Showdowns looming over pot dispensaries
Not long after Gov. Bill Ritter signed two more-restrictive medical marijuana bills into law Monday, some local governments renewed talks about how they could ban dispensaries outright.
That talk has prompted a pro-medical marijuana dispensary group to prepare a lawsuit not only challenging any bans, but some zoning regulations cities and counties may be considering, too.
Denver attorneys Tae Darnell and Brian Vicente said many of the new regulations included in House Bill 1284 are unconstitutional.
“They are restrictions on a constitutional permission, Amendment 20, and over time what we’ve seen play out in the courts is that those types of restrictions are declared unconstitutional,” said Darnell, whose law practice has increasingly focused on medical marijuana issues over the past year. “A locality will be required to provide some type of location for this particular use no matter how much they hate it.”
Darnell and Vicente, executive director of Sensible Colorado, one of the largest pro-dispensary groups in the state, which is preparing the suit, said the legal argument that the amendment approved by voters in 2000 didn’t expressly allow dispensaries is weak.
They also said a provision under HB1284 that allows caregivers with fewer clients to operate in communities that ban dispensaries won’t work either because that limits access to a legal product, at least a legal one in Colorado.
Marijuana use, including for medicinal purposes, still is against federal law.
“The bill is wrought with unconstitutional provisions,” Darnell said. “There are things in the bill that’s just so preposterous that they’ve got to be addressed. There are several issues in there that are going to be addressed, and the outright ban is just one of the components that are facing suit.”
Currently, most cities, towns and counties in the state have enacted moratoriums on new dispensaries, in part, because of the vast number of them that have opened in the past year and the lack of state rules regulating them.
The bill attempts to address that by requiring dispensaries to be licensed by the state and install strict security measures. It bans out-of-state ownership of dispensaries and requires them to grow at least 70 percent of the marijuana they sell, restricting the rest to other dispensaries and individual caregivers.
The bill also allows local governments either to prohibit dispensaries outright, or place ballot questions before voters to ban them. Currently, several communities are considering approving such bans or ballot questions, including Mesa County and the cities and towns within it.
County Commissioner Janet Rowland said Mesa officials have discussed the matter informally, but want to meet with their counterparts in Grand Junction, Fruita, Palisade and Collbran before doing so.
“We’ve had a few conversations about it ... but we wanted to make sure we’re well coordinated with the other municipalities in Mesa County,” she said. “We don’t want to push a problem in their direction. We want to make sure we’re on the same page.”
Rowland said the county, at least, was considering the ballot question because it would be more permanent. Banning them by ordinance would leave the question subject to repeal by future commissions, she said.
The five governments hope to meet in the next month to discuss the matter.
Rowland said she wasn’t concerned about a possible lawsuit, saying the measure Ritter signed still allows for use of the herbal weed. People would just have to grow their own or use the low-volume caregivers to help them, she said.
“Dispensaries weren’t even in the (Amendment 20) ballot language,” she said. “I don’t think anybody anticipated that this would come of that, that there would be dispensaries for marijuana in the neighborhoods their kids are walking to school. So I’m not concerned about any lawsuit.”
The second related bill Ritter signed, SB109, more clearly defines the kind of medical relationship patients must have with the doctors who approve their use of medical marijuana, requiring physicians to perform an exam before approving the use, and barring them from having a financial interest in dispensaries.