Update below: The second day of Department of Revenue public hearings about medical marijuana regulations -- MMJ rules that attorney Rob Corry called death by 1,000 cuts in a preview yesterday -- are about to get underway at this writing. During yesterday's session, representatives of the Cannabis Therapy Institute made two emergency rules requests regarding privacy concerns that went nowhere.
Earlier this month, CTI submitted an emergency petition calling for rules prohibiting the Colorado Department of Public Health and Environment from sharing patient information with outside agencies. Discussion of that request was put off until a February 16 board of health meeting. However, CTI took a similar tack yesterday in Hearing Room 1 at the Jefferson County Justice Center, where today's session will take place as well, by way of addressing a Department of Revenue proposal requiring cameras to record medical marijuana transactions at MMJ centers.
"This is an intrusive, Orwellian proposal," Corry said about the cameras yesterday. "Every single patient who comes into a center and purchases any amount of medicine has to place his or her registry card on an overhead projector, and that person's name, address, Social Security number, the amount of the purchase and where they live will all be recorded. And there may be some discussion of confidential medical issues and how the medication affects the patient. All of this will be publicly accessible and subject to being hacked by a criminal enterprise. And any police officer at any level -- federal, state or local -- can obtain either live video or on-demand recordings and track these people down."
So how did the Department of Revenue personnel deal with CTI's emergency proposal? According to Kriho, "They ignored it." As for the tone of those running the hearing, she characterizes it as "openly hostile and antagonistic to us and to several different people, including patients, who had come in.
"This was the first meeting of the state licensing authority that was set up in 1284," the main medical marijuana regulatory measure, Kriho continues. "That makes it sound like a board, but it's really one person. The first order of business was to read a letter from Roxy Huber, the executive director of the Department of Revenue, appointing Tim Weber, the deputy director, as the state licensing authority. He's the only one who'll be making a decision on this."
Weber and other officials were joined at the hearing by about sixty people, Kriho estimates, with twenty or more getting the chance to testify -- "and the 100 percent overwhelming concern from everybody was privacy and cameras in the dispensaries to record patients. All the MMC people and patients were concerned about this invasion of privacy."
In Kriho's view, state officials didn't seem receptive to these concerns, even though many patients and entrepreneurs alike "testified that they would be opting out" by returning to the caretaker model -- a turn that could decrease patient access as well as tax revenues produced by MMJ businesses.
"Everybody seemed surprised that the Department of Revenue is doing this to them," Kriho goes on, "but I remind them that Chris Romer" -- the state senator and current Denver mayor candidate who was a driving force behind much of last year's medical marijuana legislation -- "said his purpose with 1284 was to close 80 percent of dispensaries. From that standpoint, they've been very successful doing what they want to do."
At this point, Kriho suspects that the only way to put the kibosh on such regulations is through the courts, in part because "Amendment 20 is so badly written." But she's also critical of medical marijuana entrepreneurs. "If there's really 750 MMC applicants in Colorado, there were only about five represented at the hearing. I really don't understand why the industry isn't paying more attention to what's going on."
Page down to read Rob Corry's January 27 letter to the Department of Revenue about the new regulations, as well as all 99 pages of the draft regs and the Cannabis Therapy Institute petition to the Colorado Department of Public Health and Environment.
Update, 11:56 a.m.: After the jump, we've added another resource -- CTI's rulemaking comments and petition for emergency rules, issued today. It's atop the other documents.
Cannabis Therapy Institute's rulemaking comments and petition for emergency rules to the Department of Revenue:
Letter from Rob Corry to the Department of Revenue, January 27:
Dear Department of Revenue:
I am an attorney who represents many Colorado Medical Marijuana patients, caregivers, business owners, and other interested parties. On behalf of these clients and myself, please consider the following comments to the proposed Rules and Regulations pursuant to House Bill 10-1284, related to Medical Marijuana.
By way of experience and credentials, I am the only attorney in Colorado to prevail in Medical Marijuana-related litigation involving federal, state, and local entities. I have tried more jury trials related to Medical Marijuana than all other attorneys in Colorado combined, and such criminal prosecutions occasionally end with "not guilty" verdicts and my clients departing the courthouse with all Medical Marijuana seized. I successfully brought civil litigation against the State of Colorado in 2007 and 2009 to overturn the Five Patient Limit per caregiver, court decisions which helped to usher in Colorado's Medical Marijuana industry.
I was lead counsel for the Plaintiffs in Frasher v. City of Centennial, Arapahoe District Court Case No. 09CV1456, which is the only Court in Colorado that has confronted the issue of whether the possession, use, distribution, and sale of Medical Marijuana is a constitutional right. In that case, the Honorable Christopher Cross, District Court Judge, engaged in a comprehensive legal analysis and held that Medical Marijuana is indeed a constitutional right protected by the Colorado Constitution, Article XVIII § 14 and cannot be banned outright consistent with the Colorado Constitution. The parties to the Centennial case agreed that this ruling is the final ruling in the case, and neither party appealed within the time required, so the ruling stands.
I volunteered my time to serve on the Department of Revenue workgroup that discussed ideas related to medical marijuana regulations, but my participation in this workgroup should not be interpreted as my endorsement of all of the proposed regulations, as detailed below.
For approximately ten years I have represented and assisted people who painstakingly built marijuana caregiving activities and other businesses as ethical, upstanding, job-creating, community-focused entrepreneurial entities that have helped many suffering patients, and have returned millions in tax revenue and licensing fees to federal, state, and local governmental entities. Although some politicians and other powerful officials seem to relish demonizing this new and safe industry, Medical Marijuana's controversial reputation is undeserved, and does not generate high criminal activity. A 2009 report by the Denver Police Department, certainly not a Medical Marijuana advocate, confirms that medical marijuana-related businesses have a 16.8% crime rate, roughly equal to pharmacies, less than the 19.7% rate of liquor stores, and far less than the 33.7% rate of banks. "Analysis: Denver Pot Shops' Robbery Rate Lower Than Banks,'" Denver Post, January 27, 2010.
As for the proposed rules and regulations, in general, some aspects of the proposal will further the encouraging social trend toward legitimacy and acceptance of marijuana as a medicine. To the extent that the statute and proposed regulations create and facilitate a government-approved and sponsored mechanism for the production and sale of marijuana, they are a positive development for the people of Colorado. For too long, government has attempted to enforce the unenforceable, Prohibition, so it is good that the state government intends to aid and abet the for-profit distribution of marijuana.
A collateral benefit of these regulations is that the federal government will be restrained in its ability to bully and criminally prosecute any person for activities taken related to these regulations, since every government official or other person who participates in the creation and facilitation of this massive regulated marijuana distribution mechanism, would be a co-conspirator. This would include the Governor who signed the legislation, every member of the Legislature who voted for it, any media outlet that profits from the advertisement of marijuana, and certainly every member of the workgroup that formulated these regulations. The United States government should devote its attention to the global War on Terror and other real problems, as opposed to a harmless herb.
However, good intentions and positive collateral consequences aside, many of these proposed rules and regulations conflict with the Colorado Constitution, Article XVIII § 14, which establishes the parameters of the fundamental constitutional right to the medical use of marijuana, and which supersedes any statute, ordinance, or regulation. Any regulation directly in conflict with, or which attempts to alter or amend, the State Constitution, the Supreme Law of Colorado, is void ab initio and need not be followed by any person.
In addition to being constitutionally and legally suspect, other aspects of the proposed regulations are contrary to the fundamental precepts of the free market and limited government. The Law of Supply and Demand cannot be repealed. Regulations that conflict with the laws of supply and demand will be at best unenforceable, but at worst will more likely produce human suffering and inefficiencies as people "opt out" of the government-regulated expensive market for marijuana and "opt in" to the unregulated and untaxed black market.
Some patients rely on marijuana for their lives, would feel threatened that they are in danger of losing a legitimate source of their medicine and forced to obtain it from underground sources or not at all, and should not be subject to government oversight if they seek only to follow their doctor's orders. The extreme, perpetual, and arbitrary bureaucratic requirements of these regulations, and the nearly endless forms, labels, and approvals, threaten to bankrupt the industry and cause "death by 1000 cuts." This proposal gives government agents too much power and discretion, and enhances the potential for government graft and corruption, much like in Prohibition times.
And if the proposed regulations were to be adopted, they certainly would not eliminate the "underground" option for medical marijuana, in fact the opposite. The cost and intrusiveness of these regulations would further drive marijuana underground, to unregulated and untaxed, residential and neighborhood gardens in proximity to children. Such home-based gardens and distribution operations cannot be legally banned or even regulated under the Colorado Constitution, Colorado Revised Statutes, and the Centennial case. And they will proliferate if this proposal is enacted.
These proposed rules and regulations are "too much, too soon." Specific comments follow, with reference to page numbers in the official notice:
Engaging in Business (page 9): Attempts to override the Colorado Constitution, Article XVIII § 14 by stating "notwithstanding" the constitution, a person must comply with these regulations and be duly licensed to engage in the "business" of medical marijuana. Medical Marijuana is a constitutional right, equally protected whether such right is exercised in the context of for-profit business or not. An analogy is the First Amendment's right of free speech. Although a newspaper such as The Denver Post sells speech for a profit, no one could seriously suggest that it is not constitutionally protected in the exercise of this right because it is engaged in the "business" of selling free speech.
Inventory (page 15): Counts clones as "plants" for purposes of determining a licensee's plant count per patient. However, as a matter of science and law, clones are not necessarily distinct plants, and many patients benefit from the ability to buy them. This would severely hamper the free market in clones by creating a strong disincentive for licensees to possess them. The requirement of cameras in the weighing and packaging area creates a severe security risk if the monitors are hacked into by criminal enterprises, and will also engender a false sense of security and complacency from the government regulator perspective. The cameras will disadvantage those who play by the rules, and create a significant incentive and advantage to cheaters. It will be easy to cheat since licensees will be familiar with the location and operation of their own cameras. The good people will go out of business, undercut by those willing to cheat.
30% Rule (page 19): Measures the notorious "30%" rule on a calendar year basis, which further exacerbates the problem created by the statute's arbitrary requirement. This rule will further limit selection and variety for the patients, and drive prices higher since the free market in wholesale medicine would be severely restricted. As above with cameras, the rule strongly encourages cheating, which will be easy to do and difficult to detect.
Loss of Property Rights (page 32): As above, attempts to override and amend the Colorado Constitution Article XVIII § 14 by explicitly stating that "notwithstanding" the constitution, there is no property right in medical marijuana if not in compliance with all of the proposed regulations. The proposal also provides that the State Licensing Authority is not obligated to maintain live plants in any manner if seized on an alleged violation of the regulations. However, it is certainly possible for a person to be in full compliance with the general parameters of the Colorado Constitution, Article XVIII § 14, yet somehow technically run afoul of these detailed regulations. In such a circumstance, a person would not forfeit constitutional protections, which are explicit in Article XVIII § 14(2)(e):
Any property interest that is possessed, owned, or used in connection with the medical use of marijuana or acts incidental to such use, shall not be harmed, neglected, injured, or destroyed while in the possession of state or local law enforcement officials where such property has been seized in connection with the claimed medical use of marijuana. Any such property interest shall not be forfeited under any provision of state law providing for the forfeiture of property other than as a sentence imposed after conviction of a criminal offense or entry of a plea of guilty to such offense. Marijuana and paraphernalia seized by state or local law enforcement officials from a patient or primary care-giver in connection with the claimed medical use of marijuana shall be returned immediately upon the determination of the district attorney or his or her designee that the patient or primary care-giver is entitled to the protection contained in this section as may be evidenced, for example, by a decision not to prosecute, the dismissal of charges, or acquittal. (emphasis added).
The proposed regulations also establish that agents of the State Licensing Authority, Medical Marijuana Enforcement Division are "law enforcement officers," (page 28) and are thus covered by this constitutional prohibition on destroying or neglecting plants until a criminal conviction is obtained.
Penalties (page 34): This proposal provides for an immediate revocation of license for "purchase from unlicensed sources," since allegedly "these violations are generally indicative of the presence of other criminal activity." I am not aware of any evidence to this effect, since for years, purchase of medical marijuana from a completely unlicensed source was not only perfectly legal, it was the backbone of the entire industry, which was formerly divided -- like every other industry in the world -- between wholesalers and retailers. There should be an intent requirement in this provision, i.e., a "knowing" or "intentional" purchase from unlicensed source ought to trigger some penalty, however, the unintentional purchase should not, especially if the buyer was misled.
Occupational Licenses Required -- Background Investigation (pages 40, 42): Otherwise known as "The Snitch Rule," enlists every licensee as a mandatory informer against "any person" committing "suspicious acts" related to marijuana, whether in a shop or at a Red Rocks concert. The requirement that all licensees snitch, all the time, against merely "suspicious acts" that might have nothing to do with the regulated marijuana industry or the licensed premises, will create an obsessive culture of paranoia and is antithetical to American principles.
Specifications for Video Surveillance and Recording of Medical Marijuana Licensed Premises (page 54): Requires expensive and continuous video monitoring of all licensed premises. This single regulation, alone, could break the back of this industry by scaring many customers away. The proposed rule requires that video recording must include the sale of marijuana to a patient, and allow "for the clear and certain identification of the transacting individual and related identification." This is accomplished by the camera taking a picture of the patient's identification and registry card at the point of sale. (Pages 59-60). The registry card bears sensitive data including a patient's name, address, date of birth, Social Security number, and obviously status as a vulnerable patient suffering from a debilitating medical condition who may possess medical marijuana. This violation of patient privacy goes against the Colorado Constitution Article XVIII § 14 and C.R.S. § 18-18-406.3. The proposal also requires the video footage be recorded and saved for 20 days, and provided to police officers "upon request." If this proposal is enacted and implemented, patients will be opting out of these licensed centers in large numbers, unwilling to provide intimate details of their disabilities and use of marijuana to their friendly local cops. During workgroup discussions, the comparison was made to the casino industry and the continual use of video cameras there. This analogy is poorly reasoned and somewhat offensive: gamblers never need reveal their identities and home addresses on camera. Gaming is purely entertainment, and never ordered by a physician as a medicine. Police are not motivated to go on fishing expeditions to prosecute people for possession of gambling materials. This requirement is even more damaging in small towns and rural areas, where patients value their anonymity even more. Interestingly, when the suggestion was raised at the workgroup for a requirement of analogous video surveillance of government regulators on the job, to protect the public against corruption and graft, the negative reaction from government agents was telling.
Sanitary Requirements (page 69): Otherwise known as the "Dirty Hippie Ban," requires all persons working in direct contact with marijuana shall maintain "adequate personal cleanliness." Marijuana production can be a dirty business.
My clients and I hope that the State will not drive this newly legitimate industry back underground and scare patients with intrusive, burdensome, and expensive regulations, some of which are also unconstitutional and illegal.
Thank you for your consideration of these comments. Please feel free to contact me with any questions.
Robert J. Corry, Jr.
Department of Revenue draft regulations:
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Cannabis Therapy Institute petition:
More from our Marijuana archive: "Medical marijuana: Tom Massey says HB 1043, new MMJ bill, should help law enforcement."