Medical marijuana dispensary ban in Longmont calls into question property rights defense

In May, Longmont moved toward prohibiting the town's dispensaries -- but the ban's July 1 implementation was delayed. Now, the shutdown order's in place, and while an appeal is still possible, Michael W. Gross, an attorney representing several centers, concedes that courts have not been eager to overrule such actions...

By Michael Roberts

August 26, 2011

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In May, Longmont moved toward prohibiting the town's dispensaries -- but the ban's July 1 implementation was delayed. Now, the shutdown order's in place, and while an appeal is still possible, Michael W. Gross, an attorney representing several centers, concedes that courts have not been eager to overrule such actions on property-rights grounds.

Longmont was once home to eight dispensaries. Five of them shut down after the city passed an ordinance banning them, but three others took the matter to court. Gross says his argument on their behalf was "essentially a property-rights challenge -- that the city was taking away the property rights of centers that have been there since 2009, prior to the enactment of a moratorium."

Last week, however, Boulder County Judge Ingrid Bakke "determined that there was no constitutionally significant property right," Gross continues. "So therefore, the city may absolutely ban these businesses, even though they had been there for going on two years."

The case could go forward on its merits, Gross maintains -- but he concedes that "similar challenges have been rejected before on the property-rights issue."

One interesting side note. Attorneys arguing on behalf of Longmont made mention of the judgment against Jason Beinor, a medical marijuana patient fired from his street-sweeper job after a positive drug test. The Colorado Court of Appeals voted by a 2-1 margin that Beinor wasn't eligible for unemployment benefits following his dismissal, despite his patient status -- "and the city said this point of view indicates that there are very limited rights under Article 18 of the Colorado constitution in regard to medical marijuana," Gross notes. "They said that's indicative of how appellate courts would approach this issue."

Perhaps. But as Gross emphasizes, "there was a dissenting opinion. So things could go to the next level, and that would support the Colorado Supreme Court taking a look."

From the perspective of dispensaries, this would be a positive development. "There's been very limited appellate guidance for the district courts," he acknowledges. "And up to this point, district courts haven't been overly sympathetic to issues raised by medical marijuana centers" in communities that want them gone.

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Michael Roberts began his career with Westword in 1990 as music editor. In 1999, he took on a new role, full-time media reporter, as author of a column called The Message. In 2008, he became the lead writer for Westword's news blog, The Latest Word, a position he held until January 2023. Michael continues to freelance for Westword, covering everything from business to sports and the media; he also contributes to Jazziz, a national music magazine. He holds a bachelor's degree from what is now Colorado Mesa University and master's degrees from the University of California, Los Angeles, and Northwestern University.

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