Pubdate: Thu, 06 May 2010
Source: Gazette, The (Colorado Springs, CO)
Copyright: 2010 The Gazette
Contact: http://www.gazette.com/sections/opinion/submitletter/
Website: http://www.gazette.com/
Details: http://www.mapinc.org/media/165
Author: Wayne Laugesen

A POISON PILL IN THE MARIJUANA BILL

The Colorado Senate is on the verge of foolishly  adopting a medical 
marijuana bill that may transport  parts of Colorado back to the days 
when pot was a  street drug that enriched only criminals.

Today, because of a constitutional amendment enacted by  Colorado 
voters in 2000, criminal dealers of marijuana  are struggling. That's 
because they must compete with  above-board medical marijuana 
dispensaries that rent  space on Main Street and are more than 
willing to pay  taxes and fees and obey laws. Dispensary owners 
have  clamored for reasonable regulation in order to keep 
the  riffraff competition at bay.

House Bill 1264, which received final Senate approval  Thursday, is 
mostly a reasonable attempt to regulate  and tax the new, flourishing 
and lucrative medical  marijuana trade that's helping Colorado's 
economy and  causing fewer problems than a lot of other retail 
sectors. It establishes a state licensing authority and  a 
requirement for local approval of marijuana  retailers. It eliminates 
kickbacks to physicians from  marijuana sellers. It mandates closure 
of dispensaries  at 7 p.m. That's all good.

Then there's the poison pill, which is likely to result  in a judge 
throwing the whole thing onto a scrap heap.  The bill says local 
governments may pass resolutions  "prohibiting" the cultivation or 
sale of medical  marijuana. Of course, the whole reason they're 
talking  marijuana at the statehouse is because of Amendment 20  of 
the Colorado Constitution - a law enacted  specifically to forbid 
Colorado governments from  interfering with the right to produce, 
possess or use  medical marijuana. So is the bill unconstitutional? 
Absolutely, beyond question. A few wise Republicans and  Democrats agree:

"We have no statutory authority to carve out new  exceptions to what 
is a constitutionally granted  right," said liberal Sen. Morgan 
Carroll, an Aurora  Democrat, as quoted in the Denver Post.

Conservative Republican Sen. Shawn Mitchell, of  Broomfield, was 
quoted in the Post saying: "Stomping  the supply (of medical 
marijuana) out of existence is  completely unfaithful with the 
constitutional policy of  allowing its dispensing."

The poison pill is a legislative pander to neighborhood  fussbudgets 
and local government leaders who want more  authority over 
individuals than the constitution  allows. They justify the 
unconstitutional language with  a song-and-dance about allowing 
"primary care providers" in any jurisdiction of Colorado, 
thus  ensuring the public's right to obtain the drug. In 
the  unlikely event that loophole saves the bill from  judicial 
annihilation, it may result in small-time  dealers on every block in 
those communities that  prohibit dispensaries. That's because the 
bill says a  primary care provider, who is neither physician 
nor  dispensary, may have only five patients.

The patient limitation makes caregiver a part-time job  that's best 
conducted out of a home. Cities and  counties that prohibit the 
storefront seller will  create high demand for stay-at-home 
caregivers. At that  point, as patients come and go from the homes of 
their  residential drug dealers, the old strip-mall dispensary  will 
look pretty good.

Legislators, come to your senses. Lose the  unconstitutional language 
in reconciliation before  creating a law the courts are likely to reject.
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MAP posted-by: Keith Brilhart