District Court, El Paso County, Colorado
270 South Tejon St.
Colorado Springs, CO 80903
719-448-7700
_______________________________________________
Plaintiffs: HAMMERS CONSTRUCTION, INC.; CNH, LLC;
CLAREMONT DEVELOPMENT, INC.; HAMMERS
INVESTMENTS, LLC; HUMBOLDT CARE & WELLNESS
CENTER, LLC; CANNABICARE, INC; ROCKY MOUNTAIN
WAY WELLNESS CENTER, LLC; COLORADO TREE
FARMERS, INC.; HATCH WELLNESS CENTER, LLC;
TITAN INVESTMENTS, LLC; STEVE HAMMERS; DAVE
HAMMERS; ERIC HATCH; GARY WOODRUFF; JEFFREY
SVEINSSON; CLIFFORD STAHL; and, others similarly
situated to be named
Defendants: BOARD OF COUNTY COMMISSIONERS OF
EL PASO COUNTY, COLORADO; DENNIS HISEY,
WAYNE WILLIAMS, JAMES BENSBERG, AMY LATHEN,
ŸCOURT USE ONLYŸ
SALLIE CLARK, IN THEIR OFFICIAL CAPACITIES AS
COUNTY COMMISSIONERS; ROBERT C. “BOB” BALINK,
Case No: 2010CV5762
IN HIS OFFICIAL CAPACITY AS EL PASO COUNTY
CLERK AND RECORDER
__________________________________________
Div.: Ctrm:
ATTORNEYS FOR THE PLAINTIFFS:
Robert T. Hoban, Esq., Reg. No. 33151
Hoban & Feola, LLC
600 Seventeenth Street
Suite 2800 South
Denver, Colorado 80202
Phone: 303-260-6479
Email: bob@hobanandfeola.com
EXPEDITED RELIEF
REQUESTED PURSUANT
TO C.R.C.P. 57 AND
C.R.C.P. 65
Charles T. Houghton, Esq., Regis No. 15053
Charles T. Houghton, P.C.
P.O. Box 847
Colorado Springs, CO 80901
Phone: 719-634-1731
Email: cthlaw@msn.com
Laura Haynes, Esq., Regis. No. 35200
Laura Haynes, P.C.
407 S. Tejon, Suite H
Colorado Springs, CO 80903
Phone: 719-646-1905
Email: laura@haynesq.com
FIRST AMENDED VERIFIED COMPLAINT AND
APPLICATION FOR DECLARATORY AND INJUNCTIVE RELIEF
1
COME NOW the Plaintiffs, by and through their undersigned counsel, and for their First
Amended Verified Complaint, state and allege as follows:
PARTIES, JURISDICTION, AND VENUE
1.
The Plaintiffs are all residents of El Paso County, Colorado or own businesses
located in El Paso County, Colorado.
2.
The Defendants are governmental entities or individual government actors
existing by virtue of the statutes and laws of the State of Colorado.
3.
All matters associated with this action took place in El Paso County.
4.
Pursuant to Article VI, Section 9, of the Constitution of the State of Colorado, the
District Court located in El Paso County, Colorado, is a trial court of record with general
jurisdiction and has original jurisdiction of all civil, probate and criminal cases, except as
otherwise provided by law.
5.
Because the actions underlying Plaintiffs’ claims took place in El Paso County,
this Court properly has jurisdiction over the subject matter of this Complaint.
6.
Venue is proper in El Paso County, Colorado, pursuant to C.R.C.P. 98(c) in that
the actions underlying Plaintiffs’ claims took place in El Paso County.
CASE SUMMARY
7.
This matter arises out of the actions taken by the El Paso County Board of County
Commissioners (the “BOCC” or “Defendant”) regarding the regulation, licensing and prohibition
of medical marijuana facilities in unincorporated El Paso County.
8.
The causes of action stated herein establish that the object of the ballot question
entitled “Medical Marijuana Ballot Question,” (the “Ballot Question”) violates Colorado law.
9.
The Ballot Question attempts to accomplish three (3) separate and distinct
actions. First, it attempts to ban medical marijuana businesses in unincorporated El Paso
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County. Second, it attempts to shut down current legally existing medical marijuana businesses.
Third, it attempts to restore a caregiver model that no longer exists under Colorado state law.
10.
None of these actions are legal under Colorado law. The Defendant simply
cannot establish a regulatory scheme and then allow a ban of the very businesses it allowed to
exist through regulation; this violates Colorado Constitution, Article II, Section 15. Nor can it
restore a caregiver model under Colorado Constitution, Article XVIII, Section 14, which
purports to have been dramatically altered by subsequent legislation.
11.
Pursuant to C.R.C.P. 57 and 65, the Plaintiffs request this Court: i) declare that
the Ballot Question, as presented, cannot stand under the laws of this state; ii) pursuant to
C.R.C.P 106(a)(2) request that this court order that the Ballot Question be taken off of the El
Paso County November 2010 ballot; and iii) request that this court determine that pursuant to
C.R.C.P. 106(a)(4) that the Defendant exceeded its authority by attempting to have the voters
decide the question of a ban that is impermissible under state law.
12.
The Defendant has undertaken a regulatory scheme for medical marijuana in
unincorporated parts of the County since December, 2009 and is precluded by the Colorado
Constitution, state statutes, Defendant’s own Resolutions, and the El Paso County Land
Development Code from referring the issue of a ban to the ballot.
13.
Further, this Ballot Question, by its very terms, does not apply to any existing
medical marijuana facilities in unincorporated El Paso County, and is not an accurate
interpretation of the law concerning the current status of Primary Caregivers as defined by
Colorado state law, making it a legal nullity.
HISTORY OF MEDICAL MARIJUANA IN EL PASO COUNTY: PRE –COLORADO MEDICAL MARIJUANA CODE
14.
In December 2009, in response to a “proliferation” of medical marijuana facilities
opening around the State and in anticipation of the State Legislature passing a bill regulating the
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sale and cultivation of medical marijuana the following Spring, the Defendant determined it was
in the best interest of the people of unincorporated El Paso County that the Defendant should
regulate medical marijuana. A moratorium was discussed, and was ultimately dismissed in favor
of regulation.
15.
As a result, on December 17, 2009 the Defendant adopted Resolution No. 09-469,
attached as Exhibit A, establishing regulations regarding Medical Marijuana Land Uses within
unincorporated El Paso County.
16.
Resolution 09-469 cites the following Colorado State statutes as granting the
Defendant the authority to enact such regulations:
a.
b.
c.
d.
e.
f.
17.
C.R.S. §29-20-101, et. seq; Local Government Land Use Control Enabling Act,
C.R.S. §30-1-101(2) – Authority of the counties to adopt and enforce ordinances
and resolutions regarding health, safety and welfare issues as otherwise prescribed
by law
C.R.S. §30-11-107 – Powers of the BOCC
C.R.S. §30-28-113 – Regulation of the use of structures in various zoning districts
throughout El Paso County
C.R.S. §30-28-115 – Promotion of the health, safety, convenience, order and/or
welfare
C.R.S. §30-28-121 – These regulations were passed as “temporary regulations”
pursuant to C.R.S. §30-28-121, with a six month time limit, and were classified as
a “temporary use” under the El Paso County Land Use regulations.
On January 12, 2010, the El Paso County application for these “temporary use”
permits was published. In this application, it states “1. The medical marijuana land use
approved under this Temporary Use Permit may be subject to additional regulations or
standards when permanent regulations regarding this land use are adopted”. (Emphasis added).
18.
The El Paso County Land Development Code (LDC) §5.31.(A) states that the
purpose of Temporary Use Permit is as follows:
The temporary use permit is a mechanism by which the County may allow
a use to locate on a short term basis and by which it may allow seasonal,
short term or transient uses not otherwise allowed. (§5.3 Standards for
review, approval, and administration of issues is attached as Exhibit B.)
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19.
Table 5-1 in Chapter 5 of the El Paso County LDC lists the “Principle Uses”
associated with Temporary Use Permits, which includes: Auctions, Christmas Tree Sales,
Firework Sales, Construction related mining, Peddler Sales, Seasonal Produce Sales, Temporary
Housing, and Yard Sales.
20.
Medical Marijuana businesses were erroneously put into this category.
21.
During the six month time period a great number of applicants received approvals
for the operation of medical marijuana businesses in the County. In addition, during that same
period, the Colorado Legislature did pass H.B. 1284, (the “Code”), which was signed into law by
the Governor on June 7, 2010, and is cited as C.R.S. §12-43.3-101 et seq.
COLORADO MEDICAL MARIJUANA CODE – C.R.S. §12-43.3-101 ET SEQ.
22.
The Code regulates medical marijuana facilities, which includes “medical
marijuana centers,” “optional premise cultivation” operations, and “medical marijuana infused
product manufacturers.”
23.
The Code establishes a statutory framework for local jurisdictions, which includes
counties, to “regulate, license or prohibit” medical marijuana facilities and further provides a
framework for local jurisdictions to “opt out” of the Code, should it choose not to regulate or
develop a licensing structure for these medical marijuana facilities.
24.
The Code controls the locations of these businesses, similar to the gaming code,
in that local and state licenses are issued to “premises,” not businesses, thereby precluding a
move in location during the period of July 1, 2010 through at a minimum July 1, 2011.
25.
The Code has specific dates that applicants, and local jurisdictions, must adhere to
in order to remain in operation after July 1, 2010, to include:
a.
July 1, 2010 – Date by which medical marijuana businesses must in
operation, or have applied to operate with the local licensing authority.
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b.
August 1, 2010 – Deadline for completing and filing State Applications
and paying the applicable State Application fees.
HISTORY OF MEDICAL MARIJUANA IN EL PASO COUNTY – POST - COLORADO MEDICAL MARIJUANA CODE
26.
On June 10, 2010, in response to the newly enacted Code, the Defendant passed
Resolution No. 10-230, extending the temporary regulations with revisions to El Paso County
Resolution 09-469 that specifically addressed the regulation of medical marijuana facilities under
the Code. A copy of Resolution No. 10-230 is attached hereto as Exhibit C. At that meeting, a
moratorium was discussed again, and dismissed in favor of regulating medical marijuana
facilities.
27.
On June 23, 2010, the El Paso County Development Services Department
changed its application to reflect these changes adopted in Resolution 10-230 pursuant to the
new legislation. A copy of the application is attached hereto as Exhibit D.
28.
As a consequence, many applicants, including the Plaintiffs, spent significant time
and money to establish their businesses before the July 1, 2010 deadline imposed by the Code
and spent additional time and money applying to the State and paying the State application fees
to meet the State Application deadline of August 1, 2010.
29.
After June 23, 2010, in accordance with the Code, and Resolution 10-230, with
authority from Defendant, several Plaintiffs were permitted to apply to operate medical
marijuana facilities in unincorporated El Paso County once the construction of a facility was
complete. The start dates were set out to reflect the time necessary for construction. This
authorization permitted Plaintiff Titan Investments and Hammers Construction, Inc. to build and
lease prospective medical marijuana facilities for other Plaintiffs to operate one of the described
premises upon completion of the buildings and build outs. Defendant’s action was in furtherance
of regulation, not prohibition, at this late date.
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30.
The Defendant allowed and continued to allow Plaintiffs to operate, and to apply
to operate at a future date up, until the July 1, 2010 deadline.
31.
Those businesses who worked to meet the July 1 and August 1 deadlines did so in
reliance upon the stated, further regulation and local licensing scheme; similar to the Defendant
relying on the State to legislate in this matter during December 2009. In furtherance of the
anticipated regulation, on July 12, 2010, the Defendant had a work session specifically dedicated
to how it wanted to regulate and license these businesses.
AUGUST 26, 2010 BOCC MEETING: RESOLUTIONS 10-356, 10-357 AND 10-358
32.
Prior to the August 26, 2010 BOCC meeting, El Paso County Land Development
Services and/or the El Paso County Planning Commission was holding hearings on variances for
medical marijuana businesses in zone districts other than the four zone districts contained in the
Resolution 10-230, in furtherance of regulation.
33.
On August 26, 2010 the Defendant adopted Resolution No. 10-356, putting the
issue of whether to ban medical marijuana operations in unincorporated El Paso County up for a
vote. A copy of Resolution No. 10-356 is attached hereto as Exhibit E.
34.
The Ballot Question set forth in Resolution 10-356 provides, inter alia, that if
passed, medical marijuana businesses would be banned, any existing businesses would have to
close by August 31, 2011 and that the protections under Article XVIII, Section 14 of the
Colorado Constitution, (“Amendment 20”) “would remain intact.” Under the Ballot Question,
current legally existing businesses would not be grandfathered and would be forced to shut
down.
35.
In the clarifying paragraph underneath the Ballot Question, in relevant part,
Resolution 10-356 states that “1) Resolution 10-230 shall be repealed through operation of law
on November 19, 2010; 2) temporary use approvals issued pursuant to Resolutions 09-469 and
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10-230 shall be valid until August 31, 2011, to the extent permitted by state law; and 3) pending
temporary use applications not approved by November 19, 2010 shall be deemed denied…”
36.
At the same August 26, 2010 meeting, the Defendant passed two additional
Resolutions, Resolution 10-357 and Resolution 10-358, attached hereto as Exhibits F and G
respectively.
37.
Resolution No. 10-357 eliminated any temporary regulations that existed and
made “Medical Marijuana Land Use” an “Allowed Use” in the CS, C1, C2 and M Districts,
which were the same designations used in the temporary regulations, effective August 26, 2010.
See Exhibit F, Page 3.
38.
El Paso County’s LDC defines “Allowed Use” as any use permissible in a zoning
district provided all provisions and standards of this Code have been satisfied, which was
previously a Temporary use, defined as a seasonal, short-term or transient land use allowed on a
property on a temporary basis.
39.
A “Medical Marijuana Land Use shall mean and include only the following land
uses which are defined in and subject to licensing pursuant to CRS 12-43.3-101 et seq. Medical
Marijuana Center, Medical Marijuana Infused Products Manufacturer, Optional Premises
Cultivation Operation.” Id.
40.
Therefore, as of the date of filing this Verified Complaint, a Medical Marijuana
Land Use is an Allowed Use in the CS, C1, C2 and M Districts under the El Paso County Land
Development Code, and not subject to the ballot question in 10-356.
41.
Resolution No. 10-358 adopted the El Paso County Medical Marijuana Policy, in
furtherance of their actions dating back to December 17, 2009 (Resolution 09-469) and C.R.S. §
12-43.3-103(2)(a), of the Colorado Medical Marijuana Code. Further, Defendant determined
that it was in the “best interest of the public health, safety and welfare to adopt a fair and
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effective procedural and regulatory framework for the licensing of medical marijuana centers,
medical marijuana-infused products manufacturers and optional premises cultivation operations
in unincorporated El Paso County.”
42.
It is with this referred Ballot Question, coupled with prior regulation of medical
marijuana as well as the adoption of Resolutions 10-357 and 10-358 that the Plaintiffs take
exception.
43.
The Ballot Question is substantively flawed in that is asks the voters to allow El
Paso County to take actions that it is not legally able to take at this juncture.
44.
The County cannot ban medical marijuana businesses under the State
Constitution, applicable relevant state laws, county resolutions or the El Paso County Land
Development Code.
45.
The County cannot close legally existing businesses.
46.
The County cannot restore Amendment 20 protections and rights that have been
significantly altered by the Colorado Medical Marijuana Code.
47.
The Plaintiffs challenge the legality of the Defendant’s actions and the legality of
the ballot question itself and request that it be stricken from the November 2, 2010 election,
because the Ballot Question, as passed cannot stand under the laws of this state.
48.
To simplify the explanation of why this ballot question, as authored and approved,
cannot be upheld under the local laws, state laws or Constitution of this state, Plaintiffs break
down the Ballot Question into its three (3) substantive parts, which are as follows:
a.
Shall medical marijuana centers, medical marijuana-infused products
manufacturers and optional premises cultivation operations, as defined in
C.R.S. 12-43.3-104, be prohibited in unincorporated El Paso County; and,
b.
Shall medical marijuana land uses legally existing under the El Paso
County Land Development Code be required to cease operation on or
before august 31, 2011;
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c.
Which will leave intact the constitutional protection for medical marijuana
patients and primary caregivers provided by Article XVIII, Section 14 of
the Colorado Constitution?
SUBSTANTIVE CHALLENGES TO BAN ISSUE ON BALLOT
FIRST CAUSE OF ACTION
(Declaratory Relief - The Ballot Question Violates the Express Provisions of the
Colorado Medical Marijuana Code, C.R.S. §12-43.3-101, et seq.)
49.
The Plaintiffs incorporate the Case Summary and all previous paragraphs above
as if fully set forth herein.
50.
On August 26, 2010 Defendants’ passed Resolution 10-356, which places on the
November ballot the following question, which states in relevant part:
Shall medical marijuana centers, medical marijuana-infused products
manufacturers and optional premises cultivation operations, as defined in
C.R.S. 12-43.3-104, be prohibited in unincorporated El Paso County.
51.
C.R.S. § 12-43.3-103(2)(a) and 106 respectively deal with the local jurisdiction’s
authority to “regulate, license or prohibit” the sale and cultivation of medical marijuana, and the
ability of the local jurisdiction to “opt out” of the Code, in furtherance of a ban either by the local
governmental authority, or by resolution to put the question of a ban to a vote of the people of
the local jurisdiction.
52.
On December 17, 2009, Defendant determined that a moratorium was not in the
best interest of the unincorporated portions of the County prior to the Code’s passage.
53.
On December 17, 2009, Defendant adopted Resolution 09-469.
54.
On June 10, 2010, Defendant again determined that a ban was not in the best
interest of the unincorporated portions of El Paso County.
55.
On June 10, 2010 the Defendant passed Resolution 10-230 which continued
regulation of medical marijuana businesses, in anticipation of a local licensing scheme.
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56.
On August 26, 2010 the Defendant passed Resolutions 10-357 and 10-358, in
furtherance of continued regulation and licensing of medical marijuana facilities.
57.
Since December 17, 2009, Defendant has regulated the sale and cultivation of
medical marijuana in anticipation of the state’s regulatory scheme language.
58.
Since the passage of the Code, Defendant has adopted Resolutions in furtherance
of all of the choices listed in C.R.S. § 12-43.3-103(2)(a), which are “license, regulate or
prohibit.”
59.
On August 26, 2010, after regulating for over eight (8) months in unincorporated
El Paso County, Defendant declined to prohibit as a governing body, and passed Resolution 10356, which submits, in part, the question of a ban, pursuant to the local opt out provision
described above, to the registered electors of El Paso County.
60.
Defendant does not have the authority to act in furtherance of all three (3) actions,
as a plain reading requires that a choice be made – regulate, license or prohibit, not regulate,
license and prohibit.
61.
Pursuant to the express provisions of the Code, the Defendant cannot, after
adopting the regulatory scheme that it has followed, now ban medical marijuana land uses, either
through action of the BOCC or by referring the question to the County voters.
62.
In doing so, Defendants unlawfully submitted the question of a “ban” to the
registered electors of El Paso County.
63.
As passed, the ballot issue cannot stand under the Code and the BOCC’s
Resolution 10-230.
64.
Pursuant to C.R.C.P 57, the Plaintiffs request that this court declare that any
attempt to ban medical marijuana businesses would be in violation of state law and therefore
cannot be the subject matter of a vote.
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SECOND CAUSE OF ACTION
(Declaratory Relief - Defendant Cannot Ban an Allowed Use and The
Ballot Question Violates the Express Provisions of the Colorado
Medical Marijuana Code, C.R.S. §12-43.3-101, et seq )
65.
The Plaintiffs incorporate the Case Summary and all previous paragraphs above
as if fully set forth herein.
66.
On August 26, 2010 Defendants’ passed Resolution 10-356, which places on the
November ballot the following question, which states in relevant part:
Shall medical marijuana centers, medical marijuana-infused products
manufacturers and optional premises cultivation operations, as defined in
C.R.S. 12-43.3-104, be prohibited in unincorporated El Paso County.
67.
In addition to Resolution 10-356, Defendant enacted Resolutions 10-357 and 10-
358 on August 26, 2010.
68.
Resolution 10-357’s stated purpose is found in its title which states:
REVISE THE EL PASO COUNTY LAND DEVELOPMENT CODE
THROUGH THE REPEAL OF THE TEMPORARY REGULATIONS
REGARDING MEDICAL MARIJUANA LAND USES WITH
UNINCORPORATED EL PASO COUNTY AND THE CREATION
AND DEFINITION OF A NEW ALLOWED USE IN CERTAIN
ZONING DISTRICTS (LDC-10-002)
69.
Resolution 10-357 goes on to state “Add to LDC Use Table 5-1 Medical
Marijuana Land Use as an Allowed Use in the CS, C1, C2 and M Districts.”
70.
Resolution 10-357 further states “AND BE IT FURTHER RESOLVED that in the
case of inconsistency with these amendments and any previous Zoning Regulations, these
revisions shall prevail, . . .”
71.
In repealing the temporary regulations, Resolution 10-357 makes Medical
Marijuana Land Uses “Allowed Uses” under the El Paso County Land Development Code.
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72.
Because Resolution 10-357 repeals the temporary regulations and makes such
uses Allowed Uses, a ballot measure that repeals that which has already been repealed is a legal
nullity.
73.
Defendant enacted this Resolution effective August 26, 2010, which makes
Resolution 10-356 moot, and not a decision upon which an election can have any impact.
74.
By converting the temporary regulations and uses to permanent Allowed Uses, the
County has continued its regulatory scheme that is inconsistent with any attempt to ban such
uses.
75.
On August 26, 2010 the Defendants also passed Resolution No. 10-358.
76.
Resolution 10-358 adopts the El Paso County Medical Marijuana Policy, which
includes a licensing structure, effective November 19, 2010.
77.
This Resolution discusses the history of El Paso County’s regulation and zoning
of medical marijuana through Resolutions 09-469 and 10-230 in the temporary zoning
regulations, and fails to take into consideration Resolution 10-356.
78.
This Resolution states that it derives its authority from C.R.S. 12-43.3-103(2)(a),
which allows a county to adopt a resolution for the licensing, regulating or prohibiting the
cultivation and sale of medical marijuana.
79.
This Resolution fails to recognize Resolution 10-356, which derived its authority
under the local opt out provision of the Code, C.R.S. 12-43.3-106.
80.
This Resolution also fails to recognize Resolution 10-357, which derives its
authority from the entire Code, C.R.S. § 12-43.3-101 et seq.
81.
Resolution 10-358 contains the El Paso County Medical Marijuana Policy, which
constitutes “regulation,” in furtherance of C.R.S. §12-43.3-103(2)(a).
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82.
This Resolution was passed on the same day as putting the question to prohibit
out to a vote and fails to recognize Resolution 10-356, which derived its authority under the local
opt out provision of the Colorado Medical Marijuana Code, C.R.S. 12-43.3-106.
83.
Citing two (2) different provisions of C.R.S. § 12-43.3-101 et. seq. on the same
day to effectuate exact opposite results is not an expression of the plain meaning of the Colorado
Medical Marijuana Code.
84.
If passed, the ballot question cannot stand under the BOCC’s Resolutions 10-356,
which puts the question of prohibition on the ballot pursuant to C.R. S. §12-43.3-106, and 10357 and 10-358, which zone, regulate, and define a licensing structure pursuant to C.R.S. § 1243.3-103(2)(a) as it frustrates the plain meaning of the statute.
85.
Passage of Resolutions 10-357 and 10-358 is inconsistent with a ban and
constitutes regulation under C.R.S. §12-43.3-103(2)(a), which action precludes a ban under
Colorado law.
86.
Thus, Plaintiffs seek declaratory relief pursuant to C.R.C.P. 57 that the proposed
ban would be a legal nullity and would violate C.R.S. §12-43.3-103(2)(a) and as such, is not a
measure that can be properly put before a vote of the people.
SUBSTANTIVE CHALLENGES TO TERMINATING EXISTING BUSINESSES
(GRANDFATHERING)
THIRD CAUSE OF ACTION
(Declaratory Relief - Defendant Cannot Terminate Legally Existing Businesses)
87.
The Plaintiffs incorporate the Case Summary and all previous paragraphs above
as if fully set forth herein
88.
On August 26, 2010 Defendants passed Resolution 10-356, which places on the
November ballot the following question, which states in relevant part:
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and shall medical marijuana land uses legally existing under the El Paso
County Land Development Code be required to cease operation on or
before August 31, 2011,
89.
From and after the passage of Resolutions 09-469 and 10-230 and in conformance
with the regulatory scheme established by the Defendant, the Plaintiffs have invested hundreds
of thousands of dollars in their respective business locations, have applied for and received local
approval for such medical marijuana business locations, have received building permits and
development plan approvals, have applied for and received State Sales Tax Licenses, have paid
State and County sales and use taxes, have applied to El Paso County under its land use
regulations and to the State for licenses and paid fees in order to meet the July 1 and August 1,
2010 deadlines imposed by El Paso County and the Code.
90.
At the time these businesses were opened and/or at the time these businesses
applied for and received approval to be constructed, they were lawful under the applicable El
Paso County Land Development Code, and under Colorado Law.
91.
In doing so, the Plaintiffs relied on repeated and unmistakable representations
from the Defendant that their businesses were properly operating in the subject zone districts,
and that regulations would be forthcoming to permanently regulate and license such businesses.
92.
Those permanent regulations were adopted by the passage of Resolution 10-357,
which converted the temporary uses to “Allowed Uses,” and Resolution 10-358, which created
Defendant’s policy and licensing structure for medical marijuana.
93.
The subject facilities are located in the M, C1, C2 or CS Zone Districts which are
the Zone Districts allowed for Medical Marijuana Land Uses under the El Paso County Land
Development Code, (the “LDC”).
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94.
Both the currently existing medical marijuana businesses and those businesses
that have applied for and received approval to be constructed are legal Allowed Uses under the
LDC.
95.
In the alternative, if the uses are not deemed to be legal uses, they are legal
nonconforming uses under the LDC and under Colorado law.
96.
As such, these businesses may not be terminated under the LDC or under
Colorado law.
97.
The portion of the Ballot Question that purports to put these currently existing
businesses and those that have applied for and received approval to be constructed out of
business is not authorized by statute or Colorado law.
98.
Because the Defendant cannot legally terminate these businesses, the Defendant
cannot authorize the voters to authorize it either.
99.
Pursuant to C.R.C.P. 57, Plaintiffs seek declaratory relief from the Court stating
that because the substance of this portion of the Ballot Questions is both illegal and
unenforceable, that putting it on the November Ballot would be a legal nullity.
FOURTH CAUSE OF ACTION
(Declaratory Relief - El Paso County Resolutions 10-356 and 10-357
Cannot Be Legally Reconciled)
100.
The Plaintiffs incorporate the Case Summary and all previous paragraphs above
as if fully set forth herein.
101.
On August 26, 2010 Defendants passed Resolution 10-356, which places on the
November ballot the following question, which states in relevant part:
and shall medical marijuana land uses legally existing under the El Paso
County Land Development Code be required to cease operation on or
before August 31, 2011,
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102.
In the clarifying paragraph underneath the Ballot Question, in relevant part
Resolution 10-356 states that “1) Resolution 10-230 shall be repealed through operation of law
on November 19, 2010; 2) temporary use approvals issued pursuant to Resolutions 09-469 and
10-230 shall be valid until August 31, 2011, to the extent permitted by state law; and 3) pending
temporary use applications not approved by November 19, 2010 shall be deemed denied…”
103.
In light of Resolution 10-357, which eliminates any temporary regulations that
existed, and made “Medical Marijuana Land Use” an “Allowed Use” in the CS, C1, C2 and M
Districts, Plaintiffs are necessarily excepted from this ballot question in total.
104.
Resolution 10-357 eliminates the very “temporary uses” that Resolution 10-356
addresses.
105.
If the only uses that this portion of the Ballot Question addresses have been
repealed, a ballot issue that seeks to repeal that which has already been repealed creates an
irreconcilable and unenforceable legal result that cannot be the subject of a valid ballot measure.
106.
Pursuant to C.R.C.P. 57, Plaintiffs request a declaratory judgment that the ballot
question, as posed, cannot stand under Colorado law. As the Plaintiffs are the only businesses
that have been granted temporary use approvals pursuant to 09-469 and 10-230, and that
temporary regulations were eliminated as of August 26, 2010, Plaintiffs assert that the Ballot
question cannot stand.
FIFTH CAUSE OF ACTION
(Declaratory Relief - Resolution 10-357 Supersedes Resolution 10-356)
107.
The Plaintiffs incorporate the Case Summary and all previous paragraphs above
as if fully set forth herein.
108.
On August 26, 2010 Defendants passed Resolution 10-356, which places on the
November ballot the following question, which states in relevant part:
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and shall medical marijuana land uses legally existing under the El Paso
County Land Development Code be required to cease operation on or
before August 31, 2011,
109.
Resolution 10-357, states in relevant part that “in the case of any inconsistency
with these amendments and any previous Zoning Regulations, these revisions shall prevail,”
110.
Resolution 10-357 as adopted, repeals Resolutions 09-469 and 10-230, and
prevails over any inconsistency in their language effective August 26, 2010.
111.
Resolution 10-357 as adopted and effective August 26, 2010, prevails over any
attempt to “prohibit” Plaintiffs, which negates Resolution 10-356, the Ballot Question, in its
entirety.
112.
Defendant is barred from submitting the Ballot Question containing these zoning
regulations to the electorate, because the Ballot Question is negated by the subsequent passage of
Resolution 10-357 which preempts any ban or restriction on Medical Marijuana Land Use in
unincorporated El Paso County.
113.
This Ballot Question, as presented, is negated by operation of Resolution 10-357
and cannot stand under Colorado law.
114.
The Plaintiffs request declaratory judgment pursuant to C.R.C.P. 57 and pursuant
to C.R.C.P 106(a)(4) on this issue and a finding by this court that the submission of such the
Ballot Question as passed exceeds the Defendant’s authority or constitutes an abuse of discretion
by the Defendant.
SIXTH CAUSE OF ACTION
(Declaratory Relief - The Ballot Question Violates the Express Provisions of the
Colorado Medical Marijuana Code, C.R.S. §12-43.3-101, et seq.)
115.
The Plaintiffs incorporate the Case Summary and all previous paragraphs above
as if fully set forth herein.
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116.
On August 26, 2010 Defendants passed Resolution 10-356, which places on the
November ballot the following question, which states in relevant part:
and shall medical marijuana land uses legally existing under the El Paso
County Land Development Code be required to cease operation on or
before August 31, 2011,
117.
C.R.S. §12-43.3-103(2)(a) and 106 respectively deal with the local jurisdiction’s
authority to regulate, license or prohibit the sale and cultivation of medical marijuana, and the
ability of the local jurisdiction to “opt out” of the Code, in furtherance of a ban either by the local
governmental authority, or by resolution to put the question of a ban to a vote of the people of
the local jurisdiction.
118.
On December 17, 2009, Defendant determined that a ban was not a prudent
approach to medical marijuana businesses prior to the Code’s passage.
119.
On December 17, 2009, Defendant adopted Resolution 09-469, which regulates
medical marijuana businesses in unincorporated El Paso County.
120.
Since December 17, 2009, Defendant has regulated the sale and cultivation of
medical marijuana in anticipation of the state’s regulatory scheme and direction.
121.
On June 10, 2010, Defendant again determined that a ban was not in the best
interest of the unincorporated portions of El Paso County, pursuant to the Code’s “opt out”
provision.
122.
On June 10, 2010 the Defendant passed Resolution 10-230 in furtherance of
continued regulation of medical marijuana facilities, as C.R.S. 12-433-101 et. seq., mandates that
a separate license ultimately be issued for “each specific business or business entity and each
geographical location.”
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123.
Defendant knew at the time of passage of this Resolution that as of July 1, 2010
that licenses could only be issued to business premises, not business entities, thus transferring
locations, or from one local jurisdiction to another, over a course of this year an impossibility.
124.
Since the passage of the Code, Defendant has adopted Resolutions in furtherance
of all of the choices listed in C.R.S. §12-43.3-103(2)(a), which are regulate, license or prohibit.
125.
On August 26, 2010 the Defendant passed Resolutions 10-357 and 10-358, in
furtherance of continued regulation of Plaintiffs’ medical marijuana facilities in unincorporated
El Paso County.
126.
On August 26, 2010, after regulating for over eight (8) months in unincorporated
El Paso County, Defendant as a governing body, declined to “prohibit,” for the third time.
Rather, Defendant passed Resolution 10-356, which submits to the registered electors of El Paso
County the Ballot Question, which, in part contains the question of whether or not to allow
existing businesses to continue to operate, pursuant to the local opt out provision described
above.
127.
Once a regulatory and licensing path was taken, and Defendant affirmatively
chose not to prohibit pursuant to the Code’s “local opt out provision. This provision does not
permit Defendant one more “bite at the apple” to see if the voters will do what Defendant knows
it cannot itself legally do, i.e., to ban and close down legally existing businesses.
128.
Defendant does not have the authority to act in furtherance of all three (3) actions,
as a plain reading requires that a choice be made – regulate, license or prohibit – not regulate and
license and prohibit.
129.
Pursuant to the express provisions of the Code, the Defendant cannot, after having
adopted the regulatory scheme that it has followed, after having adopted medical marijuana as an
“allowed use” and having adopted the El Paso County Medical Marijuana Policy, which includes
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a licensing structure, now allow voters to prohibit Plaintiffs medical marijuana facilities, either
through action of the BOCC or by referring the question to the County voters.
130.
In the alternative, pursuant to the opt out provision, Defendant is able to choose to
either vote for the ban, or refer the vote to ban to the voters. Defendant does not get to choose
both provisions, which it did.
131.
In doing so, Defendants unlawfully submitted the question of a “ban” to the
registered electors of El Paso County.
132.
As passed, the Ballot Question cannot stand under the Code and Defendant’s
Resolution 10-230.
133.
The Plaintiffs request declaratory judgment pursuant to C.R.C.P. 57 and pursuant
to C.R.C.P 106(a)(4) on this issue and a finding by this court that the submission of such the
Ballot Question as passed exceeds the Defendant’s authority or constitutes an abuse of discretion
by the Defendant.
SEVENTH CAUSE OF ACTION
(Declaratory Relief - The Defendant Cannot Use Retrospective Regulation
to Terminate Legally Existing Businesses)
134.
The Plaintiffs incorporate the Case Summary and all previous paragraphs above
as if fully set forth herein.
135.
By adopting the regulatory scheme that it did, the Defendant created a vested
property right in the Plaintiffs
136.
Resolution 10-356 contains no grandfathering provision and in fact requires the
currently existing legally operating businesses to close.
137.
The effect of no grandfathering provision is that Resolution 10-356 takes away or
impairs vested rights acquired under existing laws.
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138.
This Resolution as it pertains to terminating existing legal businesses violates the
Colorado Constitution ban on retrospective laws. Colorado Const. Art. 2, § 11.
139.
As Resolution 10- 356 is written, there is no set of circumstances that would
allow the currently legally existing business to remain in business.
140.
This portion of the Ballot Question violates the Colorado Constitution and cannot
be the proper subject matter of a question posed to the voters.
141.
The Plaintiffs request declaratory relief and relief under C.R.C.P. 106(a)(4)
stating that the Ballot Question violates the Colorado Constitution and cannot be the proper
subject matter of a question posed to the voters and that the Defendant exceeded its jurisdiction
and/or abused its discretion.
EIGHTH CAUSE OF ACTION
(Declaratory Relief - The Defendant Cannot Refer
a Quasi-Judicial Decision to the Voters)
142.
The Plaintiffs incorporate the Case Summary and all previous paragraphs above
as if fully set forth herein.
143.
The portion of the Ballot Question regarding termination of businesses applies
only to those businesses “. . . legally existing under the El Paso County Land Development Code
. . .”
144.
This portion of the Ballot Question pertains only to a finite and readily
identifiable group of businesses, consisting of those who applied on or before July 1, 2010,
existing in defined zone districts, and existing at a particular point in time.
145.
All of the Plaintiffs have met the statutorily imposed deadlines under the Code.
146.
The Ballot Question will adversely affect the protected interests of specific
individuals and businesses.
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147.
The decision to terminate existing businesses was reached through the application
of the preexisting legal standards or policy considerations to present or past facts presented to the
Defendant.
148.
As such, the Defendant’s action in referring this portion of the Ballot Question to
a vote is quasi-judicial in nature.
149.
Under Colorado Constitution, Article V, Section 1, the powers of referendum are
reserved only to those acts that are legislative in nature
150.
Actions that are quasi-judicial in nature cannot be referred to a vote.
151.
The Defendant’s actions in referring the issue of terminating existing businesses
can be reviewed by the court under C.R.C.P. 106(a)(4).
152.
The Defendant in exercising this quasi-judicial function has exceeded its
jurisdiction or abused its discretion.
153.
There is no plain, speedy and adequate remedy otherwise provided by law.
154.
By referring this matter to the voters, the Defendant has acted in a manner that is
not authorized by applicable statutory and case law authority.
155.
The Plaintiffs request that this court review the Defendant’s actions under
C.R.C.P. 106(a)(4) and determine that the Defendant exceeded its jurisdiction or abused its
discretion in referring the Ballot Question to the voters and that the Plaintiffs have no plain,
speedy or adequate remedy otherwise provided by law.
SUBSTANTIVE CHALLENGES TO THE CAREGIVER QUESTION
NINTH CAUSE OF ACTION
(Declaratory Relief – Violation of El Paso County
Board of County Commissioner’s Resolution No. 10-356)
156.
The Plaintiffs incorporate the Case Summary and all previous paragraphs above
as if fully set forth herein.
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157.
The final section of the ballot question that deals with the caregiver / patient
model states as follows:
leaving intact the constitutional protection for medical marijuana patients
and primary caregivers provided by Article XVIII, Section 14 of the
Colorado Constitution
158.
Defendants question, posed to the registered voters of El Paso County, is an
inaccurate depiction of law and fact in unincorporated El Paso County as of the time of its
passage.
159.
Both Resolutions 09-469 and 10-230 update the El Paso County Development
Code (LDC) Definitions and Uses, including:
a. Zone Districts are limited to CS, C1, C2 and M.
b. LDC Chapter 1 Definitions were updated as a result of these Resolutions to include the
following definitions and regulations:
i) The LDC states that “Medical Marijuana Land Use” shall mean and include the use of
any property or structure to distribute, transmit, give, dispense, or otherwise provide
marijuana in any manner, in accordance with Section 14, of Article XVIII of the
Colorado Constitution. This includes any growing for other than the personal use of
the occupant, or restaurant use.”
ii) LDC §5.2.30 Home Occupations was updated and now states in part: …”however, in
no instance may a medical marijuana land use qualify as a home occupation.”
160.
Prior to Defendant regulating medical marijuana in unincorporated El Paso
County starting in December 2009 into four (4) zone districts, and restricting the home
occupations other than for personal use, primary caregivers under the Constitution had not been
zoned into zone districts, or out of home occupations.
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161.
Part 10 of the Colorado Medical Marijuana Code, specifically § 25-1.5-106
mandates that the Colorado Department of Public Health and Environment, (“CDPHE”) regulate
primary caregivers and patients in a way that is more restrictive than the constitutional protection
for medical marijuana patients and primary caregivers provided by Article XVIII, Section 14 of
the Colorado Constitution.
162.
C.R.S. §25-1.5-106-(2)(d) states the following “Medical Marijuana Program
means the program established by section 14 of article XVIII of the state constitution and this
section.”
163.
Some of the new restrictions that apply to primary caregivers included in “this
section,” C.R.S. §25-1.5-106, are as follows:
(9)(a) A primary caregiver may not delegate to any other person his or her
authority to provide medical marijuana to a patient nor may a primary
caregiver engage others to assist in providing medical marijuana to a patient.
(9)(b) Two or more primary caregivers shall not join together for the purpose
of cultivating medical marijuana.
(9)(c) Only a medical marijuana center with an optional premises cultivation
license, a medical marijuana-infused products manufacturing operation with an
optional premises cultivation license, or a primary caregiver for his or her
patients or a patient for himself or herself may cultivate or provide marijuana
and only for medical use.
(10)(a) Patient--primary caregiver relationship. A person shall be listed as a
primary caregiver for no more than five patients on the medical marijuana
program registry at any given time…
(10)(c) A patient who has designated a primary caregiver for himself or herself
may not be designated as a primary caregiver for another patient.
(10)(d) A primary caregiver may not charge a patient more than the cost of
cultivating or purchasing the medical marijuana, but may charge for caregiver
services.
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164.
The portion of the Ballot Question cited in this section does not address any of
these statutory requirements, prohibitions or regulations on primary caregivers, and gives an
inaccurate statement of law and fact to the electorate.
165.
The Ballot Question does not take into consider the legislative enactment of CRS
12-43.3-101, et seq.
166.
Defendant’s statement of the constitutional protections afforded primary
caregivers, as presented, and if passed, cannot stand under the laws of this state.
167.
The Plaintiffs request declaratory relief and relief under C.R.C.P. 106(a)(4)
stating that the Ballot Question violates the Colorado Constitution and cannot be the proper
subject matter of a question posed to the voters and that the Defendant exceeded its jurisdiction
and/or abused its discretion.
TENTH CAUSE OF ACTION
(Injunctive Relief Pursuant to C.R.C.P 65)
168.
The Plaintiffs incorporate the Case Summary and all previous paragraphs above
as if fully set forth herein.
169.
Plaintiffs claim that the ballot question is not legal; therefore not a question that
the registered voters of El Paso County can assent or dissent to legally.
170.
Requiring the registered voters to exercise their right to vote in furtherance of
unlawful action abuses the election process and the fundamental right to vote under the Colorado
Constitution for legal actions.
171.
This causes an immediate and irreparable injury that can only be prevented by
injunctive relief stopping the enforcement of the County’s Resolution that unlawfully poses the
Ballot Question that 1) bans medical marijuana centers, infused product manufacturers and
optional premise operations, 2) shuts down legally operating businesses that this Ballot Question
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does not appear to apply to, and if it does, it is unlawful, and 3) restores the Constitutional
protections for a caregiver model that no longer exists under Colorado law.
172.
Plaintiffs are protected by the Colorado Constitution and the laws of this state,
and are afforded specific rights thereunder. These rights are being abridged.
173.
If not enjoined by the Court, Defendant will continue to implement the County’s
policies and formal positions, by way of the registered voters, in derogation of Plaintiffs’ and
their patients’ respective rights, the registered voters of El Paso County and others similarly
situated. Such will impose irreparable injury on the Plaintiffs and these other persons.
174.
Plaintiffs, all registers voters, primary caregivers and patients have no other plain,
speedy, or adequate remedy at law.
175.
The attached Exhibits and this Verified Complaint, incorporated herein, affirm the
unlawfulness, confusion, inconsistencies, and immediate and irreparable harm the Ballot
Question and the County’s formal policies, positions and Resolutions pose to these Plaintiffs,
their patients and these other persons.
176.
Plaintiffs ask that the Court enter immediate injunctive relief pursuant to C.R.C.P
65.
PRAYER FOR RELIEF
WHEREFORE, the Plaintiffs pray for the following relief:
A.
Pursuant to C.R.C.P. 57 and 65 the Plaintiffs request this Court: i) declare that the
Ballot Question, as presented, cannot stand under the laws of this state; ii) pursuant to C.R.C.P
106(a)(2) request that this court order that the Ballot Question be taken off of the El Paso County
November 2010 ballot; and iii) request that this court determine that pursuant to C.R.C.P.
106(a)(4) that the Defendant exceeded its authority by attempting to have the voters decide the
question of a ban that is impermissible under state law.
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B.
Pursuant to C.R.C.P 57 and 65, the Plaintiffs request that this court declare that
any attempt to ban medical marijuana businesses would be in violation of state law and therefore
cannot be the subject matter of a vote.
C.
For declaratory relief pursuant to C.R.C.P. 57 and 65 that the proposed ban would
be a legal nullity and would violate C.R.S. §12-43.3-103(2)(a) and as such, is not a measure that
can be properly put before a vote of the people.
D.
Pursuant to C.R.C.P. 57 and 65, Plaintiffs seek declaratory relief from the Court
stating that because the substance of ban and the termination of existing businesses portion of the
Ballot Question are both illegal and unenforceable, that putting it on the November Ballot would
be a legal nullity.
E.
Pursuant to C.R.C.P. 57 and 65, Plaintiffs request a declaratory judgment that the
ballot question, as posed, cannot stand under Colorado law. As the Plaintiffs are the only
businesses that have been granted temporary use approvals pursuant to 09-469 and 10-230, and
that temporary regulations were eliminated as of August 26, 2010, Plaintiffs assert that the Ballot
question cannot stand.
F.
The Plaintiffs request declaratory judgment pursuant to C.R.C.P. 57, 65, and
pursuant to C.R.C.P 106(a)(4) on this issue and a finding by this court that the submission of
such the Ballot Question as passed exceeds the Defendant’s authority or constitutes an abuse of
discretion by the Defendant.
G.
The Plaintiffs request declaratory and injunctive relief and relief under C.R.C.P.
106(a)(4) stating that the Ballot Question violates the Colorado Constitution and cannot be the
proper subject matter of a question posed to the voters and that the Defendant exceeded its
jurisdiction and/or abused its discretion.
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H.
The Plaintiffs request that this court review the Defendant’s actions under
C.R.C.P. 106(a)(4) and determine that the Defendant exceeded its jurisdiction or abused its
discretion in referring the Ballot Question to the voters and that the Plaintiffs have no plain,
speedy or adequate remedy otherwise provided by law.
I.
Enter injunctive relief ordering that the Defendant, and all those acting in concert
with them, to remove the Ballot Question from the November Ballot and to enforce the C.R.S
§12-43.3-101 et seq., County’s current zoning policy, pursuant to Resolution 10-357 and 10-358.
J.
Award the Plaintiffs their attorney fees and cost.
K.
Order such other and further relief as to the court may seem just and proper.
RESERVATION OF RIGHT
Plaintiffs expressly reserve and preserve their ability to amend this Complaint when its
counsel has had an opportunity to review the certified record in this matter.
Respectfully submitted this 3rd day of October 2010.
By:/s/ Robert T. Hoban
Robert T. Hoban
By: /s/ Charles T. Houghton
Charles T. Houghton
By: /s/Laura Haynes
Laura Haynes
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In accordance with C.R.C.P. 121 § 1-26(9), a printed copy of this document with original
signatures is being maintained by the filing party and will be made available for inspection by
other parties or the Court upon request.
Plaintiffs’ Addresses:
Hammers Construction, Inc.
1411 Woolsey Heights
Colorado Springs, CO 80915
Humboldt Care & Wellness Center, LLC
1453 Woolsey Heights
Colorado Springs CO 80915
CNH, LLC
1411 Woolsey Heights
Colorado Springs, CO 80915
Claremont Development, LLC
1411 Woolsey Heights
Colorado Springs, CO 80915
Cannabicare, Inc.
1466 Woolsey Heights
Colorado Springs, CO 80915
Rocky Mountain Way Wellness
1435 Selix Grove, Ste.100
Colorado Springs, CO 80915
Colorado Tree Farmers, Inc.
7204 Cole View, Suite 130
Colorado Springs, CO 80915
Hatch Wellness Center, LLC
1478 Woolsey Heights
Colorado Springs, CO 80915
Steve Hammers
1453 Woolsey Heights
Colorado Springs CO 80915
Clifford Stahl
7204 Cole View, Suite 130
Colorado Springs, CO 80915
Dave Hammers
1453 Woolsey Heights
Colorado Springs CO 80915
Eric Hatch
1478 Woolsey Heights
Colorado Springs CO 80915
Jeffrey Sveinsson
1466 Woolsey Heights
Colorado Springs CO 80915
Titan Investments, LLC
15860 W. 5th Avenue
Golden, CO 80401
Gary Woodruff
1435 Selix Grove, Ste.100
Colorado Springs CO 80915
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VERIFICATION/AFFIDAVIT
I, Steven R. Hammers, have personal knowledge of the foregoing and attest to its contents,
factual assertions, and validity.
/s/Steven R. Hammers_______________ (signature on file)
Steven R. Hammers
Sworn to and Subscribed before me this 4th day of October 2010 by Steven R. Hammers.
Witness my official hand and seal.
My commission expires on September 28, 2014.
/s/ Lindsay H. Markham(signature on file)
___________________________________
Notary Public
(Seal)
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