Feature: Colorado Hearing Monday on Plan to Limit Dispensaries Expected to Draw Loud Opposition

Update: Medical marijuana supporters WON -- the proposal was defeated.

On Monday, the Colorado Board of Health will hold a key public hearing on a controversial proposal to impose restrictions on the state's medical marijuana providers. The board is likely to get an angry earful from patients and providers worried that the restrictions will effectively shutter the state's burgeoning dispensaries and make it more difficult for patients to obtain their medicine.

Colorado authorities tried the same thing five years ago, but a state judge slapped them down for failing to hold any hearings. They are also somewhat hamstrung because the measure passed as a constitutional amendment, making any alteration of it constitutionally suspect.

The hearing comes as participation in Colorado's medical marijuana program has gone into overdrive. The number of registered patients is rapidly approaching 10,000, up from only 1,700 a few years ago. The number of physicians making medical marijuana recommendations is nearing 600. The number of dispensaries in the state has undergone a jump in recent months, and is now approaching 40.

If approved, the draft proposal from the Department of Public Health and Environment would put a real crimp in the Colorado medical marijuana boom. Two provisions of the proposal that are earning the most denunciations from patients and providers: One would tighten the definition of who qualifies as a licensed caregiver; the other would limit the number of patients a caregiver can provide for to five. There is currently no limit on the number of patients for whom a caregiver can grow or otherwise provide.

"There are two major problems with the proposal," said Denver attorney Warren Edson, one of the coauthors of the voter-approved constitutional amendment that legalized medical marijuana in the state. "The biggest problem is their redefinition to include the requirement that caregivers provide other services. The second biggest problem is the attempt to regulate a five patient limit."

"The proposed caregiver limit is a solution in search of a problem," said Mason Tvert, executive director of SAFER (Safer Alternatives for Enjoyable Recreation), which while concentrating on recreational use, also supports the state's existing medical marijuana program. "It would actually create several problems for the thousands of Coloradans whose doctors recommended they use marijuana to treat their debilitating conditions. Imagine walking into a pharmacy to pick up the medicine your doctor recommended, only to be turned away because it has already helped five people," he said.

"As if such a patient limit isn't ridiculous enough, these state bureaucrats have failed to provide even a single justification for why it's necessary," Tvert continued. "After all, pharmacies distribute countless medications that are potentially dangerous and frequently abused, whereas medical marijuana dispensaries distribute a substance less toxic and less addictive than beer."

The Department of Public Health and Environment indeed steadfastly refused to comment on its proposals. "The department's position will be outlined at a public hearing on July 20," was all it would say, which is a bit odd since the department's position is already outlined in the draft proposal set to be slammed on Monday.

Denver attorney Robert Correy has crafted an alternate to the department proposal (see it at the proposal link above), and is warning the board it would be wise to adopt his and not the department's. "My proposal would guard caregivers' anonymity, and was prompted by the murder of caregiver Ken Gorman," he said. "It would be much better for caregivers and patients, and it is much more consistent with the constitution than the health department proposal."

Adopting the health department proposal would amount to amending the constitution, said Correy. "While the Health Board can pretty much vote independent of what the public wants, it can't amend the constitution through regulation, which is what this proposal would do. The changes are radical and diametrically opposed to the constitutional definitions of caregivers and patients' rights," he argued.

The Monday hearing was originally set for March, but officials rescheduled it when it became apparent that the controversial proposals would draw a huge number of people wanting to offer public comments on it. Now, it has been relocated to Denver college campus conference room that can fit 500 people, but medical marijuana supporters say that may not be enough.

One person who will be there is Jim Bent, co-owner of the Patients Choice dispensary on South Broadway in Denver, which provides for some 300 patients. "I'll be handing out bottled water and snacks to help people stay there through the day so the board can see the level of support the current approach has," he said.

"If those proposed rules went into effect, I would have to lay off employees," said Bent, "We wouldn't be able to provide the services we currently do," which currently include massage therapy, music therapy, acupuncture, and nutrition classes. "With so many patients, we can get a discount rate, but if we were only taking care of five people, as the proposal recommends, we couldn't afford to do that."

Patients Choice is a shining example of the wave of dispensaries that have opened in Colorado since the Obama administration made it clear that it was not going to sic the DEA on medical marijuana providers operating in accord with state laws. More than 30 dispensaries have opened this year, transforming the face of medical marijuana in the Rocky Mountain state.

"When Obama said he would leave this alone, we had a shift from people in the black market trying to squeeze over," said Edson. "But now it is business people running real businesses. Thanks to Obama and the poor state of the rest of the economy, this is really snowballing. We added 1,200 patients and four big dispensaries in May alone."

Patients and providers are of the opinion that if it ain't broke, don't fix it, said Edson. "We have a system that is working, and I think the Board of Health is going to find out Monday that there will be a thousand people there telling them not to approve those changes," he said.

That would be a clear sign of the importance of the existing program for patients and providers, he said. "The board has never had more than a dozen people at its hearings for anything, but when they had 200 people show up for the pre-hearing earlier this year, that was a loud signal. Now, they've rescheduled in a room that holds 500, and that isn't going to be enough. They are supposed to go by public opinion, and public opinion will be incredibly lopsided telling them not to adopt these changes," Edson warned.

If, in the face of the expected near universal condemnation of the proposal, the Health Board members adopt it, Robert Correy will be waiting for them. "I will be ready to serve them with the lawsuit in person right after the vote," he vowed. "We'll be in court Tuesday morning before the same judge who slapped them down when they tried this in 2004."