DISTRICT COURT, LARIMER COUNTY,

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

Plaintiffs, through undersigned counsel, hereby petition this Court for a

Temporary Restraining Order, Preliminary and Permanent Injunctions, Declaratory,

Equitable relief, Damages, and Compensation for the taking of property, as well as for

redress of impairment of Plaintiffs’ constitutional rights arising out of Defendants’

prohibition of Medical Marijuana, and as grounds states as follows:

 Parties

1. Plaintiff Rocky Mountain Kind, LLC is a Limited Liability Company

organized under the laws of the State of Colorado, with a physical address of 1710 West

Eisenhower Blvd., Loveland, CO 80537.

2. Plaintiff Magic’s Emporium, LLC is a Limited Liability Company

organized under the laws of the State of Colorado, with a physical address of 2432 East

13th St., Loveland, CO 80537.

3. Plaintiff Colorado Canna Care, LLC is Limited Liability Company

organized under the laws of the State of Colorado with a physical address of 129 S.

Cleveland Ave. Loveland CO, 80537.

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

are unable to locate their medicine.

5. Defendant City of Loveland is a local governmental entity organized under

the Colorado Constitution, operating under color of law, exercising quasi-judicial

authority as contemplated by C.R.C.P. 106, with a principal place of business in

Loveland, Colorado.

6. Defendant State of Colorado is a state governmental entity organized under

the Colorado Constitution, operating under color of law, has a legislature and governor
that enacts statutes, and does business statewide and in Larimer County.

Jurisdiction and Venue

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-

101 et seq., and C.R.C.P. 57.

8. Pursuant to C.R.C.P. 98, venue is proper in this Court because Plaintiffs

and Defendant City of Loveland reside in Larimer County and the principal decisions and

actions taken by the Defendants occurred in Larimer County.

Injunctive Relief Standard

9. Temporary Restraining Orders can be issued without notice to the opposing

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

determination of a cause. A preliminary injunction serves to prevent irreparable harm

prior to a decision on the merits of a case. Combined Communications Corp. v. City and

County of Denver, 528 P.2d 249, 251 (1974).

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

648, 653-54 (Colo.1982).

Factual Background and General Allegations

12. In November of 2000, the voters of Colorado passed Amendment 20 to the

Colorado Constitution, codified at Colorado Constitution Article XVIII § 14. This

amendment sets forth a constitutional right to medical marijuana for patients suffering

from debilitating medical conditions, and a concomitant constitutional right for

caregivers to sell, distribute, and dispense medical marijuana to these same patients. The

Colorado Constitution specifically contemplates “the acquisition, possession,

manufacture, production, use, sale, distribution, dispensing, or transportation of

marijuana” for medical use. See Colorado Constitution Article XVIII § 14(2)(d)

(emphasis added).

13. Just as the constitutional right to free speech protects newspapers,

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

infringed on a constitutional right. (See Frasher v. Centennial Transcript, attached hereto

and incorporated herein by reference as Plaintiffs’ Exhibit A.)

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

centers, optional premises cultivation operations, and medical marijuana-infused products

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

effective on March 1, 2011.

17. On or about February 22, 2011, Kelly Conway, Sales Tax Manager, City of

Loveland, issued letters to many Medical Marijuana related businesses in Loveland,

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

to seek declaratory relief as to whether such prohibition applies to it.

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

Constitution. Patient Plaintiffs will be unable to obtain medicine in a consistent manner

and will suffer irreparable injury to their health, as direct result of the local prohibition.

19. Local governments are not empowered to wholly ban a constitutionally

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

Colorado Supreme Court jurisprudence ranges from protection of mining operations

(Colorado Mining Association v. Summit County, 199 P.3d 718 (2009)) to

constitutionally protected free speech-related businesses (Combined Commerce Corp. v.

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

(1986)("content-neutral" time, place, and manner regulations are acceptable so long as

they are designed to serve a substantial governmental interest and do not unreasonably

limit the constitutional right at stake).

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

constitutionally protected rights under Article XVIII § 14 of the Colorado Constitution.

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

seller.” 541 U.S. at 783-784.

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

timely applications accompanied by required fees to the State of Colorado.

24. If Plaintiffs lose their vested right to do business, it will suffer monetary

and other damages.

FIRST CLAIM FOR RELIEF

(Declaratory Judgment Pursuant to C.R.C.P. 106)

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

otherwise provided by law…review shall be limited to a determination of whether the

body or officer has exceeded its jurisdiction or abused its discretion…”

27. In prohibiting Plaintiffs’ businesses that existed before voters banned them,

the City has arbitrarily and capriciously exercised a quasi-judicial function, abused its

discretion, and exceeded its jurisdiction.

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

contractual obligations based on said reliance. Therefore, Plaintiffs cannot now be

retroactively eliminated, pursuant to the federal and state constitutional prohibitions on ex

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

Plaintiffs, specifically, the previously vested right to operate a medical marijuana

business consistent with then-existing laws. This violates federal and state constitutional

protections against uncompensated taking of private property. U.S. Constitution,

Amendment V; Colorado Constitution, Article II § 15.

30. There is also a specific Colorado Constitutional protection of “any property

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

of a criminal offense. Colorado Constitution, Article XVIII § 14(2)(e). Depriving

Plaintiffs of their property interests, used in connection with the medical use of

marijuana, violates this constitutional provision as well.

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

ban the very same businesses they have previously permitted.

32. Plaintiffs have no other plain, speedy or adequate remedy at law. Patient

plaintiffs will be deprived of their medicine.

33. Plaintiffs ask the Court to declare that the Defendant’s actions were

arbitrary and capricious, contrary to law, and therefore null and void.

Second claim for relief

(Preliminary Injunction and Temporary Restraining Order Pursuant to C.R.C.P
65)

34. Plaintiffs incorporate the foregoing paragraphs and allegations as if fully set
forth herein.

35. Denying Plaintiffs LLCs’ right to operate a lawful medical marijuana

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

prohibition of their businesses.

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

action as if fully set forth herein.

37. Plaintiffs ask the Court for a Preliminary Injunction and Temporary

Restraining Order Pursuant to C.R.C.P. 65.

THIRD CLAIM FOR RELIEF

(Declaratory Judgment pursuant to C.R.C.P. 57 and Colorado Declaratory
Judgment Act, Colo. Rev. Stat. § 13-51-101 et seq)

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

Plaintiff is entitled to relief under C.R.C.P 57.

40. The Colorado Constitution Article XIII § 14 establishes a constitutional

right to medical marijuana and establishes at § 14(2)(e) a specific protection for “any

property interest” in connection with the medical use of marijuana.

41. Plaintiffs have property interests in the medical marijuana businesses in

Loveland.
 42. Plaintiffs ask the Court for a declaratory judgment protecting said property

right.

FOURTH CLAIM FOR RELIEF

(Violation of the Colorado Constitution, Article II, Section 15 – Regulatory Taking)

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

(through Article XVIII, Section 14).

46. The protection against takings without compensation is not restricted to

physical invasions. Government regulations and bans can also create an unconstitutional

taking.

47. A "regulatory taking" occurs when the value or usefulness of private

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

interferes with Plaintiffs’ reasonable investment-backed expectations when acquiring the

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

taking under the Colorado Constitution.

Prayer for Relief

WHEREFORE, Plaintiffs demand a trial by jury for all issues so triable, and pray

for the following relief:

A. Enter judgment in Plaintiffs’ favor against Defendants;

B. Grant Plaintiffs Declaratory Judgment finding that the prohibition of

Plaintiffs LLC’s businesses was unconstitutional, arbitrary, and exceeded Defendants’

jurisdiction;

C. Enter a temporary restraining order and permanent injunction ordering the

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

outcome of this litigation;

D. Determine that the Defendant has affected a regulatory taking against

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.

DATED: February 28, 2011 Respectfully submitted,

(original signature on file)

Robert J. Corry, Jr.