With a single vote on one bill, the Denver City Council could lay to rest a viable legal challenge seeking to protect the rights of small business owners. At issue: whether the city can shut down controversial industries after previously granting them permission to operate.
Imagine this: you open your mail one day to find one of those dreaded photo radar tickets. You look at the date on the citation and remember the point where you saw the flash bulb go off. It couldn't have been you, you thought. After all, you were only driving 24 miles an hour. The speed limit was clearly posted as 25-mph.
What gives, you thought? So you appealed the ticket. The city's response: we don't care how fast you were driving that day. We lowered the limit to 20-mph the following week. You need to abide by the new rules.
Sounds crazy, right? But this is exactly what is going on with Denver's medical marijuana industry. In most cases state and federal constitutional protections prohibit local governments from retroactively enforcing new regulations on businesses who had previously complied with the old standards. If the new regulations shut you down, the government needs to cough up some cash to make you whole.
It is exactly this principle at issue in a Denver District Court case, where on behalf of a medical marijuana caregiver and his patients, we are challenging the city's decision to shut him down. While the caregiver was lawfully operating prior to the city council passing an ordinance regulating the industry this time last year, the city is now arguing that he can't comply with new requirements concerning distances required between two dispensaries. The city's surveyor and ours disagree over a couple hundred feet. We say our client is just over the required 1,000 feet required. The city says he's just under.
But we shouldn't even have to go here. Prior to forcing our client to shut down last month, the city had allowed and accepted the tax payments he sent in to the city's treasury department. The fire department came by and said hello. Zoning officials signed off on the appropriate permit required for dispensaries. Even the state and federal government cash his checks and granted him tax identification numbers.
The city's argument: prior to its 2010 ordinance, medical marijuana dispensaries were not licensed by the city. Therefore, dispensaries have gained no right to continue operating. While it's true that the city requires licenses for several dozen industries, it also lets a multitude of others go without. Take lawyers, for instance. Our only licensing comes at the state level.
In multiple conversations with council members, state regulatory agencies and the media, we've gone on record noting our above concerns, which involve not just our client's fate but also that of city taxpayers, who in these tough economic times, shouldn't be left to foot the bill for questionable litigation or bureaucratic costs required to shut down viable businesses. This is also about the state constitution. A government powerful enough to shut down politically controversial businesses on a whim is one too powerful to ignore.
Late last year, council members began debating amendments to its 2010 medical marijuana ordinance. We were greeted by a handful of responsive and innovative council members aware of, and committed to, their obligations to follow the law. Councilman Charlie Brown and Council President Chris Nevitt introduced language seeking to abolish the ordinance's retroactive enforcement mandates, replacing it will new language fair to both new and old industry participants.
Unfortunately, other council members, including Judy Montoya, took a different approach. They not only affirm their support of retroactive power, but seek to expand it to wholesale marijuana operations currently recognized by the city as operational.
On Valentine's Day, the full council will meet to debate a revised set of amendments that neglect to strike the language currently at issue in the lawsuit referenced above. What a way to spend the holiday. If the implications of council's potential actions weren't so serious, I might even be able to conclude here by begging its members to have a heart. Instead, I'll close by encouraging them to talk with Nevitt and Brown. To call me or other land use lawyers. To do their own research. To do whatever it takes for them to realize what is at stake here.
While medical marijuana may remain a hotly debated issue, the societal view that our constitution should protect all of us from abusive government is not. Forget about pot and focus instead on what really matters: when government gives any lawful business the green light, we must call out officials who now falsely insist that the light was red.
Jessica P. Corry (JessicaCorry.com) is a Denver land use attorney with Hoban & Feola, LLC, where she serves as special counsel.