The recent ban of MMJ dispensaries by the Colorado Springs City Council is the latest in a line of knee-jerk reactions by municipal governments throughout Colorado. However, given the fact that MMJ dispensaries are already open for business in Colorado Springs, it raises the question – is banning dispensaries by municipal governments illegal?
Sanctioned by the Colorado Constitution
MMJ dispensaries, if operating legally, are created and sanctioned by the Colorado Constitution and municipal governments have little, if any, power to correct, modify or overrule a constitutional amendment. Moreover, since legal MMJ dispensaries are the business of providing primary caregiving services to MMJ patients, the ban also may violate the Americans with Disabilities Act (ADA).
Protected by the ADA
Basically, in order to qualify as a MMJ patient, a person must be diagnosed with a debilitating medical condition. As such, in most cases the patients are legally “disabled” and qualify for protection by the ADA. A dispensary’s right to possess, cultivate and provide MMJ to its patients is a right assigned by the patient. Accordingly, the ban acts as a discriminatory act against a MMJ patient and their access to legal medicine.
Finally, the argument that MMJ is illegal federally is a “red herring.” On 10/19/09, the federal government issued a memorandum stating in essence that, as long as the dispensary was in compliance with state law, no federal enforcement of MMJ would be initiated. Colorado Springs ought to prepare for a two-fold legal challenge on the grounds that (1) a municipal government cannot ban a constitutionally mandated business; and (2) such a ban is a violation of the ADA.