In efforts to reduce the spread of COVID-19, Governor Jared Polis issued Executive Order D 2020 011 on March 20th, 2020 which temporarily suspends selected regulatory statutes in response to COVID-19. Grouped with numerous other suspensions, the Executive Order allows both Medical and Retail Marijuana Stores (“Licensees”) to conduct online and telephone sales transactions and to schedule curbside pick-up of the medical and retail marijuana purchased through these transactions. Notably, Governor Polis recognized Medical and Retail Marijuana Stores as “critical workplaces”, allowing them to remain open under limitations.
To effectuate Governor Polis’s Executive Order, that same day the Colorado Department of Revenue: Marijuana Enforcement Division (“MED”) adopted Emergency Rules to implement social distancing practices pursuant to state and national guidelines to reduce the spread of COVID-19. MED subsequently issued Industry-wide Bulletin 20-03 on Sunday, March 22, to provide further clarity concerning the temporary changes.
Cumulatively, the MED rules have been relaxed to permit the following actions.
Online and Telephone Orders and Pick-Up
The MED’s Emergency Rules introduce Rule 3-345. This new rule permits Licensees to temporarily accept orders and complete sales transactions for Regulated Marijuana or Industrial Hemp Products over the internet and telephone. Once the sales transaction has been completed the Licensee can arrange for curbside pick-up outside of the Licensee’s Restricted Access Area but still within the Licensed Premises. The MED further clarified that the Licensed Premises is the area immediately adjacent to the Licensee but still within the Licensee’s private parking lot or private sidewalk .
Curbside pick-ups shall not occur on a public parking lot or sidewalk. All transactions must be completed under video surveillance. If the consumer or patient is in a vehicle, then the Licensee must also record the vehicle. All surveillance must comply with MED rules even if compliance necessitates the Licensee acquires additional equipment, such as lighting and cameras. Licensees may accept curbside payment; however, the MED encourages Licensees to use online or telephone modes of payment to limit the volume of curbside payment transaction and expedite the transaction.
Each transaction must fulfill the requirements for purchase, including physically inspecting the patient’s or consumers’ documentation, checking identification and age, as well as exit package and labeling requirements. Licensees should ensure that the pick-up does not obstruct vehicle or pedestrian traffic and must provide patients and consumers with clear instructions for pickup, including payment and pickup instructions, as well as notification that the order is ready for pick-up. The MED also clarifies that the Emergency Rules do not modify or suspend any applicable criminal laws.
Medical Marijuana Stores are not required to implement “curbside” pick-up if the Licensee adheres to social distance requirements as closely as possible within their Restricted Access Areas.
As of March 22, 2020, Retail Marijuana Stores may only provide curbside services.
Temporary Modifications of Licensed Premises
The MED also amended R 2-260 to allow Licensees to temporarily modify the Licensed Premises without application and MED pre-approval to comply with social-distancing measures. Licensees may, for example, extend the Restricted Access Area to the entryway or lobby to allow for payment and pickup if social distancing measures cannot be achieved under the current layout. The rules do not detail the specific limits of modification, however, Licensees should only make the minimum modifications necessary to justify adherence to the applicable orders and social distancing requirements.
Transfer of Samples for Testing
Further, Licensees may utilize similar curbside transfers of marijuana samples for testing by Marijuana Testing Facilities as above without the surveillance and identification check procedures. The Marijuana Testing Facility is still required to observe MED rules regarding chain of custody.
Suspension of Owner License Renewal Fingerprint Requirements
Furthermore, the MED amended R 2-265 and temporarily suspended fingerprinting requirements for the renewal of Owner Licenses, which requires fingerprinting to be completed once every 2 years.
These Emergency Rules are only applicable to Licensees as it applies to compliance with MED rules. MED rules do not apply to any violations of local jurisdictional codes or ordinances that regulate Licensees. Licensees should check with their local marijuana regulatory agency or agencies to determine if the MED rules changes are permitted on a local level and do not constitute local violations.
The MED is very concerned about these Emergency Rules and the potential for abuse. Any violation of these Emergency Rules will be deemed a violation affecting public safety, the most severe level of violation, and may result in summary suspension of the license. That means immediate suspension prior to hearing on the merits of the case. Look to the MED to act swiftly and with great prejudice against Licensees that do not follow these Emergency Rules to the letter and spirit of the rules.
Additionally, Governor Polis’ Executive Order D 2020 013 also applies to Licensees and requires that they reduce their workforce by 50%.
Finally, these Emergency Rules expire the earlier of a) 120 days (Saturday, July 18, 2020) or b) Governor Polis Executive Order 2020 003 is rescinded, withdrawn or expires.
As this is a fast-paced and evolving issue, the MED is monitoring the situation and will provide additional updates as needed. We encourage all Licensees to monitor the MED’s website to ensure effectiveness and to comply with all applicable orders concerning marijuana businesses. We at the Hoban Law Group are here to assist you during this uncertain time, please do not hesitate to contact our office.