CENTENNIAL — An Arapahoe County judge Wednesday barred the city of Centennial from shutting down a medical marijuana dispensary, saying the city had no right to use federal law as a pretext for doing so.
“The city of Centennial cannot use the potential violation of a federal law to order a business legally operating under our state constitution to cease and desist its business,” District Judge Christopher Cross said in his ruling from the bench.
The rationale Centennial used in forcing the dispensary to shut down — that, because the business distributed marijuana contrary to federal law, it was in violation of the city’s land- use code — is one also adopted by a number of other local governments to block dispensaries from opening in their communities, including Aurora, Castle Rock and Greenwood Village.
The attorney for a dispensary in Castle Rock that had its business license partially revoked on similar grounds said she would use Wednesday’s ruling to seek that action’s reversal.
Cross’ ruling resulted in a preliminary injunction against Centennial preventing the city from enforcing its cease-and-desist order to the dispensary, CannaMart.
The broader issue, such as whether Cross’ injunction should be permanent and his ruling become part of case law, is still to be decided at trial, a process that could take years.
Cross acknowledged in his ruling that the legal issues surrounding medical marijuana and the operation of dispensaries in Colorado are still very much in flux.
Cross called the case one of “first impression,” with few prior cases in Colorado or across the country providing much guidance on how to reach a decision.
“This is a very complex puzzle, as everyone knows,” Cross said. “There are many interrelated and contradictory pieces to that puzzle.”
“No one knows what the law is,” Cross added later.
Immediately after the ruling, CannaMart’s owners, lawyers and a handful of patients listed as plaintiffs in the lawsuit exchanged hugs. Outside the courtroom, patient Shannon Mosher, who suffers from multiple medical problems that cause him severe pain, said he was proud to represent patients across Colorado in the matter.
“It’s a big, groundbreaking moment,” Mosher said. “It’s a big deal.”
Attorney Robert Hoban called the ruling “a victory for the (state) constitution.”
“A city cannot ban this type of use,” he said. “It can zone it, but it can’t ban it.”
Centennial City Attorney Robert Widner said city officials were disappointed but not entirely surprised by the ruling. He said they will take the matter back to the City Council for direction.
“We do not know which route we’re going to take,” he said. “We have to consult with council.”
Zoning not resolved
Zoning is still an issue for CannaMart, which opened in September on East Arapahoe Road just west of Interstate 25.
The dispensary had operated on the Greenwood Village side of Arapahoe Road until that city forced it out on grounds similar to those used by Centennial.
CannaMart’s Centennial location is not zoned for pharmacies, under which CannaMart would fall for zoning purposes, Cross said.
Cross didn’t factor zoning into his consideration of the preliminary injunction because, he said, Centennial didn’t reference zoning problems in its cease-and-desist letter to CannaMart. But the city could still use zoning regulations to prevent CannaMart from reopening in its current location.
Opposition expected
Stan Zislis, one of Canna- Mart’s owners, said he would consult with his attorneys before reopening and could decide to move to another spot. He said he expected opposition wherever he decided to open in Centennial.
“As far as finding a vacancy, I don’t think I’ll have a problem,” Zislis said. “As far as getting a business license, that could be a problem.”
In shutting down CannaMart in October, Centennial had argued that operating contrary to federal law violated the city’s land-use code. Cross agreed that federal law is clear in prohibiting the distribution of marijuana.
“In light of that federal law, the city’s actions were entirely understandable,” he said.
But Cross said local governments can’t take it upon themselves to enforce federal law — that is up to federal agencies. And because Colorado voters in 2000 approved a constitutional amendment legalizing the use of cannabis for medical purposes, Cross found that CannaMart was operating within the state’s laws.
Cross said that closing down CannaMart violated its owners’ and patients’ constitutional rights, which he called “an irreparable injury to all of us.”
By John Ingold
Source: : http://www.denverpost.com/news/ci_14098042#ixzz0bH2IsXUj
