Lafayette has defended its right to put a stop to the consumption of marijuana at The Front Tea & Art Shop in Old Town, claiming its recreational pot moratorium does not conflict with state law.
According to a response the city filed in Boulder District Court this week, attorneys for Lafayette wrote that Amendment 64 -- which permits adults 21 and older to possess and use small amounts of marijuana in Colorado -- does not altogether prohibit the city from regulating the use of the drug.
"Plaintiffs want to operate illegally and to have this court prohibit the City from enforcing a properly adopted moratorium which was adopted with the best interests of the citizens of the City in mind," the city stated in its response. "The public interest in no way favors or is benefited by the government being barred from enforcing its laws."
Lafayette's recreational marijuana moratorium, passed by the City Council on Feb. 5, bans until October any recreational marijuana-related business in the city, including those that provide for or allow "the use of marijuana" on site.
The Front, which allowed people to consume their own cannabis inside the Old Town shop, sued the city last month -- claiming it overstepped its authority and attempted to pre-empt state law when it went as far as placing restrictions on the use of pot on private property. The shop's owner, Veronica Carpio, characterized The Front as a "cannabis-friendly" operation, but she said it never sold pot and thus didn't qualify as a marijuana-related business as envisioned by Amendment 64.
The shop has since shut down.
Lafayette countered in this week's filing that it has local land use powers that permit it to regulate businesses in town and that Amendment 64 expressly grants it those powers. It asked the court to deny Carpio's request for a preliminary injunction.
"Plaintiffs have incorrectly alleged that the City's valid use of its police powers constitutes unconstitutional conduct," the response reads. "... Land use is generally a matter of local concern. As a result, Amendment 64 is actually a mixed matter of state and local concern, and since the City's moratorium does not conflict, there is no preemption."
The city said it's merely trying to preserve the "status quo" while the state works on implementing regulations for the nascent recreational marijuana industry.
Lafayette's attorneys went on to argue that Carpio's claim that the moratorium amounts to a takings of her business is not supported by the facts.
"The Front Tea & Art Shop has never been shut down by the City or by the moratorium," the filing reads. "The business sells tea and art, allegedly not marijuana or marijuana products, and currently can sell art and tea regardless of the moratorium."
But Carpio said Wednesday that the city's prohibition on marijuana consumption in her business -- which she complied with -- effectively stigmatized the shop and put her out of business.
"I can still sell coffee and art, but who is going to come in there if they're scared to be seen in there?" she said. "I wasn't selling marijuana, but allowing its use was a good marketing measure to bring more traffic in."
Traffic had slowed to where it was no longer feasible to keep The Front Tea & Art Shop open, Carpio said. She closed the business at the beginning of March.
Her attorney, Thomas West, said the city is not impotent in the face of Amendment 64 but can't use its home-rule powers to overstep state law.
"No one is arguing it can't pass this moratorium, but it's been clearly shown that they've been given certain authority on this issue," he said. "They do have police authority, but it does have limits."
A message left with an attorney with Nathan, Bremer, Dumm & Myers, the Denver firm representing Lafayette, was not returned Wednesday.
Contact Camera Staff Writer John Aguilar at 303-473-1389 or aguilarj@dailycamera.com. ___
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