Judge nixes request to halt ban

GREELEY — The year-end deadline for Dacono’s ban on medical marijuana withstood the judicial scrutiny of Weld County Court Dec. 27.
    The three Dacono dispensaries — Mary Janes Medicinal, Dacono Meds and the Green Door — filed a request Dec. 14 for a preliminary injunction against Dacono Ordinance 765, which bans all commercial medical marijuana operations effective Jan. 1.
    The dispensaries sought the injunction to allow time for the businesses to stay open until city voters can weigh in on the ban during a special municipal election this spring.

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Dacono Meds is one of the medical marijuana firms that could see serious impacts if a ban on medical marijuana remains in place.

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    Owners and managers of the three dispensaries testified Thursday about the effects of the ban.
    Lazlo Bagi, owner of the Green Door, testified that at 12:01 A.M., Jan. 1, all of his marijuana crop would be illegal and he could be arrested.
    Karen Nab, office manager of Dacono Meds, and Julia Mauer, sales manager for Mary Janes Medicinal, agreed that all product, including proprietary strains, would have to be destroyed before the ban went into effect.
    “It took an enormous amount of money to get where we’re at today,” Nab testified. Dacono Meds entered into a five-year lease for its location at the beginning of the year — just after, Nab said, a meeting with the city left the impression that a ban wasn’t in the works.
    Judge Dinsmore Tuttle agreed that there was a strong indication that the property rights of the dispensaries were being violated by the city’s ban.
    “Plants need light every day,” Tuttle said, acknowledging that the business faced “the danger of real, immediate and irreparable loss.”
    In addition to the loss of medical marijuana product, Tuttle said the employees would lose livelihood and the owners would lose years of financial investment.
    “And there would be the loss of the patient base, because it would be unreasonable to expect the patients would relocate with the dispensary,” Tuttle said.
    But this potential violation of property rights would only satisfy part of the legal threshold for issuing a preliminary injunction.
    Tuttle, citing Colorado Supreme Court precedent, said a preliminary injunction was an extreme measure meant to be used sparingly. And heightened discretion was required, she said, in cases where judicial action would affect the actions of executive or legislative bodies.
    The criteria for the injunction included decisions by Tuttle on whether the ban disrupted the status quo, threatened more harm to the dispensaries than the city, and whether the legislative actions by the dispensaries was likely to succeed.
    Tuttle said she would have to find all of the criteria satisfied in order to issue the injunction, but she couldn’t determine whether the legal action had a high chance for success.
    Attorney Judd Golden, representing the dispensaries, argued that the city’s ordinance, passed June 11 by the Dacono city council, missed a key deadline in state statutes.
    Golden cited the Colorado law from 2010 that sought to regulate the burgeoning medical marijuana industry.
    In the statute, counties and municipalities are informed that they may ban dispensaries before July 1, 2011.
    Tuttle questioned Golden on the wording of the statute, which she said didn’t specifically say a municipality — such as Dacono — may not ban dispensaries after the date.
    Golden acknowledged that the state statutes regulating medical marijuana appeared “cobbled together.”
    “But if the legislative intent was not to create a deadline, then it was nonsensical,” Golden said.
    The ambiguity in the state statutes underlined a key point made by the city during the hearing and when the ban was first approved: the gray area of semi-legalization of medical marijuana creates a liability for the city employees on the front lines of regulation.
    Council has the option during its Jan. 2 meeting to adopt an initiative that would allow the three dispensaries to stay open while maintaining a moratorium on new medical marijuana operations.
    The city clerk verified that the initiative was signed by more than 10 percent of the registered voters, so if council doesn’t adopt it, citizens would get to vote on it this spring.
    The date for a possible special election has not been set.

Contact Staff Writer Ben Wiebesiek at 303-659-2522, ext. 205, or email
bwiebesiek@metrowestnewspapers.com.