Emergency Rule Making Hearing Tomorrow (Monday Aug 2)

[copobo]

this feels too effen familiar?!

-------------------

For immediate release, August 1, 2010

Department of Revenue Holds "Emergency" Hearing on Monday

{Denver} -- The first rule-making hearing by the new Colorado Department of
Revenue Medical Marijuana Licensing Authority will take place on Monday at
10:00am.

"Emergency" Rulemaking Hearing
Proposed Rule: Medical Marijuana State Licensing Authority Rule Regarding
Residency Requirements
Monday, August 2, 2010
10:00 am
Gaming Conference Room #110
1881 Pierce Street
Lakewood, CO 80214

Click here to read the proposed rule:
http://www.colorado.gov/cs/Satellite/Rev-Enforcement/RE/1251575120107

Public comment: This hearing is open to the public. However, the Department
of Revenue may try to deny the opportunity for the public to testify on
this new rule because it has declared the hearing an "emergency".

*** What is the hearing about?
The hearing will address the issue of what constitutes a "resident" of the
state of Colorado. According to the new "Colorado Medical Marijuana Code"
(enacted as part of HB 10-1284), a person who applies for a dispensary
license must be a resident of Colorado for two years and all employees of a
dispensary must also be able to prove residency. HB 1284 neglected to give
a specific definition of what constitutes a resident, so the Department of
Revenue must now make a rule to clarify the issue.

The Department of Revenue wants the location of the person's "primary home"
to determine their residency status.

*** Why is this an "Emergency" Hearing?
The rulemaking hearing on Monday was called as an "emergency" hearing by
the Department of Revenue without any reason or explanation. By calling an
"emergency" hearing, the Department is able to bypass the standard
requirements for public comment and public notice on the proposed rules.

According to the State Administrative Procedure Act (APA), which governs
the rulemaking process in Colorado, an agency is only allowed to call an
"emergency" hearing if the new rule is "imperatively necessary". The APA
states that the agency must publish the reasons for calling the "emergency"
in the rule itself. Nothing in the rule published on the Department of
Revenue website gives a reason as to why normal public comment and notice
could not be accommodated. C.R.S. 24-4-103 (6)

*** Do dispensary employees have to be residents?
The Colorado Medical Marijuana Code 12-43.3-310 (6) requires all "owners,
officers, managers and employees" to be residents of the state of Colorado.
The proposed rule also states that employees must be residents. This is
contrary to what Senator Chris Romer (the main architect of the new law)
told reporter Michael Roberts of Westword recently. Senator Romer
reportedly said that people can work the front counter at a dispensary
without having to meet the residency requirements. Westword quotes Senator
Romer as saying, "I've talked to Representative Massey, and he and I are in
concurrence that it was the intent of the bill's sponsors that the focus
would be on owners, or on managers and employees who have an equity
ownership stake -- not on typical W-2 or 1099 employees."
http://blogs.westword.com/latestwor...s_blocking_felons_and_keeping_prices_down.php

It looks like the Department of Revenue wants to ignore the legislative
intent, because the new rule contains no exemptions for any type of
employee. All employees must be residents.

*** What is exactly is "rulemaking"?
Rulemaking refers to the process that government agencies use to create, or
promulgate, regulations. In general, legislatures first set broad policy
mandates by passing statutes, then agencies create more detailed
regulations through rulemaking. These "rules" or "regulations" must go
through a public comment period, including proper notice to the public.
Once they are promulgated, they have the same force as statutory law.

*** How will the Department of Revenue make rules to implement HB 10-1284?
Matt Cook, the head of the Colorado Department of Revenue's Medical
Marijuana Enforcement Division (MMED), says the state plans to track
medical marijuana "from seed to sale". As a former undercover drug agent
who was trained by the DEA, Cook has a good idea of what this will entail.
In a recent Washington Post article, he was quoted as saying, "We will use
a Web-based, 24-7 video surveillance system, and we will see virtually
everything from the time a seed goes into the ground to the time the plants
are harvested, cultivated, processed, packaged, stored."
http://www.washingtonpost.com/wp-dyn/content/article/2010/07/24/AR2010072402559.html

This means the Department of Revenue will likely have to promulgate
hundreds of pages of rules over the next year to enact HB 10-1284. Monday's
hearing is the first in a long series of meetings. The fact that this first
hearing was called as an "emergency" with little public notice and with no
justification has medical cannabis activists worried that this is a
continuation of the pattern of state officials ignoring patient concerns.

The actions of a similar "emergency" public hearing called by the Colorado
Board of Health last November were overturned when a district court agreed
with an injunction filed by attorneys that this hearing did not meet the
requirements of the state's Open Meetings Act and Administrative Procedures
Act.
http://www.cannabistherapyinstitute.com/legal/clendenin/index.html
http://blogs.westword.com/latestword/2009/11/brian_vicente_on_victory_in_he.php


---
Distributed as a Public Service by the:
Cannabis Therapy Institute
P.O. Box 19084
Boulder, CO 80308
Phone: 877-420-4205
Web: http://www.cannabistherapyinstitute.com
Email: [email protected]

 

[Greenmopho]

Lets see what comes of this...

 

[Dorje113]

Interesting. I think it could be ok if the intent is to not leave people hanging, not knowing whether they meet the residency requirements... if the intent is to stuff "rulemaking" down our throat without having to go thru proper procedure than that is def a cause for concern. Since they gave no reason or explanation we'll just have to wait til tomorrow and see what happens...

 

[SGMeds]

They released this info late... believe they called this meeting mid-last week...???


But from what I've been told, this is to alleviate the concerns of everyone... they know it is a problem w how defined vs the real circumstances the disp/emps/owners/inv's are dealing with. It was a mad house at the MED today w some applications being carried around in file boxes... crazy.


Applying the 2 year to some key employees will drive some businesses to ruin... some good peeps the DOR would apparently like to keep around.

This may not be all bad as they might allow for a means for people to work the 2 yr & immediate residency clauses + better define how 1099's may work w/in the context of 1284.

Don't know this for sure, but there is belief that the motivation isn't nec an evil one.

But they were sporting guns & badges slung to the hip today... no joke.

 

[cannagirl]

so did anyone go to this meeting? What was the outcome?

 

[BagseedSamurai]

so did anyone go to this meeting? What was the outcome?

Inquiring minds want to know.

 

[bigsur51]

i did not attend the meeting and am also interested in the outcome....i thought this article was relevant......


Marijuana
Medical marijuana residency rules: Jessica Corry threatens litigation if they're not changed


At this writing, an emergency hearing of the new Department of Revenue Medical Marijuana Licensing Authority is underway. And like MMJ activist Laura Kriho, attorney Jessica Corry feels the residency rules that will be up for discussion are extremely problematic -- a position spelled out in a document on view below that Corry calls "groundwork" for potential litigation.

Corry understands that the Department of Revenue can't simply rewrite HB 1284, the measure passed to regulate the medical marijuana industry in the state.

"Under Colorado administrative law, the Department of Revenue is limited in its ability to strike down the discriminatory residency provision," she concedes. "But we see today as an opportunity to fully communicate our concerns about the unconstitutional reality of any attempt to ban participation by new residents or out-of-staters."

While Kriho was unclear about whether citizen comment will be allowed at this morning's meeting, Corry says she's been assured that the public can attend, and she's hopeful individuals will be able to share their concerns. She synopsizes those identified by her and law partner Bob Hoban like so:

"The state is allowed to discriminate against out-of-state residents in very limited cases -- and if somehow the state was able to demonstrate that out-of-state investors in the medical marijuana industry were creating problems sufficient to justify discrimination, they could possibly be able to do so legally. But thus far, the state has put forth no evidence whatsoever that out-of-staters have caused any problems, and we don't believe they'll be able to provide that evidence if we move forward in litigation.

"Out-of-state investors have provided thousands of jobs, as well as lines of credit at a time when it's extremely difficult if not impossible for medical marijuana businesses to obtain conventional lending. So this provision fails not only on legal grounds, but also on public policy grounds. How can the state even begin to justify excluding market participants who have together provided one of the only bright spots for Colorado's economy in recent years."

Corry adds that "the state now estimates that there will be 150,000 applications every year for medical marijuana patients. That's a tremendous number, and if indeed the state is committed to having an open, transparent marketplace that best protects the rights of patients, the discriminatory residency requirement can only be seen as hurting patients. It limits competition and has already forced many patients to see out new caregivers."

Not that Corry is entirely down on the Department of Revenue. "They've taken what we consider to be good-faith efforts to interpret the rules ina way that's as accommodating to the constitution as possible," she allows. For example, "we see the Department of Revenue is allowing promissory notes from out-of-state investors, which is a step in the right direction. But it's certainly not enough."

She adds that "today is about laying the groundwork for litigation -- litigation we hope we don't have to pursue. But we will should the state not act in a constitutional way."

Page down to read Corry and Hoban's argument against the current residency rule:

Matt Cook Director Colorado Department of Revenue 1881 Pierce St., Ste 112 Lakewood, CO 80214-1496

August 2, 2010

Re: Draft Emergency Rule Defining "Residency" For Medical Marijuana Center Owners, Operators, Investors, and Employees

Dear Mr. Cook,

Thank you for welcoming our firm to submit comments in advance of today's emergency public hearing. We have done so below, specifically in response to your agency's draft emergency rule interpreting House Bill 1284's residency provision.

This discriminatory provision, which restricts, and in some cases, altogether bans business participation by non-Colorado residents and new residents is clearly unconstitutional. While we acknowledge that your agency has limited power in its ability to alter or overturn the legislature's mandates here, we request that you please preserve this correspondence, including our comments, as part of the official administrative record.

As our firm has previously communicated on behalf of our clients, as well as patients and caregivers across Colorado, we have very serious concerns about any attempt by the State to restrict ownership, investment, or employment opportunities based on residency status. As you will see below, we have framed our analysis in three distinct areas.

First, we articulate our opposition to such discrimination as a violation of all guidance and standards provided by the U.S. Supreme Court, other courts, as well as Colorado's own state statutes.

Second, we express concerns with the aforementioned attempt at discrimination under a 5th Amendment due process/takings analysis, and would caution the state against any attempt to retroactively apply any residency mandate to any medical marijuana owner, investor, or employee who was not a Colorado resident before Dec. 15, 2010. Under a property rights provision included in Amendment 20, as well as governing state and federal law governing retroactive regulatory takings, such action by the State could ultimately require that dislocated individuals be compensated for their related business and/or personal economic losses.

Third, we discuss the draft residency rule, also including possible suggestions for remedying unconstitutional or otherwise improper language.

.......the rest of the text can be read here:
http://blogs.westword.com/latestwor...s_litigation_if_theyre_not_changed.php?page=1

 

[GreenintheThumb]

So am I the only one who wants to marry Jessica Corry right now?

 

[copobo]

DOR cancels emergency meeting

DOR cancels emergency meeting

Cannabis Therapy Institutue - Medical Cannabis (Marijuana) Research, Education and Advocacy in Colorado

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Dept. of Revenue Cancels
Secret Medical Marijuana Meetings

Contact: Cannabis Therapy Institute
1-877-420-4205

{Denver} -- The Colorado Department of Revenue canceled a secret meeting of a government advisory board that had been scheduled for Wednesday after medical cannabis activists protested that these meetings are subject to Colorado's Sunshine Law, also known as the Colorado Open Meetings Act. This requires that any meeting of any public body be "open to the public at all times."
Read the Westword article about the meeting cancellation.
Activists discovered the plans for secret meetings last week when Matt Cook, head of the Department of Revenue's Medical Marijuana Enforcement Division, was asked if he was planning on appointing an advisory committee similar to the committee appointed by the Colorado Department of Public Health and Environment (CDPHE). Matt Cook responded that he had already appointed the committee and that the meetings would not be open to public observation because "we would not be able to get anything done."

Apparently, the Department of Revenue had quietly selected a 25-person Advisory Committee over the past several weeks to advise them on the hundreds of new rules that the Department of Revenue needs to promulgate to enact the new Colorado Medical Marijuana Code (formerly part of HB 10-1284) over the next year. You can see the members here.
According to emails from Matt Cook, the Department of Revenue then intended to meet with this Advisory Committee in private until they had a set of regulations to share with the rest of the industry. Only at that point would they make the rulemaking process public and allow other interested parties to observe.

However, the Colorado Sunshine Law requires that any meetings by any advisory board be open to the public at all times. The Cannabis Therapy Institute pointed this out to the Department in several emails over the course of the last few days. Originally, the Department claimed this meeting was exempt from the Open Meetings Act. However, on Tuesday evening, after discussion with the Department's legal team, Matt Cook decided to cancel the Wed. meeting. He told CTI, "In light of the concerns about this meeting, I will reschedule at a later date and give you Notice." Presumably, this means the Department will now comply fully with the Open Meetings Act and give public notice of the meeting and as well as allow public observation.

However, it is unclear how the Department of Revenue appointed these board members in the first place. The Colorado Department of Public Health and Environment (CDPHE) recently appointed their Medical Marijuana Advisory Committee. The CDPHE went through a process where they allowed the public to apply for positions on the Committee. They then reviewed over 100 applications before they selected the candidates and announced them in a press release on July 16. The first Advisory Committee meeting was open to the public.
Why did Matt Cook decide to hand-pick his advisory board and not allow other members of the industry to apply for these positions? The Department of Revenue just received $7 million in state application fees from over 1,000 different dispensaries, manufacturers and growers. Surely, some of these parties deserve a chance to apply for a position on the Advisory Board that will help decide how the medical marijuana industry in Colorado is regulated.

The Department of Revenue is not off to a good start in showing accountability and transparency in its rulemaking process. On Monday, the Department called its first-ever rulemaking meeting as an "emergency" meeting, which allowed them to get around the public notice and comment period, where no real emergency was discussed.

According to Senator Chris Romer, the main proponent of Colorado's new medical marijuana law, the Department of Revenue was chosen to run the medical marijuana program instead of the CDPHE because the CDPHE had proven that they were antagonistic to the medical marijuana law over the years. The Department of Revenue was supposed to fix that problem and be better and more competent than the CDPHE at implementing the law.

Given this, we would like the Department of Revenue to strive for the highest standards with their rulemaking authority, and with all the other authorities that they have over the medical marijuana program.

Members of the Cannabis Therapy Institute and the Colorado Coalition for Patients and Caregivers are calling on the Department of Revenue to re-open their Advisory Committee appointments to a public application process, just as the CDPHE did for their advisory committee. The creation of a hand-picked board causes the appearance of impropriety.
Please make a donation to CTI to help us continue in this important work:
Cannabis Therapy Institutue - Medical Cannabis (Marijuana) Research, Education and Advocacy in Colorado


Cannabis Therapy Institute
P.O. Box 19084, Boulder, CO 80308
Phone: 877-420-4205
Web: Cannabis Therapy Institutue - Medical Cannabis (Marijuana) Research, Education and Advocacy in Colorado
Email: [email protected]