The 20th Amendment to the Colorado Constitution authorizes the medical use of marijuana for people suffering from debilitating medical conditions and establishes an affirmative defense to state criminal laws for patients and their primary caregivers.
While some distributors of medical marijuana and law enforcement agencies say the amendment is too vague and that some form of oversight is needed, attempts by the Department of Public Health and Environment to implement restrictions have failed.
The latest effort, which would have limited the number of people to whom caregivers could provide the drug, was rejected after a 12-hour public hearing earlier this week. Thus, there remains no oversight for the caregivers who grow cannabis for prescription uses.
“A patient can get a prescription, and come here and get two ounces, go down the street and get two ounces,” said Tony Carmandy, who has been operating Pikes Peak Alternative Health and Wellness Centers for about five months. “The amendment has so many loopholes.”
While the state keeps track of the people who have prescriptions — there are about 7,600 in Colorado — the amendment doesn’t require a supplier database.
That makes it difficult to enforce laws banning illegal marijuana cultivation.
“What we’ve come across is that when we investigate someone, they say that they are growing medical marijuana for people (they) care for,” said Lt. Al Harmon of the Colorado Springs Police Department’s Metro Vice Narcotics Squad. “They don’t need documentation. It’s an affirmative defense.”
For people running legitimate offices such as Carmandy, the lack of oversight is disturbing.
“We are doing it the right way,” he said. “We require that you bring in medical records, that you have a record of the pain you’re in. If you haven’t seen a doctor in a year, you aren’t in that much pain.”
People interested in using medical marijuana for chronic pain conditions, cancer or glaucoma, are required to fill out an application and undergo a doctor’s examination. Once they have the doctor’s signature, they send the application to the state health department, which issues a red card indicating they can receive the drug.
“But you aren’t allowed to copy the red card,” Harmon said. “So we recommend providers keep a copy of the application — something to show that they are actually providing the marijuana for medicine.”
But there is little the police can do, even if people don’t have copies of the application.
“It’s part of the constitution, so we have to let them go,” Harmon said. “It’s a problem — and it’s a growing problem in Colorado Springs.”
Even the amount of marijuana set forth in the amendment — six plants and 2 ounces of raw material for every patient — is often violated.
“We have people who have 10 times that amount,” Harmon said. “And they just say they’re seeing that many patients.”
This week’s hearing about limiting the number of patients a caregiver can have was the state’s second attempt to add clarity to the amendment.
During 2004, the Department of Public Health and Environment set the five patient limit for medical marijuana caregivers. A Denver district court dismissed the regulation during 2007 after Sensible Colorado sued.
“It was illegally enacted,” said Brian Vincente, executive director of Sensible Colorado and an attorney who specializes in medial marijuana cases. “It was disingenuous of them, limiting to five patients a year. It’s like limiting Walgreens to only five prescriptions a year.”
He said the department was reckless for trying to change the rules.
“This was their attempt to get the regulation again. They backed away from it, and there are no limits now,” he said. “There shouldn’t be — there are none in the constitution.”
Vincente said much of the discussion at this week’s hearing was about the legality of storefront operations. “These are businesses, just like any other,” he said. “They pay taxes. One Colorado Springs storefront told me he paid $30,000 a month in sales tax to the city. That’s a major business; it’s a major source of revenue.”
But Carmandy, who sees 60 patients, ranging in age from 18 to 65, says he wishes there were more controls. And he is quick to point out that he doesn’t simply sell 2 ounces of marijuana to everyone who comes in the door.
“We get their medical records,” he said. “There has to be at least a year’s worth of doctor’s visits. And we send them to our doctor for a check up. If he writes a prescription then they come back here.”