Marijuana dispensary laws vague |

Marijuana dispensary laws vague

City considers regulations for budding industry

Brandon Gee
Kevin Fisher, right, and Ryan Fisher plan to open a medical marijuana dispensary in Steamboat Springs.
Matt Stensland

By the numbers

Number of medical marijuana license holders in Routt and neighboring counties*

Eagle: 69

Garfield: 81

Grand: 40

Jackson: 3

Moffat: 12

Rio Blanco: 7

Routt: 34

*As of June 30

Source: Colorado Department of Public Health and Environment

— Colorado’s regulations governing medical marijuana dispensaries – like the one residents Kevin Fisher and Ryan Fisher, no relation, plan to open in Steamboat Springs – are vague or nonexistent.

On Tuesday, the Steamboat Springs City Council rejected a proposed emergency moratorium on such businesses to allow city officials enough time to craft an ordinance governing them. Despite that decision, Kevin Fisher and Ryan Fisher said they plan to open their dispensary “soon” to beat any future moratorium that they fear would wipe out the competitive advantage of opening the first such business in the city.

Whether a moratorium is enacted, the city plans to craft an ordinance specifically regulating dispensaries, which are stores where licensed patients can go to legally purchase marijuana. Director of Public Safety J.D. Hays said that, among other provisions, such an ordinance likely would restrict dispensaries’ proximity to schools, limit their hours and require certain security features.

“I don’t think we can disallow them altogether,” Hays said. “I don’t want anybody to get the impression that we’re trying to do that. We just want to be sure everything goes right. That’s all.”

Under the city’s current policies, Planning and Community Development Director Tom Leeson said he would classify a dispensary as a medical office. After obtaining a sales tax license, a sign permit and a building permit for a tenant finish, if necessary, a dispensary could be opened anywhere in the city where a medical office is allowed.

There is little oversight of the businesses at the state level. Calls to the state health department asking what regulations dispensaries must follow were referred to the Colorado Department of Law, which in turn referred questions back to the health department. Colorado’s Amendment 20 made the medical use of marijuana legal, with restrictions and a doctor’s recommendation, beginning in 2001. The law says nothing about dispensaries, however.

Brian Vicente, a Colorado attorney and executive director of medical marijuana advocates Sensible Colorado, said dispensaries have arisen out of the “caregiver” provision of the law, which allows patients who don’t want to grow their own marijuana to designate a caregiver to supply their needs. That caregiver then acquires the patient’s “grow rights” and increases the quantity of marijuana they can cultivate and possess. As caregivers acquired more patients, Vicente said, it became more practical to open a storefront than to make individual deliveries. There are now about 60 dispensaries in Colorado.

Last month, the budding industry received a boost from the Colorado Board of Health, which rejected a rule that would have limited caregivers to five patients each. The rule would have rendered the dispensary business model untenable.

Kevin Fisher and Ryan Fisher, who hold medical marijuana licenses themselves, plan to enter an even more legally gray area, saying they will not require patients to designate the dispensary as their caregiver. Their argument is that if they are legally allowed to possess marijuana, and the person they are selling to is legally allowed to possess marijuana, then the transaction is legal.

“The law’s not very clear on this topic,” Vicente said. “It’s our general belief that the transfer is probably OK, but it hasn’t really gone through the court system.”

Denver attorney Phil Cherner disagreed. He said a patient-caregiver relationship must exist and that dispensaries can’t operate like a corner marijuana convenience store.

“I call it the Costco model,” Cherner said. “It’s like a club. You have to have membership.”

In any event, Colorado district attorneys have shown “no interest” in prosecuting dispensaries, Cherner said.

Registry rising

Kevin Fisher and Ryan Fisher’s plan to open a dispensary in Steamboat comes while such businesses are sprouting throughout the Western Slope and amid concerns that the state’s medical marijuana registry is being abused. The registry’s rolls, which stand at about 9,000, are increasing exponentially, according to the state health department. From July 2008 to June 2009, the state issued registry cards to 1,792 males younger than 30. Nearly 90 percent of the men had a diagnosis of severe pain.

“This dramatic increase in an age group that is not expected to suffer from a chronic debilitating condition is concerning,” Ned Calonge, the state’s chief medical officer, said in a news release. “Following the state Board of Health’s July 20 decision not to limit the number of medical marijuana patients who can be served by a caregiver, we are evaluating strategies to help avoid potential abuse of the marijuana registry program.”

Steamboat physician Daniel Smilkstein said he receives several requests a year from patients hoping he will sign off on their attempts to obtain a registry card. He said most say they want to use marijuana for pain management or for anorexia resulting from chemotherapy. Smilkstein said he has chosen not to honor the requests but will write letters describing a patient’s condition that they can take to another doctor.

“I just have said that I don’t know what the system is, and I’m not going to directly prescribe it,” said Smilkstein, who said marijuana has legitimate medical uses but that it’s difficult to sort out patients who really need it or who just are trying to smoke legally.

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