Pubdate: Sun, 30 May 2010
Source: Daily Times-Call, The (Longmont, CO)
Copyright: 2010, The Daily Times-Call
Contact:  http://www.timescall.com/
Details: http://www.mapinc.org/media/1475
Author: Rachel Carter
Cited: HOUSE BILL 10-1284: http://mapinc.org/url/y7fMpRrs

MARIJUANA DISPENSARY OWNERS SAY STATE LAW IS  UNCONSTITUTIONAL

LONGMONT -- If House Bill 1284 puts Larry Hill out of  business, he
has a back-up plan.

"Personally, I'm 63 years old. I'm going fishing," the  medical
marijuana dispensary owner said with a smile.

But Hill's humor belies a real fear: that new state  regulations --
and more to come -- will wipe out  Colorado's medical marijuana
industry or drive it back  into the shadows. Which, some say, was
lawmakers'  intention.

"They are going to accomplish one thing: They are going  to accomplish
putting medical marijuana underground,"  Hill said.

Hill, whose dispensary on Coffman Street was the first  in Longmont
when it opened in February 2009, got into  the business for the
medical attributes of cannabis,  not money. But, he said, that's what
state lawmakers  made HB 1284 about.

"Reading the bill, the whole thing makes me sick,  because they are
putting money over health," he said.

He added wryly, "I don't understand (the bill) any more  than the
people who wrote it."

HB 1284, which state legislators passed this month,  creates a state
licensing authority to enact  regulations governing medical marijuana
facilities.

Most of the regulations in the bill (which Gov. Bill  Ritter has yet
to sign, although he has said he will)  don't take effect until July
1, 2011.

The bill also leaves the nuts and bolts of licensing up  to the
Colorado Department of Revenue -- so those  details are still up in
the air.

The bill, however, specifically gives local governments  the authority
to ban dispensaries, a decision that a  city council or town board can
make or can refer to  voters.

And that is one of several pieces of the new law that  could bring
legal and constitutional challenges, said  Boulder attorney Craig
Small, who focuses on medical  marijuana business development.

No existing dispensaries are "grandfathered" under the  new law; they
have to apply for state and, if  necessary, local licenses no matter
how long they have  been in business.

If a municipality were to ban dispensaries, it could be  on par with
government taking private property without  compensation, Small said.

"They were issued a license; there's some protection  with that
license," he said. "To have the government  snatch it back, that might
be a taking (of property)."

Small said Sen. Chris Romer, who sponsored the bill, is  on record
saying he was crafting the law to shut down  80 percent of
dispensaries in the state.

"It's going to be very, very expensive, difficult, and  these
timelines are onerous," Small said of the bill.

By July 1, dispensaries need to have a license from a  local
authority. For example, the eight dispensaries in  Longmont that
already are open can continue to do  business under HB 1284.

But anybody else who applied to the city to open a  dispensary has to
get approval by July 1. Because most  cities and towns don't yet have
local regulations in  place -- or have active moratoriums on new
dispensaries  -- it essentially prohibits any new dispensaries from
opening.

"By nature of the laws in conjunction, no one is going  to be able to
get any licenses in time," Small said.

The bill also requires dispensaries to apply to the  state for a
license by Aug. 1. But as of yet, the state  hasn't created a
licensing authority; therefore, the  licensing authority doesn't have
an application  process, Small said.

Colorado Springs attorney Clifton Black summed it up  best when he
said that "we're going to have to fill out  forms that don't exist,
created by an agency that  doesn't exist," Small paraphrased.

And by Sept. 1, each medical marijuana center must  prove that it is
growing 70 percent of the product it  sells -- a requirement that
could present another  constitutional challenge, Small said.

"(A law) still needs to have a rational basis, and we  can't figure
out a rational basis for that one," he  said. "It seems completely
arbitrary."

Another possible constitutional issue is the  requirement that a
person must have lived in the state  for two years to qualify for a
medical marijuana center  license, Small said.

Still, he said, there are good points to the law.  Before, under
Amendment 20, patients and caregivers  were protected. Now, HB 1284
"creates levels of  protection among everyone on the distribution
chain,"  he said.

Brad Hensen, who opened Dacono Meds LLC in Dacono on  Nov. 1, said
that at least the bill allows banks and  credit unions to do business
with dispensaries. Banks  often won't work with dispensaries because
marijuana  still is illegal under federal law.

But other than that, Hensen said, HB 1284 likely will  succeed in
putting most dispensaries out of business.

"The fees could be tens of thousands of dollars. They  could be
$50,000," he said.

In the meantime, "We'll just take it day by day; we  have hoops and
hurdles every day and every week."

Hill also fears HB 1284 -- and whatever regulations the  Department of
Revenue eventually comes up with -- will  put him out of business.

The fee for a state medical marijuana license has yet  to be set, but
Hill has heard big numbers tossed  around, even as much as $50,000.

"I am not one of the big guys with a lot of money," he
said.

Small said the bill will drive the "mom-and-pop shops"  out of
business because they don't have the capital,  and there will be a
push toward "Wal-Mart" types of  dispensaries."

Ed Bruder, owner of Colorado Care and Wellness in  Lyons, said the
entire bill seems "pretty  unconstitutional."

"I think it goes against the intent of Amendment 20,  which allows
patients safe access to medicine," said  Bruder, who also was elected
to the Lyons Town Board of  Trustees in April.

Bruder said there should be regulations that set  quality standards
for medicinal marijuana to ensure  patients' safety.

But patients are hardly mentioned in HB 1284, which is  mostly about
money, he said -- underscored by the fact  that Amendment 20 gave
oversight to the state health  department and HB 1284 hands it over to
the department  of revenue.

"They've figured out pretty much every way to put all  but the people
with the deepest pockets out of  business," Bruder said.

One benefit of the whole process, Hill said, is that  the general
public is being educated about medical  marijuana and more people are
researching the medical  attributes of cannabis.

As such, Hill said, if the voting public of Longmont  doesn't want
dispensaries in the city, he'll accept  that -- but it should be up to
residents, "not a few  good men ... and women."

"If the city (council) decides to ban dispensaries, I  would be very
bitter," Hill said. "If the city left it  to voters, and the voters
decide they don't want  dispensaries, I would walk away with a smile
and a  handshake." 
- ---
MAP posted-by: Jo-D