Medical marijuana dispensaries charged in Springs sue to clarify plant count rules

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In 2010, the Colorado Legislature outlined rules for the medical marijuana industry in this state with the passage of House Bill 1284.

But vague language about patient plant limits could be putting at least two medical marijuana center owners in jeopardy of felony prosecution.

Both Michael Kopta, owner of Natural Advantage LLC, and Alvida Hillery, who owns Rocky Mountain Miracles, were cited for violating their plant-count limit earlier this year after Colorado Springs police dropped by for an inspection.

Based on police interpretation of state law, their plant count didn't match up with patient records and both owners were charged at the state level with marijuana cultivation. But according to Shawn Hauser, an associate with McAllister, Darnell and Associates, which is handling both cases, the Colorado Springs police are using arbitrary rules not outlined by the state's Medical Marijuana Enforcement Division.

Hauser adds that her clients aren't the only owners in the Springs to be charged for similar violations.

Colorado law makes it clear that medical marijuana centers and caregivers have a limit of six plants for every registered patient -- with only three of those plants flowering at any given time. But what the law doesn't make clear, according to Hauser, is when those plants can be grown.

According to Hauser, the MMED has never ruled whether a center can begin growing at the moment a patient turns in his paperwork or if it has to wait until the patient receives approval to use medical marijuana from the Department of Public Health and Environment, which is charged with the patient application process.

Because of this confusion, Sean McAllister, an attorney with the firm, sent a letter to the MMED in March asking for clarification in writing. According to the response posted on the MMED website, McAllister was told that his question was too vague for a reply. MMED director Laura Harris instead gave information about the length of time patients must wait before switching their primary grower (120 days), not how long a center must wait before actually putting plants in the soil.

Hauser says there was nothing vague in McCallister's request and believes the MMED was dodging the question. Kopta and Hillery have since filed in Denver District Court, asking for a judge to clarify the matter.

Julie Postlethwait, spokeswoman for the MMED, said she couldn't comment on the issue because the MMED has been served in the lawsuit. She pointed us to McAllister's letter on the MMED website for information regarding plant count and the "120 rule."

"Our clients are trying to be lawfully compliant; they thought they were," Hauser explains. "But it's hard to show that they are compliant when the MMED won't clarify their rules. If they can't even answer their own questions, how can we?"

More from our Marijuana archive: "Medical marijuana: Patient fired for failing DISH drug test finds possible loophole" and "Medical marijuana dispensaries can't deduct business expenses on state tax returns."

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