CORTEZ – A Pueblo marijuana company is suing the Cortez City Council for denying a request in October for a new marijuana dispensary on “arbitrary” and “capricious” grounds, including religious discrimination.
NuVue Pharma LLC on Nov. 8 filed a complaint for judicial review in 22nd Judicial District Court. The complaint alleges that the Cortez City Council acted beyond its power in a quasi-judicial setting, engaged in “spot zoning” and effectively adopted a de facto moratorium on new marijuana dispensaries without the proper procedures.
There are six retail marijuana dispensaries in Cortez, of which two also sell medical marijuana.
On Sept. 11, the Cortez City Council held a public hearing and initially voted 7-0 to deny the application. On Oct. 9, the council formally denied the application in a 7-0 vote. All seven council members are named as defendants in the lawsuit.
In the council’s findings and decision, the council lists the criteria to deny or approve a license according to city municipal code.
The city writes that the Nuvue Pharma met all requirements in the Cortez retail marijuana codes, complied with all zoning regulations, passed a background investigation and met the 1,500-foot requirement for distance from schools.
The only item in its findings that addresses why it denied the application, states the council concluded that most marijuana businesses in Cortez are in business sections and do not have a lot of business around them, unlike NuVue Pharma’s proposed location.
The plaintiff’s complaint states that argument lacks any explanation, detail or statement of appropriate evidence.
Durango Organics, a dispensary on Main Street, is next to a 28-unit trailer park, and Medicine Man, also on Main Street, is next to two residences and a block from a single-family neighborhood, the complaint states.
NuVue Pharma proposed a dispensary at 503 Patton St., just east of the intersection of State and East Main streets on an undeveloped plot 530 yards from the city’s eastern limits. There are a few homes to the north and a small subdivision south of U.S. Highway 160.
NuVue Pharma’s complaint uses several quotes from Cortez Mayor Karen Sheek to support its argument. At the Sept. 11 public hearing, Sheek stated that NuVue Pharma has met all licensing requirements and legally did everything it needed to do.
In response to a resident who asked whether an ordinance limits the number of dispensaries in Cortez, Sheek said the only limitation is the required 1,500 feet from a school, day care center or another dispensary.
The plaintiff argues that the City Council was supposed to act in a quasi-judicial setting and focus on whether the single applicant, NuVue Pharma, met all legal requirements to obtain a retail marijuana license but instead imposed a “de facto moratorium on marijuana outlets throughout Cortez” and violated the city’s own code.
The plaintiff also alleges two city employees who played a role in the licensing process have conflicts of interest.
Associate City Planner Neva Connolly, who reviewed the project’s distance requirement and spoke to a NuVue representative on several occasions, is married to the manager of the LivWell dispensary on Main Street. City Clerk Linda Smith, who oversees business licensing, is the mother of an employee at LivWell.
NuVue Pharma also alleges religious discrimination. Dr. Malik Hasan, a board-certified neurologist, is the owner of NuVue Pharma. Hasan is a Pakistani immigrant and Islamic Muslim. The complaint argues that by action or omission, one or more defendants violated Hasan’s right to be free from religious discrimination.
During the hearing Sept. 11, a third-generation Mancos resident named Wayne Cook concluded his comments opposing the application with a reference to the 2001 terrorist attack.
“Maybe we should not be thinking about granting a license to Mr. Hasan for manufacturing and selling drugs but to honor and remember what happened 17 years ago today,” Cook said.
The council received several letters from the public opposing the proposed shop. An elderly couple on Patton Street stated they were concerned about the safety of their children, pets and property, citing possible drug raids and “different crimes associated with this industry.”
Another resident on East Empire Street expressed concern that the site was too close to residential areas. Four other letters, which do not include addresses, state there were already too many marijuana shops in town and that the industry brings in crime.
According to the council’s Oct. 9 minutes, councilors Sue Betts and Mike Lavey said their denial was based on neighborhood concerns. Councilor Jill Carlson, in her motion to formally deny the application, said the council considered the requirements of the neighborhood, the desires of the adult inhabitants of the neighborhood and the character of the applicant in its denial.
A motions hearing is scheduled for March 22 in Judge Todd Plewe’s courtroom.
sdolan@the-journal.com
