Medical Marijuana: Colorado Court of Appeals Rules Caregivers Must Do More Than Just Grow Pot

In an opinion released Thursday, the Colorado Court of Appeals has ruled that persons designated as "caregivers" under the state's medical marijuana law must do more than merely supply marijuana to patients. In so doing, the court upheld the conviction of a Longmont woman, Stacy Clendenin, who argued that marijuana she grew in her home was distributed to authorized patients in dispensaries.
Colorado state medical marijuana application
That wasn't good enough for the appeals court. Caregivers authorized to grow marijuana for patients must actually know the patients they are growing for, the court said.

"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," the court ruled.

The ruling, if upheld on appeal, threatens to put a crimp in Colorado's burgeoning medical marijuana industry. Dozens of dispensaries have sprung up in the state this year, and growers have been supplying some of them.

That has sparked calls for reining in the dispensaries, a call that was echoed in a concurring opinion to the ruling. In his concurrence, Judge Alan Loeb wrote that Colorado's constitutional amendment legalizing medical marijuana "cries out for legislative action."

Attorney General John Suthers told the Denver Post he applauded the decision. "I am pleased to see the Court of Appeals has provided legal support for our case that a caregiver, under Amendment 20, must do more than simply provide marijuana to a patient," Suthers said. "I also was pleased to see the assertion in the special concurrence that Amendment 20 'cries out for legislative action.' I could not agree more. I hope the legislature will act and create a regulatory framework that gives substance to the Court of Appeals' findings."

But Clendinin's attorney, Robert Corry, said the ruling was limited and that he would appeal it. "This decision is quite limited and only applies to Stacy Clendenin and only applies to those who went to trial before July when the state board agreed that caregivers could simply provide marijuana," Corry said. "I am concerned that the court superimposed California law on Colorado and I don't think California (medical marijuana) law is a shining star of success."

Permission to Reprint: This article is licensed under a modified Creative Commons Attribution license.
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Why did they use the term

Why did they use the term "primary care giver" in the initiative if they didn't expect it to be taken seriously? I never understood how this language could be stretched to cover dispensaries. The language would suggest a nurse, a parent, a spouse, a significant other, an administrator of a nursing home, a social worker, etc. Presumably a patient would obtain mj from illegal sources at first (the patient would not be legally liable for buying, but the seller would for selling) until s/he or hir primary caregiver had grown enough for hir to use, while institutions such as nursing homes could bridge their caregiver status as suppliers of mj as their patients came & went.

This is very odd. Merck &

This is very odd.

Merck & other major manufacturers of prescription drugs, including prescription pain medications are not classified as "primary care givers."

The manufacturers of presciption drugs do not know the millions of patients their drugs are sold too. They sell to the pharmacies around the country--the patient picks up their prescription at a pharmacy location & typically never even meets the pharmacist.

The "primary care giver" should be the doctor who wrote the prescription & has all medical information regarding the patient.

A medical marijuana dispensory is not qualified to be a primary care giver--& is simply just a dispensory to the patient based on what the actual primary care giver--(the patients doctor) prescribes.

Regulate & tax medical marijuana.

While all states with medical marijuana are suffering from the number of basically unregulated dispensories popping up everywhere.

Instead of the state of Colorado trying to make dispensories "primary care givers"--there is a number of things that the State of Colorado can do to regulate the industry.

In my opinon--just like Colorado does with the gaming industry.

Owners & employees of medical marijuana dispensories should be required to have criminal background checks. If they have a criminal record--no license will be issued. Owners/ & all employees should be licensed by the state to disperse medical marijuana. Along with that, like they do with gaming if owners/employees owe back taxes--they should be required to pay them in full--prior to the state issuing a license to open a dispensory. Possibly even requiring bonding, as the state requires with businesse's who have liquor licenses.

Once licensed--the buildings they operate in--should be required to have a security system to keep the criminal element from trying to break in. Along with this zoning regulations to keep them away from schools--day care centers, etc.

Then tax them as other retail business'es are taxed.

Another problem is the growers. Most have no clue as to how to install electricity for their grow rooms. Home growers have often started fires in their homes, & created shock hazzards--making it dangerous not only for themselves--but for firemen & law enforcement. Require that grow rooms are inspected under National electric code requirements & local building requirements. Growers or those that service the dispensories then can pay taxes on their revenue by the dispensory simply issuing a 1099 to the growers.

Therefore, everyone involved is paying taxes.

The State of Colorado has in place the laws to regulate other industries in the state that work very efficiently. I don't understant why the state doesn't use the same regulations for medical marijuana dispensories & growers?

It seems like a no-brainer to me.

It's amazing--isn't it.

Owning our own business in the construction industry for the last 30+ years in Colorado--we have been & are currently regulated by the State of Colorado as our licensing & regulating authority. We along with many other professions are required to take state board examinations--pay for licenses--& while being in the construction industry-- under the watchful eye of local & state inspecting authorities. About every profession in this state, is regulated by the State of Colorado.

Yet--the State of Colorado has waited 9 long years before they decide to regulate the medical marijuana industry? The only reason they have recently taken up this issue--is because President Obama has called off the Federal DIA on states that have medical marijuana laws. To add insult to injury--the current regulations written in the Colorado state statute have so many loop holes in it--it would be a prosecutor's worst nightmare.

I don't believe that the state currently requires any criminal background checks on owners or employees of medical marijuana dispensories. In fact, I don't think they even know who they are & where they are located.

Then the other issue is building code enforcement.
The electrical installations in most of these grow rooms are fire & shock hazzards-- not wired according to NEC, State & local requirements, much less inspected by local or State electrical inspectors. Yet the State & local municipalities have had for decades regulations in place that would correct that problem, but code enforcement as been off duty on this too.

In conclusion, I hope that the State of Colorado comes up with common sense regulation as they have done for other industry & professions that actually regulates medical marijuana dispensories. Rather than making up non-sense "primary care" provider clause's in which they are not. Basically asking dispensories to provide a service which they are not qualified to do.

Medical Marijuana

I dont think theres anything wrong with that providing anyone who qualifies to smoke may also sell to their friends. I actually think it is a very good idea to keep the traffic down.

No that's wrong

While you may think it's O.K. for someone with a medical marijuana card to buy from a dispensory & then turn around & sell it to someone without one. In my opinion that is WRONG & it's illegal. Someone who gets caught doing that should lose their medical marijuana card & be prosecuted for it.

Medical marijuana is for people who suffer chronic conditions--& is not to be distributed to the public at will--or without a doctors prescription.

Would you also think it's O.K. to raid someone's liquor cabinet & sell to underage teenagers--or take prescription pain pills & sell them too?

Develop social networking to meet the challenge

The positive side of this is that dispensaries can take this ruling at its word and get to know each patient personally-- what's wrong with that?
Their personnel could undertake to be virtual nurse, parent, spouse, caregiver etc. in the sense of instructing every patient, individually or in group sessions as convenient, making sure they learn proficiency in harm-reduction smoking or vaporizing procedures, eliminate the hot-burning overdose $igarette approach with or without nicotine, and develop awareness of nutrition and exercise and avoidance of drugs with which there could be any cross-influence with the cannabis.

Medical Cannabis

My opinion on this is a patient is a patient they should have they're own rights to talk personally about they're dehabilitating disease or disorder. I also believe that the requirements as a patient should be broadened a little bit. Cannabis can be used for many things like sleeping disorders, add or addhd, post traumatic stress syndrome,asthma. I think the caregiver should be open to talk to the patient if needed and talk about what the problem is so that the caregiver can prescribe the right kind of cannabis to the patient. Most people don't understand there is 2 types of cannabis a sativa and a Indica both of these have very different properties for example: one is a lower high make you calm down or sleep more and one is an upper high that tends to wake you up and keep you more alert. There are many differences in these two types of cannabis that many people have not looked into or explored. There is to many to name. Also take into mind that newer marijuana plants have been crossbread and mixed sativa and indica which brings a third type of cannabis which is almost fully unexplored. Also there is so many different strains of marijuana it is not even funny and I highly doubt many people know the best strains to use for different diseases I think this should be researched by the public and the govenrment and all research discovered to be open to the caregivers and patients. Having said all of this brings another factor into play say you wanted to have 3 different types of marijuana plants you are going to need your three stage of a plant process to keep up with the patients which is your clones or seedlings you are going to need your growing stage and you are going to need your flowering or budding stage so say you have 10 patients 4 want one plant 3 want a different plant 2 want the other strain and the last patient has special needs for a special plant then you run into this problem cannabis takes about 2 months to finish and be ready for prescription If the law states you can only grow 3 budding plants and four babies each one of these patients is going to use about an ounce on average a month and the law states you are to only have 1 ounce per plant The average modernized cannabis plant puts out anywhere from 1 ounce to 4 ounces or more there is another problem this barely takes care of the medical licensed caregivers medicinal needs. In order to take care of 10' 20 , or even 30 patients you would need about 33 plants growing at all times. In my opinion a caregiver or dispenserary should not handle more than 30 patients by him or herself This is the pheasable limit to handle. Keep in mind probably only a good 25% of the patients will ever become a caregiver not everyone wants to grow or has the knowledge to do this. So this leaves another problem how will all the patients get theyre choice of caregiver if one is limited or even be left without a way to get the medicine. This is where I think it should be the responsibility of the caregivers to either hire an employee as another caregiver or see if an existing patient is willing to go somewhere else. These problems can be worked out with a little work as shown it is not as complicating as everybody is making it. For those of you that can't face the facts that more than half of the nations population smoke cannabis and a good majority of the world for some medicinal reason or stress relieving cause, better than cigarettes and alcohol any day I feel bad for you because you are stuck in a time that does not exist in this upcoming world open your mind and your eyes this is the future. Legilization is probably not that far away this medical law is just a slow step to see how the public acts with this being so close to legal In my opinion it should stay this way until everybody becomes accustom to the everyday medicinal properties of cannabis sincerely thekindlove

Medicinal cannabis

Just to make my statement clear my opinion on a caregiver by law should not be required to have short 5-10 minute talks with a patient (unless) the patient requests for some time to talk about theyre condition or different prescriptions of the different varieties of cannabis this respects the patients and the caregivers rights as a medical perspective am I wrong?


You can go into WalMart and fill you prescription for any narcotic painkiller with out having to know your pharmacist personally, so long as you have a valid, verifiable prescription. Granted, medical marijuana is not prescribed, its recomended by a doctor, it is still the same concept. I think the only regulations should be along the lines of making sure dispenseries or caregivers are not providing to the general public, and the doctors recomending the MMJ are ethical. The votors approved amendement 20, and the sales tax collected is a benifit to the cities in which the dispenseries are located. The president has already stated he is going to allow states "home rule" in regards to MMJ be honered. Also individual cities are making there own choices on allowing dispenseries. I understand the states position on reegulation,but please take all sides into consideration before placing rules on an amendment that the citizens of Colorado have already approved.

This is a trust issue, we

This is a trust issue, we trust doctors are doing the correct thing by engaging in constructive conversation with their patients. Caregivers are not doctors, they simply facilitate the ability of the patient to obtain their medicine. Dispensaries are not pharmacists or doctors, they may be more knowledgeable when it comes to the different strains of marijuana but ultimately like any other medicine it comes down to what works for the patient.

Synthetics compounds use a "silver bullet" approach to treating illness, medical marijuana uses a shotgun approach, this is the concern of doctors, right or wrong. But like any medicine, not everything works for everyone and patients need to try different strains to find something appropriate for them. There is a reason drug commercials list side effects, so that patients will understand the side effects may be worse than the cure for some people.

Caregivers and dispensaries should only be required to be knowledgeable within their field, but they cannot tell one particular individual, any more than your doctor can tell you that this particular medicine will fix you. Doctors by the way, are completely lax when it comes to balancing a potential medicine for a patient and the side effects. Often times completely over looking the side effects on the assumption that only 2-3% will ever have a problem. I have a long documented history of chronic pain, seizures, and insomnia. I was recently prescribed a pain medication that did alleviate the pain. However I went through weeks of insomnia until I stopped taking it, not knowing because the doctor had never indicated that this was a potential "side effect" along with the possibility of causing seizures.

Doctors rely to much on the little sheets of papers that now come with prescriptions listing all the side effects, patients do not read these anymore than people read the fine print that came with their credit card. No one takes responsibility for anything, they all point the finger at the other guy.

When it comes to caregivers growing and providing medical marijuana to dispensaries that is a very simple legal question. Was it designed into the law in a manner that allowed caregivers to do so? If not, your walking the edge of a razor blade and be careful, you could slip and get cut. I'm a resident of Maine, I am in the process of obtaining my state registration to open a dispensary. We are absolutely prohibited from purchasing any medical marijuana from anyone. We can only provide what we grow. Caregivers in Maine on the other hand can grow for their patients or purchase from a dispensary.

Everyone is jumping on the band wagon with this trying to make some money, it will be short lived. The pharmaceutical industry recently suggested that marijuana should be reclassified and studied for potential benefits. Do you think they did this out of kindness? They simply recognize that legalizing it for medical use via reclassification will allow them to purchase/grow it and dispense it via pharmacies. The drug industry/war machine grows bigger and gets fat and bloated on your hard earned dollar. For the very same reason most doctors are against health care reform, they do not wish to see their earnings diminish. They have a vested interest like insurance companies to keep things exactly as they are as long as possible.

Legalize it, sell it like cigarettes, and tax it like every other vice. Keep the big guns out of the industry, protect the rights of the patients and users. Many would argue that this would simply lead to individuals growing their own pot, and this is true. But it is currently legal for you to grow your own tobacco and how many individuals do that?

Common sense is needed. Violate state law you go to jail, work within the law and you are protected.

Why the convoluted laws?

Could the government make this any more difficult?

If this is truly for medicinal purposes, it's simple:

A doctor writes the prescription.
The prescription should be limited so the patient goes back to get check ups with the doctor to ensure there aren't any complications, new conditions, or abuse of the prescription.
The doctor either writes more refills, or the doctor suggests alternate medicine.
A company, regulated by the FDA, supplies the medicine.

If anyone has a problem with this method (which is used for all other prescription drugs), then they're either trying to use marijuana for other purposes (recreational), or they're against the drug in our society.

borden's picture

There are two main reasons

There are two main reasons that states are not enacting systems like that. First, they don't work in the face of the continuing federal prohibition of medical marijuana. The DEA can very easily de-license a doctor for prescribing marijuana, because it's a schedule I substance, and can also prosecute a doctor for it. Arizona has had a law like you described on the books since 1997, and there is no medical marijuana there yet. Recommendations, however, are constitutionally protected as free speech, as the Conant ruling found.

The second main reason is that it is also impossible to legally grow a supply of marijuana for medical purposes without federal authorization, and the feds have never yet granted this except for some very limited federal programs, mostly research.

In the face of both these realities, people crafting laws and regulations have had to find the structures that create the best protections against federal interference that they can -- the best protections both legally and politically -- for both patients and the people providing the marijuana to them. The systems seen in the states are the ones that have evolved to meet those criteria. If the feds end their prohibition of medical marijuana, then other systems will become possible. However, things have gone down a certain road for a lot of years now -- because of the continuing federal prohibition in the face of state laws -- and I doubt they can really be turned back at this point.

David Borden, Executive Director the Drug Reform Coordination Network
Washington, DC

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