Brian Vicente on fight to void Board of Health's medical-marijuana ruling

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Yesterday afternoon, medical-marijuana advocates filed a petition in Denver District Court calling for a Tuesday ruling about the definition of "caregiver" by the state's Board of Health to be voided. Sensible Colorado executive director Brian Vicente, who joined attorneys such as Rob Corry and Sensible Breckenridge's Sean McAllister in presenting the document, believes the rushed manner in which the board called the meeting at which the decision was reached violated an earlier pact between the state and representatives of the medical-marijuana movement.

"I think this was a manufactured emergency -- essentially a farce," Vicente says. "The state has a long history of using secretive and underhanded attempts to undermine the medical-marijuana law."

Vicente presents the backstory:

"In 2007, the attorneys listed on the filing sued on behalf of an HIV patient [David 'Damien' LaGoy] who was denied his choice of caregiver because that caregiver was already helping five people," he says. "Ultimately, the judge [Larry Naves] said the state can't come up with these policies in secret meetings where they intentionally disenfranchise the public. Essentially, they held a secret meeting with a DEA agent to dictate healthcare policy and limit medical-marijuana law in direct violation of Colorado's open-meetings laws. There were six hours of oral testimony, and afterward, the judge came out and said, 'This case wasn't even close.' He berated the state and invalidated the policy.

"We had a couple of settlement meetings with the attorney generals who were arguing the case," Vicente goes on, "and they ended up paying us over $30,000 in attorneys fees and saying that they would absolutely inform attorneys and all stake holders, including patients, of any changes involved in the law."

Cut to Monday, when the Board of Health set an emergency meeting the next morning to consider the definition of caregiver in the wake of a Colorado Court of Appeals ruling involving Stacey Clendenin. Back in 2006, authorities seized 44 marijuana plants Clendenin was cultivating for several patients -- and because she wasn't supplying any other services beyond supplying weed, a Boulder County District Court judge determined that she couldn't claim to be their primary caregiver. Clendenin was subsequently found guilty of cultivating and distributing marijuana -- a verdict the Court of Appeals validated with a decision stating that caregivers had to "do more" than simply provide patients with ganja.

Vicente acknowledges that he learned about the board's get-together in advance -- but he feels its efforts to get out the word were wholly inadequate in view of the agreement in the LaGoy matter. "They sent an e-mail to four attorneys sixteen hours before the meeting was to take place," Vicente says. "And they did it on election day, when Sensible Colorado had a measure on the ballot" -- 2F, which decriminalized possession of small amounts of marijuana in Breckenridge. Because Vicente was working with McAllister on the Breckenridge campaign, he was forced to call in on a line provided for people who couldn't attend the hearing , "but it wasn't working. I couldn't hear a thing. And the room itself only accommodated about a third of the number of people who showed up with that sixteen-hour turnaround. That kind of thing was intentional -- an intentional move to disenfranchise the public and the advocates."

The approach fit a pattern, in Vicente's view. "When people were first gathering signatures for the medical-marijuana amendment, those signatures were dropped off to then-Secretary of State Vikki Buckley. But she called back and said, 'You came up 20,000 signatures short.' She then died in office, and they found the extra signatures hidden in her office. And when the law went into effect, then-Attorney General Ken Salazar and the governor at the time, Bill Owens, co-signed a letter they sent to every doctor in the state saying they'd be prosecuted if they wrote recommendations for marijuana. And no one's ever been prosecuted for that. That's the kind of subterfuge the state has used to undermine the law."

At this writing, no time has been scheduled to hear the new petition, but Vicente hopes a hearing will take place before Judge Naves on Monday or Tuesday of next week. The preferred remedy? "We're essentially asking the judge to enforce the original settlement" in the LaGoy matter. "We're asking that the board's action be removed and the old definition of caregiver, which was put into effect by the same board in July after about fourteen hours of testimony from patients and stakeholders, be put back into effect until we have time to have a full hearing on this matter."

And if the current definition is allowed to stand? "We're still in a little bit of legal limbo until we get a decision back from the Colorado Supreme Court," Vicente says. "In the meantime, we advise caregivers and dispensaries to err on the side of caution and do everything they can to abide by the Court of Appeals' decision, which requires them to provide some other service instead of just supplying medical marijuana." He adds that "anyone who's growing medical marijuana, even if they're just a caregiver-grower, as opposed to a dispensary owner, is doing so with a license from the state that has their name on it. But we still think those individuals should start supplying some other service, as opposed to just medical marijuana. Now, should growers also contract with dispensaries that supply those services? Possibly. Those are the kinds of things we're fleshing out right now."

He should know more about how quickly this should be done in a matter of days.

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