Between June 2001 and January 2009, the Medical Marijuana Registry grew to 5,051 patients who had received a medical marijuana registry card. While all of the debilitating conditions identified in Amendment 20 were represented by patients on the Registry, the overwhelming condition identified on the registry was severe pain – 87%.
During 2009, the majority of the patients – from 63% to 68% – designated a primary caregiver to grow marijuana for them. Given that the number of patients grew from 5,051 to 41,039, during that same time frame meant that a significant number of plants were grown by caregivers.
That caused some caregivers to begin providing marijuana to larger numbers of patients. To grow the number of plants needed to accommodate the patients, extra space was needed. As a result, we began to see storefronts op
ening around the state, particularly in some of the more densely populated areas.
These businesses were easily recognizable by their green cross signage. In addition, warehouse space was being rented that housed cultivations.
Green crosses kept popping up on some of the busiest streets. Rather than merely recouping costs as was contemplated by the original caregiver model, this new model became more commercial in nature.
Three things set the stage for the move from a traditional caregiver model to a more commercial model and began refining the legal status of medical marijuana.
- First, in 2004, the Department of Public Health (now “CDPHE”) set a limit on the number of patients a caregiver could have to five, which was ultimately overturned. The decision was not popular with caregivers and patients and was appealed to District Court. On July 10, 2007, Judge Naves issued an injunction suspending CDPHE’s limitation on the number of patients a caregiver could have. The court’s decision appeared to be based on the fact that CDPHE’s decision-making was conducted in private, rather than on the substantive issue itself. Because the substantive issue was not addressed, the number of patients and the number of plants per patient would continue to be the subject of much discussion in the future.
- Second, in 2009, the Department of Justice (“DOJ”) issued the Ogden Memo setting forth the DOJ’s enforcement priorities and prioritizing the enforcement of the Controlled Substances Act low in those states that had a robust regulatory program. Specifically, the Ogden Memo held that “federal resources” should not be focused “on individuals whose actions are in clear and unambiguous compliance with existing state laws” and specifically referred to patients and caregivers.
- Third, the Colorado Court of Appeals made clear that a caregiver must do more than just provide marijuana to a patient. On October 29, 2009, the court concluded that “to qualify as a ‘primary caregiver’ under Amendment 20, a person must do more to manage the well-being of a patient who has a debilitating medical condition than merely supply marijuana”. (People v. Clendenin, 232 P.3d 210 (Colo. Ct. App. 2009).
These events signaled the need for legislative action.
Previews of Upcoming Discussions
In the next few posts, I’ll discuss the requirements of HB10-1284 and implementation details and challenges and the role my Department and I played in the roll-out of the commercial, licensed side of medical marijuana. Stay tuned!