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9 Colorado Springs marijuana clubs file lawsuit against city law

April 15, 2016 Updated: April 16, 2016 at 7:48 am
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photo - Emily McNamara smokes a joint with Black Angus Wednesday, March 16, 2016, at the Speakeasy Vape Lounge and Cannabis Club in Colorado Springs. The Marijuana club was been open for three years.  (The Gazette, Christian Murdock)
Emily McNamara smokes a joint with Black Angus Wednesday, March 16, 2016, at the Speakeasy Vape Lounge and Cannabis Club in Colorado Springs. The Marijuana club was been open for three years. (The Gazette, Christian Murdock) 

Nine cannabis consumption clubs in Colorado Springs filed a lawsuit Friday, seeking an injunction to stop the city from enforcing the club ban it enacted March 22. 

The clubs "reasonably relied" on their inclusion as social clubs under the city's zoning code, says the lawsuit, filed in El Paso County District Court by Denver lawyer Robert J. Corry Jr.

Eight of the clubs are in "permitted use" districts, the suit says. Those are the Lazy Lion, Studio A64, Canna Canyon, The Pothole, Granny's Joint, Springs Dreams, the Dab Lounge and My Club 420. One Love Club is in a "conditional use" district, Corry writes.

The heart of the legal challenge, though, relies on Amendment 64, which legalized adult use, cultivation and possession of recreational marijuana.

Although Colorado Springs is a home-rule city, Corry said Friday, "This is the Colorado Constitution. Home rule does not exempt you from the supreme law of the state. That applies to every governmental entity, big or small, by its own terms."

Amendment 64 does not mention cannabis clubs, however, said City Councilman Keith King.

"So since it's not mentioned in 64, the prerogative of the council is the ability to create law where there is vagueness in the constitutional amendment," King said. "In this particular case, we are on solid ground because it is not protected, and we will be able to win this in court. We have the right to regulate where the amendment is silent."

The council pursued the ordinance after some constituents of Councilman Don Knight complained about a cannabis club opening in their neighborhood. Knight was out of town Friday and unavailable for comment.

Although worried neighbors prompted the action, police concerns bolstered six council members' determination to put an end to the clubs. Council members Helen Collins, Jill Gaebler and Bill Murray opposed the ban.

Retail sales of recreational marijuana are illegal within the city, but club owners reportedly provided patrons with marijuana in exchange for dues, donations or other considerations. Many city officials interpreted such exchanges as de facto sales.

Murray made a motion that the ban be delayed six months while the city instead enforces the law that forbids retail sales. His motion failed.

The lawsuit says that while the plaintiffs comply with Amendment 64, "to the extent that they do not allegedly comply, such as with allegedly allowing remuneration for the transfer of marijuana, the remedy for such alleged failure to comply is now civil penalties administered uniformly at the state level by the Colorado Department of Revenue, not criminal prosecution or conviction, nor local ordinances providing for same."

Unlike retail and medical marijuana outlets, the clubs have been unlicensed and their transactions untaxed since their advent in 2013. Many club owners urged the council to license, tax and regulate them rather than instituting a ban. Instead, the ordinance that bans the clubs also licenses, taxes and regulates them.

The lawsuit challenges the club ban as essentially prohibiting all actions conducted by the plaintiffs and protected by Amendment 64 "and curiously, waits eight years to outright prohibit the entire idea of a 'marijuana consumption club' by March 22, 2024, eight years from enactment."

King had pushed for that extension, saying the businesses deserved ample time to prepare for closure and protect their investment.

Until then, they must pay licensing fees and taxes to the city.

Club-goers and owners alike offered hours of passionate testimony beginning in September, when a six-month moratorium was imposed to prohibit more consumption clubs from opening in the city. Many of their concerns are reiterated in the lawsuit, which notes that some club-goers cannot use marijuana in their homes because children or asthmatics are present or because landlords prohibit it.

"The existing clubs provide the only outlet," the suit says.

In a recent City Chat with The Gazette, Mayor John Suthers suggested such people should befriend a homeowner. Those who don't want to smoke pot in front of their children should consider not using marijuana, Suthers said.

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