- Steve DeFino
- Local governments want to limit home grows, even for serious medical patients.
Springs resident Sondra Lee Plunk is a medical marijuana patient, as are her husband and a relative who lives with them. They all medicate for different reasons and have grown their own supply. She says they have never exceeded 20 plants, because that's what they needed. Everyone's needs are different.
"You can't receive all the medical benefits from smoking; you have to make oil," explains Plunk, whose husband uses infused oil to ward off seizures stemming from a wartime injury he suffered in Afghanistan. "And that takes a lot of plant material," she says.
All Coloradans 21 and older can grow six plants, with three of those being mature at any given time. That's our constitutional right, thanks to Amendment 64. But under Amendment 20, which established the medical marijuana system in 2000, patients can have more "if such greater amounts were medically necessary to address the patient's debilitating medical condition." That's what's called an extended plant count, which doctors can recommend based on individual medical circumstances.
State lawmakers limited that seemingly infinite right last year with the so-called Caregivers Bill, which takes effect in January 2017. It limits caregivers — people with "significant responsibility for managing the well-being of a patient" and who often grow for their patients — up to a max of 36 plants. That's six for each of five patients, plus six for personal use. But caregivers with patients who have that extended plant count recommendation may grow up to 99 plants. Only state-licensed medical marijuana cultivation facilities are allowed to grow more than 99.
Recently, City Councilor Larry Bagley proposed an ordinance limiting home grows to 12 plants. His recommendation comes after chairing the city's medical marijuana task force, which was appointed last fall to review, evaluate and develop policy around marijuana businesses (though the plant count limit has nothing to do with businesses — it only affects citizens in their private residences). No patients or caregivers served on the task force.
The Springs would not be the first local jurisdiction to lower plant counts even further. Denver also has a 12-plant limit; Pueblo allows 18 marijuana plants in single-family homes and 12 plants in apartments and duplexes.
Councilor Bill Murray asked at an April 11 work session if there were a medical basis for the number 12.
"No, I think it's about public safety," Planning Director Peter Wysocki said, nearly cutting Murray off. But Murray appeared to be content with the answer.
The only presenter on the item at the work session was the Drug Enforcement Administration, which sent two representatives to brief Council. Likening home grows to meth houses, and Colorado to Afghanistan, DEA agent Tim Scott told Council, "What we're seeing is criminals coming in from out of state and they're shipping it all out of state. ... There are no good citizens in these homes."
Commander Sean Mandel of the Colorado Springs Police Department's Vice, Narcotics and Intelligence unit clarified on behalf of local law enforcement that "not every home grow we run into rises to that level. We look at each case and say how do we get compliance." His estimate for the number of home grows on cops' radar in the area was more than 200. Scott said his team knows of 186.
Last week, DEA agents raided about 30 homes and arrested upwards of 40 people in connection with suspected illegal home grow operations. Charges are pending.
After the DEA's presentation, Councilor Murray said, "I find it very confusing and distressing because everything you've shown us is clearly criminal-syndicate-oriented. It's really got nothing to do with these individuals growing in private homes."
Scott replied that "more teeth to this law" would deter criminal activity.
Teeth, in the form of criminal penalties, is exactly what Plunk fears could be used against her fellow patients.
Local attorney Cliff Black has a hunch that Council may not have the right to tread in these waters. Having practiced in this area for nearly a decade, he sees an argument that these local limits run up against language in Amendment 20 entitling patients to whatever quantity of marijuana is "medically necessary."
That's an affirmative defense, not an unfettered right, Black points out. And there's really not much case law in this area. We're seeing it come up now, he suspects, because full-blown legalization provides cover for more extreme abuses of the medical system.
"This hasn't been settled in court, but it looks to be headed that direction," he told the Independent. A ruling certainly would clarify the matter for cities such as the Springs considering such legislation. Though he's a lawyer, not a lawmaker, Black sees an across-the-board limit as the wrong approach.
"If someone's abusing the system," he says, "why are we clamping down on the cancer patient?"
In theory, patients wouldn't be deprived of their medicine should the 12-plant limit pass. They could ask a state-licensed dispensary to grow their extra plants, but many can't afford the extra costs or don't want to relinquish control of their production.
Plunk worries about the ripple effect.
"And what really ticks me off," she says, "is if we let that happen here, it'll happen throughout the state. And the rest of the country follows what's happening in Colorado."