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March 30, 2010

Judge’s ruling keeps CannaMart closed

Despite a preliminary court victory last December, CannaMart, Centennial’s now-closed medical-marijuana dispensary, will not be allowed to reopen in the city anytime soon.

On March 26, District Judge Christopher Cross ruled in favor of the City of Centennial, which had argued that despite CannaMart’s previous legal win, it cannot reopen because doing so would violate unrelated zoning ordinances.

CannaMart, Centennial’s only dispensary, had operated at 8006 E. Arapahoe Road — a block west of Castlewood Library — for six weeks last year. The city forced its closure in November, citing the Centennial Land Development Code, which specifically prohibits land uses that violate state or federal law.

Although Colorado voters approved a state constitutional amendment allowing medicinal use of marijuana in 2000, any use remains illegal under the federal Controlled Substances Act — a fact that has been at the core of confusion surrounding medical marijuana.

Coincidentally, Centennial’s zoning explicitly prohibits retail — and specifically pharmacies — at CannaMart’s former location. Cross’s earlier ruling would have otherwise allowed the dispensary to reopen there, according to City Attorney Robert Widner.

A six-month citywide moratorium on all new dispensaries will keep CannaMart out of Centennial — even in areas that are zoned for retail or pharmacies — until at least June 30.

Despite CannaMart’s initial victory, Widner said he was not surprised by Cross’s most recent ruling.

“Early on, the judge led us to believe that the zoning and moratorium issues would be found in favor of the city should they ever be raised,” the city attorney said.

In December, Cross ruled that Centennial had no legal right to use federal law as a pretext for denying a right protected under the state constitution, but he left open the strong likelihood that zoning could still keep CannaMart closed.

Centennial’s six-month moratorium had also been the subject of CannaMart’s complaint. In December, in anticipation of the lawsuit, the city council approved the moratorium to give it time to develop regulations in case Centennial were forced by state law or court order to allow dispensaries.

In his March 26 ruling, Cross found that the moratorium was a reasonable move given the complexity of the medical-marijuana issue. Widner said he was even less surprised by the judge’s ruling on this matter than he was on the zoning issue.

“A six-month moratorium has been held up by many, many, many courts for even less complicated issues than medical marijuana,” Widner said. “The judge’s ruling places us in the position we want to be in, which is to draft regulations to address this novel new land use.”

Attorneys for CannaMart maintain that they are on track to win their overall case for dispensaries because of pending state legislation and Cross’s earlier, unusually broad ruling that took Centennial to task for closing CannaMart in the first place.

“While we’re discouraged about the temporary setback, we are excited about the larger victory, which is that local governments can’t use federal regulation to circumvent voter will in Colorado,” attorney Jessica Corry said.

Although Cross technically only ruled on a preliminary injunction in his December decision strongly favoring CannaMart, many on both sides of the issue believe his language spoke to the broadest issues of the case.

As the Colorado General Assembly writes legislation to regulate dispensaries at the state level and Centennial prepares a dispensary ordinance, Corry says she is confident that CannaMart is on its way to effectively winning its case — in or out of the courtroom.

“If Centennial is to be believed, they are working on their ordinance right now,” she said. “We are looking at a lawsuit that could go on two or three years unless there is a major development — and that’s the state legislation.”

How Centennial may eventually decide to regulate dispensaries will be up to the city council. Some of its members have quietly hinted that they would favor collecting sales tax on the growing industry over waging a protracted lawsuit.

In her official statement on the March 26 ruling, Mayor Cathy Noon said the council is moving in that direction as the six-month moratorium nears its conclusion.

“While the City of Centennial fully supports Amendment 20, this victory will help protect the impact medical-marijuana dispensaries could have to our neighborhoods, citizens and businesses,” she said. “This ruling allows city council the necessary time to develop regulations that are in the best interest of our community.”


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