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  Home Page » News » Marijuana Clinics Dealt Legal Blow

Marijuana clinics dealt legal blow

Dispensaries now in limbo

by Joe Hanel
Herald Denver Bureau DENVER - Medical marijuana growers lost their legal cover Tuesday when the state Board of Health reversed a rule it adopted this summer.

In a hastily arranged meeting, the board voted 9-0 to repeal a rule it passed in July that defined who qualifies as a "caregiver" under Colorado's medical marijuana law. Last Thursday, the state Court of Appeals issued a ruling that contradicted the Board of Health's rule that suppliers of medical marijuana have a "significant responsibility" for a patient's well-being.

The ruling's reversal means there is no Colorado law either allowing or forbidding medical marijuana clinics.

Those are magic words in the state constitution that allow people to avoid criminal prosecution for marijuana possession.

It is still legal for registered patients with a doctor's prescription to possess marijuana, but Tuesday's action leaves marijuana suppliers under a cloud of uncertainty.

"I think what the board did is add a severe lack of clarity to an issue they had already clarified," said Robert Corry, a lawyer who defends several medical marijuana clients.

Medical marijuana proponents decried the meeting, which was announced late Monday. Dozens of people were left out of the room and excluded from the call-in line, and the board refused to take public testimony.

Corry, who was the defense attorney in the Court of Appeals case that led to Tuesday's vote, tried to address the board, but board President Glenn Schlabs refused to take his testimony.

Schlabs, attending the meeting by phone, told Corry he was out of order, prompting two Glendale police officers to approach Corry.

"This is illegal, Mr. Chairman," Corry said, taking his seat and shouting at the phone. "And I'll see you in court. I'll see you in court. Did you hear me, Mr. Chairman?" After the meeting, Corry told reporters he planned to sue the board as soon as today for its actions Tuesday.

Tuesday's emergency rule is a temporary fix, and the board scheduled a full meeting for Dec. 16, when Schlabs promised to take public testimony.

Local marijuana dispensary owners were still evaluating what the Board of Health action meant for them, but they were not alarmed.

"For us, we have a substantial relationship with our patients," said Travis Pollack, owner of Natures Own Wellness Center in Durango. "We make sure to facilitate more care than just medical marijuana for them, so we don't think this is going to have much of an effect on us." Mark Busnardo, co-owner of Durango Healing Center, said he hadn't talked to his lawyer about the board's action yet, but he thinks his business does have "significant responsibility" for its patients' well-being.

"As a dispensary owner and caregiver, my responsibility is to determine which form of our medicine is right for them. We have a significant responsibility, and we take that very seriously," Busnardo said.

Others in the new industry, though, are worried about Tuesday's rule change.

Jessica Leroux of Gilpin County supplies "medical edibles" to several marijuana clinics, including the Durango Healing Center. She said the board's action will hurt the "secondary providers" like her - people who supply the clinics but never meet the patients.

Colorado voters legalized medical marijuana through Amendment 20 nine years ago, but it wasn't until Attorney General Eric Holder announced this year that federal agents wouldn't go after medical marijuana providers that dispensaries started to take off across the state.

The amendment allows possession of marijuana by registered patients with a doctor's prescription as well as "primary caregivers." The Board of Health's August rule defined medical marijuana suppliers as primary caregivers.

But Thursday, the Court of Appeals upheld the conviction of Stacy Clendenin, a Longmont woman convicted of drug dealing for supplying medical marijuana. In the opinion, the court disagreed with the Board of Health.

"We conclude that to qualify as a 'primary care-giver' a person must do more than merely supply a patient who has a debilitating medical condition with marijuana," Appeals Judge Robert Hawthorne wrote.

However, the appeals court noted that Clendenin was convicted before the Board of Health's rule took effect this August, and the judges specifically said they were not taking a stand on whether the Board of Health's caregiver definition complies with the state constitution.

The staff at the Colorado Department of Public Health and Environment, which houses the Board of Health, decided the appeals court ruling required immediate action of the board, said Jim Martin, executive director of the state's public health department. The Ritter administration also strongly urged the board to act, said Martin, who also sits on the board. The governor appoints the board members, who are volunteers.

"This is an unprecedented situation," Martin said. "The conflict is clear, and it is unavoidable." So the board called for Tuesday's emergency meeting, which was held in a small conference room at the state health department.

More than 50 people were shut out when the room reached its capacity. The health department set up a teleconference so people could listen by phone, but it, too, locked people out when the lines reached capacity.

La Plata County Commissioner Joelle Riddle serves on the board. She voted both for the August rules that legitimized marijuana clinics and for Tuesday's repeal.

The board is between a rock and a hard place, trying to comply with voters' wishes and federal drug laws, said Riddle, who stressed that she was speaking for herself and not for the official position of the board.

Some people have a valid and real need for medical marijuana, Riddle said.

"I wish that we could establish some type of stakeholder input. As a Board of Health member, I think that's something we could do a better job of," she said.

jhanel@durangoherald.com