Winter Park Man Seeks to Reverse Dispensary License Denial
Sky-Hi Daily News
Grand County CO Colorado
A Winter Park man has filed a civil suit against the Town of Winter Park for denying him a business license for a medical marijuana dispensary.
In court documents, Anthony Yu claims the town summarily denied his application for a dispensary in August 2009, prior to the adoption of any ordinance prohibiting such a business. He said he was then threatened with legal action by the town’s chief of police if he continued his caregiving business and was denied an appeal hearing with town council.
Less than a week later, on Sept. 1, town council adopted an emergency moratorium prohibiting the establishment of medical marijuana dispensaries.
Town Manager Drew Nelson said town officials will not comment on the case other than in their official court filings.
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In a letter dated Aug. 28, town staff denied Yu’s business license application on the grounds that the business would be “in violation of the Town Zoning Code.”
The town’s denial letter states that, because the business would be located in a residential structure at 219 Vasquez Road (a block away from Town Hall) in the residential-commercial service district, it would be considered a home occupation.
The town regulates home occupations to ensure they don’t “alter the character of the neighborhood,” wrote Town Clerk Cat Petersen in the Aug. 28 letter.
Per Winter Park’s code, home occupations may not be visible or audible from outside the building, may not create excess vehicular traffic and may not conduct retail or wholesale sales.
Yu’s application, dated Aug. 5, had stated that the majority of his business would be conducted through telephone and Internet sales, according to the complaint filed with the court. Yu’s attorney Daniel Taylor of Wheat Ridge claimed in court documents that Yu’s business would not have been visible or audible from outside the home, nor would it have generated excess vehicular traffic.
If (the town’s ordinance) is construed to prohibit any type of telephone and Internet sales, it would effectively prohibit all forms of home occupations involving sales including Realtors soliciting listings and home product sales such as Amway, Avon and Tupperware, wrote Taylor in an appeal to Winter Park’s town council.
The Town of Winter Park denied Yu an appeal hearing Sept. 24, stating that it would not modify its decision.
After the town initially denied Yu’s business license application, Chief of Police Glen Trainor wrote a letter to Yu, dated Sept. 4, providing him notice to immediately cease and desist business operations within the Town of Winter Park on the grounds that the possession or distribution of marijuana is illegal under federal law. Further, the notice ordered Yu to remove all advertisements from public establishments in the Town of Winter Park.
Yu is a registered primary caregiver who has “significant responsibility for managing the well-being of a patient who has a debilitating medical condition as provided for under [the Colorado Constitution], wrote Taylor in his appeal to town council. “As I’m sure that you and the Chief of Police are aware [the Constitution] states that it shall be an exception from the state’s criminal laws for any patient or primary caregiver in lawful possession of a registry identification card to engage or assist in the medical use of marijuana.”
On Sept. 11, the plaintiff reapplied for the business license under his personal name rather than on behalf of his corporation. The second application was also denied, this time on the grounds that the town had enacted a temporary emergency moratorium on medical marijuana dispensaries.
Yu isn’t seeking any monetary rewards from his civil suit, according to court filings as of last Thursday. The complaint only asks that the court reverse the town’s decision.
In the suit, Taylor claims that the town had no factual basis for denying the application, constituting “a clear abuse of discretion.” Taylor also claims that Yu and his company were denied due process, guaranteed by the Constitution, when staff “summarily dismissed” his request for an appeal hearing with town council.
The Town of Winter Park, in its court response, claims that Yu’s business was unlawful under federal law and that Winter Park, as a home rule municipality, has authority to control the issuance and denial of its business licenses as it chooses and to develop and implement its own zoning and land use regulations.
Yu said in a statement to the paper said that he will continue doing business as an individual caregiver only, despite Trainor’s threats of legal charges, until a business license is issued.
Yu’s statement said he believes that Winter Park’s recent ban on dispensaries will only be temporary:
“Currently there are a couple of cases in California where smaller townships have banned dispensaries. We will see a ruling on these California cases within six months. We are very confident, based on what state governments and the federal government have reinforced to this point, that the California rulings will be in the people’s favor. Based on this information, you will see the State of Colorado piggyback on this California ruling that dispensaries are legal. Judge Mary Hoak is very smart and will most likely not rule on this matter until the California cases are ruled on, and the state of Colorado piggybacks and states that dispensaries are legal.”
– Reid Armstrong can be reached at 970-887-3334 ext. 19610 or email@example.com.
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