- Per-property limits imposed
- Cracking down on ‘co-ops’
- SMC sheriff, DA optimistic of change
Standing taller than the man next to it, and thick as a hedge, the marijuana plant in the photograph resembled a Christmas tree.
The photo was taken at a grow in San Miguel County and was included in a 2016 report the agency produced concerning marijuana.
While constitutional amendments allow for marijuana to be legally grown and used under certain conditions, some grows abuse the system, District Attorney Dan Hotsenpiller said Aug. 7, in discussing new laws designed to clarify matters.
Commercial growers comply with a laundry list of regulations and rules, but others simply grow marijuana for their own use, or band together with others ostensibly growing it for personal or medicinal use.
“The problem has been what is called the gray market,” Hotsenpiller said. “We’re seeing grows that produce lots of marijuana under the guise of medical marijuana and co-ops. They have not gotten licensed.”
Colorado’s licensed commercial growers are producing more than enough marijuana to supply the legal market, the DA said: “We’re growing far more marijuana in Colorado than is being consumed in Colorado.”
Prosecutors and law enforcement suspect pot is being shipped out of state through the gray or black markets.
While Colorado’s Amendment 20 (medical marijuana) and Amendment 64 (recreational marijuana for people 21 and older), each limit the number of plants an individual can grow, prosecuting people for exceeding the limit can be difficult.
Some claim the co-op defense: That they are growing as caregivers for others, as are other people on the property.
“It’s just a way to try to legally justify large numbers of plants by claiming you’re a co-op,” said Hotsenpiller.
That gambit might not be successful for much longer. House Bill 1221, passed this session, clarifies a person must legitimately be a caregiver in order to grow for others, while House Bill 1220 restricts the number of plants that may be grown on a residential property.
Under HB 1220, it is illegal to grow more than 12 marijuana plants on any residential property.
The law provides exceptions for medical marijuana patients and caregivers, allowing them to grow 24, as long as such residential grows are permitted where they live, they register with the state, and notify their local jurisdiction.
The takeaway, per Hotsenpiller: No more than 12 plants can be grown on residential properties for those who do not qualify for the exemption, and local jurisdictions can prohibit such grows.
“It’s going to change it a lot,” said San Miguel County Sheriff Bill Masters.
“There’s a lot of people growing on rental properties. It (law) is going to really restrict the people who have grows that aren’t licensed grows.”
It might also push growers onto agricultural land without residences as defined by the law. Accordingly, Masters is reaching out to his county commissioners, who will decide whether to restrict such growing.
“It is going to help a lot just having the restriction. If you rent a house and have 10 people living in there, you can’t grow 240 (plants). It’s per-residence, not per-person,” Masters said.
While Amendments 20 and 64 protect personal marijuana cultivation, those provisions “are silent on the question of where marijuana plants may be grown or processed for medical or recreational use,” the legislative declaration attached to HB 1220 reads.
According to the document, cultivation is gener- ally limited to six plants per person, but there are other provisions allowing people to grow more plants.
For instance, the medical marijuana code allows “an extended plant count” if the patient’s doctor — who must also have made the medical marijuana recommendation — determines a medical necessity for more than six plants.
Additionally, “primary caregivers” can grow medical marijuana for each patient served.
But these provisions have resulted in people cultivating mass quantities in residential homes, which are a public safety threat and nuisance, per the declaration.
Cartels have exploited the laws, renting multiple properties for large-scale cultivation, which have been used to send marijuana out of state as well as into the hands of children, the document states.
House Bill 1220 is an attempt to normalize the market, said Hotsenpiller: The Legislature is trying to regulate where, and how much, a person can legally grow.
“This, I think, is going to make a significant difference in how things go,” said Hotsenpiller, who also noted the exceptions are no simple matter. “Those are some hoops that are not easy to jump through,” Hotsenpiller said.
Commercial growers invest significant time and resources complying with applicable regulations, while “gray market” growers have been able to fly under the color of “co-ops” and avoid such investment.
“I think people are really violating the spirit of the marijuana amendments,” Masters said.
“The voters never intended that people could be allowed to grow more marijuana in one season than they could possibly consume in a lifetime. It’s just an absurdity. They’re taking advantage of a system.”
There are as many as 180 grows in his county and getting them into compliance is proving difficult, he said.
On Aug. 10, Masters’ agency searched and seized a rural grow. He said the grow did not comply with requirements that it be enclosed and secured, despite multiple warnings. (See the Aug. 12 Montrose Daily Press.)
The incident represents a situation HB 1220 won’t affect: The property was not residential.
“Even under the new law, he would have been in compliance if he’d had it in a proper building, or enclosed, but he couldn’t even do that,” Masters said.
Illegal grows may end up being prosecuted, he said — and maybe not just on a local level.
“It may be the federal government: All of the Western Slope is on the Drug Enforcement Administration’s radar,” Masters said.
“There’s a nasty side to this, and we need to get it under control.”
Tackling the black market
House Bill 1221 attempts to address the black and gray marijuana markets. It states people may not grow or possess marijuana plants on behalf of another unless the grower is the primary caregiver for the other person and complies with the caregiver statute.
Hotsenpiller acknowledged the rules pertaining to caregivers are not always clear. “These bills do not clarify all aspects,” he said.
For example, while a person must have significant responsibility for the well-being of a medical marijuana patient with a debilitating medical condition, the act of cultivating marijuana for such a person itself constitutes being responsible for their care.
“It’s not as simple as it sounds,” the DA said.
There is a bright line, he said: As has been the case since Colorado began legalizing pot, caregivers cannot cultivate for more than five patients.
But plant sizes can reach several feet high and wide and, in some cases, a caregiver can grow dozens of plants for just one patient.
“This does not limit any legitimate person from growing sufficient marijuana to deal with their medical issue,” Hotsenpiller said of HB 1221.
House Bill 1221 also provides for a grant program within the Department of Local Affairs for gray and black market marijuana enforcement, with an emphasis on rural, low-population areas.
The program would award grants to law enforcement agencies and district attorneys to cover investigation and prosecution costs associated with unlicensed marijuana cultivation or distribution operations that violate state law.
Determining how such grants would be fulfilled might prove challenging — Hotsenpiller said he doesn’t have enough marijuana cultivation violation work to keep even one deputy prosecutor occupied full time — but on the whole, he said, the legislation is a good move.
“These are good bills in that they are trying to provide more clarity about when and where it is lawful to cultivate marijuana,” Hotsenpiller said.
“That lack of clarity has made it difficult for law enforcement to do our job and enforce state law.”
Additional marijuana laws
Other marijuana bills also passed this session. One, effective Sept. 1, bars people who are not licensed to sell marijuana from advertising it for sale. Another protects medical marijuana cardholders from being prohibited from using marijuana as a condition of bail, while yet another expands the ability to seal marijuana convictions that entered prior to December 2012. Post-traumatic stress also was added as a condition covered under medical marijuana laws.