On Friday, we shared with you a letter by attorney Rob Corry shredding Senator Chris Romer's latest draft of a measure to regulate the medical marijuana industry. Shortly thereafter, Romer backed away from the bill even as he argued that medical marijuana advocates may soon face greater restrictions because of their unwillingness to compromise.
Corry is pleased by this turn of events. "We commend Senator Romer for yanking his 39-page proposal, which would have crushed this infant industry and harmed vulnerable patients," he says, echoing comments in a just-published Huffington Post op-ed he co-wrote with his wife, Jessica Corry.
At the same time, however, he's readying for another showdown tonight, this time involving the Denver City Council, which will be considering councilman Charlie Brown's much-discussed medical marijuana proposal. Yesterday, Corry sent council members a letter spelling out his objections to assorted aspects of the measure; read it at the bottom of this item. The message? "I told them I believe some of this, if it passes in its current form, could prompt legal action."
The attorney doesn't get prickly at the mention of Romer's negative comments about representatives of the medical marijuana community. "I don't interpret it as an attack on me," he says. "I'd rather just commend him on doing the right thing. We hope to continue working with him."
At the same time, however, Corry rejects the argument that medical marijuana boosters have dug in their heels about any and all regulations. "In my letter to Senator Romer, I listed all of the things we would be willing to compromise on -- the reasonable regulations we would be willing to accept. I mentioned baby steps about regulating the industry: proposed restrictions on signage, quality control and label requirements, things having to do with the quality and potency of the medicine. We have come forward with many proposals moving toward a middle ground. But there is no compromise on the fundamental, constitutional rights in regard to medical marijuana. The government can't put a burden on that."
A restriction of five patients per caregiver -- an idea floated by law enforcement that may come to pass, Romer hints -- would be "blatantly unconstitutional," Corry continues. "You can't put any limit on a constitutional right, and I think legislators understand that -- which is why I think it's very unlikely that it would pass. After all, members of the legislature are sworn to uphold the constitution. And in the unlikely event it does pass and the governor signs it, we'll see them in court. I'm sure Judge Larry Naves" -- who ruled in favor of medical marijuana backers en route to tossing a Board of Health revision of the caregiver description in November -- "will be sympathetic to the view that you can't undermine a constitutional right."
As such, he isn't worried about draconian measures now that Romer has dropped his regulatory approach. "I was surprised that Senator Romer folded this quickly," he concedes. "We thought it was going to take longer -- but we thought it would happen eventually. We had a royal flush, and he only had a pair."
About the Denver ordinance, Corry again employs a reasonable tone.
"I want to be optimistic, because things are moving in the right direction," he says. "Look at the initial proposals, which were absolutely horrible. So things have gotten better. But I do have major concerns with some aspects of it -- first and foremost the irrational 1,000 foot limit from schools and day-care centers. I still haven't heard any rational, objective justification for it. I hope to hear that tonight.
"I'm also very concerned about the ban on previously convicted felons being caregivers. If you know how to grow pot and are experienced at it, you may have picked up previous convictions. So this regulation would take out of the mix a lot of people with a lot of experience in this area. And it would also have a disproportionate impact on minorities and poor people. People in that demographic are more likely to have felony convictions because of a number of complicated, sociological reasons. So it's really discriminatory, shutting out a large group of people from business opportunities that would allow them to help others."
Additional concerns: "We have an issue with the security plans being a matter of public record, and therefore accessible to any sophisticated criminal who wants to go down to city hall and take a look at them. It offers the keys to the kingdom, so to speak. And we're also troubled about the high cost of these licenses: a onetime, $2,000 fee and a yearly $3,000 fee. That's more than any other order of business has to pay. Now, we understand that the government wants to get its cut. I agree with that bumpersticker that says, 'Don't steal: The government doesn't like competition.' But that piece of the pie is just too large; $5,000 to start up a business and $3,000 a year in perpetuity is too much and should be lowered."
And if the council goes ahead and passes the ordinance as is? As Corry puts it, "we are ready, willing and able to sue local government. We demonstrated that with the City of Centennial, and we were successful in that effort. I hope we don't have to go there. I'd rather not sue. I've been in court a lot lately, so I'd rather work this out. But if we can't, that option is always available."
The same would be true at the state level as well. But despite Romer's warnings about a renewed push for a de facto clinic ban, Corry feels hopeful about reasonable legislative action.
"The majority of legislators I've spoken to understand they've got much greater challenges facing them," he allows. "Our economy is collapsing, people are losing their homes, losing their jobs, losing their livelihoods. There are some serious, fundamental economic issues this legislature has to make a priority, and while I personally think medical marijuana is important, it ought to be way down the list of priorities in the larger picture."
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Moreover, "I think most of them understand that medical marijuana is a positive thing, a growing industry in Colorado that's hiring employees, paying taxes, spurring economic activity and occupying empty buildings, which are much more likely to attract criminals than dispensaries are.
"We're going to be around. They can't stop us. They can't ban us. This is a constitutional right, and we're not going away. The future is here."
Here's Corry's letter to Denver City Council members:
January 10, 2010
Denver City Council 1437 Bannock Street Denver, CO 80202
Re: Comments on Denver Medical Marijuana Ordinance, Council Bill No. 34, as Amended 1-4-10
Dear Denver City Council:
My small business has been located in Denver for nearly ten years. I reside here as well, as do my wife and two young daughters. We love Denver and its tolerant attitude. We hope this tolerance can include patients ordered by their doctors to use marijuana, and those who toil to provide marijuana to the patients.
Thank you for considering the following comments to the Medical Marijuana Ordinance in advance of the January 11, 2010 Second Reading. As an attorney experienced in marijuana issues, I have worked with a number of local government officials across Colorado, and most of them have failed to take even fifteen minutes to visit the wellness centers they then callously prohibit outright. My understanding is that many of the members or staff of the Council actually visited wellness centers and spoken with marijuana patients. If individual council members or their staffs have not conducted this basic due diligence on this essential lifesaving industry, we implore you to do so and delay this critical vote.
There remain fundamental problems with the ordinance detailed below. In the most respectful manner possible, let me be clear: the City and County of Denver may be forced to defend an expensive lawsuit in court it if attempts to infringe on a fundamental constitutional right without adequate factual justification. We are ready, willing, and able to sue to vindicate our rights if necessary. See Frasher v. City of Centennial, Arapahoe District Court (2009) (striking down municipal infringement on constitutional right to medical marijuana). The Court in the Centennial case found that access to medical marijuana is a fundamental constitutional right. It is likely that a Denver District Court would make similar holdings to the Arapahoe District Court.
The medical use of marijuana is a fundamental constitutional right that government can impair only if government can demonstrate it complies with "strict scrutiny" review. "Strict scrutiny" is the highest legal standard, reserved for constitutional rights. To satisfy this high standard, the burden is on the government to demonstrate that first, the ordinance is justified by a "compelling governmental interest," which generally refers to something necessary or crucial, like national security, as opposed to something merely preferred.
Second, the government must demonstrate the ordinance is "narrowly tailored" to achieve that compelling interest. If the government action encompasses too much, it is "overbroad," or fails to address essential aspects of the compelling interest, it is "under-inclusive," and in either case not "narrowly tailored."
Third, the government must demonstrate the ordinance must be the "least restrictive means" for achieving that interest. There cannot be a less restrictive way to effectively achieve the compelling government interest.
The "legislative intent" section of the proposed ordinance sets up a false test for council members. While it acknowledges that medical marijuana is a constitutional right, it incorrectly asserts that access to this right is not constitutionally protected, and that making a profit in connection with this fundamental right is somehow not protected. This is akin to stating that although freedom of speech is a fundamental constitutional right, the City and County of Denver can shut down the printing presses at The Denver Post or unplug television news cameras, because they all make profits off of this constitutional right. This rationale clearly cannot be sustained.
Sec. 24-407. Prohibited Locations.
Many aspects of the proposed ordinance fail the "strict scrutiny" legal test. The first is Section 24-407's 1000-foot perimeter around schools, day care centers, and other dispensaries. This requirement does nothing to satisfy any compelling government interest, it is not narrowly tailored (1000 feet is longer than three football fields), and there are many other less restrictive ways to solve the "problem," the existence which is still undocumented or established. This is a constitutional right and doctor-ordered medical necessity, not a liquor store. Proximity to schools is an imaginary "problem." Schoolchildren have no access to medical marijuana from wellness centers. Schoolchildren are quite mobile and can walk, ride, or drive, 1000 feet within minutes. The proposed limit on proximity to other dispensaries is even more irrational and lacks any justification whatsoever, and certainly no "compelling" one.
Placing 1000-foot circles around every school, day care, and dispensary on a map of the City and County of Denver demonstrates this is an effective ban on the constitutional right. It is unlikely to sustain court scrutiny.
Sec. 24-406 Prohibited Persons.
Section 24-406's ban on convicted felons as caregivers is unlikely to pass the "strict scrutiny" legal test. First, the prohibition on felons directly contradicts the Colorado Constitution. The Colorado Constitution Article XVIII § 14(1)(f) defines caregiver as an adult with a significant responsibility for the well-being of a patient, who is not the patient's physician, period.
Additionally, the prohibition is discriminatory against people based upon their race and economic status. The most recent statistics indicate that this requirement will disproportionately affect members of minority groups and economically disadvantaged people, who are more likely to suffer felony convictions than the general population. Source: Colorado Criminal Justice Reform Coalition, www.ccjrc.org. ("The odds of a male born in 2001 going to prison during his lifetime are: 1 in 3 for African Americans, 1 in 6 for Latinos, and 1 in 17 for Caucasians." ... "69% of people in Colorado prisons for drug offenses, are people of color.")
Thus, the Denver City Council, a city that prides itself on its tolerance, is poised to disproportionately shut out demographic swaths of people out of meaningful economic opportunity for no real reason. This is a vibrant business in which all people should be able to participate.
Sec. 24-401. Purpose and legislative intent:
The proposal states on page 1, lines 24-25 that "Amendment 20 does not, however, contain any provision for the lawful sale or distribution of marijuana to patients...". First, it is obsolete to refer to it as "Amendment 20." Amendment 20 was the proposed version, which voters approved -- overwhelmingly in Denver -- and the proposal is now codified in the Colorado Constitution, Article XVIII § 14, which specifically provides that the "distribution," "sale," "dispensing," "production," "manufacture," etc. of marijuana for medical use is legal. See Colorado Constitution, Article XVIII § 14(1)(b); § 14(2)(d).
Sec. 24-405. Application:
Section (7) requires the blueprints and security plans be made part of the public record. This is an invitation for sophisticated criminals to "stake out" the location of dispensaries and study their security measures before robbing them. It unfairly exposes dispensaries to more crime than other businesses, although government assisting criminals to accomplish their nefarious goals would allow the prison-industrial complex led by Warden Suthers to continue to demagogue against this embattled industry.
Sec. 24-408. Requirements related to licensed premises.
Dispensary hours should not be limited. Pharmacies are open 24 hours in some cases, since emergencies can occur. Dispensaries should not be prohibited from helping patients in emergency situations on an as-needed basis.
On-site consumption is important. Many patients must medicate in a dispensary since they have no other private area to do so, children may be at their homes, and the Constitution prevents use in "public view." This would send patients to public areas to medicate, which is illegal.
Sec. 24-409 Requirements related to public health and labeling.
The labeling requirement would mandate labeling that misstates the law. Re-distribution to a third person is protected by the Constitution and not a criminal offense if the third person is a patient. We do not oppose reasonable labeling requirements, but believe it should be imposed by the industry itself statewide and not only in Denver. The newly-formed Colorado Wellness Association is presently instilling these requirements on its members. See www.ColoradoWellnessAssociation.com
Sec. 24-410 Compliance with state law.
The source and quantity of the medicine is by definition "lawful" if amounts possessed are medically necessary for patients served.
A licensee would have a defense to criminal prosecution regardless of what this section says.
The $2000.00 application fee and $3000.00 license fee per year are too high, and higher than those in any other industry. It would shut out the poor and disadvantaged from this business.
Thank you for considering these comments. I will appear at the hearing on January 11, 2010 and am happy to answer any questions then. Please call me at 303-634-2244 if you require clarification.
Robert J. Corry, Jr. Attorney and Counselor at Law