' clause instead of an 'and' clause regarding whether a city council could unilaterally ban dispensaries without going to the ballot. And if we've regressed that far, that's a big, big problem."
Indeed, Brown doesn't necessarily oppose the ballot option, in part because "I think most local governments will realize the value of dispensaries, and not just financially. Nobody wins by trying to shut us down rather than responsibly engaging the industry." But giving councils the right to ban without a vote would essentially codify the status quo in places like Aurora, whose officials have put up a red light that shows no signs of changing. He hopes to get more clarification by day's end.
Also problematic from his perspective are harsher restrictions for those who want to work in the medical marijuana biz despite past convictions.
"If you've committed any drug felony, regardless of how long ago, you're permanently barred, and there's no appeals process -- which is an extra and more severe process that would prohibit some people from becoming dispensary owners," Brown says.
This is especially problematic, in Brown's view, because some offenses that may have been branded felonies thirty or forty years ago are now misdemeanors -- and House Bill 1352, a measure currently progressing at the legislative level, would reduce penalties on more drug crimes by way of stressing treatment over jail time. "If a felony decades ago would now be considered a petty offense, that makes it a big deal if there's a bright line disqualifier that would permanently ban someone from the industry," he believes.
The bill next heads to the senate, and Brown is hopeful the arguments elucidated above will hold sway there. But he's unwilling to junk the whole process, as some advocates would like. Yesterday, for example, Cannabis Therapy Institute's Laura Kriho said CMMR "put themselves forward as a pro-marijuana group, but nothing could be further from the truth. Anyone in favor of patients is against these regulations. Anyone in favor of big business and squeezing out the little guy and eliminating 90 percent of their competition is for them."
On top of that, Kriho quoted recent comments by Senator Chris Romer, who's involved with both House Bill 1284 and Senate Bill 109, which attempts to clarify the relationship between doctors and medical marijuana patients. At a recent meeting, Romer estimated that dispensary license fees might be as high as $50,000 and said "auditors with guns" would be visiting dispensaries every five to seven days. Perhaps that's why she characterized the regulatory bill as offering "75 new, different ways that you can go to jail."
Not so, Brown believes. "A number of comments Chris Romer has been making to dispensary owners and anybody who would listen seem designed to get us worked up. But we estimate a dispensary license to be $1,800 and a license to grow to be about $500. And we did the math about auditors, and it simply doesn't work if they were to visit as often as he said." As such, he believes that "Chris Romer is the last big bogey factor we have to plan for and work with."
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Of course, some legislators might have seen 4/20 at Civic Center in the same way, and Brown notes that music and speakers with bullhorns from the festival could be heard through the Capitol walls, prompting jokes from officials. "It was persistent and it may have hurt," Brown says. "But it may also have helped draw a line a little more clearly between those who advocate for blanket legalization and medical marijuana advocates and groups like ours that are engaging and working within the process."
To that end, Brown put together a fiction-versus-fact document for CMMR members that attempts to counter the worst fears MMJ advocates have about the regulatory bill and the doctor-patient measure. Check them out below:
Sen. Romer's SB109:
FICTION: SB109 would "destroy the confidentiality of the (medical marijuana) registry."
FACT: SB109 does nothing to impact the absolute confidentiality for patients and providers enshrined in Amendment 20. Opponents of SB109 attempt to connect the medical oversight provided by the Board of Medical Examiners in SB109 to a loss a patient privacy, despite no such link in the actual text of the bill. The section of SB109 dealing with referring a physician to the Board of Medical Examiners (SB109, pg 4, lines 6-16) specifically reiterates that the CDPHE medical marijuana registry is confidential. If the CDPHE suspects that a physician may be inappropriately writing MMJ recommendations, the CDPHE may use aggregate data contained in the registry to refer that doctor to the BME. This is a similar process to how physicians practicing other specialties would be referred to the BME for suspected inappropriate behavior.
Source: Senate Bill 10-109, page 4, lines 6-16
FICTION: SB109 would require all patients 18-23 to receive two independent opinions before being added to the MMJ registry.
FACT: Last Friday the House voted overwhelmingly to reject the conference committee report on SB109 and sent the bill back to conference committee to be reworked, specifically because of this new restriction. Amendment 20 is very clear on providing special rules for applicants under 18, in line with their legal status as a minor. Amendment 20 also draws a bright line for patients 18 and over and does not offer the ability for new rules to unconstitutionally restrict the rights of these adults aged 18-23. The General Assembly simply doesn't have the power to mandate more restrictive rules for a group of adults already covered by Amendment 20. The rejection by the House of this new restriction on 18-23 year olds shows that the legislature is not willing to pass such blatently disallowed restrictions on patient rights under Amendment 20.
Rep. Massey's HB1284 - Dispensary Regulations:
FICTION: This bill requires a $50,000 annual licensing fee.
FACT: Nowhere in this bill is anything close to a $50,000 fee mentioned, much less required. In the official Fiscal Note for HB1284 (attached), the official estimate is that a dispensary license would cost $1,800/yr and Department of Revenue expects to issue 1,100 of these permits in 2011. State fees must be based on actual expenses incurred in the process of administering these licenses, and there is no evidence to support anything close to a $50,000 fee per license. Sen. Romer did make comments at a number of recent events saying he wanted to ADD such a fee to the bill, but no language supporting a $50,000 fee appears anywhere in HB1284.
Source: Fiscal Note on HB10-1284, dated April 5, 2010, Table 1 on page 3.
FICTION: HB1284 seeks to eliminate 95% of dispensaries.
FACT: The current fiscal note estimates 1,100 licenses to be issued for the "Medical Marijuana Center" dispensary license. Unless there are close to 21,000 dispensaries operating statewide, nowhere near 95% would be closed down. More intuitively, it seems hard to believe that a $5/day fee is prohibitive enough to cause widespread closures of legitimate dispensaries. ($1,800 divided by 365 = $4.93/day)
Source: Fiscal Note on HB10-1284, dated April 5, 2010, Table 1 on page 3.
FICTION: Regulators will be in your dispensary every 5-7 days.
FACT: The official estimates contained in the Fiscal Note for HB1284 call for Department of Revenue to allocate 12 criminal investigators spread between 4 locations across the state. Additionally, DOR plans for 3 1/2 full-time auditors and just under 8 full-time administrative staff. Assuming 1,100 dispensary licenses, these 12 auditors would need to make 57,200 on-site inspections every year to visit each location about once a week. This would come to approximately 92 visits per inspector, per week. Assuming a 40 hour work week, each inspection would therefore have to take no more than 26 minutes including all travel time between locations. This analysis doesn't even include the estimated 800 total "optional premises" and "infused products" licenses. With those licensees included, weekly investigations of MMJ licenses could take no more than 16 minutes each, including all travel time.
Obviously, there is no way the Department could conduct weekly inspections like this. What is likely to happen is the exact same experience car dealers, tobacco licensees, lottery retailers, liquor licensees and casinos have with the Department of Revenue. Inspectors will be available to make random spot checks of licensees and more in-depth investigations will occur when suspicious behavior is detected.
Source: Fiscal Note on HB10-1284, dated April 5, 2010, chart on page 1; Table 1 on page 3; "Personal Services" on page 5;
FICTION: Law Enforcement will track patient purchases of their medicine.
FACT: No such system exists, nor does the actual text of HB1284 in any way authorize this level of tracking. Section 12-43.3-202 of HB1284 makes clear that the Department of Revenue must "Maintain the confidentiality of reports obtained from a licensee showing the sales volume or quantity of medical marijuana sold or any other records that are exempt from public inspection pursuant to state law."
Source: HB1284 -- Preamended Version, page 9 lines 16-19; Section 12-43.3-202. Powers and Duties of State Licensing Authority, pages 8-13.
FICTION: Law Enforcement may conduct "Warrentless Searches" of dispensaries whenever they want.
FACT: HB1284 prohibits local law enforcement from having access to confidential disclosures to the Department of Revenue, and local law enforcement is not given any authority to search or seize anything at a dispensary without proper cause. If local law enforcement receives information that you are breaking other laws, they may investigate within the normal scope of their authority. Department of Revenue's authority only extends to their ability to spot check the books and records of a licensee to determine if illegal behavior, related to that license, are occuring. All other inspections and investigations must follow normal due process.
Source: HB1284 -- Preamended Version, page 9 lines 16-20; page 12 line 24 through page 13 line 5.