Medical marijuana residency rules: Activist Laura Kriho asks, Where's the emergency?

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The first rule-making hearing of the Department of Revenue's Medical Marijuana Licensing Authority, slated for 10 a.m. this morning, has been deemed an emergency. But why it should be categorized as one puzzles the Cannabis Therapy Institute's Laura Kriho, who notes that this terminology has previously been used in an attempt to shut out public participation.

"The Board of Health did the same thing last November," Kriho points out.

She's right. On November 3, the health board voted to strike language pertaining to marijuana caregivers following a decision in the Stacy Clendenin case; the Clendenin ruling stated that caregivers needed to do more for patients than simply provide them with MMJ. Two days later, attorneys filed a petition in Denver District Court to throw out the decision, using the argument that the "emergency" designation slapped on the meeting had prevented the public from fully participating in the process -- and the following week, Judge Larry Naves agreed, voiding the decision.

To Kriho, the alleged emergency nature of today's assembly is equally dubious, "especially considering that they're going to have at least a year of rule-making procedures. To call the first one an emergency doesn't bode well for the rest of the hearings they're going to have."

Kriho stops short of arguing that the revenue board is taking this tack to silence the public, since she's been unable to learn definitively whether or not public comment will be accepted. But based on the location of the meeting -- it's in Gaming Conference Room #110, 1881 Pierce Street in Lakewood -- she doubts the space will fit a large crowd.

"I have a feeling it's only going to hold twenty people -- so if a lot of people showed up, it would overflow the room," she says. "That was the same problem with the Board of Health last year. They scheduled these meetings that required bigger rooms. In the end, they provided them, but in the beginning, they didn't want to. So this new rule-making authority is going to have to realize there's a lot of public interest in what's going on, and they're going to have to accommodate people and let them give public comment."

The announced topic of today's meeting is a clarification of residency rules, with Senator Chris Romer calling for a liberal interpretation of the two-year requirement. He'd like this standard to apply only to those with ownership stakes in dispensary businesses, with salaried employees exempted.

For Kriho, however, this tweak doesn't address fairness issues with the rule itself. "It seems discriminatory, to say the least," she says. "No other business has a residency requirement on it. It seems like they're singling out the medical marijuana industry for some reason. And to me, it's discriminatory to single out a class of businesses to say you all have to be residents, and your employees have to be residents, too."

As such, Kriho isn't encouraging MMJ supporters to show up in force at today's meeting. "I don't want people to waste their time," she concedes. But she would like to send the Department of Revenue a message that overusing the emergency designation to shut out public comment won't be tolerated in the long run.

Page down to read the Cannabis Therapy Institute's release on the meeting.

ACTION ALERT: Department of Revenue Holds "Emergency" Hearing on Monday

{Denver} -- The first rule-making hearing by the new Colorado Department of Revenue Medical Marijuana Licensing Authority will take place on Monday at 10:00am.

"Emergency" Rulemaking Hearing Proposed Rule: Medical Marijuana State Licensing Authority Rule Regarding Residency Requirements Monday, August 2, 2010 10:00 am Gaming Conference Room #110 1881 Pierce Street Lakewood, CO 80214

Click here to read the proposed rule: http://www.colorado.gov/cs/Satellite/Rev-Enforcement/RE/1251575120107

Public comment: The Department of Revenue may try to deny the opportunity for the public on this new rule because it has declared the hearing an "emergency".

*** What is the hearing about? The hearing will address the issue of what constitutes a "resident" of the state of Colorado. According to the new "Colorado Medical Marijuana Code" (enacted as part of HB 10-1284), a person who applies for a dispensary license must be a resident of Colorado for two years and all employees of a dispensary must also be able to prove residency. HB 1284 neglected to give a specific definition of what constitutes a resident, so the Department of Revenue must now make a rule to clarify the issue.

The Department of Revenue wants the location of the person's "primary home" to determine their residency status.

*** Why is this an "Emergency" Hearing? The rulemaking hearing on Monday was called as an "emergency" hearing by the Department of Revenue without any reason or explanation. By calling an "emergency" hearing, the Department is able to bypass the standard requirements for public comment and public notice on the proposed rules.

According to the State Administrative Procedure Act (APA), which governs the rulemaking process in Colorado, an agency is only allowed to call an "emergency" hearing if the new rule is "imperatively necessary". The APA states that the agency must publish the reasons for calling the "emergency" in the rule itself. Nothing in the rule published on the Department of Revenue website gives a reason as to why normal public comment and notice could not be accommodated. C.R.S. 24-4-103 (6)

*** Do dispensary employees have to be residents? The Colorado Medical Marijuana Code 12-43.3-310 (6) requires all "owners, officers, managers and employees" to be residents of the state of Colorado. The proposed rule also states that employees must be residents. This is contrary to what Senator Chris Romer (the main architect of the new law) told reporter Michael Roberts of Westword recently. Senator Romer reportedly said that people can work the front counter at a dispensary without having to meet the residency requirements. Westword quotes Senator Romer as saying, "I've talked to Representative Massey, and he and I are in concurrence that it was the intent of the bill's sponsors that the focus would be on owners, or on managers and employees who have an equity ownership stake -- not on typical W-2 or 1099 employees."

It looks like the Department of Revenue wants to ignore the legislative intent, because the new rule contains no exemptions for any type of employee. All employees must be residents.

*** What is exactly is "rulemaking"? Rulemaking refers to the process that government agencies use to create, or promulgate, regulations. In general, legislatures first set broad policy mandates by passing statutes, then agencies create more detailed regulations through rulemaking. These "rules" or "regulations" must go through a public comment period, including proper notice to the public. Once they are promulgated, they have the same force as statutory law.

*** How will the Department of Revenue make rules to implement HB 10-1284?

Matt Cook, the head of the Colorado Department of Revenue's Medical Marijuana Enforcement Division (MMED), says the state plans to track medical marijuana "from seed to sale". As a former undercover drug agent who was trained by the DEA, Cook has a good idea of what this will entail. In a recent Washington Post article, he was quoted as saying, "We will use a Web-based, 24-7 video surveillance system, and we will see virtually everything from the time a seed goes into the ground to the time the plants are harvested, cultivated, processed, packaged, stored."

This means the Department of Revenue will likely have to promulgate hundreds of pages of rules over the next year to enact HB 10-1284. Monday's hearing is the first in a long series of meetings. The fact this first hearing was called as an "emergency" with little public notice and with no justification has medical cannabis activists worried that this is a continuation of the pattern of state officials ignoring patient concerns.

The actions of a similar "emergency" public hearing called by the Colorado Board of Health last November were overturned when a district court agreed with an injunction filed by attorneys that this hearing did not meet the requirements of the state's Open Meetings Act and Administrative Procedures Act.



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