Medical marijuana: Rob Corry on denial of injunction against Loveland dispensary ban
Update: On March 1, attorney Rob Corry sued the City of Loveland on behalf of three dispensaries that had to close the previous day under the provisions of a voter-approved medical marijuana business ban. However, yesterday's preliminary injunction hearing didn't go the plaintiffs' way.
"We're disappointed," Corry admits about the ruling by Larimer County District Judge Daniel Kaup to prevent the centers from reopening while the suit worked its way through the system. "Patients are going to suffer in the short term in and around Loveland.
"I thought we had some pretty powerful, and uncontested, testimony from a long litany of patients with various severe, debilitating medical conditions. All of them testified, without any real opposition, that their health would be harmed because they have a personalized relationship with their caregivers, who've developed a selection of strains that work for them. It took years for them to find them and pick them out, and they're very happy with the arrangement. And now, they're out in the desert again."
Josh Marks, a Boulder-based attorney hired by Loveland to represent the town's interests, argued that "we had not made a threshold showing that we were dealing with either a vested property right or a fundamental constitutional right," says Corry, who countered by noting that the right to use medical marijuana "is in the Colorado constitution, and it's there precisely because it's controversial. Constitutional amendments aren't needed to protect baseball and apple pie, because no one's trying to ban them. But free speech, the right to bear arms, the right to remain silent, the right against warrantless searches -- all these rights have been infringed on from time to time. That's why they're in the constitution, and that's why marijuana is in the constitution, too -- to immunize it against the tyranny of the majority."
However, Judge Kaup held that the MMJ amendment "doesn't explicitly include for-profit sale of medical marijuana," Corry continues. And while Corry disagrees with that interpretation, it allowed Kaup to determine that closing the dispensaries didn't infringe on the rights of patients. Neither did he respond to Corry's suggestion that the businesses in question were de facto caregivers, and therefore excluded from Loveland's ban.
At this point, Corry is unsure whether the suit will continue. "We're evaluating our options," he says. In the meantime, patients in Loveland "will have to turn to caregivers or the underground."
Below, read our initial post about the lawsuits, which includes the complete complaint and several other related documents.
Original item, 10:37 a.m. March 1: In November, Loveland voted to ban medical marijuana businesses -- and a city official confirmed that MMJ operators needed to close down yesterday or face fines and jail time. But three centers are fighting this edict with the help of attorney Rob Corry, who's asking for a temporary injunction against the ban until its legality can be tested in court. Documents below.
The main plaintiffs in the case are three Loveland dispensaries: Magic's Emporium, Colorado Canna Care and Rocky Mountain Kind. In Corry's view, a December 2009 decision undermining a dispensary ban in Centennial -- a ruling that persuaded Castle Rock to back off its own MMJ prohibition -- supports his latest arguments.
"The same legal theories that applied to end Centennial's blanket prohibition of any and all medical marijuana businesses at every location and in every permutation also would apply to Loveland's ban on medical marijuana businesses in every location and in every permutation," he says.
According to Corry, "the analogy, interestingly enough, is the adult industry, which is another controversial, unpopular business that is constitutionally protected, just like medical marijuana. A local community can certainly regulate and zone the adult industry -- and we're not claiming to be above zoning and regulation, either. But we are claiming we are above prohibition. Loveland could not ban the adult industry, but it could zone it and put it in what it determines to be appropriate places, and it should do the same for medical marijuana."
A photo from the Magic's Emporium Myspace page.
In the short term, he continues, "we want an injunction to allow these three businesses to continue to serve patients, who'll suffer irreparable harm if they close. If Loveland's ban is allowed to remain in place, there'll be a vast desert for patients in the area. As far as we can tell, Fort Collins would be the closest option for them, but many of these folks aren't mobile. They can't drive because of their condition, or they can't afford it economically. A lot of them are 100 percent disabled. So we want an oasis of freedom in Loveland in the middle of this vast desert, at least while the lawsuit works its way through the system."
In Corry's view, "these businesses have a right to be open" despite the ban: "The business owners all relied on their approval from the City of Loveland and the State of Colorado. We have stacks of various approvals from them on zoning and taxation. They made their decision to open their businesses in reliance on that, and then Loveland completely pulled the rug out from under them, or tried to -- and that can't happen. Even if the court deems the ban constitutional, we're arguing that these businesses should be grandfathered in, because they existed before the ban went into place. They should be allowed to operate because they complied with all the existing rules when they came in."
Corry hopes a judge will be assigned to hear the case this morning, and that the request for a temporary injunction will be heard within days.
Below, find the lawsuit, the entire transcript from the 2009 Centennial hearing, and a copy of the letter the City of Loveland sent to Magic's Emporium, featuring a cease-and-desist order and information about potential punishment if the business remains in operation after February 28.