Up in Smoke: The Implications of Colorado s Marijuana Laws

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1 Up in Smoke: The Implications of Colorado s Marijuana Laws Ron Fano and Jamie Cotter

2 Colorado a Right to Pot State Medical marijuana decriminalized as of June 1, Recreational marijuana legalized as of November Both medical marijuana and recreational marijuana constitute illegal drugs under federal law.

3 Federal Response to State Amendments Marijuana remains illegal under the Federal Controlled Substances Act. An August 2013 memo from the Justice Department to federal prosecutors outlined the guidelines prosecutors should use in bringing marijuana charges. The Attorney General has specifically stated that his department will not seek to pre-empt state laws legalizing marijuana.

4 Nuts and Bolts of Medical Marijuana Source: Amendment 20 and regulations enacted since. Constitutional amendment makes it an exception from the state s criminal laws for any patient to possess medical marijuana. Patient means a person with a debilitating medical condition symptoms can include cachexia, severe pain, severe nausea and seizures.

5 Patients must apply for and receive a registry identification card. Patients can possess no more than 2 ounce of marijuana and no more than six marijuana plants (with no more than three flowering at one time). Cannot use marijuana in plain view or, or in a place open to the general public. Patients must be 18 years old or older (although there are exceptions).

6 Colorado Medical Marijuana Code Colorado Medical Marijuana Code enacted by the legislature in 2010 C.R.S , et seq. Outlines the applicable terms, conditions, limitations and restrictions on the use and sale of medical marijuana. Medical marijuana was decriminalized as of 1999, but it wasn t until the Code was enacted that the legislature expressly authorized the commercial distribution of medical marijuana.

7 Code regulates dispensaries, cultivation facilities, and manufacturers. Code also provides that counties and cities can adopt their own rules and licensing procedures and can ban businesses entirely. Municipalities cannot ban caregivers or patients.

8 Colorado Court s Response Coats v. Dish Network Amendment 20 specifically provides that Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place. We finally have an answer from the Colorado Court of Appeals about the meaning of this provision.

9 Colorado has a statute that prohibits employers from discharging any employee for engaging in any lawful activity off the premises of the employer during nonworking hours. Coats was a quadriplegic who worked for Dish Network. Used medical marijuana within the terms of his license, never impaired at work, but tested positive for marijuana during a drug test.

10 Issue Whether Coats use constituted a lawful activity given the decriminalization of medical marijuana. Colorado Court of Appeals said No. Marijuana is illegal under federal law, and under the Colorado lawful activities statute the use must be lawful under both state and federal law to be protected.

11 Nuts and Bolts of Recreational Marijuana Source: Amendment 64 and regulations enacted since Legalizes possession, use, growth, manufacturing and sale of recreational marijuana. 21 years or older to use. One ounce or less. Grow up to 6 plants, 3 of which can be flowering (enclosed/locked space)

12 Public use prohibited. Public possession not prohibited but not in Federal office buildings, courthouses, National Parks or National Forests. No use/possession on college campuses, in dorms (source is the schools themselves). No use or possession in privately owned buildings where owner prohibits (apartment buildings, hotels, rental property).

13 Open containers, marijuana products in vehicles prohibited. No consumption/use in places licensed to sell. Pot clubs allowed? Driving under the influence standards. Municipalities cannot act as grower/owner of facility. Non-residents free to possess and use but cannot own distribution facility.

14 Final Regulations as of 9/9/13 Fees for stores, facilities, product makers: $2,750-$14,000. Until October of 2014 stores must grow their own marijuana to sell. Mandatory on-line inventory tracking (cultivation to processing to sale). Business security requirements.

15 Advertising restrictions to protect children. Audit/inspections by Marijuana Enforcement Division of Department of Revenue. Packaging requirements. Waste disposal. Hours of operation for retail businesses.

16 Interplay of Medical Marijuana and Recreational Marijuana Cannot have a single dispensary for both unless dispensary refuses to sell to people under 21 years of age. Conversion of medical marijuana license to recreational license allowed. Possession of more than 1 ounce of marijuana still a crime, unless you are a medical marijuana patient. No excise tax on medical marijuana.

17 What Special Districts can do to address public use Public use is illegal Amendment 64 expressly states that any person, corporation or entity who occupies, owns or controls a property can prohibit and regulate the possession, consumption, use, display and sale of marijuana on that property.

18 District Rules and Regulations Amendment 64 was touted as the Regulate Marijuana Like Alcohol law, therefore, districts should regulate consumption of marijuana the same way that they do alcohol. Districts should adopt regulations to deal with marijuana use on their facilities.

19 Taxation For November 2013 ballot: 15% wholesale excise tax on cultivated marijuana with first $40m earmarked for school capital construction; and A special 15% sales tax over and above the normal 2.9% sales tax. Municipal tax on top of whatever the State imposes.

20 Pot stores License required. Local ordinances may regulate the time, place, manner and number of establishments. Municipalities can create local licensing. Municipalities can elect to prohibit (must do so by 10/1/2013).

21 What Municipalities Have Done to Date Allowed Banned Moratorium Aspen Blanca Arvada (3/31/2014) Boulder Broomfield Aurora (5/5/2014) Carbondale Buena Vista Bayfield (7/31/2013) - Medical is banned Denver Burlington Centennial (9/30/2014) Durango Calhan Craig (10/1/2013) Eagle Castle Rock Dillon (10/1/2013) Frisco Cherry Hills Village Erie (10/1/2013) Glendale Colorado Springs Federal Heights (10/1/2013) Glenwood Springs Crawford Fort Morgan (12/31/2013) Leadville Crested Butte Lafayette (10/1/2013) Manitou Springs Dacono Lakewood (1/1/2014) Del Norte Littleton (10/1/2013) Englewood Log Lane Village (10/1/2013) Fairplay Lyons (10/1/2013) Foxfield Norwood (10/1/2013) Frederick Vail (1/1/2014) Greeley Greenwood Village Gunnison Hudson Johnstown Limon Lone Tree Longmont Montrose Monument Parker Superior Thornton Westminster Windsor Woodland Park

22 Marijuana and the Workplace Statement from Amendment 64: Nothing in this law is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.

23 What is clear? Employer does not have to allow use in the workplace. Employer does not have to allow possession, display, sale or growing in the workplace. Employer does not need to ignore past marijuana related convictions that show up in a background check. Employer may discipline employees who are impaired/under the influence of marijuana while on the job.

24 What is not so clear? May an employer take action against an applicant or employee who tests positive for marijuana in a drug screening? Federal law issues v. Colorado legal off-duty conduct statute. Coats v. Dish Network gives some clarity. May employer take action against an employee who has marijuana paraphernalia in the workplace?

25 Employee Handbook Language What should an Employee Handbook say? DRUG TESTING: Employer has a zero tolerance policy for illegal drugs and anyone who tests positive for any illegal drugs, will be subject to discipline up to and including termination. Illegal drugs include any drug that is illegal as defined under either Federal law or State law. Marijuana is an illegal drug under the Federal Controlled Substances Act and therefore is an illegal drug under this policy notwithstanding Colorado law that allows the use of marijuana for medical or recreational purposes.

26 POSSESSION: Possession of any illegal drugs or any drug paraphernalia in the workplace or while on work-duty, including marijuana (whether for recreational or medicinal purposes) is a violation of the District s zero tolerance policy.

27 EXCEPTION FOR MEDICAL MARIJUANA? If employee tests positive for marijuana or is found to be in possession of marijuana but has previously presented to the District a certification from a doctor of the employee s need for prescribed marijuana use, the District may, within the exercise of its discretion, make an exception to its zero tolerance policy and excuse such positive test and/or possession. However, nothing herein shall allow use of marijuana for medical purposes or any other purpose, in the work-place or while on work-duty.