By 7 p.m. on Valentine's Day, all medical marijuana centers in Fort Collins must close their doors thanks to a voter-approved ban passed last November. But there may be hope for a renewed romance between the city and dispensaries, as a handful of centers have filed a last-minute lawsuit to stop the ban.
Several centers have already shut down; some have even handed stock and live plants over to the Fort Collins Police Department to be destroyed. Sergeant Jim Byrne says his department has been working with state regulators to help the business owners make the transition, and he feels the dispensaries have been cooperative so far. "A lot of these shops want to move to another city," he notes, "and to stay licensed, they have to leave our jurisdiction in good standing. So they have an incentive to do this."
The bud bar at Organic Alternatives.
Steve Ackerman, owner of Organic Alternatives in Fort Collins, says his business is running through its inventory and closing on the Saturday before the Valentine's Day deadline. Unlike Medical Gardens of Colorado, though, Organic Alternatives has no plans to move: Fort Collins is home, Ackerman says. And he's fighting to keep it that way.
Ackerman, along with owners of Alternative Holistic Healing, Natural Alternatives for Health, Kind Care of Colorado, JDC LLC filed a suit last month against Mayor Karen Weitkunat, City Manager Darin Atteberry, the entire Fort Collins City Council, both the district attorney and the sheriff of Larimer County, and the Department of Revenue.
Attorney Brett Barney is handling the case. While he declined to discuss it in detail, he did give us a copy of the lawsuit to look over. The suit asks that the shutdowns be suspended while the courts rule on the legality of the ban itself and the future of dispensaries in the Fort.
The suit includes several different arguments about why the ban is unlawful; read it in its entirety after the jump. But here are some of the basics.
For starters, all of the shops participating in the lawsuit were in business prior to the December 1, 2009 moratorium on dispensaries in the Fort and the subsequent state laws that were passed in June 2010 (HB 1284 and SB 109). "Based on the guidance from city officials," the suit states, people leased and purchased retail spaces. The document goes on to imply that without city council's backing -- and lacking any idea that their businesses could be banned -- the shops' owners wouldn't have entered into those agreements.
In addition, the suit argues that the ban doesn't define "operations," forcing "ordinary people" to "guess as to its meaning and effect." Neither does the ban have any guidelines as to how the city should implement it, the document continues. As such, the plaintiffs are "susceptible to arbitrary and discriminatory enforcement." The shops also haven't had any way to be heard through this process -- something Barney argues they have the right to do. Finally, the ban prohibits an entire industry in Fort Collins, which says is illegal. "That's why we have strip clubs," he notes.
From there, the lawsuit moves into some borderline-philosophical territory involving the First Amendment. The suit argues that "individuals purporting to be Fort Collins citizens" -- the people who eventually filed and lobbied in favor of the ban -- became "antagonistic" toward the message dispensaries were sending via their mere presence in town. He goes on to say that the intent of the group was to eliminate a pro-pot message they disagree with by "preventing businesses from communicating with the community via advertising...and by [eliminating] their very existence."
In the course of business, MMCs communicate and disseminate information, messages and ideas, the lawsuit maintains. Because providing information to the public, local media and neighborhood groups are part of the regular scope of business for MMCs, Barney believes they are engaging in constitutionally protected free speech by merely being in business. Therefore, banning the shops is violating their First Amendment rights.
In addition, the suit alleges that because the dispensaries have become political entities through membership in professional organizations and the like, their rights are further violated by the ban. He quotes a Colorado Supreme Court ruling that states: "It is undisputed that the freedom to associate for the advancement of political beliefs is a fundamental right."
In short: Because corporations have the same rights as people in Colorado, the First Amendment rights of the medical marijuana dispensaries to free speech, peaceful assembly, free association and expression are being trampled upon by the ban.
There are also a few other technical arguments -- that language in 1284 only allows for a "county, municipality or city and county" to enact bans while Fort Collins is considered a city, among others.
It's an interesting lawsuit, framing the dispensary situation in an entirely new way. But whether a court will be convinced remains to be seen. Barney hopes a judge will impose a temporary injunction before February 14. In the meantime, we've posted the lawsuit (and language of the ban) for you to consider below.
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