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South Jeffco marijuana dispensary loses legal appeal

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Business challenged Jeffco decision saying pot business was not allowed under zoning rules

By Vicky Gits

The Colorado Court of Appeals has upheld the Jeffco Board of Adjustment’s 2010 decision to prohibit the owner of Footprints Health and Wellness from operating a marijuana dispensary in a South Jeffco shopping center.

The ruling was announced in a written decision by a three-judge panel on Nov. 1. Judges Robert M. Russel and Jerry N. Jones concurred with the opinion written by Judge Daniel M. Taubman.

Marc Giuliani, owner of Footprints Health, opened his marijuana business in October 2009. Two months later, the zoning administrator issued a violation, stating the dispensary was not a permitted use under the official development plan.

Giuliani appealed the violation, which was upheld by the Board of Adjustment in March 2010. The business closed in April 2010, and the owner took the county to court in May 2010, seeking injunctive relief and damages.

The attorney for Footprints Health and Wellness, Bob Hoban, could not be reached for comment. The company maintains a phone number with a message saying the business is closed while the appeals continue, as of Nov. 10. The address is given as 8250 W. Coal Mine Ave.

The trial court granted the county’s motion, denied the request for a preliminary injunction and affirmed the dispensary was not a permitted use.

In its Nov. 1 decision, the appeals court supported the trial court, saying that state legislation enacted in 2010 allows local governments “through a majority of registered voters or a majority of members of a locality’s governing board” to prohibit operation of medical marijuana centers or growing operations.

The ruling essentially confirms that governing authorities may control the establishment of marijuana businesses without violating the provisions of the amendment allowing use of medical marijuana.

In July 2010, the Jefferson County Board of Commissioners enacted its own resolution prohibiting businesses that cultivate, manufacture or sell marijuana products in unincorporated Jeffco.

The fact that Coloradans just approved a constitutional amendment to legalize marijuana does not mean that selling pot is now legal in Jefferson County, said county spokeswoman Kathryn Heider.

The main argument of the marijuana proponents in the Footprints case was that Amendment 20, passed in 2000, created the right to dispense and receive marijuana for medical use.

The appeals court disagreed. “The current statutory framework (i.e., the Colorado Medical Marijuana Code of 2010) requires that any facilities providing medical marijuana to eligible patients be licensed by both state and local authorities, and specifically allows local governments, including counties, to prohibit the licensing of dispensaries,” the decision says.

The appeals court also rejected arguments that a marijuana dispensary was not named and therefore not specifically prohibited by the development plan and that the business was similar to approved uses, such as a medical clinic, a drugstore or general retail.