ACTION ALERT:
Department of Revenue Holds "Emergency" Hearing on Monday
For immediate release, August 1, 2010
{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: The Department of Revenue may try to deny
the opportunity for the public 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."
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."
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 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
|
