Although no letters have been sent by the U.S. Attorney's Office, the rumor that the feds are going to be shutting down dispensaries in violation of the Drug Free School Zone laws has been enough to create a paranoid buzz in the medical marijuana community.
But while it's anybody's guess as to if or when that might happen and what action it could entail, marijuana attorney Warren Edson says dispensaries and grows might have a fighting chance if things play out the way he thinks they will.
According to Edson, there is no uniform set of Drug Free School Zone laws. Essentially, the feds set up guidelines for what rules they wanted states to adopt and tried to use school funding to make them happen. However, each state adopted its own language. And while the regs generally follow the same federal guidelines, they all differ slightly from each other. For example, some states created zones only 300 feet in diameter, while others opted for 3,000-feet zones.
Currently, state medical marijuana laws prohibit centers from being within 1,000 feet of schools or daycare centers. No doubt the intent was to align with the existing Drug Free School Zone laws, which also use a 1,000-foot standard. So while a few dispensaries are grandfathered in, the majority are not within 1,000 feet of an education facility.
The problem is, Colorado's laws not only include schools, but parks, libraries and public-housing developments. And according to Edson, the 1,000-foot rule applies from boundary to boundary, not front door to front door -- which means that a lot more shops and grows could be in trouble than just ones near schools.
How many? It's hard to calculate. But a quick glimpse at dispensaries listed on WeedMaps shows nearly two dozen shops near parks, libraries or schools in Denver alone -- and that doesn't include grow operations, which aren't listed.
But unlike other states, Edson says Colorado's laws are uniquely specific regarding what constitutes a drug-free school zone. That distinction, Edson says, could be the one straw of hope for dispensaries. He points to a 2006 report compiled by the Justice Policy Institute that talks about the uniqueness of Colorado's Drug Free School Zone laws: "Colorado lawmakers restricted the state's 1,000-foot drug-free zone to areas that are accessible to the public, exempting private residences and other non-public locations where the risk that schoolchildren would accidentally be exposed to drug activity is low." The report goes on to say that Colorado courts have determined that "the state must show that the defendant intended to distribute the controlled substance to a person within or on the grounds of the school or housing development in question."
Edson puts it another way: "If I'm across from East High School and I sell you a quarter, they are going to increase the punishment for me. However, if I am in my house [less than 1,000 feet away] and I am not maintaining my house as a drug den and make that sale, it doesn't apply to me, because it isn't open to the public."
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And since medical marijuana patients have to show a state-issued medical marijuana license and any patients under that age must be accompanied by an adult to even walk through a dispensary door, Edson says it would be a stretch to say centers are open to the general public in this state. Further, it would be even harder to show that restricted-access grows were open to the public, because only licensed employees can enter them.
"To pick and chose [who they shut down], they would have to impose local rules like they did in California," he maintains. "So for them to do it here, they would have to impose a different state's standards on us, because our courts have interpreted this as such since 1992."
But while he's hopeful that he's found a loophole, he still recognizes that it might be a futile effort. "The feds can come in and say 'you all suck' and that's that."