Professional Documents
Culture Documents
COLORADO
201 La Porte Avenue
Fort Collins, CO 80521-2761
_______________________________________
ROCKY MOUNTAIN KIND, LLC;
MAGIC’S EMPORIUM, LLC;
COLORADO CANNA CARE, LLC; and
JOHN AND JANE DOES, individual Medical
Marijuana Patients; COURT USE ONLY
Plaintiffs, _____________________
v.
Case No: 2011CV_____
CITY OF LOVELAND, COLORADO, a
Colorado Home Rule Municipality; EXPEDITED RELIEF
STATE OF COLORADO; RESPECTFULLY
Defendants.
REQUESTED UNDER
______________________________________
Attorneys for Plaintiffs: C.R.C.P. 65 AND 57
Robert J. Corry, Jr. #32705
600 Seventeenth Street
Suite 2800 South Tower
Denver, Colorado 80202
303-634-2244 Telephone
303-260-6401 Facsimile
Robert.Corry@comcast.net
www.RobCorry.com
COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF AND
DAMAGES AND JURY DEMAND
Equitable relief, Damages, and Compensation for the taking of property, as well as for
organized under the laws of the State of Colorado, with a physical address of 1710 West
organized under the laws of the State of Colorado, with a physical address of 2432 East
organized under the laws of the State of Colorado with a physical address of 129 S.
4. Plaintiffs John and Jane Does are individuals diagnosed with debilitating
medical conditions who have been advised by their physicians that they might benefit
from the medical use of marijuana, and wish to maintain the confidentiality of their
privileged medical status pursuant to the Colorado Constitution, Article XVIII § 14 and
C.R.S. § 18-18-406.3. These patients will suffer imminent and irreparable injury if they
Loveland, Colorado.
the Colorado Constitution, operating under color of law, has a legislature and governor
that enacts statutes, and does business statewide and in Larimer County.
7. This Court has jurisdiction over this matter pursuant to C.R.C.P. 106(a)(2);
106(a)(4); C.R.C.P. 65; Colorado Declaratory Judgment Act, Colo. Rev. Stat. § 13-51-
and Defendant City of Loveland reside in Larimer County and the principal decisions and
party. However, here notice of Plaintiffs’ intent to seek a TRO and/or Preliminary
Injunction was provided to the Loveland City Attorney and the Colorado Attorney
General via telephone and electronic mail on February 28, 2011 at approximately
3:00pm.
10. Preliminary injunctions preserve and protect legal rights pending the final
prior to a decision on the merits of a case. Combined Communications Corp. v. City and
11. The moving party must satisfy six factors to obtain a preliminary
injunction: (1) a reasonable probability of success on the merits; (2) a danger of real,
immediate, and irreparable injury which may be prevented by injunctive relief; (3) lack of
a plain, speedy, and adequate remedy at law; (4) no disservice to the public interest; (5)
balance of equities in favor of the injunction; and (6) the injunction will preserve and
protect legal rights pending the final trial on the merits. Rathke v. MacFarlane, 648 P.2d
amendment sets forth a constitutional right to medical marijuana for patients suffering
caregivers to sell, distribute, and dispense medical marijuana to these same patients. The
marijuana” for medical use. See Colorado Constitution Article XVIII § 14(2)(d)
(emphasis added).
television stations, and other media outlets who sell speech, for a profit, the Colorado
Constitution protects the right to sell medical marijuana to patients suffering from
debilitating medical conditions. The decision of the Arapahoe District Court in Frasher
v. City of Centennial, Case No. 09CV1456, struck down a municipal ban on medical
marijuana businesses and other commercial activities on the ground that such ban
14. Plaintiff business entities entered into valid and enforceable contracts,
including but not limited to commercial leases for the property, and made other
contractual obligations and acted in reliance of the City of Loveland and the State of
Colorado approvals of their activities in the form of sales tax licenses and acceptance of
said tax by both the Local and State Defendants. Their businesses would end as a
practical economic matter if they were forced to suspend business for the pendency of
this litigation. For example, the businesses could not pay the monthly rent on their leases
if they were forced out of business, and would be forced to vacate and effectively end the
business.
15. In the 2010 election, Loveland placed Ballot Question #2C, asking “Shall
the City of Loveland, Colorado allow within the City the operation of medical marijuana
manufacturers’ licenses?”
16. This question was placed pursuant to a purported grant of authority from
House Bill 10-1284. Voters adopted the ban on November 2, 2010, which will become
17. On or about February 22, 2011, Kelly Conway, Sales Tax Manager, City of
updating their sales tax licenses and advising them of potential penalties for continuing to
do business after March 1, 2011. (See Loveland Revenue Division Letter of February 22,
2011, attached hereto and incorporated herein by reference as Plaintiffs’ Exhibit B.)
Plaintiffs Rocky Mountain Kind LLC and Magic’s Emporium LLC each received letters,
and Plaintiff Colorado Canna Care, LLC was not provided with one, but joins this action
18. The City has determined that medical marijuana centers that grow, process,
package, and/or sell medical marijuana are not permitted in the City. Loveland’s rigid
policy of banning all medical marijuana centers deprives qualified medical marijuana
patients of the medicine guaranteed to them by Article XVIII, Section 14 of the Colorado
Constitution. The City has affected an unreasonable burden on the Plaintiffs’ respective
rights to provide and receive the care expressly authorized under the Colorado
and will suffer irreparable injury to their health, as direct result of the local prohibition.
permitted use or industry within its boundaries. See Combined Commerce Corp. v. City
and Cty of Denver, 542 P.2d 79, 82-83 (1975); Exton Quarries Inc. v. Zoning Bd. Of
Adjustment of West Whiteland Twp., 228 A.2d 169, 179 (1967). This well-established
City and Cty of Denver, supra). Courts must examine with heightened scrutiny and
increased circumspection those local government actions that serve to ban certain land
uses or activities instead of delineating appropriate areas for those uses or activities. Id;
id. To the extent House Bill 10-1284 authorizes such a blanket local prohibition, it is
unconstitutional.
20. In City of Littleton, Colorado v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774
(2004), the United States Supreme Court reiterated that, for a zoning system to be
constitutional, it must “seek to determine where, not whether, protected adult material
can be sold.” 541 U.S. at 783; see also Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46
they are designed to serve a substantial governmental interest and do not unreasonably
21. Loveland's sweeping ban of medical marijuana centers does not fit within
the constitutionally recognized and permitted “time, place, and manner” restrictions
applied to other constitutional rights such as free speech. Thus, the City's ban is
unconstitutional, because it unduly burdens patients and caregivers from exercising their
The Court pointedly held in Littleton v. Z.J. that “[a] supplier of that material [adult
materials] should be able to find outlets; [and] a potential buyer should be able to find a
22. Plaintiffs are entitled to have “outlets” available to them within the City of
Loveland that are consistent with the constitutional rights associated with medical
marijuana. The City’s ban is solely based upon attempts to preclude access to medical
marijuana, and this is unconstitutional under any reading of the law, as it is not “content
neutral.” It is fundamental that an entire use or industry cannot be banned within a City,
and Loveland has violated this constitutional principle.
23. Plaintiffs have complied with all local and state regulations by submitting
24. If Plaintiffs lose their vested right to do business, it will suffer monetary
25. Plaintiffs incorporate the foregoing paragraphs and allegations as if fully set
forth herein.
26. C.R.C.P. 106(a)(4) states that “where any governmental body or officer or
any lower judicial body exercising judicial or quasi-judicial function has exceeded its
jurisdiction or abused its discretion, and there is no plain, speedy and adequate remedy
27. In prohibiting Plaintiffs’ businesses that existed before voters banned them,
the City has arbitrarily and capriciously exercised a quasi-judicial function, abused its
28. Plaintiffs detrimentally relied on the City’s approval and acceptance of their
status and entered into valid enforceable contracts such as a commercial lease and other
post facto laws and laws impairing the obligation of contracts. U.S. Constitution, Article
I § 10; Colorado Constitution, Article II § 11.
29. Similarly, the City's ban purports to take away a property right held by
business consistent with then-existing laws. This violates federal and state constitutional
interest that is possessed, owned, or used in connection with the medical use of
marijuana” that such interest cannot be taken unless the government obtains a conviction
Plaintiffs of their property interests, used in connection with the medical use of
31. When Plaintiffs applied for and received all necessary Local and State
approvals to engage in business, it was impossible to foresee that Defendants would soon
32. Plaintiffs have no other plain, speedy or adequate remedy at law. Patient
33. Plaintiffs ask the Court to declare that the Defendant’s actions were
arbitrary and capricious, contrary to law, and therefore null and void.
34. Plaintiffs incorporate the foregoing paragraphs and allegations as if fully set
forth herein.
businesses, and Plaintiffs patients to obtain medical marijuana, cause an immediate and
irreparable injury that can only be prevented by a temporary order restraining the
36. The above arguments and legal authorities apply to demonstrate irreparable
harm to the Plaintiffs and their constitutional rights and should be applied to this cause of
37. Plaintiffs ask the Court for a Preliminary Injunction and Temporary
38. Plaintiffs incorporate the foregoing paragraphs and allegations as if fully set
forth herein.
39. A genuine controversy exists between Plaintiffs and Defendants for which
right to medical marijuana and establishes at § 14(2)(e) a specific protection for “any
Loveland.
42. Plaintiffs ask the Court for a declaratory judgment protecting said property
right.
43. Plaintiff incorporates the foregoing paragraphs and allegations as if fully set
forth herein.
44. Article II, Section 15 of the Colorado Constitution states that “[p]rivate
property shall not be taken or damaged, for public or private use, without just
compensation.”
45. Plaintiffs possess certain property rights in the subject property, in addition
to property rights in the medical marijuana provided by them at the subject property
physical invasions. Government regulations and bans can also create an unconstitutional
taking.
property is diminished by a regulatory action that does not involve a physical occupation
of the property.
48. Plaintiff LLC’s exist and are licensed to provide Medical Marijuana, and
therefore the City's ban denies Plaintiffs all beneficial use of the property. It completely
property, and the government actions have little justification as the ban serves has no
legitimate purpose.
49. Plaintiffs will suffer monetary and other damages as a result of this taking
in an amount to be proven at trial. Thus, Plaintiffs seek redress and compensation for this
WHEREFORE, Plaintiffs demand a trial by jury for all issues so triable, and pray
jurisdiction;
Defendants, and all those acting in concert with them, to cease and desist from
enforcement of the prohibition and permit Plaintiff to operate at this location pending the
Plaintiff in violation of Colorado Constitution, Article II, Section 15, Article XVIII,
Section 14, and Colo. Rev. Stat. § 29-20-203, and award appropriate relief;
E. Grant Plaintiffs any and all other relief the Court deems proper.