Buena Vista medical marijuana lawsuit

8/8/2019 Buena Vista medical marijuana lawsuit

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DISTRICT COURT, CITY AND COUNTY OF DENVER, COLORADO

City and County Building, Room 111

1437 Bannock St.

Denver, CO 80202

Plaintiffs:

v.

HAMME-BAST!, L.L.C., DANIEL HAMME AND

CLARICE BAST!

Defendant: COLORADO DEPARTMENT OF REVENUE,

MEDICAL MARIJUANA ENFORCEMENT

DIVISION

~ COURT USE ONLY ~

GARD &BOND, L.L.c.

Attorneys for Defendant

2541 Spruce Street

Boulder, CO 80302

303-499'-3040 (phone)

303-379-6256 (facsimile)

Jeffrey S. Gard, #27294

Anna E.V. Bond, #35501

Trevor R. Updegraff, #41433

Case Number:

Div.: Ctrm.:

AMENDED COMPLAINT FOR JUDICIAL REVIEW PURSUANT TO C.RS. ~ 24-4-106

AND/OR REMEDIAL WRIT PURSUANT TO C.RC.P. 106

AND/OR DECLARATORY JUDGEMENT PURSUANT TO C.RC.P. 57

Plaintiffs, for their amended complaint for judicial review and/or remedial writ, hereby

state as follows:

1. Plaintiffs, Daniel Hamme and Clarice Basti, reside at 29383 County Road #358,Buena Vista, Colorado.

2. Plaintiff Hamme-Basti, L.L.c., is a Colorado limited liability company, with its

principal place of business located at 204 E. Main Street, Buena Vista, Colorado.

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3. Defendant, Department of Revenue, Medical Marijuana Enforcement Division, is

a government agency of the state of Colorado with its principal place of

operations at 1881 Pierce Street, Lakewood, Colorado (hereinafter "the

Department") .

4. Venue in this Court is proper pursuant to C.RS. ~ C.RS. 24-4-1 06(4) andC.RC.P.98.

5. This Court has jurisdiction pursuant to C.RS. ~ 24-4-106(4) and C.RC.P. 106.

6. At all relevant times, the Department is charged with rule making, enforcement

and licensing of medical marijuana businesses pursuant to C.RS. ~ 12-43.3-101,

et seq.

7. Plaintiffs Hamme and Basti own and operate Hamme-Basti, L.L.C., a medical

marijuana center locally approved to operate in Buena Vista, Colorado.

8. Plaintiffs applied to the Town of Buena Vista for approval of a medical marijuana

center, including permission to cultivate medical marijuana, at the 204 E. Main

Street location.

9. On 8/10/10, the Town of Buena Vista approved Plaintiffs' request for approval of

a medical marijuana center, including permission to cultivate medical marijuana,

at the 204 E. Main Street location.

10. On 9/7/10, Plaintiffs submitted their application for licensing of their medical

marijuana center and optional cultivation premises to the State of ColoradoDepartment of Revenue, Medical Marijuana Enforcement Division.

11. On 9/29/10, Mr. Matt D. Cook, Senior Director of the State of State of Colorado

Department of Revenue, Medical Marijuana Enforcement Division, sent Plaintiffs

written notification that it is unlawful for them to continue to operate the business.

A copy of this written notification is attached hereto as Exhibit A.

12. The Medical Marijuana Enforcement Division has not adopted administrative

rules governing internal appeal of agency actions or otherwise establishing

administrative remedies or procedures through which aggrieved parties may seek

reconsideration of an agency action, such as the notification provided in this case.

13. As such, the 9/29/10 notification is a final agency action regarding the continued

operation of the medical marijuana center and optional cultivation premises.

14. As a final agency action, the 9/29/10 notification is subject to judicial review

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pursuant to C.RS. ~ 24-4-106(2).

FIRST CLAIM FOR RELIEF: ERRONEOUS INTERPRETATION OF

eR.s. 12-43.3-103(1)(a) and (b)

15. Plaintiffs incorporate any and all prior allegations herein.

16. C.RS. 12-43.3-103(1)(a) states that:

On July 1, 2010, a person who is operating an established, locally

approved business for the purpose of cultivation, manufacture, or sale of

medical marijuana or medical marijuana-infused products or a person

who has applied to a local government to operate a locally approved

business for the purpose of cultivation, manufacture, or sale of medical

marijuana or medical marijuana-infused products which is subsequently

granted may continue to operate that business in accordance with any

applicable state or local laws. (Emphasis added).

17. In this matter, Plaintiffs applied to the Town of Buena Vista to operate a locally

approved business for the purpose of cultivation, manufacture, or sale of medical

marijuana or medical marijuana-infused products.

18. Again, on 8/10/10, the Town of Buena Vista approved Plaintiffs to operate a

business for the purpose of cultivation, manufacture, or sale of medical marijuana

or medical marijuana-infused products.

19. C.RS. 12-43.3-103(1)(b) states that:

To continue operating a business or operation as described in paragraph (a)

of this subsection (1), the owner shall, on or before August 1,2010,

complete the forms as provided by the Department of Revenue and shall

pay a fee, which shall be credited to the medical marijuana license cash

fund established pursuant to Section 12-43.3-501.

20. It is this portion ofC.RS. 12-43.3-I03(I)(b) that the Department relies upon in

instructing Plaintiffs to cease operation of their business.

21. However, there is an alternative filing date set forth in C.RS. 12-43.3-103(1)(b)for businesses that receive local approval.

22. Specifically, C.RS. 12-43.3-103(1)(b) states that:

An owner issued a local license after August 1,2010, shall complete the

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forms and pay the fee pursuant to this paragraph (b) within 30 days of

issuance of the local license.

23. It is this portion ofC.R.S. l2-43.3-l03(b) relied upon by Plaintiffs in submitting

their state application on 9/7/10, 28 days after issuance ofthe local license by the

Town of Buena Vista.

24. Careful reading ofC.R.S. l2-43.3-l03(b) reveals that there are two alternative

filing dates applicable to established medical marijuana businesses.

25. The first alternative is for medical marijuana businesses who have not received

local approvaL Such businesses must apply by 8/1/10.

26. The "8/1/10 " application alternative can be utilized by medical marijuana

businesses who are in municipalities with expiring moratoriums or that have not

established medical marijuana business regulations or have not yet developed the

administrative apparatus necessary to review and approval medical marijuana

businesses.

27. The "apply within 30 days after local approval" application alternative can be

used by medical marijuana businesses whose local applications are under

consideration by the local authority or where there is sufficient administrative

apparatus necessary to review and approve medical marijuana businesses.

28. In the case at bar, Buena Vista was in the process of approving Plaintiffs' medical

marijuana business and approval was given on 8/10/1O.

29. Accordingly, Plaintiffs timely filed their state application within 30 days oflocal

approval, as permitted by C.R.S. l2-43.3-l03(1)(b).

30. As such, Plaintiffs were legally permitted to continue operating their business

upon the timely submission of the state application within 30 days of local

approvaL

31. The Department, in making its determination that Plaintiffs must cease continued

operation of their business, is only applying one of the two alternative filing

deadlines provided for in C.R.S. l2-43.3-l03(b).

32. The Department ignores the plain language ofC.R.S. l2-43.3-l03(1)(b), which

permits Plaintiffs to continue to operate their business in the event that they file

the state application within 30 days oflocal approvaL Again the application was

timely filed 28 days after local approval.

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33. The Department's narrow interpretation and application ofthe 8/1/10 filing

deadline, while ignoring the alternative "apply within 30 days of local approval"

deadline, is an interpretation which is clearly erroneous.

REQUEST FOR DECLARATORY JUDGMENT PURSUANT TO C.R.C.P 57

34. Plaintiffs incorporate any and all prior allegations herein.

35. Plaintiffs, as a locally approved medical marijuana business and business owners,

are affected by C.RS.S 12-43.3-101 et seq., and more specifically C.RS. S 12-

43.3-103(l)(b). C.RC.P.57(b).

36. This Court has jurisdiction to declare rights, status, and other legal relations, as

between Plaintiffs and the Colorado Department of Revenue, Medical Marijuana

Enforcement Division.

37. Plaintiffs request that the Court determine whether there are two alternative filing

deadlines for the state medical marijuana business application set forth in C.RS. S

12-43.3-103(1 )(b).

38. Plaintiffs request that the Court determine whether a locally approved medical

marijuana business is permitted to file its state medical marijuana business

application within thirty (30) days of receiving local approval, pursuant to C.RS.

S 12-43.3-103(1)(b).

39. Plaintiffs request that the Court determine whether a locally approved medical

marijuana business' state medical marijuana business application is timely filed in

the event that the state application is filed within thirty (30) days oflocal

approval.

40. Finally, Plaintiffs request that the Court determine that a locally approved

business is permitted to continue to operate, pursuant to C.R.S. S 12-43.3-

103(1)( a), pending approval of the state medical marijuana business application,

provided that said business timely filed its state application within thirty (30) days

of receiving local approval, pursuant to C.RS. S 12-43.3-103(l)(b).

RELIEF SOUGHT

Plaintiffs seek an order from the Court which confirms, under C.RS. S 12-43.3-

103(1)(b), that an established medical marijuana business may timely submit the Colorado

medical marijuana state application within thirty (30) days of obtaining local approval for such

business. Additionally, Plaintiffs seek judicial determination that their application to the State of

Colorado, Department of Revenue, Medical Marijuana Enforcement Division was timely filed

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and that they may continue to operate their business until such time as the Department rules upon

their application to operate a medical marijuana business pursuant to C.RS. 12-43.3-101, et seq.

Dated: October 29,2010

Respectfully,

Original signature on file

Jeffrey S. Gard

CERTIFICATE OF SERVICE

I hereby certify that on 10/29/10, I duly mailed a copy of the foregoing AMENDED

COMPLAINT FOR JUDICIAL REVIEW PURSUANT TO C.RS. 9 24-4-106 AND/OR

REMEDIAL WRIT PURSUANT TO C.RC.P. 106 AND/OR DECLARATORY JUDGEMENT

PURSUANT TO C.RC.P. 57 to:

Colorado Department of Revenue

Medical Marijuana Enforcement Division

Attn: Matt D. Cook, Senior Director

1881 Pierce Street

Lakewood, CO 80214-1407

Colorado Attorney General

1525 Sherman Street, 5th Floor

Denver, CO 80203

Plaintiffs

Original signature on file

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Buena Vista medical marijuana lawsuit

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