Medical marijuana lawsuit against Westminster could challenge all local dispensary bans

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HB 1284, the medical marijuana regulation law signed by Governor Bill Ritter, includes the right for municipalities to ban dispensaries, and numerous cities, including Aurora and Broomfield, are taking advantage of it. But while MMJ attorneys have talked about issuing lawsuits to challenge this and other HB 1284 provisions, none have appeared -- until now. And the just-filed complaint involving Westminster's Herbal Remedies could be a game-changer.

Among the attorneys handling the case is Sean McAllister, who led the successful campaign to decriminalize marijuana in Breckenridge last November. He makes it clear that while the case focuses on the City of Westminster, he thinks it'll have statewide repercussions.

"This is the test case," he says, "and we as the plaintiffs and the attorneys are going to bear the obligation for the entire movement to get a good result here."

McAllister supplies background about the case.

"In November of 2009, before the legislature even enacted HB 1284, Westminster passed a dispensary ban," he says. "And they did this even though there were two dispensaries open and operating in the community. They had come out and permitted these dispensaries, allowed them to operate, and then basically changed their mind."

Herbal Remedies, owned by Carl Wemhoff, was one of the dispensaries in question -- and McAllister charges the city with "walking a fine ethical line" in attempting to shut it down "by threatening, intimidating and coercing the landlord," Gene Lehman, age 84.

"They've told him, 'We're going to prosecute you criminally' -- and, in fact, they did file criminal charges against him, and Carl, too. But then they said, 'If you kick this tenant out, we'll drop the charges against you.' And never as a lawyer are you supposed to use the threat of criminal prosecution to resolve a civil dispute."

According to McAllister, Lehman began eviction proceedings against the dispensary in June, despite the fact that "he doesn't want to evict his tenants. He loves Herbal Remedies, and he loves Carl."

The result was an eviction hearing on Monday, August 9. There, McAllister says, "we told the judge that this eviction proceeding was a sham, because the city isn't here, and they're trying to have the landlord do their dirty work. They're acting like the puppet master, trying to force him to evict a tenant he doesn't want to evict. And the judge totally agreed with us. He said, 'This is crazy,' because the real fight is over whether Westminster's ordinance is legal. So we filed a lawsuit to bring the real issue to a head instead of this sideshow of an ethically questionable eviction process."

The grounds for the Herbal Remedies lawsuit are much the same as those argued in Centennial late last year in a lawsuit on behalf of the CannaMart dispensary. CannaMart had a valid business license, but Centennial moved to shut it down anyhow, precipitating legal proceedings in Arapahoe County District Court. There, Judge Christopher Cross ruled that Centennial's reliance upon weed's illegality under federal law was trumped by the Colorado constitutional amendment legalizing medical marijuana.

This ruling fits with McAllister's interpretation of the law.

"The constitution allows for distribution or sale," says McAllister, "and any ban by the local government or the legislature will violate the constitution. And if this court in Adams County finds the same way the Centennial court did -- that the constitution allows sale and distribution -- these bans will be overturned.

"It wouldn't be technically binding," he concedes. "If we win this case, it wouldn't be binding until we would have a Court of Appeals or Colorado Supreme Court decision. Those are the levels of decisions that would be binding on the entire state. But I think a victory in Adams County would be a strong signal to the legislature that these bans are illegal. And it would let localities that have bans see that the writing's on the wall."

On the surface, the setting for this fight is problematic for McAllister and his cause.

"Since 2000, when the medical marijuana amendment passed, and especially since last year, when the dispensary movement really exploded, the Adams County Sheriff's Office and the Adams County District Attorney's Office has been unfavorable to the law," he maintains. "They've taken every opportunity to challenge medical marijuana participants as to their legality, even though voters in Adams County voted in favor of the amendment with 52 percent in favor. That's why, in my opinion, the city, the DA's office and the sheriff's office are all engaging in undermining the constitution against the will of the voters."

Why choose this course if constituents feel differently? "My belief is, they get a few vocal complaints and assume that because they don't hear positive things from the other side, the community must all be against it. But I think the dynamics of this issue are so different. They're enacting these hardcore bans to answer the loudest voices instead of being responsible. And I believe Westminster's ban is irresponsible. It puts patients in a bad position. Why should a patient in Westminster have to drive to Denver to get something the constitution says they're allowed to have?"

The progress of the Herbal Remedies suit probably won't be swift.

"We'll be asking for a preliminary injunction, and our hope is that there would be a hearing in the next thirty days," McAllister says, adding that the case involving landlord Lehman is on hold until October at least. "We hope to get a preliminary-injunction ruling striking down the municipal statute. At that point, Westminster could revoke its ban and instead engage in responsible, reasonable regulation -- and that's our preferred way of working this out. But we could also go to trial whether we win or lose the preliminary injunction, and that could drag out another six months or a year beyond the preliminary injunction phase."

In the meantime, Westminster has denied the renewal of Herbal Remedies owner Wemhoff's business license -- a decision that strikes McAllister as patently absurd.

"Herbal Remedies has put over $100,000 this year alone directly into the city coffers from sales tax revenue," he notes. "And they employ over twenty people, with full benefits. In a recession, why wouldn't the city want a business that's producing enough tax revenue to probably pay for two city employees, and that's serving thousands of patients, to continue operating?"

After all, he goes on, "there have been no complaints of criminal activity associated with the dispensary, and no complaints from neighbors, either. All we've heard over the last year is how dispensaries are horrible magnets for crime and disorder, but the doomsayers have been completely proven wrong. The sense I have is, these places have been remarkably crime-free and peaceful, and they fit in just fine with other businesses. And yet Westminster is acting like a federal agent and enforcing federal law instead of obeying Colorado law.

"Access to medical marijuana is a patient's right, not a local government's choice."

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