Legal Connection Blog Updates http://cbaclelegalconnection.com/?p=39693 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/jmOEa6R_oq4/ Updates 11th Judicial District 8th Judicial District court appointments Fremont County Jackson County judge appointments Larimer County Juan G. Villaseñor Appointed to 8th Judicial District Court; Alexandra O. Robak Appointed to Fremont County Court On Thursday, September 13, 2018, Governor Hickenlooper announced his appointments of Juan G. Villaseñor to the 8th Judicial District Court and Alexandra O. Robak to the Fremont County Court. Villaseñor will fill a vacancy created by the retirement of Hon. Devin Odell, effective October 6, 2018. Robak will fill a vacancy created by the retirement of Hon. Norman Cooling, effective January 8, 2019. Wed, 19 Sep 2018 15:00:15 Z https://cbaclelegalconnection.com/2018/09/juan-g-villasenor-appointed-to-8th-judicial-district-court-alexandra-o-robak-appointed-to-fremont-county-court/#respond Susan Hoyt <div class="pf-content"><p>On Thursday, September 13, 2018, Governor Hickenlooper announced his appointments of Juan G. Villaseñor to the 8th Judicial District Court and Alexandra O. Robak to the Fremont County Court. Villaseñor will fill a vacancy created by the retirement of Hon. Devin Odell, effective October 6, 2018. Robak will fill a vacancy created by the retirement of Hon. Norman Cooling, effective January 8, 2019.</p> <p>Villaseñor is currently Assistant U.S. Attorney in the Civil Division of the U.S. Attorney&#8217;s Office, where he has been since 2008. He represents federal agencies and employees in criminal and civil cases in his role as AUSA. Villaseñor has also worked with the U.S. Department of Justice Office of the Pardon Attorney, an Assistant Attorney General with the Tennessee Attorney General&#8217;s Office, a First Amendment Fellowship Attorney with the American Civil Liberties Union, and a Law Clerk to the Honorable William J. Haynes in the U.S. District Court for the Middle District of Tennessee. Villaseñor received his undergraduate degree from St. John&#8217;s College and his law degree from Vanderbilt University Law School.</p> <p>Robak is currently a Deputy State Public Defender in the Salida Regional Office of the Colorado State Public Defender. She has been with the Public Defender&#8217;s Office since 2013. She represents indigent clients accused of misdemeanor and felony crimes. She received her undergraduate degree from the University of Michigan and her law degree from Brooklyn Law School.</p> <p>For more information about these appointments, <a href="https://www.courts.state.co.us/userfiles/file/Media/Judge_Appointments/2018/JD08%20-%20Villasenor.pdf" target="_blank" rel="noopener">click here</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/jmOEa6R_oq4" height="1" width="1" alt=""/> https://cbaclelegalconnection.com/2018/09/juan-g-villasenor-appointed-to-8th-judicial-district-court-alexandra-o-robak-appointed-to-fremont-county-court/feed/ 0 https://cbaclelegalconnection.com/2018/09/juan-g-villasenor-appointed-to-8th-judicial-district-court-alexandra-o-robak-appointed-to-fremont-county-court/ 2018-09-19 15:00 +00:00 2018-09-19 09:00 -06:00 http://cbaclelegalconnection.com/?p=39691 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/TvZ-6_T6ZAM/ Case Law Colorado Supreme Court constitutional law criminal law exigent circumstances Fourth Amendment search and seizure warrantless search Colorado Supreme Court: Warrantless Search Justified Under Exigent Circumstances Exception The Colorado Supreme Court issued its opinion in <em>People v. Pappan</em> on Monday, September 10, 2018. Wed, 19 Sep 2018 14:39:54 Z https://cbaclelegalconnection.com/2018/09/colorado-supreme-court-warrantless-search-justified-under-exigent-circumstances-exception/#respond CBA-CLE Staff <div class="pf-content"><p>The Colorado Supreme Court issued its opinion in <a href="https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2018/18SA56.pdf" target="_blank" rel="noopener"><em>People v. Pappan</em></a> on Monday, September 10, 2018.</p> <blockquote><p><em>Searches and Seizures—Emergencies and Exigent Circumstances—Plain View Doctrine.</em></p> <p>In this interlocutory appeal, the supreme court considered whether the trial court erred in suppressing two laser-sight rifles seized from defendant’s residence during a warrantless search conducted after defendant and two other occupants exited the residence. The court held that the warrantless search was justified under the exigent circumstances exception to the warrant requirement. More specifically, the court concluded that (1) the officers had an objectively reasonable basis to believe there was an immediate need to protect their lives or safety by clearing the residence for other occupants, and (2) the manner and scope of the search was reasonable because it was protective in nature and narrowly tailored to neutralize the threat confronting the officers. The court further held that the seizure of the laser-sight rifles was justified by the plain view doctrine. Accordingly, the decision of the trial court was reversed.</p></blockquote> <p><em>Summary provided courtesy of </em><a href="http://www.cobar.org/-em-Colorado-Lawyer-em" target="_blank" rel="noopener">Colorado Lawyer</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/TvZ-6_T6ZAM" height="1" width="1" alt=""/> https://cbaclelegalconnection.com/2018/09/colorado-supreme-court-warrantless-search-justified-under-exigent-circumstances-exception/feed/ 0 https://cbaclelegalconnection.com/2018/09/colorado-supreme-court-warrantless-search-justified-under-exigent-circumstances-exception/ 2018-09-19 14:39 +00:00 2018-09-19 08:39 -06:00 http://cbaclelegalconnection.com/?p=39689 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/N1Z_ln7df14/ Case Law Colorado Supreme Court criminal law critical stage error harmless error in camera review Colorado Supreme Court: Remedy for Trial Court’s Disclosure Error to Remand and Allow Defendant Opportunity to Demonstrate Prejudice The Colorado Supreme Court issued its opinion in <em>Zoll v. People</em> on Monday, September 10, 2018. Wed, 19 Sep 2018 14:36:26 Z https://cbaclelegalconnection.com/2018/09/colorado-supreme-court-remedy-for-trial-courts-disclosure-error-to-remand-and-allow-defendant-opportunity-to-demonstrate-prejudice/#respond CBA-CLE Staff <div class="pf-content"><p>The Colorado Supreme Court issued its opinion in <a href="https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2015/15SC163.pdf" target="_blank" rel="noopener"><em>Zoll v. People</em></a> on Monday, September 10, 2018.</p> <blockquote><p><em>Disclosure—</em>In Camera<em> Review—Critical Stage.</em></p> <p>The supreme court held that when an appellate court determines that the trial court erred in failing to disclose certain documents from a file reviewed in camera, the proper remedy is to remand the case to the trial court with instructions to provide the improperly withheld documents to the parties and to afford the defendant an opportunity to demonstrate that there is a reasonable probability that, had the documents been disclosed before trial, the result of the proceeding would have been different. The court also held that, even if the court of appeals erred in determining that replaying a small portion of a recording in the courtroom during deliberations was not a critical stage of the proceeding that required defendant’s presence, any error in failing to secure defendant’s attendance was harmless beyond a reasonable doubt.</p></blockquote> <p><em>Summary provided courtesy of </em><a href="http://www.cobar.org/-em-Colorado-Lawyer-em" target="_blank" rel="noopener">Colorado Lawyer</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/N1Z_ln7df14" height="1" width="1" alt=""/> https://cbaclelegalconnection.com/2018/09/colorado-supreme-court-remedy-for-trial-courts-disclosure-error-to-remand-and-allow-defendant-opportunity-to-demonstrate-prejudice/feed/ 0 https://cbaclelegalconnection.com/2018/09/colorado-supreme-court-remedy-for-trial-courts-disclosure-error-to-remand-and-allow-defendant-opportunity-to-demonstrate-prejudice/ 2018-09-19 14:36 +00:00 2018-09-19 08:36 -06:00 http://cbaclelegalconnection.com/?p=39687 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/5v4a9b3lJvY/ Case Law 10th Circuit Tenth Circuit: Unpublished Opinions, 9/18/2018 On Tuesday, September 18, 2018, the Tenth Circuit Court of Appeals issued two published opinions and six unpublished opinions. Wed, 19 Sep 2018 14:31:59 Z https://cbaclelegalconnection.com/2018/09/tenth-circuit-unpublished-opinions-9-18-2018/#respond Susan Hoyt <div class="pf-content"><p>On Tuesday, September 18, 2018, the Tenth Circuit Court of Appeals issued two published opinions and six unpublished opinions.</p> <p><a href="https://www.ca10.uscourts.gov/opinions/17/17-9550.pdf" target="_blank" rel="noopener"><em>Castillo Reyes v. Sessions</em></a></p> <p><a href="https://www.ca10.uscourts.gov/opinions/18/18-5034.pdf" target="_blank" rel="noopener"><em>Yerton v. Bryant</em></a></p> <p><a href="https://www.ca10.uscourts.gov/opinions/18/18-6114.pdf" target="_blank" rel="noopener"><em>United States v. Norwood</em></a></p> <p><a href="https://www.ca10.uscourts.gov/opinions/17/17-6255.pdf" target="_blank" rel="noopener"><em>Ersland v. Bear</em></a></p> <p><a href="https://www.ca10.uscourts.gov/opinions/17/17-2151.pdf" target="_blank" rel="noopener"><em>United States v. Beaver</em></a></p> <p><a href="https://www.ca10.uscourts.gov/opinions/18/18-3028.pdf" target="_blank" rel="noopener"><em>United States v. Lamas</em></a></p> <p>Case summaries are not provided for unpublished opinions. However, some published opinions are <a href="https://cbaclelegalconnection.com/tag/10th-circuit/">summarized and provided by Legal Connection</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/5v4a9b3lJvY" height="1" width="1" alt=""/> https://cbaclelegalconnection.com/2018/09/tenth-circuit-unpublished-opinions-9-18-2018/feed/ 0 https://cbaclelegalconnection.com/2018/09/tenth-circuit-unpublished-opinions-9-18-2018/ 2018-09-19 14:31 +00:00 2018-09-19 08:31 -06:00 http://cbaclelegalconnection.com/?p=39672 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/C5Drebk1H3o/ Case Law Colorado Supreme Court Colorado Supreme Court: Announcement Sheet, 9/17/2018 On Monday, September 17, 2018, the Colorado Supreme Court issued six published opinions. Tue, 18 Sep 2018 05:41:36 Z https://cbaclelegalconnection.com/2018/09/colorado-supreme-court-announcement-sheet-9-17-2018/#respond Susan Hoyt <div class="pf-content"><p>On Monday, September 17, 2018, the Colorado Supreme Court issued six published opinions.</p> <p><a href="https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2016/16SC81.pdf" target="_blank" rel="noopener"><em>James v. People</em></a></p> <p><a href="https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2016/16SC114.pdf" target="_blank" rel="noopener"><em>Johnson v. Schonlaw</em></a></p> <p><a href="https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2017/17SC115.pdf" target="_blank" rel="noopener"><em>Perfect Place, LLC v. Semler</em></a></p> <p><a href="https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2017/17SA183.pdf" target="_blank" rel="noopener"><em>People v. Gutierrez</em></a></p> <p><a href="https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2017/17SC241.pdf" target="_blank" rel="noopener"><em>Lewis v. Taylor</em></a></p> <p><a href="https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2018/18SA90.pdf" target="_blank" rel="noopener"><em>In re People v. Brooks</em></a></p> <p>Summaries of these cases are forthcoming.</p> <p>Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is <a href="https://www.courts.state.co.us/Courts/Supreme_Court/Case_Announcements/Files/2018/EDE9AA9.17.18.pdf" target="_blank" rel="noopener noreferrer">available here</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/C5Drebk1H3o" height="1" width="1" alt=""/> https://cbaclelegalconnection.com/2018/09/colorado-supreme-court-announcement-sheet-9-17-2018/feed/ 0 https://cbaclelegalconnection.com/2018/09/colorado-supreme-court-announcement-sheet-9-17-2018/ 2018-09-18 05:41 +00:00 2018-09-17 23:41 -06:00 http://cbaclelegalconnection.com/?p=39684 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/qZX-EhXgSO0/ Case Law business law Colorado Supreme Court Dram Shop Act dui law hospitality law Colorado Supreme Court: Social Host Must Have Actual Knowledge that Specific Guest Underage to be Held Liable for Injuries The Colorado Supreme Court issued its opinion in <em>Przekurat v. Torres</em> on Monday, September 10, 2018. Tue, 18 Sep 2018 05:32:36 Z https://cbaclelegalconnection.com/2018/09/colorado-supreme-court-social-host-must-have-actual-knowledge-that-specific-guest-underage-to-be-held-liable-for-injuries/#respond CBA-CLE Staff <div class="pf-content"><p>The Colorado Supreme Court issued its opinion in <a href="https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2017/17SC15.pdf" target="_blank" rel="noopener"><em>Przekurat v. Torres</em></a> on Monday, September 10, 2018.</p> <blockquote><p><em>Statutory Construction—Colorado Dram Shop Act.</em></p> <p>The supreme court affirmed the judgment of the court of appeals. The court held that, under the plain language of C.R.S. § 12-47-801(4)(a), a social host who provides a place to drink alcohol must have actual knowledge that a specific guest is underage to be held liable for any damage or injury caused by that underage guest.</p></blockquote> <p><em>Summary provided courtesy of </em><a href="http://www.cobar.org/-em-Colorado-Lawyer-em" target="_blank" rel="noopener">Colorado Lawyer</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/qZX-EhXgSO0" height="1" width="1" alt=""/> https://cbaclelegalconnection.com/2018/09/colorado-supreme-court-social-host-must-have-actual-knowledge-that-specific-guest-underage-to-be-held-liable-for-injuries/feed/ 0 https://cbaclelegalconnection.com/2018/09/colorado-supreme-court-social-host-must-have-actual-knowledge-that-specific-guest-underage-to-be-held-liable-for-injuries/ 2018-09-18 05:32 +00:00 2018-09-17 23:32 -06:00 http://cbaclelegalconnection.com/?p=39682 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/7aia-uQBUo4/ Case Law Colorado Supreme Court insurance law litigation personal injury law prejudgment interest uninsured motorist Colorado Supreme Court: Plaintiff Not Entitled to Prejudgment Interest Where Claim Does Not Meet Statutory Factors The Colorado Supreme Court issued its opinion in <em>Munoz v. American Family Mutual Insurance Co.</em> on Monday, September 10, 2018. Tue, 18 Sep 2018 05:28:56 Z https://cbaclelegalconnection.com/2018/09/colorado-supreme-court-plaintiff-not-entitled-to-prejudgment-interest-where-claim-does-not-meet-statutory-factors/#respond CBA-CLE Staff <div class="pf-content"><p>The Colorado Supreme Court issued its opinion in <a href="https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2017/17SC247.pdf" target="_blank" rel="noopener"><em>Munoz v. American Family Mutual Insurance Co.</em></a> on Monday, September 10, 2018.</p> <blockquote><p><em>Prejudgment Interest—Statutory Interpretation.</em></p> <p>In this case, the Colorado Supreme Court considered whether an insured is entitled to collect prejudgment interest when he settles an uninsured motorist claim with his insurer. The court held that, under the plain language of the prejudgment interest statute, C.R.S. § 13-21-101, an insured is entitled to prejudgment interest only after (1) an action is brought, (2) the plaintiff claims damages and interest in the complaint, (3) there is a finding of damages by a jury or court, and (4) judgment is entered. Because Munoz did not meet all of these conditions, the court concluded he is not entitled to prejudgment interest.</p></blockquote> <p><em>Summary provided courtesy of </em><a href="http://www.cobar.org/-em-Colorado-Lawyer-em" target="_blank" rel="noopener">Colorado Lawyer</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/7aia-uQBUo4" height="1" width="1" alt=""/> https://cbaclelegalconnection.com/2018/09/colorado-supreme-court-plaintiff-not-entitled-to-prejudgment-interest-where-claim-does-not-meet-statutory-factors/feed/ 0 https://cbaclelegalconnection.com/2018/09/colorado-supreme-court-plaintiff-not-entitled-to-prejudgment-interest-where-claim-does-not-meet-statutory-factors/ 2018-09-18 05:28 +00:00 2018-09-17 23:28 -06:00 http://cbaclelegalconnection.com/?p=39680 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/YOT0azBsScE/ Case Law 10th Circuit Tenth Circuit: Unpublished Opinions, 9/17/2018 On Monday, September 17, 2018, the Tenth Circuit Court of Appeals issued one published opinion and no unpublished opinion. Tue, 18 Sep 2018 05:23:26 Z https://cbaclelegalconnection.com/2018/09/tenth-circuit-unpublished-opinions-9-17-2018/#respond Susan Hoyt <div class="pf-content"><p>On Monday, September 17, 2018, the Tenth Circuit Court of Appeals issued one published opinion and no unpublished opinion.</p> <p>Case summaries are not provided for unpublished opinions. However, some published opinions are <a href="https://cbaclelegalconnection.com/tag/10th-circuit/">summarized and provided by Legal Connection</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/YOT0azBsScE" height="1" width="1" alt=""/> https://cbaclelegalconnection.com/2018/09/tenth-circuit-unpublished-opinions-9-17-2018/feed/ 0 https://cbaclelegalconnection.com/2018/09/tenth-circuit-unpublished-opinions-9-17-2018/ 2018-09-18 05:23 +00:00 2018-09-17 23:23 -06:00 http://cbaclelegalconnection.com/?p=39678 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/fwPK1JQ9sSg/ Case Law at-will employment Colorado Court of Appeals due process employment law government law Colorado Court of Appeals: Amendment to C.R.S. § 30-10- 506 Largely Preserves At-Will Employment Doctrine for Deputy Sheriffs The Colorado Court of Appeals issued its opinion in <em>Arapahoe County Sheriff's Office v. Cummings</em> on Thursday, September 6, 2018. Mon, 17 Sep 2018 14:41:25 Z https://cbaclelegalconnection.com/2018/09/colorado-court-of-appeals-amendment-to-c-r-s-%c2%a7-30-10-506-largely-preserves-at-will-employment-doctrine-for-deputy-sheriffs/#respond CBA-CLE Staff <div class="pf-content"><p>The Colorado Court of Appeals issued its opinion in <a href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2018/18CA0499-PD.pdf" target="_blank" rel="noopener"><em>Arapahoe County Sheriff&#8217;s Office v. Cummings</em></a> on Thursday, September 6, 2018.</p> <blockquote><p><em>Employment Termination</em><em>—Wrongful Discharge—Implied Contract of Employment—</em><em>Summary Judgment</em><em>—</em><em>Interlocutory Appeal</em><em>—</em><em>Sheriff’s Policies</em><em>—CRS §</em><em> 30-10-506.</em></p> <p>Cummings was a deputy sheriff in Arapahoe County. The Sheriff terminated Cummings’ employment, asserting that he violated the Sheriff’s employee manual (the Manual) and was dishonest during the investigation of the original charges against him. Cummings exhausted his remedies within the Sheriff’s department and sued for (1) wrongful discharge in violation of public policy, and (2) breach of an implied contract of employment, based on the policies in the Manual. The Sheriff moved to dismiss the wrongful termination claim based on governmental immunity, and the district court dismissed the claim with prejudice. The district court denied the Sheriff’s motion to dismiss the implied contract claim, and the Sheriff moved for summary judgment. The district court denied the motion for summary judgment, holding that there was an implied contract of employment and disputed issues of material fact existed. The Sheriff brought an interlocutory appeal under C.A.R. 42 challenging the denial of summary judgment.</p> <p>On appeal, the Sheriff contended that the trial court erred in denying his motion for summary judgment. He argued that the at-will employment concept in C.R.S. § 30-10-506 requires the court to hold that all policies promulgated by a sheriff relating to termination of deputy sheriffs’ employment are only precatory, and to conclude otherwise would mean that the sheriff lacks the power to terminate at-will employees. C.R.S. § 30-10-506 requires a sheriff to promulgate written employment policies, and the sheriff must give deputies the rights of notice and opportunity to be heard. A sheriff’s other employment policies may be, but are not required to be, binding. If the sheriff elects to confer binding employment rights on his deputies, those rights are enforceable according to their terms.</p> <p>The Sheriff next argued that even if C.R.S. § 30-10-506 allows sheriffs to promulgate binding personnel policies, the disclaimers in the Manual and the yearly disclaimers that Cummings signed preclude, as a matter of law, the formation of an implied contract of employment. Except with respect to the rights expressly granted to deputy sheriffs by statute, these clear and conspicuous disclaimers preclude, as a matter of law, Cummings’ implied contract claims. But here, material facts are disputed on whether Cummings received the required notice of the charges that led to his dismissal.</p> <p>The part of the summary judgment order permitting Cummings to pursue an implied contract claim based on rights conferred in the Manual that effectuate the due process rights granted by C.R.S. § 30-10-506 was affirmed. In all other respects, the summary judgment order was reversed and the case was remanded.</p></blockquote> <p><em>Summary provided courtesy of </em><a href="http://www.cobar.org/-em-Colorado-Lawyer-em" target="_blank" rel="noopener">Colorado Lawyer</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/fwPK1JQ9sSg" height="1" width="1" alt=""/> https://cbaclelegalconnection.com/2018/09/colorado-court-of-appeals-amendment-to-c-r-s-%c2%a7-30-10-506-largely-preserves-at-will-employment-doctrine-for-deputy-sheriffs/feed/ 0 https://cbaclelegalconnection.com/2018/09/colorado-court-of-appeals-amendment-to-c-r-s-%c2%a7-30-10-506-largely-preserves-at-will-employment-doctrine-for-deputy-sheriffs/ 2018-09-17 14:41 +00:00 2018-09-17 08:41 -06:00 http://cbaclelegalconnection.com/?p=39676 http://feedproxy.google.com/~r/CBACLELegalConnection/~3/ngTqLB8wzgU/ Case Law Colorado Court of Appeals marijuana law medical marijuana municipal law real estate law zoning Colorado Court of Appeals: Marijuana Business Cannot Cultivate Marijuana as Accessory Use When Zoning Code Precludes Cultivation for Primary Use The Colorado Court of Appeals issued its opinion in <em>Colorado Health Consultants v. City &#038; County of Denver</em> on Thursday, September 6, 2018. Mon, 17 Sep 2018 14:33:49 Z https://cbaclelegalconnection.com/2018/09/colorado-court-of-appeals-marijuana-business-cannot-cultivate-marijuana-as-accessory-use-when-zoning-code-precludes-cultivation-for-primary-use/#respond CBA-CLE Staff <div class="pf-content"><p>The Colorado Court of Appeals issued its opinion in <a href="https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2018/17CA1644-PD.pdf" target="_blank" rel="noopener"><em>Colorado Health Consultants v. City &amp; County of Denver</em></a> on Thursday, September 6, 2018.</p> <blockquote><p><em>Retail Marijuana</em><em>—</em><em>Cultivation as an Accessory Use</em><em>—</em><em>Vested Interest</em><em>—</em><em>Equitable Estoppel</em><em>—</em><em>Taking.</em></p> <p>Colorado Health Consultants, d/b/a Starbuds (Starbuds), is a retail marijuana business located in an I-MX-3 zone, which is a special context zone for industrial mixed use. In 2013, the zoning authority issued Starbuds a zoning permit for retail sales. Starbuds separately applied with the Department of Excise and Licenses (Department) for a retail marijuana cultivation (RMC) license, which was issued in 2014. The following year, Starbuds sought renewal of the RMC license and, following an uncontested hearing required by the Denver Revised Municipal Code (DRMC), the license was renewed.</p> <p>Starbuds again sought renewal in 2016. The DRMC had been revised and a hearing was no longer required, so the Department immediately renewed the RMC license. Several days later the Department discovered that an interested party had requested a hearing on the renewal application. A hearing was held at which Starbuds argued that under DRMC § 6-214(a)(1), the Department was not authorized to conduct a hearing. In a detailed written recommendation the hearing officer recommended the Department deny the renewal request. She found that plant husbandry was not a permitted use in the I-MX-3 zone and the original license had been issued in error. She also rejected Starbuds’ argument that plant husbandry was a permitted “accessory use.” The Department adopted the findings and denied the renewal.</p> <p>Starbuds filed a C.R.C.P. 106(a)(4) complaint arguing that the Department did not have the authority to hold a public hearing on the renewal application because plant husbandry was a permitted accessory use. It also alleged that the Department was equitably estopped from denying its renewal application and the denial was an unconstitutional taking. The district court affirmed the Department’s order.</p> <p>On appeal, Starbuds first contended that the Department abused its discretion and legally erred in concluding that plant husbandry is not a permitted accessory use in an I-MX-3 zone and that its zoning permit did not authorize plant husbandry. An RMC license requires that the retail marijuana establishment be located in a zone “where, at the time of application for the license, plant husbandry is authorized as a permitted use under the zoning code,” with a few exceptions. The parties agreed that plant husbandry is not permitted in the I-MX-3 zone. Starbuds argued, however, that marijuana cultivation is a permitted, unlisted accessory use based on the zoning administrator’s issuance of its retail sales permit. The Department rejected this argument because “retail sales” was the only use permitted by the permit. The court of appeals held that because plant husbandry is prohibited as a primary use, it cannot be an accessory use, so the RMC license renewal application was properly denied.</p> <p>Starbuds then challenged the Department’s subject matter jurisdiction to conduct a hearing under DRMC § 6-214(a)(2) and (3), given that the Department could only have issued the RMC license under § 6-214(a)(1), which contains no hearing provision. The Department separately possessed the discretionary authority to conduct a hearing under DRMC § 32-30. Further, plant husbandry is not a permitted primary or accessory use in an I-MX-3 zone, and therefore Starbuds was never eligible to receive an RMC license in the first instance.</p> <p>Starbuds further argued that the district court erred in finding that equitable estoppel did not apply to provide it relief, contending that the Department’s decision to hold a hearing caused an injury. First, it was unlikely that Starbuds detrimentally changed its position in reliance on the approval in the nine days between the application approval and its revocation. The record supports the trial court’s finding that the Department mistakenly issued the RMC license in the first place, and Starbuds presented no evidence that its reliance on an unlawfully issued license was reasonable. Moreover, Starbuds was not ignorant of the provision that plant husbandry was not permitted in its zone.</p> <p>Starbuds last contended that the denial of its RMC license was an unconstitutional taking because it had a reasonable expectation of continued licensure and did not receive due process. There is no vested right in the renewal of a license, and nothing precludes Starbuds’ continued operation as a retail establishment, which was the primary use for which it was zoned. And Starbuds was afforded due process through the renewal hearing. The Department’s denial of Starbuds’ RMC license renewal application did not constitute an unconstitutional taking.</p> <p>The judgment was affirmed.</p></blockquote> <p><em>Summary provided courtesy of </em><a href="http://www.cobar.org/-em-Colorado-Lawyer-em" target="_blank" rel="noopener">Colorado Lawyer</a>.</p> </div><img src="http://feeds.feedburner.com/~r/CBACLELegalConnection/~4/ngTqLB8wzgU" height="1" width="1" alt=""/> https://cbaclelegalconnection.com/2018/09/colorado-court-of-appeals-marijuana-business-cannot-cultivate-marijuana-as-accessory-use-when-zoning-code-precludes-cultivation-for-primary-use/feed/ 0 https://cbaclelegalconnection.com/2018/09/colorado-court-of-appeals-marijuana-business-cannot-cultivate-marijuana-as-accessory-use-when-zoning-code-precludes-cultivation-for-primary-use/ 2018-09-17 14:33 +00:00 2018-09-17 08:33 -06:00