Medical marijuana laws are a maze for industry and law enforcement

Large-scale medical marijuana arrived in Colorado about the same time I did — July 2009.

I grew up in conservative northeast Kansas. Later, as an attorney in Kansas City, I watched as loads of federal, state and local dollars were spent on criminal prosecutions of marijuana-related crimes.

So it shocked me to learn that pot could be purchased and used here legally, though supposedly only within the confines of a voter-imposed regulatory framework.

Full disclosure: I spent my undergraduate years in Madison, Wis., where, within a few weeks of arriving on campus, I witnessed 50,000 participants of the Midwest Marijuana Harvest Festival stroll down State Street from campus to the state Capitol lawn, pot smoke billowing from the crowd for the better part of an afternoon.

That was civil disobedience. What Coloradans have authorized is quite different. One can consume marijuana and remain obedient to the law. But therein lies the rub. Marijuana use outside the strict confines of Amendment 20 remains illegal. So how does someone involved in the medical marijuana industry toe the line created by Amendment 20 without inadvertently violating state and federal laws.

Indulge me in this hypothetical discussion: Let’s suppose that a local entrepreneur has tired of watching his investments remain unprofitable during the recession.  Meantime, he observes, the only industry experiencing growth is medical marijuana.

This local entrepreneur knows little about marijuana and doesn’t care to know. He does, however, know business. And he sees an opportunity.

The entrepreneur enters the medical marijuana industry with the same level of caution he employs for his other business endeavors. He conducts research, develops a business model and a feasibility plan. He seeks legal counsel to navigate him through the regulatory maze unique to the medical marijuana industry.

He opens a storefront where he can dispense marijuana to cardholders who have named him as their caregiver.  He also opens a separate marijuana growing operation.

Business grows. As his number of cardholders increases, he finds that between caring for the plants and dispensing to his cardholders, he has time for little else. All of this remains legal, above board and bears the blessing of local law enforcement.

Stretched beyond his capabilities, he hires someone to tend the plants. The new hire gets a paying job and, with someone else to tend the plants, the businessman is now able to serve better his cardholders.

Then it all goes wrong. The police come knocking. The entrepreneur discloses everything, including his list of license holders, because — he believes — he has complied with every letter of the law.

Except he hasn’t.

Perhaps he can’t. That’s the problem. Amendment 20 is —in my now non-professional opinion — legal quicksand for both law enforcement and the industry.

What happens if the entrepreneur/caregiver makes a mathematical mistake and grows 31 plants — one too many — for his five cardholders? Is the caregiver suddenly in possession of a controlled substance and subject to criminal prosecution? Or should the caregiver be treated like the restaurant owner who accidentally allows one patron more than fire code allows? Is it to be a slap on the wrist or wrist cuffs?

What if the caregiver and the guy who grows the marijuana aren’t the same person? My reading of Amendment 20 suggests it envisioned limiting medical marijuana to situations where grandma is dying of cancer. Grandpa, who “has significant responsibility for managing the well being” of grandma, acts as caregiver and grows some marijuana in the backyard for grandma.

Obviously, that’s not what is happening in Colorado now. There are “dispensaries” — an animal Amendment 20 did not contemplate — where cardholders can obtain their marijuana. Typically, the operator of the dispensary is also a “caregiver” who grows plants for his cardholders. But what if this labor is divided among two or three people — one growing, one acting as caregiver and one dispensing? Is it suddenly an illegal operation?  What if, despite this division of labor, all of the marijuana produced still gets dispensed by certified caregivers only to cardholders suffering genuinely debilitating pain?

On the other side, how is law enforcement to deal with this mess? Does it really serve the community’s interest to prosecute an otherwise law-abiding businessman who may have run afoul of the law on a technicality?

What about the caregiver who grows one-too-many plants? Does it serve the public interest to put him in jail?  Is destroying one plant the better remedy? Amendment 20 also appears to create potential liability for law enforcement in the event that officers destroy the property of an operation that turns out to be a lawful medical marijuana enterprise.

This whole discussion ignores the elephant in the room — the fact that federal law has no carve-out for medical marijuana. If President Obama slips getting out of the bathtub this morning, ceding his powers to Joe Biden, this whole discussion becomes moot.


Every time I hear the term “medical marijuana,” I find myself quietly amused. I don’t want to make light of people in debilitating pain who are helped by marijuana. But I perceive Amendment 20 as a stalking horse for legalization. And legalized pot is just a funny thing to think about — regardless of your opinion on the subject.


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