Medical marijuana patient collectives: Attorney sees them as tool against caregiver restrictions
HB 1284, the medical marijuana regulatory bill signed in June, is a complicated measure that changes many of the ways MMJ caregivers have operated. But attorney Adam Mayo thinks he may have found a work-around: patient collectives. He'll discuss the topic at length during a Monday Cannabis Therapy Institute seminar in Boulder -- but here's a sneak preview.
Among the portions in HB 1284 that offer challenges for caregivers is this passage: "A patient who has designated a primary caregiver for himself or herself may not be designated as a primary caregiver for another patient."
This sentence's impact is potentially far-reaching. According to MMJ advocate Timothy Tipton, representatives of the Colorado Department of Public Health and Environment have recommended for years that husbands name their wives as their caregiver, and vice versa. But the sentence above disallows that practice. And the same goes for patient-caregivers who've designated friends and colleagues to supply their medication in exchange for doing the same for them.
In our August post "Medical Marijuana Patients May Have to Find New Caregivers Because of Language in New Law," we spoke to one caregiver in precisely this situation. He and another acquaintance have served as caregivers for each other, but that's now precluded. As a result, he told us, "I think I'm going to have to do is just become my own caregiver and only flower three plants -- and I won't be able to help anybody else. I won't be able to help my current caregiver if he has a crop failure or something like that, and I won't be able to help my other patients. They'll have to go to some other center."
Maybe not if he becomes a member of a patient collective, according to Mayo, who's based in Steamboat Springs. He explains the concept like so:
"Many patients don't have the space, the equipment or the ability to grow their own medical marijuana," he says. "For instance, they may live in a home with small children, a studio condo in a high rise, or they may want to avoid potential mold issues in their home. So, for many patients, the only way to obtain medicine is to go to a store and buy it from someone else. Patient collectives give them a location outside their home where they can grow medical marijuana themselves."
In Mayo's view, patient collectives aren't about getting around HB 1284 restrictions. Rather, they're a forum for exercising their constitutional rights, like an open mic night for a speaker or a shooting range for someone wanting to use a firearm, not to mention an opportunity for those who've been assisting others and no longer can under the new statute to keep doing so, albeit in a modified way.
"With some exceptions, a caregiver is limited to five patients," Mayo points out. "Let's say that prior to 1284, you were providing care for twenty patients. Now, you have to substantially reduce the size of your garden, and consequently, the size of the income you've been receiving. But if you wanted to stop being a caregiver and open a patient collective, you could take those same twenty people and let them cultivate their own plants. Perhaps you're helping them learn how, but they're the ones doing it -- you're just providing them the space and the equipment."
In this scenario, the collective organizer is no longer a caregiver -- and that's an important distinction, according to Mayo. HB 1284 puts restrictions on caregivers, he notes, but the rights of patients are established by Amendment 20, the constitutional measure approved by Colorado voters in 2000.
Mayo acknowledges that law enforcement may look with suspicion on this approach, seeing it as a way for individuals to continue acting as caregivers for more people than 1284 allows simply by branding themselves as patients only. With that in mind, he encourages anyone thinking about starting a patient collective to check with local police in advance, to make sure they're not going to find themselves in the situation of Highlands Ranch's Chris Bartkowicz, who's currently in jail for a home grow he thought was fine under state law but was deemed illegal by federal standards.
In Mayo's words, "I think this is one area where you want to ask a little permission before you ask for forgiveness."
Still, he goes on, "there's nothing in the new law that limits patients from getting together, nothing that requires landlords of grow operations to get any kind of license, nothing in the new law that restricts in any way grow-equipment suppliers. And that's basically what someone who organizes a collective is -- a landlord and a middleman for some equipment, with maybe a little expertise."
Page down to read the Cannabis Therapy Institute release about Mayo's Monday seminar:
Cannabis Therapy Institute release:
New Medical Marijuana Business Model Unveiled: Patient Collectives
Boulder, CO -- Attorney Adam Mayo will present a CLE seminar on the Patient Collective business model on Monday, October 25 in Boulder, hosted by the Cannabis Therapy Institute. The seminar is designed for Medical Marijuana Center applicants who want to regain their constitutional protections, for caregivers that may have been forced out of business by HB1284, and for attorneys who represent medical marijuana clients that are looking for alternative business models. This seminar has been accredited for two general CLE credits by the Colorado Supreme Court Board of Continuing Legal Education.
Adam Mayo is an attorney in Steamboat Springs and works with dozens of dispensaries, patient collectives, MMC's and other caregiving businesses. Like many other Colorado medical marijuana attorneys, Adam has become frustrated with the new regulations enacted by the state legislature this year in House Bill 10-1284.
HB1284 severely restricted the ability of his clients to continue running businesses providing medicine to Colorado's medical marijuana patients, a right that many providers have enjoyed since the passage of Amendment 20 in 2000.
HB1284 took all the Constitutional legal protection away from medical marijuana dispensaries and substituted a "statutory privilege" of applying to operate a Medical Marijuana Center (MMC). Unlike dispensaries, MMCs are controlled by the Department of Revenue, not the Department of Public Health and Environment.
In addition, HB1284 over-regulated the industry with onerous and burdensome requirements that had no rational basis. The new law seemed designed more to put caregivers out of business than to actually expedite the flow of medicine to patients.
Hundreds of former dispensaries filed applications to become MMC's, even though this required them to forfeit their Constitutional right to provide medicine and sign confession forms admitting violation of federal law.
The new regime has also adversely affected patients, who are becoming reluctant to use MMC's as their source of medicine. Recent news reports state that MMC's will soon be required to fingerprint patients and log every transaction into a government database to be shared with law enforcement. If a patient purchases more than 2 ounces of medicine (in a time period yet to be determined) from an MMC, patients are worried that the new medical marijuana law enforcement branch of the Department of Revenue will start investigating them for criminal violations.
Struggling with these serious issues of over-regulation and invasion of privacy, Adam read all 78 pages of HB1284, dozens of times. He had multiple meetings with his clients. No one was happy with the new law, and everyone was looking for alternatives.
Adam then looked back at the Colorado Constitution, trying to find a way to help protect his clients and their patients. As he studied the issue, he began to develop a model for patient care that was still protected by the Constitution and was not subject to the whims of a hostile state legislature.
Adam developed the Patient Collective model to allow patients to safely and privately continue to help other patients obtain medicine. The Patient Collective business model (protected by the Constitution) may actually offer more legal protection than the MMC model (protected only by statute). Like MMC's, Patient Collectives can be run as for-profit organizations. Unlike MMC's, Patient Collectives are not regulated by HB1284 & enjoy 100% protection under the Constitution.
Adam was invited by the Cannabis Therapy Institute to present this new model at a legal seminar on Monday, October 25 in Boulder. This seminar has been accredited for two general CLE credits by the Colorado Supreme Court Board of Continuing Legal Education.
Timothy Tipton, a patient advocate with the Rocky Mountain Caregivers Cooperative, is excited about Adam's plan. "We are so thankful to Adam for bringing to light and developing this model of patient care. It really is more true to the spirit of the Colorado Constitution, by enabling patients to help patients. HB1284 forced all the smaller caregivers out of business and created a monopoly for giant retail marijuana stores. The smaller mom and pop businesses and the small patient collectives will benefit in a huge way from Adam's model. We like it so much, we are referring to it as the Mayo Plan to all our patients."
Asked what he thought about patients' enthusiasm for the "Mayo Plan", Adam responded, "I am glad to be able to help the patients obtain their medicine. Most patients are too sick or don't have the space and equipment necessary to provide their own medicine. By providing this much-needed service, patient collectives will offer these patients an opportunity to exercise their constitutional rights once again."
Overcoming HB1284: Forming Legal Medical Marijuana Patient Collectives A Legal Seminar by Attorney Adam Mayo Mon., Oct. 25, 2010 6:30 pm to 9:00 pm Location: Best Western Boulder Inn, Boulder, Colorado Cost: $150.00/single $125.00/each if you enroll with a friend!
This seminar has been accredited by the Colorado Board of Continuing Legal Education for 2 General Credits.
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