Last week, CannaBiz reported on the plight of Rebecca Lockwood — a local mom who grows marijuana at home to treat her severely autistic son, Calvin, and several other sick kids. Since City Council put a 12-plant limit on residential grows, caregivers like her will have to choose: stop making life-saving medicine or risk arrest. This week, CannaBiz breaks down that choice, because nothing's really ever that simple, is it?
One option for homegrowers is to buy from a dispensary. That is indeed viable if any of the 132 medical marijuana centers in town grow the appropriate strains at an affordable price point. But that's a big "if." Many patients grow at home precisely because those factors are prohibitive.
The other choice, breaking the law, may not be as unappealing as it seems. The state constitution provides an affirmative defense "that such greater amounts were medically necessary to address the patient's debilitating medical condition." So, hypothetically, someone charged with violating this ordinance could test its constitutionality by making that argument.
Local attorney Cliff Black, who has had success invoking "medical necessity" in court, thinks case law may very well apply in such a scenario, but his firm doesn't sue municipalities. He did, however, point out that because the ordinance only restricts residences, caregivers should still be able to grow up to 99 plants in industrial zones — where commercial grows are permitted.
There's a moratorium on new licenses for the next year, but if a caregiver with high-need patients cultivated for private, medical use rather than commercial profit, he/she may not need the same license that dispensary growers do. Black adds that state law prohibits caregivers from joining their grows, but a warehouse subdivided into separately leased units could host multiple cultivations.
Permitted operations along those lines got raided in Denver last year — some reportedly failed fire-safety inspections while others got indicted for interstate drug trafficking.
Though medical collectives exist in California and even here in Colorado (the attorney who represents those couldn't be reached by press time), Bridget Dandaraw-Serritt of the Cannabis Patient Rights Coalition says, "It's split half and half between the growers who'd want to take part and those who think it's too risky." She was asked to join a new working group to discuss local marijuana regulations, should City Council pass a resolution for its formation, on Council's agenda after the Indy's press time on Tuesday.
Councilor Larry Bagley, the resolution's proponent, says via email that should it pass, "we will task [the working group] to report back in 60 to 90 days on Exceptions/Hardships for relief on the Ordinances as applicable, [an] MJ Board a la Liquor Board, and a list of other items the Task Force didn't/couldn't resolve."