Earlier this month, attorneys filed a lawsuit against a medical marijuana business ban on the El Paso County ballot -- but yesterday, 4th Judicial District Judge Timothy Simmons refused to grant a preliminary injunction preventing the vote from being counted. Not that Bob Hoban, the lawyer heading up the suit, is out of options. He's got several -- including one that could cost the county millions if the measure passes.
Hoban was disappointed but not terribly surprised by Simmons's ruling. "To get a preliminary injunction is a tremendous hurdle," he concedes. "You have to demonstrate there's no other remedy that could potentially make your client whole.
"We were hoping he would order that the votes remain concealed until we had an opportunity over the next month or so to do discovery and have a hearing/trial as promptly as we could. But because there's still the possibility that the vote could come out in favor of our clients, the judge didn't want to get in the middle of the election process."
Even so, Hoban says, "something interesting came out of this -- something the voters should know. The county concedes that there is a damage theory, which could mean that if the dispensaries are banned, the county may have to pay the dispensaries the value of their business if they make them shut their doors."
Granted, Simmons didn't make this point explicitly. However, Hoban notes, "the court did say there are other ways you can recover -- and that's where we'll have to focus our efforts going forward, assuming we get an adverse election result. And this is important, because we think the issue of compensation for businesses that are shut down is fundamental -- a constitutional right. It's a taking."
And a potentially expensive one. Estimates vary about the number of medical marijuana businesses currently operating in unincorporated El Paso County, but most observers agree there are at least eighty of them -- and Hoban guesses each is worth somewhere between $300,000 and $600,000. As such, the county could be on the hook for a minimum of $24 million not counting court costs and the like. "The numbers are staggering," Hoban points out.
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He insists that "our intention is not to bankrupt the county because of medicinal marijuana. We just want to keep our clients in business." With that in mind, he believes the best course for the county in the event the measure passes is to grandfather in existing businesses, thereby essentially freezing MMJ in the area at its current levels -- and avoiding expensive litigation in the process.
Of course, none of this will be necessary if voters turn thumbs down on the measure, dubbed County Question 1A -- and as we reported yesterday, at least one recent poll shows voters rejecting 1A by a small margin. If the "no" votes prevail -- and that's hardly a sure thing given the large number of voters who said they were undecided on the subject -- no further legal action will be necessary, at least about this specific topic.
If, on the other hand, a prohibition wins the day, Hoban is prepared to move forward in El Paso County, as well as other municipalities where bans may pass. "We're involved in at least a dozen different lawsuits about this," he says. "We think this issue is going to come up time and time again."
More from our Marijuana archive: "Medical marijuana ban in Broomfield? Official thinks city council, not voters, should decide."