Rob Corry's 12-page response to Senator Romer regarding the bill:
VIA ELECTRONIC MAIL
January 7, 2010
The Honorable Chris Romer
Colorado Senate
Denver, Colorado
Re: Preliminary Comments on Draft Text (Dec. 30, 2009)
Regulate Medical
marijuana
Dear Senator Romer:
Thank you for the opportunity to provide comments to your draft "Regulate
Medical
marijuana" bill. I enjoyed our appearance on KBDI January 5, and am
encouraged you committed to consider significant modifications to your
draft,
which cannot be supported by any serious patient or caregiver in Colorado's
Medical
marijuana community. On a personal note, though I appreciate our
collegial and respectful dialogue, your obvious diplomatic skills are no
replacement for substance. My clients' lives literally depend on their
access to
medicine, and we will fight any government proposal that would restrict
supply
and raise costs, such as this proposal.
In general, the top three problems facing Medical
marijuana patients are (1)
high cost of medicine; (2) choices and consistent supply of medicine; and
(3)
quality control and labeling of medicine. As an economist, you know that the
only
way to lower cost, on both a short- and long-term basis, is to increase
supply.
Your proposed bill would significantly increase costs to patients, thereby
placing
the most vulnerable of them in danger. Your bill would reduce the selection
and
consistency of medicine, driving most of the supply back to the dangerous
criminal underground. Your bill does nothing to address quality and labeling
of
medicine, which the community is already developing faster and more
effectively
than government could for this unique community formed under slowly-clearing
clouds of Prohibition.
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Patients are caregivers are rightfully concerned with your stated
motivation,
as quoted in both the Boulder Daily Camera and Denver Post, to put half of
Colorado's existing, taxpaying, job-creating, economically viable,
caregivers "out
of business." There is currently a shortage of caregivers, and we hope that
eventually the supply and availability of medicine can increase to create
significant decrease in price.
Specifically, the bill suffers from numerous deficiencies as follows. These
comments are of a preliminary nature only, and given more time to study your
39-
page proposal I might locate other defects. I thought it preferable to
highlight the
main problems rather than take the time to develop a comprehensive analysis
since
you indicated you were contemplating changes anyway.
Page 3, Section 1. Legislative Declaration:
The first sentence incorrectly limits the benefits of medical
marijuana to
treating "pain." Although pain relief is one major benefit of medical
marijuana,
many scholarly studies, physicians, and patients report that medical
marijuana can
actually improve or cure certain medical conditions, and prevent other
conditions,
rather than merely relieving pain. Medical
marijuana is more than a band-aid
for
many patients. There are many other reasons for medical
marijuana in
addition to
pain relief, and the declaration should reflect this significant fact.
Page 3-8, Medical
marijuana Licensing Authority:
In these times where our state government is literally bankrupt, we cannot
afford to create an additional unnecessary layer of bureaucracy that will
exist
perpetually and carve out an imaginary justification for its own existence
like a
parasite, sucking tax dollars for generations. The Department of Health is
already
bloated, obstinate, hostile, and inefficient enough with documented
misinformation about the average age of patients and its inexcusable and
illegal
delay of over 120 days in issuing simple registry cards and overcharging
patients
$90.00 for the privilege of waiting nearly a half a year for a card that
expires in a
year. Patients cannot afford another hostile army of bureaucrats whose
mission is
to undermine the Colorado Constitution.
Page 4, Line 12:
Improperly delegates too much power and discretion to local authorities on
an issue of statewide concern. Local governments have already demonstrated
an
extreme hostility to suffering patients and their needs, instead opting,
ostrich-like,
to try to hide from the future. Local governments, with some positive
exceptions,
have generally shown by their own arrogant and illegal actions (see Frasher
v. City
of Centennial, Arapahoe District Court 2009, which I litigated, successfully
striking down an illegal local prohibition on medical
marijuana) that they
cannot
be trusted to exercise any reasonable discretion on this issue. Of course
locals
3
should retain neutral zoning power as to location of businesses, but nothing
more.
Giving these heartless local bureaucracies any more power is an invitation
to them
to continue to discriminate against suffering patients. For example, the
City
Council of Westminster, Colorado callously opted to shutter the doors of
existing
dispensaries while flatly refusing a courteous written engraved invitation
to even
take 15 minutes out of their day to personally visit the viable businesses
they
destroyed. Most other city council members are similarly arrogant. There are
exceptions: some Denver City Council members have actually visited the
businesses they seek to regulate, and you have as well, which we appreciate.
Page 4, Line 21:
Requires a public hearing on ALL complaints (and there will be some,
especially when opponents (or even business competitors) discover this
burdensome procedural hammer) made against a clinic or grower licensee, thus
burying licensees and the government in expensive perpetual litigation.
Believe it
or not, there is a shortage of real lawyers who are competent and
experienced in
dealing with medical
marijuana-related court or administrative proceedings.
My
law firm is too busy already.
Page 6, Line 9:
Criminal background checks as a requirement for serving as a caregiver are
unconstitutional and unreasonably restrict patient choice of caregiver.
Pursuant to
the Colorado Constitution, Article XVIII § 14, the voters already defined a
caregiver as an adult with a significant responsibility for the well-being
of a
patient, period. Not an adult who has lived an error-free life. Not an
ordained
saint, although some caregivers should qualify for that designation. The
practical
reality is that many caregivers, since they are knowledgeable in how to
cultivate
and produce
marijuana, picked up criminal convictions at some point in their
lives.
These people now seek to turn their valuable knowledge into something that
helps
suffering patients. They should be welcomed to the business world, not shut
out in
the cold.
Page 7, Lines 9-15:
The Devil's Dictionary definition of "morality" is "that sneaking suspicion
that someone, somewhere, may actually be having a good time." The case
against
medical
marijuana closely relates to this irrational mentality, typically
held by
those individuals so dissatisfied with their own empty lives that they
actually
obsess about the manner in which other unknown people alleviate their
physical
conditions. Most of the complaints and concerns regarding medical
marijuana
relate to the signage on the physical locations themselves. This can be
attributed
mostly to a very vocal minority of fanatical biddies, grandmothers, and
other
Communist nanny-types who are somehow "offended" that some suffering people
use a 10,000-year-old Old and New Testament-recognized scientifically-proven
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holistic organic plant remedy instead of synthetic chemicals and pills.
Until these
poisonous haters die off (from their own narcotic and alcohol addictions
that could
be cured by the plant they hate), as an elected politician, you probably
still have to
put some grease on these very irritatingly squeaky wheels. Thus, a
reasonable
restriction on signage is probably an area that this community would
reluctantly
compromise on and which government could properly regulate. Your bill does
the
opposite by allowing unfettered advertising. We should discuss some
acceptable
compromises in this area along the lines of the tobacco industry, which
agreed to
limit its own ability to advertise.
Page 7, Lines 16-27:
This section provides that a person cannot refuse, even under the right to
remain silent against self-incrimination, to provide testimony to the
apparently
god-like medical
marijuana licensing authority. The Colorado State
Legislature
can never repeal the Fifth Amendment to the United States Constitution and
should not even waste the court's time in attempting to do so. I will file a
lawsuit
against this bill in the unlikely event it becomes law over the objections
of a
thousand screaming patients, but I would rather have a challenge instead of
a
slam-dunk.
Page 8, lines 4-5:
This permits the all-powerful licensing authority to deny a license "in its
discretion." For the reasons earlier expressed, government cannot be trusted
to
exercise any real discretion regarding medical
marijuana, or the power to
deny a
license on a whim, regarding an alternative medicine it abhors.
Page 10, Lines 1-7:
This requires any growing location to post a sign on the planned grow
location visible to all in the neighborhood, including children. This is
ridiculous.
This is an advertisement and open invitation for children and teenagers to
break in
and steal the
marijuana they think might be inside, and get shot or killed
in the
process. This provision is dangerous and unenforceable, and must be
eliminated.
Grow operations must be as discrete and unknown as possible. Any alternative
rule harms children and infringes on public peace and safety. No grower
worth
anything will comply with this. This requirement would drive grow operations
back underground, all for the enjoyment and profit of foreign criminal drug
cartels. I expect the prison-industrial complex, led by Warden Suthers, to
strongly
support this harmful provision, since it is full employment for them and
their
government-funded satraps.
Page 10, Lines 8-11:
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This allows so-called "parties in interest" and other nattering
self-important
neighborhood nabobs to subpoena, cross-examine, and inquire into
confidential
medical information. This has no place in the United States of America,
still a
free country.
Page 11, Lines 22-23:
This would allow neighborhood residents to exercise a veto over location of
an existing or new dispensary or caregiver operation on their whim. It gives
effect
to irrational prejudices against
marijuana and must be eliminated.
Page 11, Lines 24-26:
This would allow the government, never a good assessor of supply and
demand (see the Former Soviet Union with its interminable bread lines), to
deny
licensure of existing or new caregivers if there are already adequate (in
the
judgment of government) suppliers in the area. This is anticompetitive and
creates
government-imposed
marijuana monopolies. Ironically, this is antithetical to
the
purpose of the bill in that it locks in the early movers (who are presumably
offensive) and excludes the newer entrepreneurs who seek to bring their
business
acumen to bear on this burgeoning industry. If the existing players are
somehow
offensive, why would this bill lock in their market share in perpetuity and
create a
government-sponsored syndicate that excludes competition, all in the worst
tradition of mob-style crime families?
Page 12, Lines 12-13:
Allows the government, with all of its evident knowledge about
marijuana
and the medical needs of each patient, to create a "cap" on the number of
patients
a particular caregiver can serve. This is illegal, and a violation of the
constitutional right of the patient to determine his or her own caregiver.
It would
also harm the most vulnerable of patients who already have difficulties
obtaining
medicine at a low cost.
Page 13, Lines 10-12:
Grants the government the subjective discretion to deny a clinic or grower
license based on the "character" of the applicant or its officers, if the
government
thinks that violations of this statute might occur. This allows petty
government
bureaucrats to completely shut down the medical
marijuana supply chain on
their
imaginary whims, and if past actions are any guide, they will abuse every
inch of
power this statute gives them, and it gives them miles.
Page 13, Lines 13-18:
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Again permits government to deny a license based on its own assessment as
to whether local customers are already served by existing businesses, thus
locking
in a
marijuana monopoly. Government as Al Capone. See comments above.
Page 14, line 10:
Prohibits government from issuing a license to "a person who is not of
good moral character." This would apply to growing licenses and clinic
licenses.
It is unlikely that Dr. James Dobson or The Pope will apply for these
licenses,
therefore government could deny any other fallible human sinner a license
and
effectively choke off the entire supply, or more probably just drive it back
underground. The judgment of "good moral character" is also based partially
on
business persons/competitors and neighbors within the area, as determined by
the
local government. So both the state and local governments get to determine
the
"good moral character" issue. No real adult human being can survive such
scrutiny.
Page 14, lines 19-22:
Requires 100% of officers, directors and 90% of stockholders in any
business also be of "good moral character." No company in the United States
could meet such a standard. No legislature in the United States could meet
such a
standard. No city council in the United States could meet this standard. No
governor's office could either.
marijuana should not be held to standards no
other
entity can satisfy.
Page 15, Lines 4-5:
This prohibits a peace officer, or any member of a peace officer's family,
from obtaining a clinic or grow license. As a criminal defense lawyer, I
know that
a minority of police officers have difficulty complying with the "good moral
character" requirements in this bill, but most of them are upstanding moral
members of our community. If we do not trust police officers, or even more
strangely and arbitrarily, their families to help suffering people who need
marijuana, then who can we trust? One of my favorite dispensary clients has
a son
who serves as a Sheriff's Deputy, and there is no problem whatsoever with
this
situation. This bizarre provision makes no sense, like the rest of this
bill.
Page 15, line 23:
Requires clinic and grower licensees to provide fingerprints along with
"personal history information concerning the applicant's qualifications" to
obtain
a license. Like the "good moral character" requirements critiqued above,
this
would only inspire local witch hunts against medical
marijuana caregivers
who
already have enough problems with conducting this controversial business. As
for
"qualifications," under this standard, a first-time beer brewer such a John
7
Hickenlooper probably would have been denied his permission to brew beer,
lacking any "qualifications" in this regard, so the man you may succeed as
Mayor
might have been denied the business platform that launched him to the
Mayor's
Office in the first place. Someday, a dispensary owner may rise to be Mayor
but
your bill would deprive the community of such new innovative career-changers
such as Mayor Hickenlooper.
Page 16, line 3:
Requires the State of Colorado to forward fingerprints, names, social
security numbers, birth dates, addresses, and other identifying data of
growers and
clinics to the Federal Bureau of Investigation (FBI) for a federal
background
check. This makes the state government into a federal snitch, an
unprecedented
development in the history of separation of powers in the United States of
America. With this extreme requirement, no self-respecting clinic or grower
will
ever comply with this law, making it even more unenforceable then current
criminal prohibition against recreational
marijuana, widely ridiculed by the
populace. The State of Colorado should be protecting its citizens from the
depredations of foreign sovereigns such as the federal government, which
despite
President Obama's pronouncements, continues its hostility against the voters
of
the State of Colorado and our firm desire that medical
marijuana be legal.
Your
earlier proposal that the Colorado Attorney General be required to defend
Coloradoans persecuted by the federal government was a step in the right
direction
and should be re-inserted into your bill. But this proposal goes the
opposite
direction. Obviously the FBI cannot be trusted to respect state prerogatives
regarding medical
marijuana.
Page 16, lines 25-27:
Prohibits a clinic or grower from being within 500 feet of a school or day
care center. There should be no arbitrary distance limit from schools and
day care
centers, which would effectively ban the operations in many parts of the
state.
There is no documented case of any child ever purchasing or obtaining
medical
marijuana from a dispensary. A distance limit accomplishes nothing, as
children
are mobile and can travel to dispensaries, if that were a problem which it
is not. It
is unclear what "problem" a distance limit from schools "solves." Why is 499
feet
from a school unacceptable but 501 feet acceptable? There is no answer to
this
rhetorical question, i.e., the very definition of arbitrary. It is also
unfortunate that
the State Legislature is asked to act as a local zoning board and asked to
substitute
its judgment over local zoning decisions. Your Senate District is close to
9th and
Corona streets in Denver, which has a liquor store and a pharmacy directly
across
the street from a public elementary school, with no documented problems for
decades.
Page 17, lines 3-5:
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Prohibits a clinic or grower from being 20 miles from a Colorado state
border. This is insane. It could deny citizens in Fort Collins, Grand
Junction,
Sterling, Burlington, Trinidad, Cortez, and other people and communities
that
happen to be close to the arbitrary state border lines, access to medicine.
This
seems utterly arbitrary, like most of these distance requirements. Are we
protecting citizens from other states?
Page 17, lines 22-23:
Any transfer of a clinic or grower license must be pre-approved by the
government, further locking in monopolies and devaluing the license. This is
more government interference in the free market that will only harm
patients, and
participants will opt out of this non-transferable licensing scheme and go
back
underground, all to the benefit of cartels.
Page 21, lines 14-20:
This would permit local governments to limit the number of medical
marijuana clinics and growers. It grants far too much power to locals, as
many of
them have expressed and acted on their desire to ban medical
marijuana
outright,
so they would pass limits of "one" under this bill. Patients should decide
through
their free choices how many clinics and growers there should be.
Page 21, Lines 22-25:
Requires clinics and growers to notify the state within ten days of any
employee change, an onerous requirement with which no other type of business
in
Colorado need comply.
Page 22, lines 11-12:
Requires all officers and board members to be residents of Colorado. There
is no rational purpose for this, again a requirement that saddles no other
business.
Page 22, lines 13-19:
Prohibits Sunday distribution of medicine or distribution outside of 8am
through 8pm, also prohibits on-site consumption. Colorado has grown past
antiquated "blue laws," and this would only deny patients in difficult
emergency
situations their medicine. Dispensary hours should not be limited.
Pharmacies are
open 24 hours in some cases, since emergencies can occur and patients may
need
medicine at all hours. That said, most dispensaries now choose to limit
their own
hours, but should not be prohibited from having a 24-hour help line to
provide
medicine to patients in emergency situations on an as-needed basis. On-site
consumption, if properly set up, can be an important aspect of dispensaries.
Many
patients need to medicate in private area of dispensary since they have no
other
9
private area to do so, and children may be present in their homes, and the
Constitution prevents use in "public view." This would send people to public
places to medicate, which is unsafe and unsightly, and illegal.
Page 22, Lines 20-21:
Limits caregivers to 1500 patients, which is unconstitutional and
irrational.
If a particular caregiver is compassionate and effective enough to
accumulate
more than 1500 patients (as many are currently), patients should not be
arbitrarily
restricted from selecting this caregiver. A similar objection exists to the
prohibition on holding an ownership interest in more than three clinics at
one time.
This is yet another example of an attempt to repeal the laws of supply of
demand,
which government cannot do.
Page 23, lines 2-9:
Requires clinics to report on and act as informants against their own
patients if the amount purchased exceeds two ounces per week. Although law
enforcement frequently overuses paid snitches/criminals to do its dirty
work, this
bill would poison the confidential relationship between patient and
caregiver and
place them in an unnecessarily adversarial posture. It would just drive this
back
underground because no truly compassionate caregiver would comply with this
evil requirement.
Page 23, Lines 15-19:
Prohibits a grower from "directly" providing medical
marijuana to a
patient. This is blatantly unconstitutional and inconsistent with reality.
Caregivers are permitted by the constitution to provide for their patients.
It sets up
a required middleman, which increases costs to the patient.
Page 23, Lines 20-23:
Requires transactions be conducted by a "verifiable" payment method. I
assume the intent is to eliminate cash transactions, by far the most common
method in this business. Multinational credit card companies have shown
extreme
hostility to medical
marijuana as have some banks. Many patients are too
poor or
disabled to have a credit card or a checking account and this provision only
hurts
them.
Page 23, Lines 24-25:
Prohibits growers from operating in any areas not zoned for agricultural or
industrial uses. So now the State Legislature is acting as a local zoning
board and
substituting its judgment for local zoning issues, which is the one area the
locals
should retain some power.
10
Page 24, lines 10-26:
Grants the licensing authority extreme powers, including subpoena power,
to harass and probe into confidential patient, caregiver, and physician
issues.
Page 25, lines 8-9:
Allows the clinic or grow license to be "summarily suspended without
notice," which devalues the license altogether. Most will bypass this
onerous and
worthless license in favor of going back underground.
Page 26, lines 26:
Fines paid by licensees are credited to the General Fund, which is
unconstitutional, just like the legislature's own $258,735 money grab on
4/20/09
(coincidental date?). The Constitution requires that all monies collected
for
medical
marijuana be used to fund the administration of the program.
Page 29, lines 15-18:
Requires physician do perform follow-up care to the patient, even if the
patient does not need or request it. This and other micromanagement of the
ancient confidential doctor-patient relationship is without precedent in
American
law.
Page 30, lines 1-3:
Requires physician to have never had his or her Drug Enforcement
Administration registration suspended, another unconstitutional requirement.
The
constitution requires a doctor to only have a current license to practice
medicine in
Colorado. Many doctors eschew the DEA process as it is too intrusive and
bureaucratic, and they are not interested in making their patients addicted
to
synthetic narcotics.
Page 30, 22-27:
Requires the registry card to have the doctor's name on it, a further
violation of confidentiality, that will enhance witch hunts against the
courageous
physicians who do the right thing for their patients even in the face of
government
intimidation.
Page 32, lines 1-7:
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Requires caregivers to obtain government approval before acting as such,
another unconstitutional requirement. It is the patient who decides who his
or her
caregiver is, and only the patient.
Page 33, lines 1-6:
Further restricts patient choice by arbitrarily limiting them to four
changes
of caregiver per year. Some patients have more than four caregivers at any
one
time, and many patients change them frequently as the supply of medicine is
quite
inconsistent.
Page 34, lines 13-20:
Allows the government to deny a registry card or revoke it if the
government decides, without a hearing or jury trial, that this bill or the
constitution
was violated. This is unconstitutional. The government's only
constitutionallypermitted
role regarding cards is to issue the card if the physician's
recommendation and other information is valid.
Page 35, lines 1-11:
Prohibits a physician from being compensated in any way for his or her
work, except by the patient directly. This is a requirement that no doctor
in any
other specialty must follow. Most doctors are compensated by the hospitals
in
which they practice, and doctors rarely collect money directly from their
patients.
Pages 35-36:
Creates yet another layer of bureaucracy, the "Medical
marijuana Review
Board," set up to intrude upon and interfere with confidential physician
decisions
regarding individual patients under the age of 21. The specter of these
vulnerable
young patients facing a Governor-appointed board of overseers for
"permission"
to access his or her constitutionally-protected, physician-recommended
medicine
does not belong in a free country. This Board's very existence is
unconstitutional.
What Should be in the Bill
This is a constitutionally-protected medicine that is currently overpriced
because of high demand and low supply. Patients depend on this medicine in
some cases for their lives. Further restricting supply only drives up the
cost for
patients, who would be harmed by crushing regulations. The most vulnerable
of
patients are harmed the most.
This community is not opposed to reasonable regulations designed to help
patients, but will oppose those that will restrict supply or quality. Some
of the
legislative ideas that should be considered are purity and quality labeling;
warning
12
labels; prohibition on local infringement on the constitutional right to
medical
marijuana; prohibitions on discrimination in employment, education,
professional
licensure, housing, parenting, child custody, based on status as Medical
marijuana
patient; statutory protection for entry-level caregivers to start operations
without
fear of prosecution; expansion of the power to provide recommendations to
licensed chiropractors, licensed nurses, and licensed physical therapists;
and
creation and establishment of a University of Colorado research program into
medical
marijuana.
In conclusion, in working to help build this industry over the past nine
years, I understand that
marijuana remains a controversial medicine,
although that
is rapidly shifting with even the conservative American Medical Association
endorsing its medical benefits. Luckily, the majority rules, and Colorado's
compassionate voters are more numerous than those who would deny others this
miracle medicine.
In conceptualizing this bill, it is helpful to consider another
controversial
medical issue, abortion. As we discussed previously, it would be interesting
to do
a "find & replace" on your bill and replace all references to "medical
marijuana"
with "abortion." I am sure Colorado's creative pro-life organizations would
appreciate this blueprint for further regulation of that industry. Your
statement
that, because you are pro-choice, you would vote against a parallel
regulatory
regime for abortion providers, speaks volumes.
Thank you for considering these comments.
