Garfield County: Marijuana lawsuit threat ‘unpersuasive’
June 20, 2011
GLENWOOD SPRINGS – A threat to sue Garfield County over its medical marijuana policies has fallen on deaf ears, according to a letter from assistant county attorney Carey Gagnon.
But the attorney who sent the threat, Rick Neiley, says he is planning to go ahead with the suit, after learning that the county will not back off from shutting down his client, the Hydroponic Creations medical marijuana center at 6800 Highway 82 south of Glenwood Springs.
“We pretty much don’t have any choice,” said Neiley, noting that county’s current codes will force Hydroponic Creations to close its doors on July 1.
Neiley said Friday that he planned to file a motion in 9th Judicial District Court Monday, asking the court to prevent the county from closing his client down.
After that, he said, he will sue to overturn the county’s medical marijuana regulations based on the belief that the regulations violate the constitutional right of access to medical marijuana.
The state’s voters in 2000 approved a constitutional amendment that made medical marijuana legal in Colorado.
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County voters last year decided to prohibit medical marijuana centers and businesses making edible marijuana products in the unincorporated portions of the county.
In the same election, voters decided to permit medical marijuana growing operations in those areas.
Neiley, in a June 7 letter to county commissioners, cited a state law preventing local governments from enacting regulations that close down “a lawfully established business.”
But Gagnon, in her response, argued that because the sale of marijuana is illegal under federal law, Hydroponic Creations does not fit into the category of “a lawfully established business.”
She wrote that the 2000 constitutional amendment did not create “a constitutional right to distribute medical marijuana.”
Gagnon also said that Neiley’s threat to sue the county for an “illegal taking” of his client’s assets, contained in the June 7 letter, was “equally unpersuasive,” noting that it was a decision of the voters to outlaw medical marijuana centers and manufacturing operations.
“The relief you are seeking is contrary to the will of the voters,” she wrote.
Neiley said the county, in shutting down Hydroponic Creations, effectively also is shutting down the business’s growing operation.
“State law says you can’t have a grow operation if you don’t have a medical marijuana center,” he noted.
Neiley said his clients stand to lose “hundreds of thousands of dollars” if they are forced to shut down their business.