El Paso Medical Marijuana Complaint

8/8/2019 El Paso Medical Marijuana Complaint

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District Court, El Paso County, Colorado270 South Tejon St.Colorado Springs, CO 80903719-448-7700

_______________________________________________ Plaintiffs : HAMMERS CONSTRUCTION, INC.; CNH, LLC;

CLAREMONT DEVELOPMENT, INC.; HAMMERSINVESTMENTS, LLC; HUMBOLDT CARE & WELLNESSCENTER, LLC; CANNABICARE, INC; ROCKY MOUNTAINWAY WELLNESS CENTER, LLC; COLORADO TREEFARMERS, INC.; HATCH WELLNESS CENTER, LLC;TITAN INVESTMENTS, LLC; STEVE HAMMERS; DAVEHAMMERS; ERIC HATCH; GARY WOODRUFF; JEFFREYSVEINSSON; CLIFFORD STAHL; and, others similarlysituated to be named

Defendants : BOARD OF COUNTY COMMISSIONERS OFEL PASO COUNTY, COLORADO; DENNIS HISEY,

WAYNE WILLIAMS, JAMES BENSBERG, AMY LATHEN,SALLIE CLARK, IN THEIR OFFICIAL CAPACITIES ASCOUNTY COMMISSIONERS; ROBERT C. BOB BALINK,IN HIS OFFICIAL CAPACITY AS EL PASO COUNTYCLERK AND RECORDER

__________________________________________

ATTORNEYS FOR THE PLAINTIFFS:Robert T. Hoban, Esq., Reg. No. 33151Hoban & Feola, LLC600 Seventeenth StreetSuite 2800 South

Denver, Colorado 80202Phone: 303-260-6479Email: [email protected]

Charles T. Houghton, Esq., Regis No. 15053Charles T. Houghton, P.C.P.O. Box 847Colorado Springs, CO 80901Phone: 719-634-1731Email: [email protected]

Laura Haynes, Esq., Regis. No. 35200Laura Haynes, P.C.407 S. Tejon, Suite HColorado Springs, CO 80903Phone: 719-646-1905Email: [email protected]

COURT USE ONLY

Case No: 2010CV5762

Div.: Ctrm:

EXPEDITED RELIEFREQUESTED PURSUANTTO C.R.C.P. 57 ANDC.R.C.P. 65

FIRST AMENDED VERIFIED COMPLAINT AND APPLICATION FOR DECLARATORY AND INJUNCTIVE RELIEF


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COME NOW the Plaintiffs, by and through their undersigned counsel, and for their First Amended Verified Complaint , state and allege as follows:

PARTIES, JURISDICTION, AND VENUE

1. The Plaintiffs are all residents of El Paso County, Colorado or own businesses

located in El Paso County, Colorado.

2. The Defendants are governmental entities or individual government actors

existing by virtue of the statutes and laws of the State of Colorado.

3. All matters associated with this action took place in El Paso County.

4. Pursuant to Article VI, Section 9, of the Constitution of the State of Colorado, the

District Court located in El Paso County, Colorado, is a trial court of record with general jurisdiction and has original jurisdiction of all civil, probate and criminal cases, except as

otherwise provided by law.

5. Because the actions underlying Plaintiffs claims took place in El Paso County,

this Court properly has jurisdiction over the subject matter of this Complaint .

6. Venue is proper in El Paso County, Colorado, pursuant to C.R.C.P. 98(c) in that

the actions underlying Plaintiffs claims took place in El Paso County.

CASE SUMMARY

7. This matter arises out of the actions taken by the El Paso County Board of County

Commissioners (the BOCC or Defendant) regarding the regulation, licensing and prohibition

of medical marijuana facilities in unincorporated El Paso County.

8. The causes of action stated herein establish that the object of the ballot question

entitled Medical Marijuana Ballot Question, (the Ballot Question) violates Colorado law.

9. The Ballot Question attempts to accomplish three (3) separate and distinct

actions. First, it attempts to ban medical marijuana businesses in unincorporated El Paso


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County. Second, it attempts to shut down current legally existing medical marijuana businesses.

Third, it attempts to restore a caregiver model that no longer exists under Colorado state law.

10. None of these actions are legal under Colorado law. The Defendant simply

cannot establish a regulatory scheme and then allow a ban of the very businesses it allowed to

exist through regulation; this violates Colorado Constitution, Article II, Section 15. Nor can it

restore a caregiver model under Colorado Constitution, Article XVIII, Section 14, which

purports to have been dramatically altered by subsequent legislation.

11. Pursuant to C.R.C.P. 57 and 65, the Plaintiffs request this Court: i) declare that

the Ballot Question, as presented, cannot stand under the laws of this state; ii) pursuant to

C.R.C.P 106(a)(2) request that this court order that the Ballot Question be taken off of the El

Paso County November 2010 ballot; and iii) request that this court determine that pursuant to

C.R.C.P. 106(a)(4) that the Defendant exceeded its authority by attempting to have the voters

decide the question of a ban that is impermissible under state law.

12. The Defendant has undertaken a regulatory scheme for medical marijuana in

unincorporated parts of the County since December, 2009 and is precluded by the Colorado

Constitution, state statutes, Defendants own Resolutions, and the El Paso County Land

Development Code from referring the issue of a ban to the ballot.

13. Further, this Ballot Question, by its very terms, does not apply to any existing

medical marijuana facilities in unincorporated El Paso County, and is not an accurate

interpretation of the law concerning the current status of Primary Caregivers as defined by

Colorado state law, making it a legal nullity.

H ISTORY OF M EDICAL M ARIJUANA IN E L P ASO C OUNTY : P RE C OLORADO M EDICAL M ARIJUANA C ODE

14. In December 2009, in response to a proliferation of medical marijuana facilities

opening around the State and in anticipation of the State Legislature passing a bill regulating the


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sale and cultivation of medical marijuana the following Spring, the Defendant determined it was

in the best interest of the people of unincorporated El Paso County that the Defendant should

regulate medical marijuana. A moratorium was discussed, and was ultimately dismissed in favor

of regulation.

15. As a result, on December 17, 2009 the Defendant adopted Resolution No. 09-469,

attached as Exhibit A, establishing regulations regarding Medical Marijuana Land Uses within

unincorporated El Paso County.

16. Resolution 09-469 cites the following Colorado State statutes as granting the

Defendant the authority to enact such regulations:

a. C.R.S. 29-20-101, et. seq; Local Government Land Use Control Enabling Act, b. C.R.S. 30-1-101(2) Authority of the counties to adopt and enforce ordinances

and resolutions regarding health, safety and welfare issues as otherwise prescribed by law

c. C.R.S. 30-11-107 Powers of the BOCCd. C.R.S. 30-28-113 Regulation of the use of structures in various zoning districts

throughout El Paso Countye. C.R.S. 30-28-115 Promotion of the health, safety, convenience, order and/or

welfaref. C.R.S. 30-28-121 These regulations were passed as temporary regulations

pursuant to C.R.S. 30-28-121, with a six month time limit, and were classified asa temporary use under the El Paso County Land Use regulations.

17. On January 12, 2010, the El Paso County application for these temporary use

permits was published. In this application, it states 1. The medical marijuana land use

approved under this Temporary Use Permit may be subject to additional regulations or

standards when permanent regulations regarding this land use are adopted . (Emphasis added).

18. The El Paso County Land Development Code (LDC) 5.31.(A) states that the

purpose of Temporary Use Permit is as follows:

The temporary use permit is a mechanism by which the County may allowa use to locate on a short term basis and by which it may allow seasonal,short term or transient uses not otherwise allowed. (5.3 Standards for review, approval, and administration of issues is attached as Exhibit B.)


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b. August 1, 2010 Deadline for completing and filing State Applicationsand paying the applicable State Application fees.

H ISTORY OF M EDICAL M ARIJUANA IN E L P ASO C OUNTY P OST - C OLORADO M EDICAL M ARIJUANA C ODE

26. On June 10, 2010, in response to the newly enacted Code, the Defendant passed

Resolution No. 10-230, extending the temporary regulations with revisions to El Paso County

Resolution 09-469 that specifically addressed the regulation of medical marijuana facilities under

the Code. A copy of Resolution No. 10-230 is attached hereto as Exhibit C. At that meeting, a

moratorium was discussed again, and dismissed in favor of regulating medical marijuana

facilities.

27. On June 23, 2010, the El Paso County Development Services Department

changed its application to reflect these changes adopted in Resolution 10-230 pursuant to the

new legislation. A copy of the application is attached hereto as Exhibit D.

28. As a consequence, many applicants, including the Plaintiffs, spent significant time

and money to establish their businesses before the July 1, 2010 deadline imposed by the Code

and spent additional time and money applying to the State and paying the State application fees

to meet the State Application deadline of August 1, 2010.

29. After June 23, 2010, in accordance with the Code, and Resolution 10-230, with

authority from Defendant, several Plaintiffs were permitted to apply to operate medical

marijuana facilities in unincorporated El Paso County once the construction of a facility was

complete. The start dates were set out to reflect the time necessary for construction. This

authorization permitted Plaintiff Titan Investments and Hammers Construction, Inc. to build and

lease prospective medical marijuana facilities for other Plaintiffs to operate one of the described

premises upon completion of the buildings and build outs. Defendants action was in furtherance

of regulation, not prohibition, at this late date.


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30. The Defendant allowed and continued to allow Plaintiffs to operate, and to apply

to operate at a future date up, until the July 1, 2010 deadline.

31. Those businesses who worked to meet the July 1 and August 1 deadlines did so in

reliance upon the stated, further regulation and local licensing scheme; similar to the Defendant

relying on the State to legislate in this matter during December 2009. In furtherance of the

anticipated regulation, on July 12, 2010, the Defendant had a work session specifically dedicated

to how it wanted to regulate and license these businesses.

A UGUST 26, 2010 BOCC M EETING : R ESOLUTIONS 10-356, 10-357 AND 10-358

32. Prior to the August 26, 2010 BOCC meeting, El Paso County Land Development

Services and/or the El Paso County Planning Commission was holding hearings on variances for

medical marijuana businesses in zone districts other than the four zone districts contained in the

Resolution 10-230, in furtherance of regulation.

33. On August 26, 2010 the Defendant adopted Resolution No. 10-356, putting the

issue of whether to ban medical marijuana operations in unincorporated El Paso County up for a

vote. A copy of Resolution No. 10-356 is attached hereto as Exhibit E.

34. The Ballot Question set forth in Resolution 10-356 provides, inter alia, that if

passed, medical marijuana businesses would be banned, any existing businesses would have to

close by August 31, 2011 and that the protections under Article XVIII, Section 14 of the

Colorado Constitution, (Amendment 20) would remain intact. Under the Ballot Question,

current legally existing businesses would not be grandfathered and would be forced to shut

down.

35. In the clarifying paragraph underneath the Ballot Question, in relevant part,

Resolution 10-356 states that 1) Resolution 10-230 shall be repealed through operation of law

on November 19, 2010; 2) temporary use approvals issued pursuant to Resolutions 09-469 and


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10-230 shall be valid until August 31, 2011, to the extent permitted by state law; and 3) pending

temporary use applications not approved by November 19, 2010 shall be deemed denied

36. At the same August 26, 2010 meeting, the Defendant passed two additional

Resolutions, Resolution 10-357 and Resolution 10-358, attached hereto as Exhibits F and G

respectively.

37. Resolution No. 10-357 eliminated any temporary regulations that existed and

made Medical Marijuana Land Use an Allowed Use in the CS, C1, C2 and M Districts,

which were the same designations used in the temporary regulations, effective August 26, 2010.

See Exhibit F, Page 3.

38. El Paso Countys LDC defines Allowed Use as any use permissible in a zoning

district provided all provisions and standards of this Code have been satisfied, which was

previously a Temporary use, defined as a seasonal, short-term or transient land use allowed on a

property on a temporary basis.

39. A Medical Marijuana Land Use shall mean and include only the following land

uses which are defined in and subject to licensing pursuant to CRS 12-43.3-101 et seq. Medical

Marijuana Center, Medical Marijuana Infused Products Manufacturer, Optional Premises

Cultivation Operation. Id .

40. Therefore, as of the date of filing this Verified Complaint, a Medical Marijuana

Land Use is an Allowed Use in the CS, C1, C2 and M Districts under the El Paso County Land

Development Code, and not subject to the ballot question in 10-356.

41. Resolution No. 10-358 adopted the El Paso County Medical Marijuana Policy, in

furtherance of their actions dating back to December 17, 2009 (Resolution 09-469) and C.R.S.

12-43.3-103(2)(a), of the Colorado Medical Marijuana Code. Further, Defendant determined

that it was in the best interest of the public health, safety and welfare to adopt a fair and


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effective procedural and regulatory framework for the licensing of medical marijuana centers,

medical marijuana-infused products manufacturers and optional premises cultivation operations

in unincorporated El Paso County.

42. It is with this referred Ballot Question, coupled with prior regulation of medical

marijuana as well as the adoption of Resolutions 10-357 and 10-358 that the Plaintiffs take

exception.

43. The Ballot Question is substantively flawed in that is asks the voters to allow El

Paso County to take actions that it is not legally able to take at this juncture.

44. The County cannot ban medical marijuana businesses under the State

Constitution, applicable relevant state laws, county resolutions or the El Paso County Land

Development Code.

45. The County cannot close legally existing businesses.

46. The County cannot restore Amendment 20 protections and rights that have been

significantly altered by the Colorado Medical Marijuana Code.

47. The Plaintiffs challenge the legality of the Defendants actions and the legality of

the ballot question itself and request that it be stricken from the November 2, 2010 election,

because the Ballot Question, as passed cannot stand under the laws of this state.

48. To simplify the explanation of why this ballot question, as authored and approved,

cannot be upheld under the local laws, state laws or Constitution of this state, Plaintiffs break

down the Ballot Question into its three (3) substantive parts, which are as follows:

a. Shall medical marijuana centers, medical marijuana-infused productsmanufacturers and optional premises cultivation operations, as defined inC.R.S. 12-43.3-104, be prohibited in unincorporated El Paso County; and,

b. Shall medical marijuana land uses legally existing under the El PasoCounty Land Development Code be required to cease operation on or

before august 31, 2011;


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c. Which will leave intact the constitutional protection for medical marijuana patients and primary caregivers provided by Article XVIII, Section 14 of the Colorado Constitution?

SUBSTANTIVE CHALLENGES TO BAN ISSUE ON BALLOT

FIRST CAUSE OF ACTION(Declaratory Relief - The Ballot Question Violates the Express Provisions of the

Colorado Medical Marijuana Code, C.R.S. 12-43.3-101, et seq. )

49. The Plaintiffs incorporate the Case Summary and all previous paragraphs above

as if fully set forth herein.

50. On August 26, 2010 Defendants passed Resolution 10-356, which places on the

November ballot the following question, which states in relevant part:

Shall medical marijuana centers, medical marijuana-infused productsmanufacturers and optional premises cultivation operations, as defined inC.R.S. 12-43.3-104, be prohibited in unincorporated El Paso County.

51. C.R.S. 12-43.3-103(2)(a) and 106 respectively deal with the local jurisdictions

authority to regulate, license or prohibit the sale and cultivation of medical marijuana, and the

ability of the local jurisdiction to opt out of the Code, in furtherance of a ban either by the local

governmental authority, or by resolution to put the question of a ban to a vote of the people of

the local jurisdiction.

52. On December 17, 2009, Defendant determined that a moratorium was not in the

best interest of the unincorporated portions of the County prior to the Codes passage.

53. On December 17, 2009, Defendant adopted Resolution 09-469.

54. On June 10, 2010, Defendant again determined that a ban was not in the best

interest of the unincorporated portions of El Paso County.

55. On June 10, 2010 the Defendant passed Resolution 10-230 which continued

regulation of medical marijuana businesses, in anticipation of a local licensing scheme.


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56. On August 26, 2010 the Defendant passed Resolutions 10-357 and 10-358, in

furtherance of continued regulation and licensing of medical marijuana facilities.

57. Since December 17, 2009, Defendant has regulated the sale and cultivation of

medical marijuana in anticipation of the states regulatory scheme language.

58. Since the passage of the Code, Defendant has adopted Resolutions in furtherance

of all of the choices listed in C.R.S. 12-43.3-103(2)(a), which are license, regulate or

prohibit.

59. On August 26, 2010, after regulating for over eight (8) months in unincorporated

El Paso County, Defendant declined to prohibit as a governing body, and passed Resolution 10-

356, which submits, in part, the question of a ban, pursuant to the local opt out provision

described above, to the registered electors of El Paso County.

60. Defendant does not have the authority to act in furtherance of all three (3) actions,

as a plain reading requires that a choice be made regulate, license or prohibit, not regulate,

license and prohibit.

61. Pursuant to the express provisions of the Code, the Defendant cannot, after

adopting the regulatory scheme that it has followed, now ban medical marijuana land uses, either

through action of the BOCC or by referring the question to the County voters.

62. In doing so, Defendants unlawfully submitted the question of a ban to the

registered electors of El Paso County.

63. As passed, the ballot issue cannot stand under the Code and the BOCCs

Resolution 10-230.

64. Pursuant to C.R.C.P 57, the Plaintiffs request that this court declare that any

attempt to ban medical marijuana businesses would be in violation of state law and therefore

cannot be the subject matter of a vote.


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SECOND CAUSE OF ACTION(Declaratory Relief - Defendant Cannot Ban an Allowed Use and The

Ballot Question Violates the Express Provisions of the ColoradoMedical Marijuana Code, C.R.S. 12-43.3-101, et seq )





Shall medical marijuana centers, medical marijuana-infused productsmanufacturers and optional premises cultivation operations, as defined inC.R.S. 12-43.3-104, be prohibited in unincorporated El Paso County.

67. In addition to Resolution 10-356, Defendant enacted Resolutions 10-357 and 10-358 on August 26, 2010.

68. Resolution 10-357s stated purpose is found in its title which states:

REVISE THE EL PASO COUNTY LAND DEVELOPMENT CODETHROUGH THE REPEAL OF THE TEMPORARY REGULATIONSREGARDING MEDICAL MARIJUANA LAND USES WITHUNINCORPORATED EL PASO COUNTY AND THE CREATIONAND DEFINITION OF A NEW ALLOWED USE IN CERTAINZONING DISTRICTS (LDC-10-002)

69. Resolution 10-357 goes on to state Add to LDC Use Table 5-1 Medical

Marijuana Land Use as an Allowed Use in the CS, C1, C2 and M Districts.

70. Resolution 10-357 further states AND BE IT FURTHER RESOLVED that in the

case of inconsistency with these amendments and any previous Zoning Regulations, these

revisions shall prevail, . . .

71. In repealing the temporary regulations, Resolution 10-357 makes Medical

Marijuana Land Uses Allowed Uses under the El Paso County Land Development Code.


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72. Because Resolution 10-357 repeals the temporary regulations and makes such

uses Allowed Uses, a ballot measure that repeals that which has already been repealed is a legal

nullity.

73. Defendant enacted this Resolution effective August 26, 2010, which makes

Resolution 10-356 moot, and not a decision upon which an election can have any impact.

74. By converting the temporary regulations and uses to permanent Allowed Uses, the

County has continued its regulatory scheme that is inconsistent with any attempt to ban such

uses.

75. On August 26, 2010 the Defendants also passed Resolution No. 10-358.

76. Resolution 10-358 adopts the El Paso County Medical Marijuana Policy, which

includes a licensing structure, effective November 19, 2010.

77. This Resolution discusses the history of El Paso Countys regulation and zoning

of medical marijuana through Resolutions 09-469 and 10-230 in the temporary zoning

regulations, and fails to take into consideration Resolution 10-356.

78. This Resolution states that it derives its authority from C.R.S. 12-43.3-103(2)(a),

which allows a county to adopt a resolution for the licensing, regulating or prohibiting the

cultivation and sale of medical marijuana.

79. This Resolution fails to recognize Resolution 10-356, which derived its authority

under the local opt out provision of the Code, C.R.S. 12-43.3-106.

80. This Resolution also fails to recognize Resolution 10-357, which derives its

authority from the entire Code, C.R.S. 12-43.3-101 et seq.

81. Resolution 10-358 contains the El Paso County Medical Marijuana Policy, which

constitutes regulation, in furtherance of C.R.S. 12-43.3-103(2)(a).


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82. This Resolution was passed on the same day as putting the question to prohibit

out to a vote and fails to recognize Resolution 10-356, which derived its authority under the local

opt out provision of the Colorado Medical Marijuana Code, C.R.S. 12-43.3-106.

83. Citing two (2) different provisions of C.R.S. 12-43.3-101 et. seq. on the same

day to effectuate exact opposite results is not an expression of the plain meaning of the Colorado

Medical Marijuana Code.

84. If passed, the ballot question cannot stand under the BOCCs Resolutions 10-356,

which puts the question of prohibition on the ballot pursuant to C.R. S. 12-43.3-106, and 10-

357 and 10-358, which zone, regulate, and define a licensing structure pursuant to C.R.S. 12-

43.3-103(2)(a) as it frustrates the plain meaning of the statute.

85. Passage of Resolutions 10-357 and 10-358 is inconsistent with a ban and

constitutes regulation under C.R.S. 12-43.3-103(2)(a), which action precludes a ban under

Colorado law.

86. Thus, Plaintiffs seek declaratory relief pursuant to C.R.C.P. 57 that the proposed

ban would be a legal nullity and would violate C.R.S. 12-43.3-103(2)(a) and as such, is not a

measure that can be properly put before a vote of the people.

SUBSTANTIVE CHALLENGES TO TERMINATING EXISTING BUSINESSES(GRANDFATHERING)

THIRD CAUSE OF ACTION(Declaratory Relief - Defendant Cannot Terminate Legally Existing Businesses)


as if fully set forth herein




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and shall medical marijuana land uses legally existing under the El PasoCounty Land Development Code be required to cease operation on or

before August 31, 2011,

89. From and after the passage of Resolutions 09-469 and 10-230 and in conformance

with the regulatory scheme established by the Defendant, the Plaintiffs have invested hundreds

of thousands of dollars in their respective business locations, have applied for and received local

approval for such medical marijuana business locations, have received building permits and

development plan approvals, have applied for and received State Sales Tax Licenses, have paid

State and County sales and use taxes, have applied to El Paso County under its land use

regulations and to the State for licenses and paid fees in order to meet the July 1 and August 1,

2010 deadlines imposed by El Paso County and the Code.

90. At the time these businesses were opened and/or at the time these businesses

applied for and received approval to be constructed, they were lawful under the applicable El

Paso County Land Development Code, and under Colorado Law.

91. In doing so, the Plaintiffs relied on repeated and unmistakable representations

from the Defendant that their businesses were properly operating in the subject zone districts,

and that regulations would be forthcoming to permanently regulate and license such businesses.

92. Those permanent regulations were adopted by the passage of Resolution 10-357,

which converted the temporary uses to Allowed Uses, and Resolution 10-358, which created

Defendants policy and licensing structure for medical marijuana.

93. The subject facilities are located in the M, C1, C2 or CS Zone Districts which are

the Zone Districts allowed for Medical Marijuana Land Uses under the El Paso County Land

Development Code, (the LDC).


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94. Both the currently existing medical marijuana businesses and those businesses

that have applied for and received approval to be constructed are legal Allowed Uses under the

LDC.

95. In the alternative, if the uses are not deemed to be legal uses, they are legal

nonconforming uses under the LDC and under Colorado law.

96. As such, these businesses may not be terminated under the LDC or under

Colorado law.

97. The portion of the Ballot Question that purports to put these currently existing

businesses and those that have applied for and received approval to be constructed out of

business is not authorized by statute or Colorado law.

98. Because the Defendant cannot legally terminate these businesses, the Defendant

cannot authorize the voters to authorize it either.

99. Pursuant to C.R.C.P. 57, Plaintiffs seek declaratory relief from the Court stating

that because the substance of this portion of the Ballot Questions is both illegal and

unenforceable, that putting it on the November Ballot would be a legal nullity.

FOURTH CAUSE OF ACTION(Declaratory Relief - El Paso County Resolutions 10-356 and 10-357

Cannot Be Legally Reconciled)








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102. In the clarifying paragraph underneath the Ballot Question, in relevant part

Resolution 10-356 states that 1) Resolution 10-230 shall be repealed through operation of law

on November 19, 2010; 2) temporary use approvals issued pursuant to Resolutions 09-469 and

10-230 shall be valid until August 31, 2011, to the extent permitted by state law; and 3) pending

temporary use applications not approved by November 19, 2010 shall be deemed denied

103. In light of Resolution 10-357, which eliminates any temporary regulations that

existed, and made Medical Marijuana Land Use an Allowed Use in the CS, C1, C2 and M

Districts, Plaintiffs are necessarily excepted from this ballot question in total.

104. Resolution 10-357 eliminates the very temporary uses that Resolution 10-356

addresses.

105. If the only uses that this portion of the Ballot Question addresses have been

repealed, a ballot issue that seeks to repeal that which has already been repealed creates an

irreconcilable and unenforceable legal result that cannot be the subject of a valid ballot measure.

106. Pursuant to C.R.C.P. 57, Plaintiffs request a declaratory judgment that the ballot

question, as posed, cannot stand under Colorado law. As the Plaintiffs are the only businesses

that have been granted temporary use approvals pursuant to 09-469 and 10-230, and that

temporary regulations were eliminated as of August 26, 2010, Plaintiffs assert that the Ballot

question cannot stand.

FIFTH CAUSE OF ACTION(Declaratory Relief - Resolution 10-357 Supersedes Resolution 10-356)






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109. Resolution 10-357, states in relevant part that in the case of any inconsistency

with these amendments and any previous Zoning Regulations, these revisions shall prevail,

110. Resolution 10-357 as adopted, repeals Resolutions 09-469 and 10-230, and

prevails over any inconsistency in their language effective August 26, 2010.

111. Resolution 10-357 as adopted and effective August 26, 2010, prevails over any

attempt to prohibit Plaintiffs, which negates Resolution 10-356, the Ballot Question, in its

entirety.

112. Defendant is barred from submitting the Ballot Question containing these zoning

regulations to the electorate, because the Ballot Question is negated by the subsequent passage of

Resolution 10-357 which preempts any ban or restriction on Medical Marijuana Land Use in

unincorporated El Paso County.

113. This Ballot Question, as presented, is negated by operation of Resolution 10-357

and cannot stand under Colorado law.

114. The Plaintiffs request declaratory judgment pursuant to C.R.C.P. 57 and pursuant

to C.R.C.P 106(a)(4) on this issue and a finding by this court that the submission of such the

Ballot Question as passed exceeds the Defendants authority or constitutes an abuse of discretion

by the Defendant.

SIXTH CAUSE OF ACTION(Declaratory Relief - The Ballot Question Violates the Express Provisions of the

Colorado Medical Marijuana Code, C.R.S. 12-43.3-101, et seq. )




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117. C.R.S. 12-43.3-103(2)(a) and 106 respectively deal with the local jurisdictions

authority to regulate, license or prohibit the sale and cultivation of medical marijuana, and the

ability of the local jurisdiction to opt out of the Code, in furtherance of a ban either by the local

governmental authority, or by resolution to put the question of a ban to a vote of the people of

the local jurisdiction.

118. On December 17, 2009, Defendant determined that a ban was not a prudent

approach to medical marijuana businesses prior to the Codes passage.

119. On December 17, 2009, Defendant adopted Resolution 09-469, which regulates

medical marijuana businesses in unincorporated El Paso County.

120. Since December 17, 2009, Defendant has regulated the sale and cultivation of

medical marijuana in anticipation of the states regulatory scheme and direction.

121. On June 10, 2010, Defendant again determined that a ban was not in the best

interest of the unincorporated portions of El Paso County, pursuant to the Codes opt out

provision.

122. On June 10, 2010 the Defendant passed Resolution 10-230 in furtherance of

continued regulation of medical marijuana facilities, as C.R.S. 12-433-101 et. seq., mandates that

a separate license ultimately be issued for each specific business or business entity and each

geographical location.


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123. Defendant knew at the time of passage of this Resolution that as of July 1, 2010

that licenses could only be issued to business premises, not business entities, thus transferring

locations, or from one local jurisdiction to another, over a course of this year an impossibility.

124. Since the passage of the Code, Defendant has adopted Resolutions in furtherance

of all of the choices listed in C.R.S. 12-43.3-103(2)(a), which are regulate, license or prohibit.

125. On August 26, 2010 the Defendant passed Resolutions 10-357 and 10-358, in

furtherance of continued regulation of Plaintiffs medical marijuana facilities in unincorporated

El Paso County.

126. On August 26, 2010, after regulating for over eight (8) months in unincorporated

El Paso County, Defendant as a governing body, declined to prohibit, for the third time.

Rather, Defendant passed Resolution 10-356, which submits to the registered electors of El Paso

County the Ballot Question, which, in part contains the question of whether or not to allow

existing businesses to continue to operate, pursuant to the local opt out provision described

above.

127. Once a regulatory and licensing path was taken, and Defendant affirmatively

chose not to prohibit pursuant to the Codes local opt out provision. This provision does not

permit Defendant one more bite at the apple to see if the voters will do what Defendant knows

it cannot itself legally do, i.e., to ban and close down legally existing businesses.

128. Defendant does not have the authority to act in furtherance of all three (3) actions,

as a plain reading requires that a choice be made regulate, license or prohibit not regulate and

license and prohibit.

129. Pursuant to the express provisions of the Code, the Defendant cannot, after having

adopted the regulatory scheme that it has followed, after having adopted medical marijuana as an

allowed use and having adopted the El Paso County Medical Marijuana Policy, which includes


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a licensing structure, now allow voters to prohibit Plaintiffs medical marijuana facilities, either

through action of the BOCC or by referring the question to the County voters.

130. In the alternative, pursuant to the opt out provision, Defendant is able to choose to

either vote for the ban, or refer the vote to ban to the voters. Defendant does not get to choose

both provisions, which it did.

131. In doing so, Defendants unlawfully submitted the question of a ban to the

registered electors of El Paso County.

132. As passed, the Ballot Question cannot stand under the Code and Defendants

Resolution 10-230.

133. The Plaintiffs request declaratory judgment pursuant to C.R.C.P. 57 and pursuant

to C.R.C.P 106(a)(4) on this issue and a finding by this court that the submission of such the

Ballot Question as passed exceeds the Defendants authority or constitutes an abuse of discretion

by the Defendant.

SEVENTH CAUSE OF ACTION(Declaratory Relief - The Defendant Cannot Use Retrospective Regulation

to Terminate Legally Existing Businesses)134. The Plaintiffs incorporate the Case Summary and all previous paragraphs above


135. By adopting the regulatory scheme that it did, the Defendant created a vested

property right in the Plaintiffs

136. Resolution 10-356 contains no grandfathering provision and in fact requires the

currently existing legally operating businesses to close.

137. The effect of no grandfathering provision is that Resolution 10-356 takes away or

impairs vested rights acquired under existing laws.


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138. This Resolution as it pertains to terminating existing legal businesses violates the

Colorado Constitution ban on retrospective laws. Colorado Const. Art. 2, 11.

139. As Resolution 10- 356 is written, there is no set of circumstances that would

allow the currently legally existing business to remain in business.

140. This portion of the Ballot Question violates the Colorado Constitution and cannot

be the proper subject matter of a question posed to the voters.

141. The Plaintiffs request declaratory relief and relief under C.R.C.P. 106(a)(4)

stating that the Ballot Question violates the Colorado Constitution and cannot be the proper

subject matter of a question posed to the voters and that the Defendant exceeded its jurisdiction

and/or abused its discretion.

EIGHTH CAUSE OF ACTION(Declaratory Relief - The Defendant Cannot Refer

a Quasi-Judicial Decision to the Voters)



143. The portion of the Ballot Question regarding termination of businesses applies

only to those businesses . . . legally existing under the El Paso County Land Development Code

. . .

144. This portion of the Ballot Question pertains only to a finite and readily

identifiable group of businesses, consisting of those who applied on or before July 1, 2010,

existing in defined zone districts, and existing at a particular point in time.

145. All of the Plaintiffs have met the statutorily imposed deadlines under the Code.

146. The Ballot Question will adversely affect the protected interests of specific

individuals and businesses.


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147. The decision to terminate existing businesses was reached through the application

of the preexisting legal standards or policy considerations to present or past facts presented to the

Defendant.

148. As such, the Defendants action in referring this portion of the Ballot Question to

a vote is quasi-judicial in nature.

149. Under Colorado Constitution, Article V, Section 1, the powers of referendum are

reserved only to those acts that are legislative in nature

150. Actions that are quasi-judicial in nature cannot be referred to a vote.

151. The Defendants actions in referring the issue of terminating existing businesses

can be reviewed by the court under C.R.C.P. 106(a)(4).

152. The Defendant in exercising this quasi-judicial function has exceeded its

jurisdiction or abused its discretion.

153. There is no plain, speedy and adequate remedy otherwise provided by law.

154. By referring this matter to the voters, the Defendant has acted in a manner that is

not authorized by applicable statutory and case law authority.

155. The Plaintiffs request that this court review the Defendants actions under

C.R.C.P. 106(a)(4) and determine that the Defendant exceeded its jurisdiction or abused its

discretion in referring the Ballot Question to the voters and that the Plaintiffs have no plain,

speedy or adequate remedy otherwise provided by law.

SUBSTANTIVE CHALLENGES TO THE CAREGIVER QUESTION

NINTH CAUSE OF ACTION(Declaratory Relief Violation of El Paso County

Board of County Commissioners Resolution No. 10-356)




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157. The final section of the ballot question that deals with the caregiver / patient

model states as follows:

leaving intact the constitutional protection for medical marijuana patientsand primary caregivers provided by Article XVIII, Section 14 of the

Colorado Constitution

158. Defendants question, posed to the registered voters of El Paso County, is an

inaccurate depiction of law and fact in unincorporated El Paso County as of the time of its

passage.

159. Both Resolutions 09-469 and 10-230 update the El Paso County Development

Code (LDC) Definitions and Uses, including:

a. Zone Districts are limited to CS, C1, C2 and M.

b. LDC Chapter 1 Definitions were updated as a result of these Resolutions to include the

following definitions and regulations:

i) The LDC states that Medical Marijuana Land Use shall mean and include the use of

any property or structure to distribute, transmit, give, dispense, or otherwise provide

marijuana in any manner, in accordance with Section 14, of Article XVIII of the

Colorado Constitution. This includes any growing for other than the personal use of

the occupant, or restaurant use.

ii) LDC 5.2.30 Home Occupations was updated and now states in part: however, in

no instance may a medical marijuana land use qualify as a home occupation.

160. Prior to Defendant regulating medical marijuana in unincorporated El Paso

County starting in December 2009 into four (4) zone districts, and restricting the home

occupations other than for personal use, primary caregivers under the Constitution had not been

zoned into zone districts, or out of home occupations.


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161. Part 10 of the Colorado Medical Marijuana Code, specifically 25-1.5-106

mandates that the Colorado Department of Public Health and Environment, (CDPHE) regulate

primary caregivers and patients in a way that is more restrictive than the constitutional protection

for medical marijuana patients and primary caregivers provided by Article XVIII, Section 14 of

the Colorado Constitution.

162. C.R.S. 25-1.5-106-(2)(d) states the following Medical Marijuana Program

means the program established by section 14 of article XVIII of the state constitution and this

section.

163. Some of the new restrictions that apply to primary caregivers included in this

section, C.R.S. 25-1.5-106, are as follows:

(9)(a) A primary caregiver may not delegate to any other person his or her authority to provide medical marijuana to a patient nor may a primarycaregiver engage others to assist in providing medical marijuana to a patient.

(9)(b) Two or more primary caregivers shall not join together for the purposeof cultivating medical marijuana.

(9)(c) Only a medical marijuana center with an optional premises cultivationlicense, a medical marijuana-infused products manufacturing operation with anoptional premises cultivation license, or a primary caregiver for his or her

patients or a patient for himself or herself may cultivate or provide marijuanaand only for medical use.

(10)(a) Patient--primary caregiver relationship. A person shall be listed as a primary caregiver for no more than five patients on the medical marijuana program registry at any given time

(10)(c) A patient who has designated a primary caregiver for himself or herself may not be designated as a primary caregiver for another patient.

(10)(d) A primary caregiver may not charge a patient more than the cost of cultivating or purchasing the medical marijuana, but may charge for caregiver services.


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164. The portion of the Ballot Question cited in this section does not address any of

these statutory requirements, prohibitions or regulations on primary caregivers, and gives an

inaccurate statement of law and fact to the electorate.

165. The Ballot Question does not take into consider the legislative enactment of CRS

12-43.3-101, et seq.

166. Defendants statement of the constitutional protections afforded primary

caregivers, as presented, and if passed, cannot stand under the laws of this state.

167. The Plaintiffs request declaratory relief and relief under C.R.C.P. 106(a)(4)

stating that the Ballot Question violates the Colorado Constitution and cannot be the proper

subject matter of a question posed to the voters and that the Defendant exceeded its jurisdiction

and/or abused its discretion.

TENTH CAUSE OF ACTION(Injunctive Relief Pursuant to C.R.C.P 65)



169. Plaintiffs claim that the ballot question is not legal; therefore not a question that

the registered voters of El Paso County can assent or dissent to legally.

170. Requiring the registered voters to exercise their right to vote in furtherance of

unlawful action abuses the election process and the fundamental right to vote under the Colorado

Constitution for legal actions.

171. This causes an immediate and irreparable injury that can only be prevented by

injunctive relief stopping the enforcement of the Countys Resolution that unlawfully poses the

Ballot Question that 1) bans medical marijuana centers, infused product manufacturers and

optional premise operations, 2) shuts down legally operating businesses that this Ballot Question


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does not appear to apply to, and if it does, it is unlawful, and 3) restores the Constitutional

protections for a caregiver model that no longer exists under Colorado law.

172. Plaintiffs are protected by the Colorado Constitution and the laws of this state,

and are afforded specific rights thereunder. These rights are being abridged.

173. If not enjoined by the Court, Defendant will continue to implement the Countys

policies and formal positions, by way of the registered voters, in derogation of Plaintiffs and

their patients respective rights, the registered voters of El Paso County and others similarly

situated. Such will impose irreparable injury on the Plaintiffs and these other persons.

174. Plaintiffs, all registers voters, primary caregivers and patients have no other plain,

speedy, or adequate remedy at law.

175. The attached Exhibits and this Verified Complaint, incorporated herein, affirm the

unlawfulness, confusion, inconsistencies, and immediate and irreparable harm the Ballot

Question and the Countys formal policies, positions and Resolutions pose to these Plaintiffs,

their patients and these other persons.

176. Plaintiffs ask that the Court enter immediate injunctive relief pursuant to C.R.C.P

65.

PRAYER FOR RELIEF

WHEREFORE, the Plaintiffs pray for the following relief:

A. Pursuant to C.R.C.P. 57 and 65 the Plaintiffs request this Court: i) declare that the

Ballot Question, as presented, cannot stand under the laws of this state; ii) pursuant to C.R.C.P

106(a)(2) request that this court order that the Ballot Question be taken off of the El Paso County

November 2010 ballot; and iii) request that this court determine that pursuant to C.R.C.P.

106(a)(4) that the Defendant exceeded its authority by attempting to have the voters decide the

question of a ban that is impermissible under state law.


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B. Pursuant to C.R.C.P 57 and 65, the Plaintiffs request that this court declare that

any attempt to ban medical marijuana businesses would be in violation of state law and therefore

cannot be the subject matter of a vote.

C. For declaratory relief pursuant to C.R.C.P. 57 and 65 that the proposed ban would

be a legal nullity and would violate C.R.S. 12-43.3-103(2)(a) and as such, is not a measure that

can be properly put before a vote of the people.

D. Pursuant to C.R.C.P. 57 and 65, Plaintiffs seek declaratory relief from the Court

stating that because the substance of ban and the termination of existing businesses portion of the

Ballot Question are both illegal and unenforceable, that putting it on the November Ballot would

be a legal nullity.

E. Pursuant to C.R.C.P. 57 and 65, Plaintiffs request a declaratory judgment that the

ballot question, as posed, cannot stand under Colorado law. As the Plaintiffs are the only

businesses that have been granted temporary use approvals pursuant to 09-469 and 10-230, and

that temporary regulations were eliminated as of August 26, 2010, Plaintiffs assert that the Ballot

question cannot stand.

F. The Plaintiffs request declaratory judgment pursuant to C.R.C.P. 57, 65, and

pursuant to C.R.C.P 106(a)(4) on this issue and a finding by this court that the submission of

such the Ballot Question as passed exceeds the Defendants authority or constitutes an abuse of

discretion by the Defendant.

G. The Plaintiffs request declaratory and injunctive relief and relief under C.R.C.P.

106(a)(4) stating that the Ballot Question violates the Colorado Constitution and cannot be the

proper subject matter of a question posed to the voters and that the Defendant exceeded its

jurisdiction and/or abused its discretion.


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H. The Plaintiffs request that this court review the Defendants actions under

C.R.C.P. 106(a)(4) and determine that the Defendant exceeded its jurisdiction or abused its

discretion in referring the Ballot Question to the voters and that the Plaintiffs have no plain,

speedy or adequate remedy otherwise provided by law.

I. Enter injunctive relief ordering that the Defendant, and all those acting in concert

with them, to remove the Ballot Question from the November Ballot and to enforce the C.R.S

12-43.3-101 et seq., Countys current zoning policy, pursuant to Resolution 10-357 and 10-358.

J. Award the Plaintiffs their attorney fees and cost.

K. Order such other and further relief as to the court may seem just and proper.

RESERVATION OF RIGHT

Plaintiffs expressly reserve and preserve their ability to amend this Complaint when its

counsel has had an opportunity to review the certified record in this matter.

Respectfully submitted this 3rd day of October 2010.

By:/s/ Robert T. HobanRobert T. Hoban

By: /s/ Charles T. HoughtonCharles T. Houghton

By: /s/Laura HaynesLaura Haynes


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In accordance with C.R.C.P. 121 1-26(9), a printed copy of this document with originalsignatures is being maintained by the filing party and will be made available for inspection byother parties or the Court upon request.

Plaintiffs Addresses:

Hammers Construction, Inc. Humboldt Care & Wellness Center, LLC1411 Woolsey Heights 1453 Woolsey HeightsColorado Springs, CO 80915 Colorado Springs CO 80915

CNH, LLC Claremont Development, LLC1411 Woolsey Heights 1411 Woolsey HeightsColorado Springs, CO 80915 Colorado Springs, CO 80915

Cannabicare, Inc. Rocky Mountain Way Wellness1466 Woolsey Heights 1435 Selix Grove, Ste.100

Colorado Springs, CO 80915 Colorado Springs, CO 80915Colorado Tree Farmers, Inc. Hatch Wellness Center, LLC7204 Cole View, Suite 130 1478 Woolsey HeightsColorado Springs, CO 80915 Colorado Springs, CO 80915

Steve Hammers Clifford Stahl1453 Woolsey Heights 7204 Cole View, Suite 130Colorado Springs CO 80915 Colorado Springs, CO 80915

Dave Hammers Eric Hatch1453 Woolsey Heights 1478 Woolsey HeightsColorado Springs CO 80915 Colorado Springs CO 80915

Jeffrey Sveinsson Titan Investments, LLC1466 Woolsey Heights 15860 W. 5th AvenueColorado Springs CO 80915 Golden, CO 80401

Gary Woodruff 1435 Selix Grove, Ste.100Colorado Springs CO 80915


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VERIFICATION/AFFIDAVIT

I, Steven R. Hammers, have personal knowledge of the foregoing and attest to its contents,factual assertions, and validity.

/s/Steven R. Hammers_______________ (signature on file)

Steven R. Hammers

Sworn to and Subscribed before me this 4 th day of October 2010 by Steven R. Hammers.

Witness my official hand and seal.

My commission expires on September 28, 2014.

/s/ Lindsay H. Markham(signature on file) ___________________________________ Notary Public

(Seal)

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El Paso Medical Marijuana Complaint

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