Can’t Use Medicine in Home

My husband and I received a notice in the mail today with our usual rent bill.  I’ve attached it to this email, best cialis here so that you can read it.
We live in a mobile home park in Federal Heights, viagra decease and we’ve lived here since Dec. 2004.  My husband works for the City of Federal Heights, hospital and I’ve been very active in the MMJ community since Jan. 2010, when I received my MMJ recommendation from my physician.  I’ve never hidden my MMJ status – I don’t feel the need to hide.  It is my right, under law, to use cannabis to treat the varying forms of chronic pain (fibromyalgia, myofascial pain syndrome, post-herpetic neuralgia, and diabetic neuropathy) that I live with on a daily basis.
I’m a good citizen.  I’ve never been in trouble with the law in any way (other than a couple of speeding tickets more than 10 years ago).  I run the Colorado Fibromyalgia Network, and I’m politically active within my own community and at the state and national levels.  I have children – one is an adult and is married and living on his own, and the other just turned 16 and lives with us in Federal Heights.
After reading this notice from our park manager, I’m feeling really threatened.  I do have cannabis in my home.  And I have two small plants growing in my bathroom, to help cut some of the costs of my meds – assuming I am successful in cultivating them.  I don’t medicate outside my home, and I don’t do anything to violate my status under Amendment 20.  I take my MMJ status very seriously, and am a responsible user.
by Lannette Johnson

8 thoughts on “Can’t Use Medicine in Home

  1. Jason,

    Thank you for posting this. To say that I’m angry about this would be an understatement. For a landlord to try and circumvent state constitutional law is obviously illegal, and a scare tactic. I refuse to just let this lie.

    I’ll keep you posted. Thanks for being such a supportive friend.

  2. Right after my acquittal on August 6th, 2009, I went through something similar. It is a scare tactic. I noticed that the document was not signed by anyone.

  3. This is bullshit, amend 20 made mmj not an illegal drug in colorado, and the trailer park safety act does not trump your constitutional right to medicine. Sue your trailer park in civil court as well as fight the eviction. Maybe you can win the property and trailer!

  4. (c) Failure of the home owner to comply with written rules and regulations of the mobile home park either established by the management in the rental agreement at the inception of the tenancy, amended subsequently thereto with the consent of the home owner, or amended subsequently thereto without the consent of the home owner on sixty days’ written notice if the amended rules and regulations are reasonable, except when local ordinances and state laws and regulations or emergency situations require immediate compliance. However, regulations applicable to recreational facilities may be amended at the discretion of the management.
    A) dont give consent
    B) Dont sign the paper, state they are not reasonable as they deny you constitutional rights
    C) state your constitution doesnt require immediate compliance but actually demands you break this unjust proposed change

  5. Jason and Rev –

    Thanks for the input! Rev, you are absolutely right regarding Colorado’s mobile home park landlord/tenant laws. I’ve written an article for Kush Magazine, and will respond to the landlord’s bogus amendment in the next week or so. As long as I reply with 30 days, I’m good.

    As you might guess, living in a mobile home park typically means one is not flush with cash, which may be why most of the “big name” MMJ attorneys won’t return my calls. However, this could very easily become a class-action lawsuit. I cannot be the only MMJ patient living in this park.

    Hugs and many thanks to you both.

    L

  6. With all the hoops we have to jump through to become legal & remain within the regulations, we really shouldn’t have to worry about further regulations put in place at the county, city, or at the rental community level. What gives them the right to micromanage our health? nothing.

  7. Hi everyone. Since my PTSD and anxiety are off the charts right now, Stace wrote a response, a “Letter of Objection” to our landlord. We’ve consulted four attorneys about this, so we’re pretty sure about our rights as homeowners. Your thoughts and feedback are welcome!

    ****************************
    LETTER OF OBJECTION

    Dear Sir or Madam,
    We are writing this Letter of Objection in response to the proposed Notice of Amendment of the Community Rules and Regulations that was distributed to all residents of Denver Cascade Mobile Home Community with their monthly space rent and utility bills during the last week of July, 2011. The specific wording that drives our objection is quoted verbatim below:

    The possession, consumption or cultivation of marijuana is prohibited in the community. It shall not be a defense to this provision that the resident, his guests, invitees or care-givers are authorized by law to use, possess, cultivate, transport or provide medical marijuana pursuant to Section 14 of Article 18 of the Colorado Constitution or any laws enacted thereunder.

    Though the Notice of Amendment claims to be pursuant to C.R.S. 38-12-203 (1) (c), part of the Reasons for Termination clause of the Colorado Mobile Home Park Act, we intend to demonstrate that it is, in fact, in violation of that very Act, as well as other State and Federal laws. Throughout this document, except when quoting other sources, we will use the correct term cannabis, rather than the slang term marijuana.

    I. Patient History and Discrimination under Federal Law

    As Lannette has made clear to all authority figures in the City of Federal Heights, including Denver Cascade park management, Federal Heights Police & Fire, and the Federal Heights City Council, she is a legal medical cannabis patient under state law. She has several qualifying medical conditions for legal medical cannabis use, including chronic pain from fibromyalgia, post-herpetic neuralgia, and diabetic neuropathy. She also has long time diagnoses of clinical depression, anxiety, and Post Traumatic Stress Disorder (PTSD) due to domestic violence and her proximity to the Oklahoma City Bombing. She only uses medical cannabis in our home, never has more than approximately ¼ ounce in the home – well
    below the legal possession limit of two ounces – and has never cultivated cannabis to the point of harvest, though she would have the legal right to do so under Amendment 20 of the Colorado Constitution.

    This Notice of Amendment has dramatically elevated Lannette’s anxiety and PTSD. One of the issues stemming from both domestic violence and the Oklahoma City Bombing is the need for her home to feel safe; an amendment to the park Rules and Regulations that threatens eviction for her legal use of medical cannabis makes her home feel unsafe, thereby greatly elevating her level of anxiety and depression. This increase in stress takes a toll on her and the rest of the family; during one dissociative session, she struggled for an hour and a half to stop crying and return to a calm demeanor. This episode was triggered by fear of being evicted if she chose to continue using medication that she has a legal license to use.

    Ironically, the Notice lists this amendment as part of the Safety, Security, and Harmony section of the park Rules and Regulations, yet it has triggered fear and anxiety in a resident who has lived securely in the park for nearly seven years.

    The Notice of Amendment amounts to harassment of and discrimination against a person with multiple disabilities, and is illegal under the Fair Housing Act of Federal Disability law and the Americans with Disabilities Act of 1990.

    II. State Constitutional Rights

    The Notice of Amendment attempts to circumvent Amendment 20 by saying that it “shall not be a defense” against eviction for use of medical cannabis, but a statement in an unsigned Notice of Amendment does not trump the Constitution of the State of Colorado, which guarantees patients with specific debilitating conditions the right to use cannabis medicinally and responsibly. The Notice of Amendment is an infringement of Lannette’s rights under the Colorado Constitution.

    III. Colorado Mobile Home Park Act

    C.R.S. 38-12-203 (1) (c), mentioned in the Notice of Amendment, states the following, in part:

    Failure of the home owner to comply with written rules and regulations of the mobile home park either established by the management in the rental agreement at the inception of the tenancy, amended subsequently thereto with the consent of the home owner, or amended subsequently thereto without the consent of the home owner on sixty days’ written notice if the amended rules and regulations are reasonable, except when local ordinances and state laws and regulations or emergency situations require immediate compliance.

    In essence, this says that any amendment to the park’s Rules and Regulations must take place with the consent of the homeowner, or if the homeowner does not consent, the amendment can take place on
    sixty days’ written notice if the amended rules and regulations are reasonable. The statute goes on to say:

    For purposes of this paragraph (c), when the mobile home is owned by a person other than the owner of the mobile home park, the mobile home is a separate unit of ownership, and regulations which are adopted subsequent to the unit location in the park without the consent of the home owner and which place restrictions or requirements on that separate unit are prima facie unreasonable.

    We own our mobile home; Denver Cascade owns the land it sits on. Therefore, our mobile home is a separate unit of ownership, and we must consent to any subsequent regulations on our home. Since we do not consent to this proposed amendment and it does attempt to place restrictions on legal use of medical cannabis in our home, the proposed amendment is unreasonable per the very statute under which it claims validity.

    Conclusion

    We will comply with the Notice of Amendment’s conditions in regard to public presence within the Community; we feel those are reasonable. However, as demonstrated above, the Notice of Amendment is not binding inside our home, which is private, personal property, not the property of Denver Cascade Mobile Home Community. Our home is outside the jurisdiction of this attempted amendment, and Lannette will continue to exercise her right under Colorado law to use medical cannabis to treat her chronic pain and anxiety within our home. Any attempt to evict us under the July 18, 2011 Notice of Amendment will be met with civil and/or Federal lawsuits on the multiple grounds stated in this letter.

    Sincerely,
    Stacy A. Johnson
    Lannette J. Johnson

  8. http://www.cobar.org/opinions/opinion.cfm?opinionid=8188&courtid=1

    Colorado Court of Appeals — August 18, 2011
    No. 10CA1685. Beinor v. Industrial Claim Appeals Office of the State of
    Colorado and Service Group, Inc.

    COLORADO COURT OF APPEALS

    Court of Appeals No. 10CA1685

    Industrial Claim Appeals Office of the State of Colorado DD No. 10948-2010

    Jason M. Beinor,

    Petitioner,

    v.

    Industrial Claim Appeals Office of the State of Colorado and Service
    Group, Inc.,

    Respondents.

    ORDER AFFIRMED

    Division VII
    Opinion by JUDGE RICHMAN
    Furman, J., concurs
    Gabriel, J., dissents

    Announced August 18, 2011

    Jason M. Beinor, Pro Se

    John W. Suthers, Attorney General, John August Lizza, First Assistant
    Attorney General, Denver, Colorado, for Respondent Industrial Claim
    Appeals Office

    This unemployment compensation benefits case raises a question of first
    impression: whether an employee terminated for testing positive for
    marijuana in violation of an employer’s zero-tolerance drug policy may
    be denied unemployment compensation benefits even if the worker’s use of
    marijuana is “medical use” as defined in article XVIII, section 14 of
    the Colorado Constitution. We conclude the benefits were properly denied
    in this case.

    Claimant, Jason M. Beinor, appeals the final order of the Industrial
    Claim Appeals Office (Panel) disqualifying him from unemployment
    compensation benefits under section 8-73- 108(5)(e)(IX.5), C.R.S. 2010
    (disqualification for the presence of “not medically prescribed
    controlled substances” in worker’s system during working hours). He
    contends that he is entitled to benefits because he legally obtained and
    used marijuana under the Colorado Constitution for a
    medically-documented purpose and consequently had a right to consume the
    drug. We conclude that although the medical certification permitting the
    possession and use of marijuana may insulate claimant from state
    criminal prosecution, it does not preclude him from being denied
    unemployment benefits based on a separation from employment for testing
    positive for marijuana in violation of an employer’s express
    zero-tolerance drug policy. We therefore affirm the Panel’s decision.

    I. Background

    Claimant was employed by Service Group, Inc. (employer) as an operator
    assigned to sweep the 16th Street Mall in Denver with a broom and
    dustpan. He was discharged in February 2010 for violating employer’s
    zero-tolerance drug policy after testing positive for marijuana in a
    random drug test ordered by employer. Employer’s policy states: “[I]f a
    current employee is substance tested for any reason . . . and the
    results of the screening are positive for . . . illegal drugs, the
    employee will be terminated.”

    Claimant contends, and employer does not dispute, that he obtained and
    used the marijuana for severe headaches, as recommended by a physician
    pursuant to article XVIII, section 14 of the Colorado Constitution,
    which provides an exemption from state criminal prosecution to
    individuals issued a “registry identification card” to use marijuana for
    medical purposes. Colo. Const. art. XVIII, § 14(2)(b).

    In pertinent part, the amendment provides:

    [I]t shall be an exception from the state’s criminallaws for any patient
    or primary care­giver in lawful possession of a registry identification
    card to engage or assist in the medical use of marijuana, except as
    otherwise provided in subsections (5) and (8) of this section.

    Colo. Const. art. XVIII, § 14(2)(b) (emphasis added). The amendment also
    specifies:

    A patient may engage in the medical use of marijuana, with no more
    marijuana than is medically necessary to address a debilitating medical
    condition. A patient’s medical use of marijuana, within the following
    limits, is lawful:

    (I) No more than two ounces of a usable form of marijuana; and

    (II) No more than six marijuana plants, with three or fewer being
    mature, flowering plants that are producing a usable form of marijuana.

    Colo. Const. art. XVIII, § 14(4)(a).

    Claimant asserts that his use and possession of marijuana was therefore
    legal. A deputy initially denied claimant’s request for unemployment
    benefits, but a hearing officer reversed that decision, finding that
    claimant was not at fault for his separation from employment because
    there was “no reliable evidence to suggest that . . . claimant was not
    eligible for a medical marijuana license” or that his use of the
    substance negatively impacted his job performance. Moreover, the hearing
    officer noted that “claimant has a state constitutional right to use
    marijuana.”

    Although claimant did not produce a registry identification card, he did
    produce a physician certification form, contending that he had not yet
    been provided with the registry card. Employer did not contest his
    eligibility to receive the registration card. Nor did employer argue
    that the use of marijuana negatively impacted his job performance.

    On employer’s appeal, the Panel disagreed and set aside the hearing
    officer’s order. Relying on a precedential case decided by the entire
    Panel, the Panel here concluded that article XVIII, section 14 of the
    Colorado Constitution does not create an exception to section
    8-73-108(5)(e)(IX.5), which disqualifies from benefits an employee who
    tests positive for the presence of “not medically prescribed controlled
    substances” in his or her system “during working hours.” The Panel
    accordingly disqualified claimant from receiving benefits pursuant to
    section 8-73-108(5)(e)(IX.5). Claimant now appeals.

    II. Analysis

    Claimant contends that the Panel erred in setting aside the hearing
    officer’s decision because the Colorado Constitution protects his
    marijuana use. He argues, essentially, that his constitutional right to
    “medical use” of marijuana was violated by the application of the
    disqualifying provision to his situation and the Panel’s consequent
    denial of his request for unemployment benefits. He also argues that the
    Panel should have recognized that employer’s categorization of marijuana
    with other more harmful illegal substances is inappropriate and
    “prejudicial” because marijuana can remain in one’s system for several
    days after its use and long after it has lost its influence, as
    demonstrated by the lack of evidence that claimant’s use of marijuana
    negatively affected his job performance.

    Although claimant appears pro se, we liberally interpret his brief and
    discern that his appeal raises three separate issues: (1) whether the
    statutory disqualification in section 8-73-108(5)(e)(IX.5) applies to
    claimant’s case; (2) if so, whether the statute violates a
    constitutional right of claimant; and (3) whether the record was
    sufficient to support the Panel’s decision.

    We are not persuaded that the statute was misapplied in this case or
    that any of claimant’s rights under article XVIII, section 14 of the
    Colorado Constitution were violated. Because the record supports the
    Panel’s determination, we affirm it.

    A. Application of the Disqualification Provision

    Under Colorado’s unemployment compensation provisions, an employee may
    be disqualified from receiving unemployment compensation benefits if a
    separation from employment occurs because of

    [t]he presence in an individual’s system, during working hours, of not
    medically prescribed controlled substances, as defined in section
    12-22-303(7), C.R.S., . . . as evidenced by a drug . . . test
    administered pursuant to a statutory or regulatory requirement or a
    previously established, written drug . . . policy of the employer and
    conducted by a medical facility or laboratory licensed or certified to
    conduct such tests.

    § 8-73-108(5)(e)(IX.5) (emphasis added); see Slaughter v. John Elway
    Dodge Sw./AutoNation, 107 P.3d 1165, 1170 (Colo. App. 2005) (“[Section]
    8-73-108(5)(e)(IX.5) . . . provides that an employer shall not be
    charged for unemployment benefits when it has a previously established
    written drug policy and terminates an employee as the result of a drug
    test showing the presence of marijuana in the employee’s system during
    working hours.”). A “controlled substance” is defined in relevant part
    as “a drug, substance, or immediate precursor . . . including cocaine,
    marijuana, [and] marijuana concentrate.” See § 12-22-303(7), C.R.S. 2010
    (incorporating the definition of “controlled substance” set forth in
    section 18-18-102(5), C.R.S. 2010).

    As noted above, the disqualification from receiving unemployment
    benefits is triggered if an employee tests positive for the presence of
    a controlled substance that is “not medically prescribed.” §
    8-73-108(5)(e)(IX.5). Underlying claimant’s argument is an assumption
    that his authorization to use medical marijuana is equivalent to a
    medical prescription. This assumption is inaccurate.

    Under article XVIII, section 14, a physician does not prescribe
    marijuana, but may only provide “written documentation” stating that the
    patient has a debilitating medical condition and might benefit from the
    medical use of marijuana. See Colo. Const. art. XVIII, § 14(2)(c)(II).
    Indeed, a physician’s inability to prescribe marijuana under Colorado
    law is reflected in the very physician certification upon which claimant
    relies to legally consume marijuana. That document specifies that
    “[t]his assessment is not a prescription for the use of marijuana”
    (emphasis added).

    Moreover, federal law, to which Colorado physicians are subject,
    requires a practitioner prescribing controlled substances to be
    registered with the Drug Enforcement Administration (DEA). See 21 C.F.R.
    § 1301.11 (2009). Such registration for the prescription of controlled
    substances can only be obtained for Schedule II through V controlled
    substances. See 21 C.F.R. § 1301.13 (2010). Marijuana, in contrast,
    remains a Schedule I controlled substance under the applicable federal
    statute and consequently cannot be prescribed. 21 U.S.C. § 812(c)
    (1999); see United States v. Oakland Cannabis Buyers’ Coop., 532 U.S.
    483, 491 (2001) (“In the case of the Controlled Substances Act, the
    statute reflects a determination that marijuana has no medical benefits
    worthy of an exception . . . .Whereas some other drugs can be dispensed
    and prescribed for medical use, the same is not true for marijuana.
    Indeed, for purposes of the Controlled Substances Act, marijuana has ‘no
    currently accepted medical use’ at all.”) (citation omitted).

    The federal prohibition against prescribing marijuana was reiterated by
    the Office of National Drug Control Policy in 1997 when it issued a
    notice mandating that enforcement of federal drug laws would remain in
    effect despite California’s and Arizona’s passage of medical marijuana
    provisions, because “prescribing Schedule I controlled substances is not
    consistent with the ‘public interest’ . . . and will lead to
    administrative action by the [DEA] to revoke the practitioner’s
    registration.” 62 Fed. Reg. 6164, 6164 (Feb. 11, 1997); see also Conant
    v. Walters, 309 F.3d 629, 633 (9th Cir. 2002) (noting that under the
    federal policy “physicians who ‘intentionally provide their patients
    with oral or written statements in order to enable them to obtain
    controlled substances in violation of federal law . . . risk revocation
    of their DEA prescription authority’”) (quoting joint policy letter of
    Department of Justice and Department of Health and Human Services).
    Under this policy,

    the federal government may: 1) prosecute any physician who prescribes or
    recommends marijuana to patients; 2) prosecute any patient who uses
    prescribed marijuana; 3) revoke the DEA registration numbers of any
    physician who prescribes or recommends marijuana to patients; 4) exclude
    any physician who prescribes or recommends marijuana to patients from
    the Medicaid and Medicare programs; and 5) enforce all federal sanctions
    against physicians and patients.

    Pearson v. McCaffrey, 139 F. Supp. 2d 113, 116 (D.D.C. 2001).

    Although the Department of Justice has indicated it may not prosecute
    “individuals with cancer or other serious illnesses who use marijuana as
    part of a recommended treatment regimen consistent with applicable state
    law, or those caregivers in clear and unambiguous compliance with
    existing state law who provide such individuals with marijuana,” the
    Department nonetheless remains “committed to the enforcement of the
    Controlled Substances Act in all States.” Memorandum from Deputy
    Attorney General David W. Ogden to Selected United States Attorneys,
    Investigations and Prosecutions in States Authorizing the Medical Use of
    Marijuana (Oct. 19, 2009), available at
    http://blogs.usdoj.gov/blog/archives/192. In a recent memorandum to the
    Colorado Attorney General, the United States Attorney for Colorado
    reiterated the Department’s position as set forth in the Ogden
    memorandum. Memorandum from United States Attorney John F. Walsh to
    Attorney General John Suthers (Apr. 26, 2011), available at
    http://extras.mnginteractive.com/live/media/site36/2011/0427/20110427_121943_pot.pdf.

    Consequently, the policies expressed by the Office of National Drug
    Control Policy remain in effect.

    In addition, we give consideration to the opinion of Colorado’s Attorney
    General that under Colorado’s medical marijuana amendment “no such
    prescription is contemplated.” See Applicability of State Sales Tax to
    the Purchase and Sale of Medical Marijuana, Colo. Att’y Gen. Formal Op.
    No. 09-06 (Nov. 16, 2009); see also Colorado Common Cause v. Meyer, 758
    P.2d 153, 159 (Colo. 1988) (“Since the Attorney General’s opinion is
    issued pursuant to statutory duty, the opinion is obviously entitled to
    respectful consideration as a contemporaneous interpretation of the law
    by a governmental official charged with the responsibility of such
    interpretation.”).

    We conclude that the medical use of marijuana by an employee holding a
    registry card under amendment XVIII, section 14 is not pursuant to a
    prescription, and therefore does not constitute the use of “medically
    prescribed controlled substances” within the meaning of section
    8-73-108(5)(e)(IX.5). Accordingly, the presence of medical marijuana in
    an individual’s system during working hours is a ground for a
    disqualification from unemployment benefits under that section.

    B. Interpretation of Medical Marijuana Amendment

    Claimant also argues that we should reinstate the hearing officer’s
    conclusion that “claimant has a constitutional right to use marijuana”
    and therefore is not at fault for his separation from employment. The
    Panel, in setting aside the hearing officer’s decision, concluded that
    the constitutional provisions “address exceptions to state criminal
    laws” and disagreed with the hearing officer’s inferences regarding the
    interplay of the unemployment compensation act and the constitutional
    amendment.

    On appeal, claimant contends that the basis for disqualification set
    forth in section 8-73-108(5)(e)(IX.5) should not apply to him because he
    may legally obtain and consume marijuana as a “medical marijuana” user.
    We are not persuaded that the constitutional amendment provides the
    broad protections claimant asserts or broadly grants an unlimited right
    to use marijuana, and we decline to hold the disqualification provision
    unconstitutional under article XVIII, section 14.

    When interpreting constitutional provisions enacted by voter referendum,
    it is this court’s “duty . . . to give effect to the will of the
    people.” Washington Cnty. Bd. of Equalization v. Petron Dev. Co., 109
    P.3d 146, 150 (Colo. 2005). In so doing, “we afford the language of
    constitutions and statutes their ordinary and common meaning; we
    ascertain and give effect to their intent.” Id. at 149. Further, “[w]e
    construe statutory and constitutional provisions as a whole, giving
    effect to every word and term contained therein, whenever possible.” Bd.
    of Cnty. Comm’rs v. Vail Assocs., Inc., 19 P.3d 1263, 1273 (Colo. 2001).
    Nor can we add or subtract language from the express words of the
    amendment. See Turbyne v. People, 151 P.3d 563, 567 (Colo. 2007) (“We do
    not add words to the statute or subtract words from it.”). “Where the
    language of the Constitution is plain and its meaning clear, that
    language must be declared and enforced as written.” Colo. Ass’n of Pub.
    Emps. v. Lamm, 677 P.2d 1350, 1353 (Colo. 1984).

    As noted above, since passage of the medical marijuana amendment, the
    Colorado Constitution expressly provides that “it shall be an exception
    from the state’s criminal laws for any patient or primary care-giver in
    lawful possession of a registry identification card to engage or assist
    in the medical use of marijuana, except as otherwise provided in
    subsections (5) and (8) of this section.” Colo. Const. art. XVIII, §
    14(2)(b) (emphasis added). Although subsection (4) of the amendment
    provides more generally that “[a] patient may engage in the medical use
    of marijuana, with no more marijuana than is medically necessary to
    address a debilitating condition,” we do not read this as creating a
    broader constitutional right than exemption from prosecution. Because
    subsection (4) also provides specific limits for the quantity of
    marijuana and the number of marijuana plants that may be possessed, we
    understand the purpose of this subsection as setting the limits beyond
    which prosecution is not exempted, and not the creation of a separate
    constitutional right.

    In addition to placing quantity limits on possession of medical
    marijuana, it is also apparent that the constitutional amendment was not
    intended to create an unfettered right to medical use of marijuana. The
    amendment expressly prohibits the medical use of marijuana in a way that
    endangers the health or well-being of any person. Colo. Const. art.
    XVIII, § 14(5)(a)(I). It also prohibits the medical use of marijuana in
    plain view, or in a place open to the general public. Id. § 14(5)(a)(II).

    Subsection (8) of the amendment also provides that the General Assembly
    shall define the terms and enact legislation to implement the amendment.
    In response, in 2001, the General Assembly enacted section 18-18-406.3,
    C.R.S. 2010, which established the criminal penalties for violation of
    the prohibitions contained in the amendment. In enacting this
    legislation, the General Assembly declared the purpose of the amendment
    as follows:

    (b) [The amendment] creates limited exceptions to the criminal laws of
    this state for patients, primary care givers, and physicians concerning
    the medical use of marijuana by a patient to alleviate an appropriately
    diagnosed debilitating medical condition; . . .

    (f) [The amendment] sets forth the lawful limits on the medical use of
    marijuana;

    . . .

    (h) In interpreting the provisions of [the amendment], the general
    assembly . . . has attempted to give the . . . words of the
    constitutional provision their plain meaning;

    (i)This section reflects the considered judgment of the general assembly
    regarding the meaning and implementation of the provisions of [the
    amendment].

    § 18-18-406.3(1), C.R.S. 2010 (emphasis added).

    Thus, contrary to claimant’s interpretation, the General Assembly
    understood Colorado’s medical marijuana amendment to have created an
    exception to criminal prosecution, and not to be a grant to medical
    marijuana users of an unlimited constitutional right to use the drug in
    any place or in any manner. The General Assembly’s construction of an
    initiated constitutional amendment made shortly after its adoption is to
    be given great weight. See Zaner v. City of Brighton, 899 P.2d 263, 267
    (Colo. App. 1994), aff’d, 917 P.2d 280 (Colo. 1996).

    Moreover, the amendment specifically provides: “Nothing in this section
    shall require any employer to accommodate the medical use of marijuana
    in any work place.” Colo. Const. art. XVIII, § 14(10)(b). The “medical
    use of marijuana” is broadly defined in the amendment to mean “the
    acquisition, possession, production, use or transportation of marijuana
    or paraphernalia related to the administration of such marijuana to
    address the symptoms or effects of a patient’s debilitating medical
    condition.” Id. § 14(1)(b). Thus, the Colorado Constitution does not
    give medical marijuana users the unfettered right to violate employers’
    policies and practices regarding use of controlled substances.

    To interpret the medical marijuana amendment as claimant suggests – as a
    blanket “right to use marijuana as long as it is recommended by a
    physician and registered with the state” – would require us to disregard
    the amendment’s express limitations protecting only against criminal
    prosecution and allowing employers not to accommodate the use of
    marijuana in the workplace, as well as the General Assembly’s
    interpretation of the amendment. We decline to do so.

    Our interpretation is consistent with other cases that have examined the
    scope of medical marijuana provisions in this and other states. Colorado
    has already recognized that the medical marijuana amendment to
    Colorado’s Constitution is not limitless. Rather, as a division of this
    court noted, because all provisions and language in the amendment must
    be given their full force and effect, “primary care-giver” under the
    provision does not encompass everyone who may “supply marijuana for
    medical use,” but is instead limited to those who “do more than merely
    supply a patient who has a debilitating medical condition with
    marijuana.” People v. Clendenin, 232 P.3d 210, 212, 214 (Colo. App.
    2009). In addition, a prohibition in a parenting plan against using
    medical marijuana while exercising parenting time did “not constitute a
    restriction of parenting time.” In re Marriage of Parr, 240 P.3d 509,
    511 (Colo. App. 2010).

    We also emphasize that the issue presented here is whether unemployment
    compensation benefits may be denied due to the presence of “not
    medically prescribed controlled substances” in a tested employee. We are
    not deciding whether the amendment limits an employer from discharging
    an employee for using medical marijuana. Nonetheless, we note that in
    the context of wrongful termination cases, language similar to section
    14(10)(b) (“Nothing in this section shall require any employer to
    accommodate the medical use of marijuana in any work place.”) has been
    interpreted not to require employers to accommodate employees’ off-site
    use of medical marijuana. Roe v. TeleTech Customer Care Mgmt. (Colo.),
    LLC, ___ P.3d ___, 2011 WL 2278472, at * 6 (Wash. No. 83768-6, June 9,
    2011).

    We therefore conclude that the Panel did not err in determining that
    claimant was not shielded by Colorado’s medical marijuana amendment from
    being at fault for his separation from employment and could be
    disqualified from receiving unemployment compensation benefits under
    section 8-73-108(5)(e)(IX.5).

    C. Substantial Evidence

    Claimant contends that the evidence did not establish that he violated
    employer’s “previously established” policy regarding the use of drugs
    because the policy was unclear or did not apply to him. He apparently
    refers to employer’s policy which states:

    Employees who operate vehicles as part of their Service Group
    responsibilities must notify their supervisors or appropriate Company
    manager when they are taking prescription or non-prescription medication
    which contains a WARNING LABEL stating that use of that drug may impair
    their ability to safely operate machinery or vehicles.

    It is undisputed that claimant did not operate any machinery or drive
    any vehicles for employer. Therefore, he argues, because he was legally
    taking a drug, he was not obligated to advise employer of his use of
    marijuana and should not have been penalized for his positive drug test.

    While claimant’s “sweeping and panning” duties may have rendered the
    above-quoted employer’s policy inapplicable, and absolved him from the
    obligation to notify his supervisor of his marijuana usage, we do not
    read that provision as precluding the Panel from finding that claimant
    was terminated under employer’s zero-tolerance drug policy set forth
    above. The separate zero-tolerance policy prohibits the presence of any
    “illegal drugs.” Although Colorado’s medical marijuana provision may
    protect claimant from prosecution under Colorado’s criminal laws, as
    noted above the amendment has no bearing on federal laws, under which
    marijuana remains an illegal substance. See 21 U.S.C. §§ 802, 812, 841.

    As employer’s representative noted, the illegality of marijuana use
    under federal law made its presence in any worker’s system inappropriate
    under employer’s policy. We therefore conclude that substantial evidence
    supports the Panel’s conclusion that claimant’s status as a “sweeper and
    panner” who was not required to alert his supervisor of his marijuana
    use did not render his termination inappropriate under employer’s
    zero-tolerance drug policy.

    Having determined that claimant was subject to employer’s zero-tolerance
    drug policy and could be disqualified from benefits by section
    8-73-108(5)(e)(IX.5), we turn to the evidence supporting the Panel’s
    determination that claimant was not entitled to benefits because he had
    the presence of marijuana in his system. “A decision of the [P]anel may
    not be set aside where there are findings of fact supported by
    substantial evidence.” Colo. Div. of Emp’t & Training v. Hewlett, 777
    P.2d 704, 707 (Colo. 1989).

    Claimant admitted he had used marijuana in the days preceding employer’s
    drug test, and he does not dispute that marijuana was still in his
    system at the time of the testing.

    Moreover, the laboratory report of the positive drug test results was
    introduced into evidence before the hearing officer. Cf. Sosa v. Indus.
    Claim Appeals Office, ___ P.3d ___, ___, 2011 WL 2650490 (Colo. App. No.
    10CA1671, July 7, 2011). Claimant did not dispute the accuracy of the
    reported test results or the qualifications of the laboratory performing
    the test. Thus, there was substantial evidence that claimant had a
    controlled substance in his system that was not medically prescribed.

    Claimant also raises arguments concerning the properties of marijuana
    and its potency. He first argues that marijuana should not be
    categorized as a “Schedule I substance” because other substances so
    categorized “have no medicinal value.” However, it is not within the
    power of this court to determine what substances should be included on
    Schedule I. United States v. Phifer, 400 F. Supp. 719, 736 (E.D. Pa.
    1975) (“Congress has designated marijuana as a controlled substance and
    has listed it in Schedule I as such. 21 U.S.C. § 812(c)[(Sched.
    I)](c)(10). Congress has thus made the determination that, as a matter
    of law, marijuana is a controlled substance.”), aff’d, 532 F.2d 748 (3d
    Cir. 1976) (unpublished table decision).

    He further contends that the trace amount of marijuana detected in his
    sample was insubstantial and he consequently was not “under the
    influence” of marijuana while at work. We need not address these
    arguments, however, for two reasons.

    First, claimant was not denied benefits for being “under the influence”
    of marijuana at work. Section 8-73-108(5)(e)(VIII), C.R.S. 2010,
    provides for disqualification when use of drugs results in “interference
    with job performance,” but the denial of benefits to claimant was not
    based on this section. Second, although claimant discussed the level of
    marijuana reported in his drug test at the hearing, the hearing officer
    declined to consider claimant’s statements because no expert addressed
    the meaning of the results or the effects due to the reported level of
    marijuana.

    Because evidence as to the effect of the amount of marijuana detected in
    claimant was neither offered nor considered below, we may not address
    these contentions here. Like the Panel, we may not consider any factual
    assertions or documentation offered by claimant in support of his
    arguments in this appeal that he did not raise or present before the
    hearing officer, nor any arguments that were expressly rejected by the
    hearing officer as unsupported. See § 8-74-107(1), C.R.S. 2010; Huddy v.
    Indus. Claim Appeals Office, 894 P.2d 60, 62 (Colo. App. 1995)
    (appellate court has no authority under section 8-74-107, C.R.S. 2010,
    to consider supplemental evidence); Goodwill Indus. v. Indus. Claim
    Appeals Office, 862 P.2d 1042, 1047 (Colo. App. 1993).

    In our view, the evidence supports the Panel’s determination that
    claimant was disqualified from benefits from his employment under
    section 8-73-108(5)(e)(IX.5). Because the Panel’s decision is supported
    by substantial evidence in the record, we may not set the decision
    aside. See § 8-74-107(6), C.R.S. 2010; Tilley v. Indus. Claim Appeals
    Office, 924 P.2d 1173, 1177 (Colo. App. 1996).

    III. Conclusion

    We conclude that the Panel did not err in setting aside the hearing
    officer’s order.

    The order is affirmed.

    JUDGE FURMAN concurs.

    JUDGE GABRIEL dissents.

    JUDGE GABRIEL dissenting.

    I agree with the majority’s conclusion that the medical use of marijuana
    by an employee holding a registry card under article XVIII, section 14
    of the Colorado Constitution (medical marijuana amendment) is not
    pursuant to a prescription and therefore does not constitute the use of
    “medically prescribed controlled substances” within the meaning of
    section 8-73-108(5)(e)(IX.5), C.R.S. 2010. The question thus becomes
    whether application of section 8-73-108(5)(e)(IX.5) to deny claimant
    benefits here violated the medical marijuana amendment. The majority
    holds that it did not, because in its view, the medical marijuana
    amendment merely created an immunity from criminal prosecution, and not
    a separate constitutional right. Because I disagree with that conclusion
    and believe that the amendment, in fact, established a right to possess
    and use medical marijuana in the limited circumstances described
    therein, I respectfully dissent.

    I. Constitutional Construction

    “In construing a constitutional provision, our obligation is to give
    effect to the intent of the electorate that adopted it.” Harwood v.
    Senate Majority Fund, LLC, 141 P.3d 962, 964 (Colo. App. 2006). We look
    to the words used, reading them in context and according them their
    plain and ordinary meaning. Id. If the language is clear and
    unambiguous, we must enforce it as written. Davidson v. Sandstrom, 83
    P.3d 648, 654 (Colo. 2004).

    “Language in an amendment is ambiguous if it is ‘reasonably susceptible
    to more than one interpretation.’” Id. (quoting Zaner v. City of
    Brighton, 917 P.2d 280, 283 (Colo. 1996)). If the language of a
    citizen-initiated measure is ambiguous, “a court may ascertain the
    intent of the voters by considering other relevant materials such as the
    ballot title and submission clause and the biennial ‘Bluebook,’ which is
    the analysis of ballot proposals prepared by the legislature.” In re
    Submission of Interrogatories on House Bill 99-1325, 979 P.2d 549, 554
    (Colo. 1999). “We consider the object to be accomplished and the
    mischief to be prevented by the provision.” Harwood, 141 P.3d at 964.

    Here, as the majority points out, several provisions of the medical
    marijuana amendment state that the authorized use of medical marijuana
    establishes an affirmative defense or an exception from the state’s
    criminal laws for the possession or use of marijuana. See, e.g., Colo.
    Const. art. XVIII, § 14(2)(a)-(c), (4)(b). Section 14(4)(a) of that
    amendment, however, provides, “A patient may engage in the medical use
    of marijuana, with no more marijuana than is medically necessary to
    address a debilitating medical condition. A patient’s medical use of
    marijuana, within [certain listed] limits, is lawful . . . .” (Emphasis
    added.)

    Because section 14(2)(a)-(c), on the one hand, and (4)(a), on the other
    hand, appear to be separate and do not modify one another, in my view,
    one could reasonably read the amendment, as the majority does, merely to
    establish an affirmative defense or exception to prosecution for
    possession or use of marijuana.

    Conversely, one could reasonably read the amendment as creating a right
    to use medical marijuana (within established limits). Accordingly, I
    believe that the language of the amendment is ambiguous. See Davidson,
    83 P.3d at 654 (language in an amendment is ambiguous if it is
    reasonably susceptible of more than one interpretation). Thus, I turn to
    extrinsic aids to attempt to ascertain the voters’ intent in passing
    this amendment. See In re Submission of Interrogatories, 979 P.2d at 554.

    As presented to Colorado voters, the ballot title of the medical
    marijuana amendment read, in pertinent part:

    An amendment to the Colorado Constitution authorizing the medical use of
    marijuana for persons suffering from debilitating medical conditions,
    and, in connection therewith, establishing an affirmative defense to
    Colorado criminal laws for patients and their primary care-givers
    relating to the medical use of marijuana; establishing exceptions to
    Colorado criminal laws for patients and primary care­givers in lawful
    possession of a registry identification card for medical marijuana use
    and for physicians who advise patients or provide them with written
    documentation as to such medical marijuana use; defining “debilitating
    medical condition” and authorizing the state health agency to approve
    other medical conditions or treatments as debilitating medical
    conditions . . . .

    Colorado Legislative Council, Research Pub. No. 475-0, An Analysis of
    2000 Ballot Proposals(Bluebook) 35 (2000) (emphasis added).

    Although this title may not be a model of clarity, I read it to provide
    that the general intent of the amendment was to authorize the medical
    use of marijuana, and then to list specific provisions that would
    implement that general intent.

    My interpretation finds further support in the Bluebook, which provided
    an analysis of the medical marijuana amendment. That analysis nowhere
    mentioned any immunity from or exception to state criminal laws. Rather,
    it stated, in pertinent part:

    The proposed amendment to the Colorado Constitution:

    • allows patients diagnosed with a serious or chronic illness and their
    care-givers to legally possessmarijuana for medical purposes. . . .

    • allows a doctor to legally provide a seriously or chronically ill
    patient with a written statement that the patient might benefit from
    medical use of marijuana . . . .

    . . . .

    Current Colorado and federal criminal law prohibits the possession,
    distribution, and use of marijuana. The proposal does not affect federal
    criminal laws, but amends the Colorado Constitution to legalize the
    medical use of marijuana for patients who have registered with the state.

    . . . .

    Patients on the registry are allowed to legally acquire, possess, use,
    grow, and transport marijuana and marijuana paraphernalia. Employers are
    not required to allow the medical use of marijuana in the workplace.

    Id. at 1 (emphasis added).

    Similarly, in the section of the Bluebook entitled, “Arguments For,” the
    proponents of the amendment stated, “Using marijuana for other than
    medical purposes will still be illegal in Colorado. Legal use of
    marijuana will be limited to patients on the state registry.” Id. at 2
    (emphasis added).

    “Legalize” means “[t]o make lawful; to authorize or justify by legal
    sanction.” Black’s Law Dictionary 977 (9th ed. 2009); accord Webster’s
    Third New International Dictionary 1290 (2002) (defining “legalize” to
    mean “to make legal: give legal validity or sanction to”). Accordingly,
    in my view, the medical marijuana amendment was intended not merely to
    create a defense to a charge of marijuana possession or use, but rather
    to make medical marijuana possession and use legal under the conditions
    identified in the amendment.

    Although in Roe v. TeleTech Customer Care Mgt. (Colo.), LLC, ___ P.3d
    ___, ___ (Wash. No. 83768-6, June 9, 2011), the Washington Supreme Court
    reached the opposite conclusion, I note that the language of the
    Washington State Medical Use of Marijuana Act is quite different from
    that of the relevant portions of Colorado’s medical marijuana amendment.
    For example, as adopted by Washington voters, the Washington act’s
    statement of purpose provided, as pertinent here,

    Therefore, the people of the state of Washington intend that . . .
    [q]ualifying patients with terminal or debilitating illnesses who, in
    the judgment of their physicians, would benefit from the medical use of
    marijuana, shall not be found guilty of a crime under state law for
    their possession and limited use of marijuana . . . .

    Wash. Rev. Code § 69.51A.005 (version in effect from adoption in 1998
    until amended July 22, 2007) (quoted in Roe, ___ P.3d at ___). The act
    further stated the intent of the voters to provide a defense to
    caregivers and physicians and to provide an affirmative defense to both
    qualifying patients and caregivers. Wash. Rev. Code §§ 69.51A.005,
    69.51A.040(2). As noted above, Colorado’s medical marijuana amendment is
    not similarly limited, when read as a whole.

    Nor am I persuaded that section 14(10)(b) of the medical marijuana
    amendment provides the broad exception that the Panel asserts. That
    section provides, “Nothing in this section shall require any employer to
    accommodate the medical use of marijuana in any work place.” Colo.
    Const. art. XVIII, § 14(10)(b). “Medical use,” in turn, is defined as

    the acquisition, possession, production, use, or transportation of
    marijuana or paraphernalia related to the administration of such
    marijuana to address the symptoms or effects of a patient’s debilitating
    medical condition, which may be authorized only after a diagnosis of the
    patient’s debilitating medical condition by a physician or physicians,
    as provided by this section.

    Id. at § 14(1)(b).

    In my view, these provisions are clear and unambiguous and refer solely
    to the acquisition, possession, production, use, or transportation of
    medical marijuana, or paraphernalia related to it, in the workplace. I
    do not believe that these provisions encompass the presence of marijuana
    in one’s blood after the lawful use of medical marijuana at home. In
    particular, I am not persuaded that the presence of medical marijuana in
    one’s blood amounts to either “use,” which I believe connotes
    contemporaneous consumption, or “possession,” which I interpret as
    holding at one’s disposal, within the meaning of the above-quoted
    definition. If it did, then under a zero-tolerance policy like that at
    issue here, many patients who are eligible to use medical marijuana
    would likely abandon their right to do so, because even lawful use at
    home would put their benefits, and perhaps even their jobs, at risk. I
    do not believe that the voters who passed the medical marijuana
    amendment intended section 14(10)(b) to sweep that broadly. Cf. §
    24-34-402.5, C.R.S. 2010 (providing that, subject to certain exceptions,
    it is a discriminatory or unfair employment practice for an employer to
    terminate the employment of an employee for engaging in lawful activity
    off the premises of the employer during nonworking hours).

    Given my view that sections 14(1)(b) and (10)(b) of the medical
    marijuana amendment are unambiguous, I would not resort to extrinsic
    aids to ascertain their meaning. Were I to do so, however, I believe
    that the available extrinsic evidence supports my interpretation of
    those provisions. Thus, as noted above, the analysis contained in the
    Bluebook noted, “Employers are not required to allow the medical use of
    marijuana in the workplace.” Bluebook, at 1. To me, this analysis makes
    clear that the voters’ intention was precisely what the amendment says
    it was, namely, to give employers the right to prohibit the acquisition,
    possession, production, use, or transportation of medical marijuana, or
    paraphernalia related to it, in the workplace.

    For these reasons, I would conclude that claimant had a constitutional
    right to possess and use medical marijuana pursuant to the limitations
    contained in the medical marijuana amendment.

    I recognize that such an interpretation could potentially implicate
    Supremacy Clause issues, given prevailing federal law. In my view, the
    same issues could apply to the majority’s interpretation because the
    medical marijuana amendment creates a regulatory scheme that potentially
    conflicts with federal law. Because no party has raised any issue
    concerning the Supremacy Clause, however, I do not address that question.

    II. Constitutionality of Denial of Benefits

    The question thus becomes whether the denial of benefits to claimant
    here was consistent with his constitutional rights. In my view, it was not.

    “[E]ven though a person has no ‘right’ to a valuable governmental
    benefit and even though the government may deny him the benefit for any
    number of reasons, there are some reasons upon which the government may
    not rely. It may not deny a benefit to a person on a basis that
    infringes his constitutionally protected interests . . . .” Perry v.
    Sindermann, 408 U.S. 593, 597 (1972); accord 44 Liquormart, Inc. v.
    Rhode Island, 517 U.S. 484, 513 (1996); Alliance for Open Society Int’l,
    Inc. v. U.S. Agency for Int’l Dev., ___ F.3d ___, ___ (2d Cir. No.
    08-4917-CV, July 6, 2011). This rule, known as the doctrine of
    “unconstitutional conditions,” however, is not absolute. Thus, the
    doctrine allows the government to condition the grant of a discretionary
    benefit on the release of a constitutional right when the government has
    an interest that outweighs the particular constitutional right at issue.
    See Lorenz v. State, 928 P.2d 1274, 1283 (Colo. 1996).

    The United States Supreme Court has long held that unemployment
    compensation benefits constitute one type of governmental benefit that
    cannot be conditioned on a willingness to abandon one’s constitutional
    rights. See, e.g., Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136,
    139-42 (1987); Thomas v. Review Bd., 450 U.S. 707, 716-18 (1981);
    Sherbert v. Verner, 374 U.S. 398, 403-06 (1963); see also Everitt Lumber
    Co. v. Indus. Comm’n, 39 Colo. App. 336, 339 & n.3, 565 P.2d 967, 969 &
    n.3 (1977) (holding that “invoking the protection of the Fifth
    Amendment, or refusing to waive its protections, may not be used as the
    basis for denying . . . claimants unemployment compensation benefits,”
    but not reaching the question of whether a denial of benefits due solely
    to a private employee’s assertion of Fifth Amendment rights would be
    precluded on the basis that such action would amount to state action
    under the Fourteenth Amendment).

    Thus, where the state conditions receipt of an important benefit on
    conduct protected by the constitution, or where it denies such a benefit
    based on constitutionally protected conduct, thereby putting substantial
    pressure on an adherent to modify his or her behavior and forgo the
    exercise of a constitutional right, a burden on that right exists. See
    Hobbie, 480 U.S. at 141; Thomas, 450 U.S. at 717-18. “While the
    compulsion may be indirect, the infringement upon [the exercise of that
    constitutional right] is nonetheless substantial.” Thomas, 450 U.S. at
    718; accord Hobbie, 480 U.S. at 141.

    The foregoing case law thus suggests three issues to be decided in this
    case: (1) whether the denial of benefits here constituted state action;
    (2) if so, whether the state conditioned the receipt of such benefits on
    the release of a constitutional right; and (3) if so, whether the
    state’s interest outweighs the constitutional right in question. I
    address each of these issues in turn.

    First, in Hobbie, Thomas, and Sherbert, the Supreme Court made clear,
    albeit implicitly, that a denial of unemployment benefits arising from
    the exercise of a constitutional right constitutes state action. See
    Hobbie, 480 U.S. at 139-42; Thomas, 450 U.S. at 716- 18; Sherbert, 374
    U.S. at 403-06. I would so hold here.

    Second, for the reasons set forth above, I believe that claimant had a
    constitutional right to use medical marijuana, and in my view, the
    denial of benefits based on his exercise of that right infringed the
    right. Specifically, claimant was denied benefits solely because he
    exercised his constitutional right to use medical marijuana. In this
    regard, this case is similar to Hobbie, Thomas, and Sherbert, in which
    the claimants were denied benefits solely because they chose to exercise
    their religious beliefs, which resulted in their being discharged from
    employment. Hobbie, 480 U.S. at 138; Thomas, 450 U.S. at 709-13;
    Sherbert, 374 U.S. at 399-401. In my view, the denial of benefits here,
    like the denial of benefits in Hobbie, Thomas, and Sherbert, placed
    substantial pressure on claimant to forgo the exercise of his
    constitutional rights, and thereby burdened his exercise of those
    rights. Although the compulsion may have been indirect, it was
    nonetheless substantial. See Hobbie, 480 U.S. at 141; Thomas, 450 U.S.
    at 718; cf. Employment Div., Dep’t of Human Resources of Oregon v.
    Smith, 494 U.S. 872, 883-85 (1990) (distinguishing Sherbert, Hobbie, and
    Thomasin a case, unlike the present one, in which the court construed
    the claimant to be seeking an exemption from generally applicable
    criminal law on free exercise of religion grounds); see also Church of
    the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 559-77
    (1993) (Souter, J., concurring) (criticizing Smith and calling for its
    reexamination).

    Finally, I perceive nothing in the record to suggest that the state’s
    interest in denying benefits here outweighs claimant’s constitutional
    rights. In their appellate brief, the People asserted, in conclusory
    fashion, that claimant had no constitutional right at all. Based on that
    premise, which I believe to be incorrect, the People did not proceed to
    address the balancing of interests and, thus, failed to indicate any
    state interest that outweighs claimant’s rights. Because my own review
    of the record and applicable case law failed to reveal such an interest,
    I would conclude that the state’s interests do not outweigh claimant’s
    interests here.

    For these reasons, I believe that claimant’s lawful use of medical
    marijuana outside of the workplace – particularly where, as here, there
    is no evidence of any impairment of performance in the workplace –
    cannot constitutionally be used as a basis for denying claimant
    unemployment benefits.

    Accordingly, I respectfully dissent.

    These opinions are not final. They may be modified, changed or withdrawn
    in accordance with Rules 40 and 49 of the Colorado Appellate Rules.
    Changes to or modifications of these opinions resulting from any action
    taken by the Court of Appeals or the Supreme Court are not incorporated
    here.

    Colorado Court of Appeals Opinions || August 18, 2011

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