Colorado Patients Sue In Marijuana Dispensary Closure; Could Set Precedent


Photo: Westword
Attorneys Bob Hoban (left) and Rob Corry, joined by patients, speak at a news conference today about the CannaMart lawsuit.

​Four medical marijuana patients and two caregivers in Centennial, Colo., have announced a lawsuit against the city for forcing the closure of CannaMart, a pot dispensary, Westword reports.

The plaintiffs will argue that cities like Centennial “are prohibited from imposing land use restrictions on local businesses when such restrictions infringe upon the rights upheld by the state Constitution as ‘matters of statewide concern’.”
The group says it’s the first time in Colorado history that a coalition of patients and caregivers will sue a municipal government to reopen a dispensary.
According to Bob Hoban, one of the attorneys representing the patients and caregivers bringing the suit, a ruling in the case could turn out to be precedent-setting. “This isn’t something we’re looking at as a test case, something to throw against the wall to see if it sticks,” he told Westword. “It’s something where we believe the court is almost compelled to come down on our side because of the Constitutional issues at stake.”

Similar battles have been fought in California, but Colorado has a crucial difference, according to Hoban. “Colorado’s medical marijuana law is constitutional, and those constitutional rights extend to property interests,” he said. “Not just the actual property these people leased for a number of years, but there’s a vested property right from the amendment in the possession of marijuana and anything that’s tangentially related to the supply of medical marijuana.
Hoban says there are four “particularly important” points of contention. “Number one, you’ve got the city trying to enforce federal law,” he said. “That was the basis for this ban, and local governments and even state courts cannot enforce federal law. So that cannot be the basis for putting this dispensary out of Centennial altogether.”
Secondly, “the closure order was issued without any due process whatsoever,” Hoban said. “A cease-and-desist order was sent four to six weeks after the dispensary opened that said ‘Shut down,’ despite the fact that the business had been issued a business license/sales tax license by the City of Centennial.”
Thirdly, Hoban continued, “The city is expected to rely on home-rule power, but they’ve waived that power by making this a matter of state or federal concern by relying on federal law.”
And lastly, “You can’t ban an otherwise lawful use in a city entirely,” Hoban said. “Especially in this case, where you’re talking about a constitutional right.”
“Ultimately, cities are free to place restrictions on where these businesses can operate,” Hoban said. “But a total ban is clearly in excess of the city’s powers under home rule, the Constitution and state law.”

Photo: Robert Fisher, Westword
Do Colorado cities have the right to ban dispensaries?

​CannaMart was shuttered last month after city officials banned medical marijuana dispensaries within city limits.
Medical marijuana has been legal in Colorado since 2000, when voters approved a constitutional amendment allowing individuals with debilitating medical conditions to legally use and purchase marijuana. The amendment also legalized the sale, distribution, storage, transportation, production, and cultivation of the herb by caregivers.
“While Centennial may not like the idea of medical marijuana caregivers providing services to patients within city limits, Colorado law is clear,” Hoban said. “The city lacks the legal authority to restrict the rights of caregivers and patients in such a way.”
Attorney Robert J. Corry agreed. “The City of Centennial cannot amend the Colorado Constitution and cannot override Colorado’s voters,” Corry said. “Sick people have a Constitutional right to medical marijuana, and we hope this lawsuit will ease human suffering and bring Centennial into compliance with the Constitution.”