Medical marijuana lawsuit against Westminster could challenge all local dispensary bans

herbal remedies marijuana dispensary logo.JPG
Herbal Remedies' logo.
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."

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Sean McAllister.
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.

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