Medical marijuana fight in Windsor: How many dispensaries is too many?

With medical marijuana legislation still pending at the State Capitol, individual Colorado communities are left to deal with the weed issue as best they can, despite how sticky it can get.

Case in point: Windsor, where the town board is fighting to close a dispensary called MediGrow even as two other similar businesses remain in operation, having been grandfathered in prior to the enactment of a December moratorium. Why? Because, claims Windsor mayor John Vazquez, "two of them are operating in accordance with the moratorium, and one of them is operating out of compliance with the moratorium. And that's MediGrow."

As Vazquez tells it, one dispensary, In Harmony Wellness, was already in business at the time the moratorium was being considered, and the owner of a second center, A New Dawn Wellness Clinic, had a verbal agreement with Windsor officials to be allowed to operate. However, Vazquez says no such deal had been reached with Lazarus Pino, the owner of MediGrow -- although Pino tried to sneak under the wire anyhow.

The day of the moratorium vote, Vazquez recalls, "he came into a recorded public session -- we submitted the tape to a judge -- and stated that he had done four transactions that day, just to be open before the moratorium went in place."

That wasn't enough from the town's perspective, especially given Vazquez's description of MediGrow's base of operations.

"I went past his facility and he had no locks on the door, no security system in place and none of the necessary building permits pulled to do the improvements he was doing within the space," he says. "At the meeting, we explained that it wasn't just about being open. There were a lot more conditions to be met, and he hadn't met them.

"We know these grow operations have high power use and are going to need some additional upgrades to meet their needs, and we don't know if his wiring or anything else is up to code. There don't seem to be any protocols in place, making it a target for criminal activities -- and it's right next to a video store where families and kids go. So that's why he wasn't grandfathered in."

Pino didn't simply accept this edict, remaining open. So Windsor is going after him on a couple of different fronts.

"There are two pieces to this puzzle," Vazquez says. "We began issuing citations to MediGrow, with a fine of up to $300 a day, and they've requested that a judge dismiss the charges, claiming they were operational prior to the moratorium being in place. Then, our planning department filed a cease-and-desist order based on the violation of the building code. They ignored that, so they started receiving another citation for violation, which also has a maximum penalty of $300 a day.

"Mr. Pino is appealing in municipal court the validity of the moratorium. On February 25, a judge will hear his case about whether or not to dismiss all the charges from the first citations. If the charges are dismissed, the case ends there, and there will be no fines paid by Mr. Pino. But if the judge finds that the moratorium is valid and that he's been in violation of it, the court will make a ruling at that time."

In addition, Vazquez goes on, "the due process Mr. Pino is afforded allows him to appeal our code-violation citations to the Board of Adjustment -- which he'll do on March 25. If the board finds he's not in violation of the building code, the case ends there, with no fines levied. But if it finds he is in violation, then our citations carry merit. And if either this case or the municipal court case come in with a guilty verdict, we can seek an injunction that would allow us to close the dispensary down. And it would be a court order. It wouldn't be arbitrary or capricious on the town's part."

Meanwhile, to complicate matters even further, Windsor has a spring election on April 6, and at that time, voters will be asked if they'd like to cap the number of dispensaries Windsor allows at the two already in business -- a proposal that Vazquez sees as something of a compromise.

"Quite honestly, there's a portion of our community that would love to be able to ask the question of banning dispensaries outright," he concedes. "But we're not prepared to ask a question we feel might be unconstitutional. There's a lot of case law to be established, but based off early precedents" -- like a ruling involving the City of Centennial -- "we feel an outright ban doesn't seem to be allowable at this time. So we're asking the question of if we want to put a cap on it, until legislation or case law says we can't."

Vazquez isn't sure which direction the vote will go.

"I believe people are more open to being honest in the privacy of the voting booth than at a public meeting," he maintains. "There have been times, historically, when we have a loud group of people who claim to speak for the majority of the community, and when it comes down to a vote, we find out they only speak for a third of the community."

The goal, Vazquez says, is "to create a constitutionally defensible policy that follows the will of the people."

And if it passes, it would create one more obstacle for MediGrow -- if, that is, other actions haven't already shut it down.