What are the rules for growing marijuana in a rental residence if the cannabis is intended for the retail market? Our Ask The Cannabist columnist gets the rundown from a marijuana attorney. Pictured: A Colorado medical marijuana grower tends plants in a rented local warehouse. (Joe Amon, Denver Post file)

Ask The Cannabist: Can a tenant grow 100 pot plants in a rental home?

Welcome to our Ask The Cannabist column. Clearly, you have questions about marijuana, be it a legal concern, a health curiosity, a Colorado-centric inquiry or something more far-reaching. Check out our expansive, 100-question Colorado marijuana FAQ first, and if you’re still curious, email your question to Ask The Cannabist at askthecannabist@gmail.com.

Hey, Cannabist!
My sister’s would-be tenant claims to have a license to grow up to 100 plants for retail use. He wanted to use the garage or crawl space in a residential neighborhood. I know the laws are evolving but is that legal? –Tenement Yard Greenskeeper

Hey, Greenskeeper!
Marijuana laws are frequently changing here on both local and state levels, so it’s always a good idea to check out the latest information. In your sister’s situation, no, it’s not legal to grow 100 plants “for retail use” in a residential home. To get more legal details, I asked marijuana attorney Lauren Davis about this scenario via email.

In terms of the 100 plants, maybe this housing candidate is a medical marijuana caregiver rounding up on their plant count. Davis says state law limits patients and primary caregivers to a maximum of 99 plants, regardless of doctor recommendation.

Senate Bill 15-014, signed into law by Gov. John Hickenlooper in May 2015, says a caregiver cannot cultivate, transport or possess more than 36 plants unless they have one or more patients with a medical necessity for an extended plant count, up to 99.  Additionally, when a caregiver with an extended plant count has to renew his or her annual medical marijuana license with the Colorado Department of Public Health and Environment (CDPHE), the cultivation location needs to be registered at that time.

Medical marijuana patient and caregiver laws, overseen by CDPHE, are separate and different from the medical marijuana dispensary and recreational store laws that are regulated by the state Marijuana Enforcement Division. According to Davis, “It is not legal to sell homegrown marijuana at retail, period. It is illegal for dispensaries to buy marijuana not produced at a licensed grow facility.”

Simply put, patient- or caregiver-grown marijuana cannot legally be sold to a dispensary.  A marijuana business can only operate in a MED-approved, licensed facility.  

Even if the grower is licensed by MED as an Optional Premises Cultivation Operation for a medical marijuana dispensary or medical infused-product manufacturer, Davis says that “Nederland is the only municipality I’m aware of where that could be a possibility.”      

For your sister or any landlord, there may be legal consequences for knowingly allowing an illegal marijuana grow on the property. A patient or caregiver who grows an extended plant count legally is different from someone who is claiming to have a license to grow at home and sell it to dispensaries.  Davis summarizes: “So this person’s actions are illegal. And the crime of cultivation in Colorado still includes allowing someone to grow on your property if they are doing it illegally.”

The language in voter-approved Amendment 64 allows landlords or property managers to ban any marijuana growing at their discretion, including the six plants an adult is entitled to have by law. Also, local laws for marijuana cultivation (medical or recreational) supersede state law, so the area where the rental home is located may have ordinances that differ from state laws.

Ask for copies of the licenses permitting the plants to determine the hopeful tenant’s legal standing with the various local and state marijuana laws and consider consulting with a property attorney before signing any leases. If it is an illegal grow, your sister could be charged if she knowingly allowed it on her rented property.  Ultimately, allowing a legal grow in the rental is at her discretion as a landlord in Colorado. XO

Related: What you need to know about growing marijuana at home