1DISTRICT COURT, CITY AND COUNTY OF DENVER, COLORADO 1437 Bannock Street, Room 431 Denver, Colorado 80202

_______________________________________________ PATIENT CAREGIVER RIGHTS LITIGATION PROJECT, COLORADO PATIENTS ALLIANCE, KATHLEEN CHIPPI, and RICO COLIBRI, Plaintiffs, v. STATE OF COLORADO, JOHN HICKENLOOPER, GOVERNOR OF THE STATE OF COLORADO, BARBARA BROHL, EXECUTIVE DIRECTOR OF THE COLORADO DEPARTMENT OF REVENUE, and MARTHA E. RUDOLPH, EXECUTIVE DIRECTOR OF THE COLORADO DEPARTMENT OF HEALTH AND ENVIRONMENT, Defendants. ________________________________________________ Attorney for Plaintiffs: Name: Andrew B. Reid Address: Springer and Steinberg, P.C. 1600 Broadway, Suite 1200 Denver, Colorado 80202 Phone Number: (303) 861-2800 FAX Number: (303) 832-7116 E-mail: areid@springer-and-steinberg.com Atty. Reg. No.: 25116

COURT USE ONLY _______________________

Case No.: 2011-CV-4632 Div.: ____ Ctrm: 209

AMENDED COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTION PURSUANT TO C.R.C.P. 57 AND 65
PLAINTIFFS, Patient Caregiver Rights Litigation Project, Colorado Patients Alliance, Kathleen Chippi, and Rico Colibri, by and through their counsel, Andrew B. Reid of the law firm
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of Springer and Steinberg, P.C., hereby allege and aver the following as their Amended Complaint for Declaratory Judgment and Injunction Pursuant to C.R.C.P. 57 and 65, and C.R.S. 24-4-101, et. seq., against the Defendant State of Colorado and all of its subdivisions, the Defendant John Hickenlooper as the Governor of the State of Colorado, the Defendant Barbara Brohl as the Executive Director of the Colorado Department of Revenue, and the Defendant Martha E. Rudolph as the Executive Director of the Colorado Department of Public Health and Environment, in their official capacities.

I. PARTIES, JURISDICTION, AND VENUE 1. Plaintiff Patient Caregiver Rights Litigation Project (PCRLP) has its principal

location in City of Nederland, Boulder County, State of Colorado. PCRLP is a group of Colorado registered and non-registered medical marijuana patients, primary care-givers, and physicians, and others associated with the provision of medical marijuana medication to qualifying patients and primary care-givers from Colorado having as its purpose the protection of the public through the reformation of the medical marijuana laws in Colorado. The PCRLP and its members have actively participated in the public hearings and comments pertaining to the medical marijuana legislation and agency rule-making. 2. Plaintiff Colorado Patients' Alliance (CPA) has as its principal location in the

City and County of Denver, State of Colorado, and is a non-profit organization working for the rights of medical marijuana patients and caregivers in Colorado. Members include a broad base of Colorado patients, caregivers, medical marijuana centers, other organizations, and companies that believe that a responsible and constitutional approach to the regulation of medical marijuana benefits the public, including those who are patients, caregivers and operational members of the
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medical marijuana industry. The CPA and its members have actively participated in the public hearings and comments pertaining to the medical marijuana legislation and agency rule-making. 3. Plaintiff Kathleen Chippi (Chippi) is a resident of Nederland, Colorado, and a

PCRLP founding member. She is a qualifying medical marijuana patient and, until the enactment of the medical marijuana legislation1, operated a profitable and viable medical marijuana primary care-giving service from Nederland for numerous qualifying patients in which, among other care-giving services, she manufactured, sold, and dispensed medical marijuana medication to her qualifying patients. She obtained most of her medical marijuana from patients and care-givers having small amounts of personal overflow which she redistributed to her qualifying patients. She had and has a state-issued retail sales tax license for medical marijuana and has collected and paid sales tax to the appropriate local governments and the State. As a result of the medical marijuana legislation and the regulations thereunder and their restrictions on patients and care-givers set described in this Amended Complaint, she could no longer continue operating profitably or legally under the legislation and regulations as a primary care-giver and had to cease her services and suffered therefrom considerable loss in past, current, and future profits and income as a primary care-giver. Upon the resolution of the issues raised in this petition, it is Ms. Chippis intent to reopen and continue her caregiver services. 4. Plaintiff Rico Colibri (Colibri) is a resident of the City and County of Denver,

State of Colorado, and a member of Plaintiff CPA. He is a qualifying medical marijuana patient and, until the enactment of the medical marijuana legislation and regulations, operated a medical
1

House Bill 10-1284 (2010); Senate Bill 10-109 (2010); and House Bill 11-1043 (2011), codified

in a number of different sections of the Colorado Code. To avoid confusion, this legislation will be referred to in this petition collectively as the medical marijuana legislation.
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marijuana dispensary in Denver under a state-issued retail sales tax license for medical marijuana. He was also a primary care-giver for numerous patients. Among, but not limited to, the services he provided to his patients was the growing of medical marijuana medication for them. Upon the resolution of the issues raised in this petition, it is Mr. Colibris intent to operate his dispensary and continue his care-giving services. Further, in 1996, Plaintiff Colibri was convicted of felony possession of marijuana with intent to distribute. He completed his sentence and thereby had his civil rights restored. Colorado Constitution, Article VII, Section 10. 5. Damien LaGoy is a member of the CPA and an HIV/AIDS activist and survivor

and a qualifying medical marijuana patient living in the City and County of Denver, State of Colorado. He has been living with HIV/AIDS since 1985. He uses cannabis to help keep his HIV/AIDS medicines down and to help stimulate his appetite so he can maintain a healthy weight. Mr. LaGoy secured an agreement with the Colorado Department of Health and Environment (CDPHE) requiring notification to all registered patients and care-givers of agency meetings pertaining to the medical marijuana registry and of any agency rule or regulation changes. He is concerned about the state's new database system that will replace the formerly confidential registry information with a database and surveillance system that will be open to law enforcement and other government agencies. Damien is also concerned about the possible theft of his information by other criminal elements, who may use the information to harm him. 6. Barbara M. is a 67-year-old resident of Pueblo County, State of Colorado, and a

member of the PCRLP. She is a cannabis patient who has been disabled since January 1988. Her primary diagnosis chronic pain, degenerative disc disease, cervical and lumbar spine with radiculopathy L4-S1 and L3-L4, fracture and deformed left pelvis, fracture T11, left and right
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shoulder tendonitis, carpal tunnel syndrome, arthritis in both knees, and osteopenia with recent sprained ankle and small bone fractures. Barbara M. lives in a rural location and has difficulty finding a caregiver due to the restrictions on caregivers in the medical marijuana legislation and regulations. 7. Another PCRLP member, Lannette F., is a registered medical marijuana patient

living in Federal Heights, Adams County, State of Colorado. She is typical of many thousands of medical marijuana patients in Colorado. Her debilitating medical condition, diagnosed as severe pain due to fibromyalgia, diabetic neuropathy, and myofacial trigger points, causes her to be home bound. She is also unable to cultivate her own medication and therefore has to employ care-givers in order to access her medication. Because of her condition, she arranged for her medication to be delivered to her by her care-givers. Due to the medical marijuana legislation and regulations, her care-givers recently had to close their business. 8. On November 2, 2010, pursuant to the medical marijuana legislation, Federal

Heights where Lannette F. resides voted to ban all medical marijuana sales, cultivation, and medication manufacturing businesses. If she is unable to obtain a care-giver willing to provide care-giving services and medication without profit, and Defendants herein construe care-givers who profit in part from growing and selling medical marijuana medication to their patients as businesses subject to the medical marijuana legislation and regulations, Lannette F. has to look outside her own city for a new care-giver source for her medication. However, under such circumstances if construed as a medical marijuana business, the delivery of her medication the transportation and delivery of her medication to her by her profit-making care-giver would be subject to the local ban and her constitutional right to her medication, and that of other similarly

qualifying medical marijuana patients residing in areas of local bans, would be significantly if not wholly infringed. 9. PCRLP member Kendra C. is a 20-year old student at the University of Colorado

and a resident of the City of Boulder, County of Boulder, State of Colorado. The medical marijuana legislations and regulations restrictions on care-givers (limiting care-givers to no more than 5 patients) caused her care-giver, who was 1 patient over the statutory limit, to drop her depriving her of her medication. Ms. C. testified before the State Legislature on the medical marijuana legislation. 10. PCRLP member Gary I., a resident of the City of Golden, County of Jefferson,

State of Colorado, is a qualified medical marijuana patient suffering from crushed vertebrae in his neck, compression factures in his lower back, and nausea from chemotherapy for his liver. Following the passage of the medical marijuana legislation, its restrictions on care-givers forced his primary care-giver out of business. 11. PCRLP member John E., a resident of the County of Larimer, State of Colorado,

is a qualified medical marijuana patient living who suffers from degenerative disc disease, radiculopathy, two herniated discs in his lower back, failed back surgery, and severe insomnia due to chronic pain and discomfort. Use of medical marijuana for pain management has enabled him to cut down on his prescription of morphine, a far more potent and highly addictive narcotic. 12. PCRLP member Scott S., a resident of unincorporated Adams County, State of

Colorado, is a qualified medical marijuana patient suffering from severe spinal stenosis, nerve and muscle spasms, degenerative disc disease, radiculopathy in cervical and lumbar regions as well as flare ups with sciatica. His wife is his primary care-giver. Scott S. was a care-giver for another patient but had to cease following the passage of the medical marijuana legislation
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because it bars patients with care-givers from serving as care-givers for other patients. Additionally, Adams County has banned medical marijuana businesses in the County, depriving Mr. Scott and his wife / primary care-giver of previous sources within the County for his medication. 13. PCRLP member C. M. is a 16-year-old high school student2 and resident of

Colorado Springs, El Paso County, Colorado, and a qualifying medical marijuana patient. He was diagnosed with myoclonic diaphragmatic flutter which was not sufficiently controlled by non-marijuana medication to physically allow him to attend school. Upon his doctors recommendations of medical marijuana he was finally able to return to school after an absence due to his disability of approximately one year. However, his high school pursuant to the legislation at issue here, specifically C.R.S. 25-1.5-106(12)(b)(IV), after allowing him back into school, first refused to allow him to receive his medication from the high school nurse and then refused to allow him to attend school while on his medication, even if he received it off school grounds. Subsequently, the school partially reversed its position and allowed C.M. to return to school as long as he received his medication off school grounds. Given the frequency of daily attacks from his illness and the urgency and immediacy of his need for medication during an attack, even this arrangement does not provide C.M. with sufficient or adequate access to his medication and treatment that was recommended by his physicians. 14. Greenfaith Ministry, a member of Plaintiff CPA, is a compassionate care and

spiritual church located in the Town of Nunn, County of Weld, State of Colorado. The Ministry
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He is represented herein by his next friend and legal guardian. The identifying information

pertaining to the members of the plaintiff organizations will be disclosed to the Defendants following the issuance by the Court of an appropriate protective order.
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is led by Rev. Brandon Baker who was the caregiver for over 20 low income and indigent qualifying medical marijuana patients before the passage of the medical marijuana legislation. As a result of the restrictions on primary care-givers in the legislation and regulations, he was forced to give up almost all of his patients. In addition to being forced to abandon its former patients, the Ministry has been faced with increasing demand from more patients who have lost their caregivers or who have had medical marijuana banned in their communities. 15. T.S., a member of Plaintiff CPA, is resident of the City and County of Denver,

State of Colorado, who has been a qualifying and registered medical marijuana patient since 2003 and care-giver since 2008. He suffers chronic severe pain and discomfort from a fractured foot that never healed correctly and suffers multiple migraine headaches weekly. Up until recently, he was a care-giver to about 4 qualifying medical marijuana patients, 3 being very close friends with various injuries who didn't have the means or know-how to produce their own medicine, the last one being his father who suffers from many issues in his back and feet from multiple accidents. As a caregiver, he provided to his patients their medical marijuana medication in all forms (raw medicine, extracts, oils, butter, edibles, etc.), provided assistance and direction to any of them that wanted to try and cultivate or produce their own medication for themselves, and provided many rides and deliveries to his patients with limited mobility. Due to the statutory and regulatory limitations on care-giver compensation being challenged herein, he has recently been forced to drop his patients and can no longer help the people he cares for, who genuinely need his assistance. 16. G.A.O., a member of CPA, is a resident of the City of Arvada, State of Colorado,

is a family nurse practitioner who provides care-giving services to qualifying medical marijuana patients in municipal and rural areas of Colorado, some of whom without the assistance of a
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care-giver would have to travel more than 100 miles to obtain their medication and for whom ready access to their medication is or will infringed upon by the statutory and regulatory restrictions on care-givers challenged in this litigation. 17. Defendant State of Colorado is the governing entity of the People of Colorado

created by and acting pursuant to, and limited by, the Constitution of Colorado. It acts directly by its General Assembly and Governor and indirectly through its subdivisions, including the various counties and municipalities of Colorado. 18. Defendant John Hickenlooper is sued in his official capacity as the Governor of

the State of Colorado. Pursuant to the Colorado Constitution, the Governor is authorized and responsible for signing, executing, and enforcing legislation enacted by the General Assembly. The Governor, personally and by his predecessor, signed and thereby enacted into law the legislation at issue herein, H.B. 10-1284, S.B. 10-109, and H.B. 10-1043. As Governor, Defendant Hickenlooper is further engaged in the implementation and enforcement of said challenged legislation by regulation and otherwise through the agencies and officials under his authority, including but not limited to the Colorado Department of Public Health and Environment, the Colorado Department of Revenue, and Colorado law enforcement agencies. 19. Defendant Barbara Brohl is sued in her official capacity as the Executive Director

and chief executive officer of the Colorado Department of Revenue (CDOR) who was charged by the medical marijuana legislation with the implementation of certain provisions of the legislation and agency regulations, particularly those pertaining to medical marijuana businesses. 20. Defendant Martha E. Rudolph is sued in her official capacity as the Executive

Director and chief executive officer of the Colorado Department of Public Health and Environment (CDPHE) who was charged by the medical marijuana legislation with the
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implementation of certain provisions the medical marijuana legislation and agency regulations. The CDPHE is the state health agency designated by the Governor pursuant to the Colorado Constitution to implement and administer the confidential medical marijuana patient registry. 21. Jurisdiction arises in this Court pursuant to C.R.S. 13-51-101, et. seq.; C.R.S.

24-4-101, et. seq.; and C.R.C.P. 57 and 65. A declaratory judgment in this case would resolve much of the extreme and widespread uncertainty or controversy giving rise to this proceeding. An injunction would stop the extreme and widespread harm and jeopardy resulting from the challenged legislation and regulations to the Plaintiffs and hundreds of thousands of citizens and residents of Colorado suffering from debilitating and life-threatening medical conditions. 22. Venue is proper in this Court pursuant to C.R.C.P. 98(b)(2).

II. FACTUAL BACKGROUND AND GENERAL ALLEGATIONS A. The Medical Marijuana Guarantees of the Colorado Constitution 23. On November 7, 2000, the People of Colorado acting by approximately one

million Colorado voters, including the adult Plaintiffs and PCRLP and CPA members, approved Amendment 20 as an initiated constitutional amendment. Colorado Constitution, Art. XVIII, 14 (Appendix 1). Sixteen states and the District of Columbia have enacted laws legalizing the use of medical marijuana and legislation is pending in many more states. 24. Amendment 20 was a compassionate measure designed to address the compelling

medical need for improvement of the quality of life, and often the saving and extension of life, of hundreds of thousands of Colorado citizens and residents with debilitating medical conditions. It was a medical need unsatisfactorily met for a great many patients by any other medication and
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subject to the expert diagnosis and recommendation by Colorado physicians as the appropriate medication. So significant is this right that even prior to the Amendment a patients access to life-saving medication has been viewed as a medical necessity in defense to criminal charges and as a human right under international law. 25. Amendment 20, now Section 14 of Article XVIII of the Colorado Constitution,

guarantees patients diagnosed by physicians as having a debilitating medical condition, and their primary care-givers, a constitutional right to engage in the use of marijuana for medical purposes. Id. The medical marijuana provisions of the Colorado Constitution secure individual constitutional rights available to all citizens and residents statewide. 26. Use under the Colorado Constitution includes the acquisition, possession,

production, use, and transportation of marijuana and paraphernalia related to the administration of marijuana. Id. at Section 14(1)(b). Read consistent with Article XVIII, Section 14(2)(d) of the Colorado Constitution, this definition also includes the manufacture, sale, distribution, and dispensing of medical marijuana. 27. Recognizing that many patients may need or desire assistance in the use of

medical marijuana, the Colorado Constitution also authorizes patients to employ primary caregivers to engage or assist in the medical use of marijuana. Id. 28. Primary care-givers are defined as persons having significant responsibility for

managing the well-being of a patient. Id. at 14(1)(f). The definition does not require any specific act, conduct, or activity other than it be for the managing of the well-being of the qualifying patient with the debilitating medical condition in connection with the employment of the primary care-givers to engage or assist the patient in the use of medical marijuana. Id. at 14(1)(1)(a), (b), (d), (f), and 14(2)(b). Although certainly encompassing in-home care-giving
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services, the definition does not require that any of that significant responsibility, for example the cultivation of medical marijuana or the making of medical marijuana medication for the patient, has to be exercised in the home of the patient. Id. 29. Section 14 constitutionally further excepts the medical use of marijuana from

Colorados criminal laws governing the acquisition, possession, manufacture, production, use, sale, distribution, dispensing, or transportation of marijuana and provides medical marijuana patients and care-givers an affirmative defense to arrest, and prosecution. Id. at 14(2)(a) and (b). 30. As additional protection for both medical marijuana patients and care-givers and

to encourage participation by those who might benefit from the medication, the Colorado Constitution established a confidential registry under the state health agency with the mandate to issue state identification cards to qualifying patient applicants verifying, if necessary, to law enforcement officials that the patient or care-giver who as been stopped or arrested is lawfully using marijuana as medication. Id. at 14(3). The state health agency is further tasked with screening patient applicants for the registry, issuing registry ID cards, collecting fees, and issuing rules of administration only of the registry. Id. at 14(3), (9). 31. The Colorado Constitution further provides for strict confidentiality of medical

marijuana patient and care-giver information. It expressly forbids disclosure of any such information to any other agency other than the state health agency, except to law enforcement agencies and, even then, solely for the purpose of establishing the patients or care-givers status as a registered medical marijuana user following a stop or arrest. Id. at 14(3)(a). 32. Participation in the registry is optional. A qualifying patient or care-giver is not

required to register or obtain an identification card to have constitutional protection of his or her
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use of medical marijuana or to assert the affirmative defense to any criminal prosecution. Id. at 14(2)(a). The Constitutions intent for the broadest ready access of qualifying patients to their medication is evidenced by the fact that it does not require registration of either the patient or the care-giver in order to assert the affirmative defense. Id. 33. These provisions of the Colorado Constitution established a statewide regulatory

scheme for qualifying patient access to medical marijuana, including patient and care-giver distribution, administered by the state health agency designated by the Governor. Id. at 14(1)(g), 14(2)(b), and 14(3). Qualifying patients and their primary care-givers engaged in the use of medical marijuana under this constitutional scheme and the supervision of the CDPHE for approximately 10 years prior to the medical marijuana legislation. Furthermore, pursuant to the legal opinion and advice of John Suthers, the Colorado Attorney General, the sales of medical marijuana by patients and primary care-givers under the Constitution were declared taxable and patients and care-givers obtained the appropriate sales tax licenses and collected and paid sales taxes to their local governments and the State. 34. Id. at 14(9). 35. Pursuant to the Colorado Constitution, the Governor designated the CDPHE as The Constitution directed the state health agency to enact rules of administration.

the state health agency having the sole constitutional authority and responsibility for the implementation and administration of the Colorado medical marijuana registry. 36. As of May 31, 2011, the CDPHE reported that it had issued approximately

128,000 valid registry ID cards to patients in every county in Colorado. The patients had an average of over 40 years. Sixty-two percent of the patients designated a primary care-giver. More than 1,100 different physicians have signed for the patients. Many, many more patients
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with qualifying medical conditions and physician recommendations are also using the medication, but have chosen not to register. B. Medical Marijuana Implementing Legislation 37. The Colorado Constitution further directed the State legislature to enact such

legislation as may be necessary for implementation of [the Amendment]. Colorado Constitution, Article XVIII, Section 14(8). 38. Under the Constitution, the General Assembly was tasked with passing legislation

implement[ing] rules to ensure patients suffering from legitimate debilitating medical conditions are able to safely gain access to medical marijuana .Colorado Constitution, Article XVIII, Section 14(2)(d). On June 7, 2010, the Governor signed into law House Bill 10-1284 and Senate Bill 10-109, enacted by the General Assembly to implement Article XVIII, Section 14 of the Colorado Constitution. H.B. 10-1284 (2010) (the Colorado Medical Marijuana Code, C.R.S. 12-43.3-101 et. seq. and the Medical Marijuana Program, C.R.S. 25-1.5-106); S.B. 10-109 (2010). Numerous issues arose regarding the new legislation. The General Assembly attempted to address some of these issues through the enactment of revisions, House Bill 11-1043 (the Medical Marijuana Clean-up Bill), which were signed into law by the Governor in June, 2011, with an effective date of July 1, 2011. 39. The General Assembly created a cost prohibitive and unduly burdensome

regulatory business scheme of state and local government licensed medical marijuana cultivators, product manufacturers, and sellers (centers) of medical marijuana purportedly to make the constitutionally secured medication readily available to qualifying patients and care-givers. C.R.S. 25-1.5-106(1)(a); C.R.S. 12-43.3-101 et. seq. However, while enacting the legislation, the State placed numerous restrictions through limitations and mandates on patients
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and care-givers and otherwise restricted and interfered with their constitutional right of use of and access to the medication. As noted by John Suthers, the Colorado Attorney General, in a letter to the General Assembly at the time of the medical marijuana legislation, the patient / caregiver model worked reasonably well for the first 8 years of the medical marijuana program under the statewide scheme set forth in the Colorado Constitution. Rather than acting to supplement the medical marijuana program, the medical marijuana legislation, in effect, replaced the constitutional scheme with a legislative one interfering with the constitutionally secured rights of qualifying patients and their primary care-givers to the medication. C. Medical Marijuana Implementing Regulations 40. Pursuant to the medical marijuana legislation, the CDPHE promulgated certain

agency rules and regulations pertaining to medical marijuana, patients, and care-givers with an effective date of July 31, 2011 (hereafter CDPHE regulations). 5 C.C.R. 1006-2. Prior to the final promulgation of the CDPHE regulations, the agency communicated and conducted meetings upon the proposed regulations in secret and failed to provide the required proper and sufficient public notice and opportunity to be heard. The regulations were promulgated by CDPHE in violation of its agreement with Mr. LaGoy and in violation of the public notice and comment provisions of the Colorado Administrative Procedures Act, C.R.S. 24-4-101, et. seq., especially C.R.S. 24-4-103, and the Colorado Open Meetings Act, C.R.S. 24-6-402. 41. The CDOR further promulgated certain agency rules and regulations pertaining to

medical marijuana patients, care-givers, and businesses. Prior to the final promulgation of the CDOR regulations, the agency communicated and conducted meetings upon the proposed regulations in secret and failed to provide the required proper and sufficient public notice and opportunity to be heard. The regulations were promulgated by CDOR in violation of the public
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notice and comment provisions of the Colorado Administrative Procedures Act, C.R.S. 24-4101, et. seq., especially C.R.S. 24-4-103, and the Colorado Open Meetings Act, C.R.S. 24-6402. 42. The CDPHE and CDOR regulations further interfere with the constitutionally

secured rights of qualifying patients and their primary care-givers to the medication as set forth below. D. Unconstitutional Restraints on Patient Access to Medication 43. In addition to establishing the state scheme for making medical marijuana

available through the new medical marijuana business entities to patients, the medical marijuana legislation added provisions which defeated its very purported purpose of guaranteeing ready access to the medication by authorizing local authorities, counties, cities and other municipalities, to each issue their own regulatory schemes of local licenses and regulations. C.R.S. 12-43.3-103(2)(a), 12-43.3-301, and 12-43.3-310. In a further restraint on access to medication, the legislation gave local authorities the power to prohibit altogether state licensed medical marijuana cultivators, product manufacturers, and centers from their counties and communities. C.R.S. 12-43.3-103(2)(a), 12-43.3-106 (Local Option), 12-43.3-310(1). 44. While many Colorado communities and counties approved of these medical

marijuana businesses, a number of communities banned medical marijuana cultivators, product manufacturers, and centers, including the municipalities of Bayfield, Broomfield, Castle Rock, Cedaredge, Durango, Grand Junction, Greeley, Hayden, Kremmling, Superior, Vail, and Westminster, and the county of Las Animas. Many other municipalities and counties put bans on their November 2010, ballots.
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45.

On November 2, 2010, the municipalities of Akron, Antonito, Aurora,

Broomfield, Castle Pines North, DeBeque, Dinosaur, Elizabeth, Federal Heights, Fountain, Granby, Hillrose, Hot Sulfur Springs, Jamestown, La Junta, Lake City, Lone Tree, Loveland, Olathe, Otis, Ouray, Paonia, Ramah, Sugar City, and Windsor, and the counties of Broomfield, Conejos, Custer, Douglas, Las Animas, Mesa, Moffat, Montrose, Otero, and Washington approved bans of medical marijuana cultivators, product manufacturers, and centers. 46. In December, 2010, Adams County became the 26th county in Colorado to ban

medical marijuana businesses in their unincorporated areas. At least 47 municipalities have also banned the businesses. Other municipalities and counties have approved or are considering medical marijuana business ban referendums for the coming election cycles. 47. Coupled with the legislatively imposed restrictions on patients and their primary care-givers discussed below, these numerous bans threaten to bar or frustrate access to medical marijuana medication to broad, checker-boarded, swaths of the State and tens of thousands of registered Colorado patients and their care-givers having constitutionally secured patient access to doctor recommended medication, including PCRLP members Lannette F. and Scott F. E. Unconstitutional Restraints on Patients and Care-Givers 48. Contrary to the stated purpose of the legislation, the medical marijuana legislation

and regulations unconstitutionally interferes with a patients safe access to medical marijuana medication through limitations placed on primary care-givers. 49. The Colorado Constitution defines both patient and primary care-giver.

Colorado Constitution, Article XVIII, 14(d) and (f). Other than being 18 years of age (and not a physician), the sole restriction under the constitutional definition of primary care-giver is that

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the care-giver has significant responsibility for managing the well-being of a patient who has a debilitating medical condition. Id. at 14(f). 50. Without authorization from and contrary to the Colorado Constitution, as well as

the due process rights of medical marijuana patients and care-givers, the medical marijuana legislation legislatively amends the Colorado Constitution to arbitrarily limit each care-giver to 5 patients, to bar patients with a care-giver from acting as a care-giver for another patient, to forbid care-givers from the common cultivation of medical marijuana or engaging in collective private use, and to forbid care-givers from charging more than the cost of cultivating or purchasing the medication. C.R.S. 25-1.5-106(9) and (10); 5 C.C.R. 1006-2, Regulation 9 and Regulation 12(F). 51. The CDPHE further promulgated these and additional limiting and restrictive

requirements upon patients and their care-givers in its regulations including a restriction limiting patients to changing their care-giver and their primary center only once a month. 5 C.C.R. 1006-2, Regulation 2(E). 52. The CDOR additionally promulgated the unduly restrictive requirement limiting

patients and their care-givers to designating as the source of medication only one medical marijuana center at a time and then barring patients from changing their medical marijuana center for 120 days. C.D.O.R. Regulation 1.200. 53. The CDOR regulations further require all persons engaged in the business of

cultivating, possessing, selling, or offering to sell medical marijuana to be licensed by the state and other relevant licensing authorities. C.D.O.R. Regulation 1.100, see also, C.D.O.R. Regulations 9(I) and 12(F). No exception is made as to qualifying patients or care-givers. To the extent that this provision requires qualifying medical marijuana patients or care-givers to
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obtain medical marijuana business licenses under the medical marijuana legislation, it violates the Colorado Constitutions protections and guarantees. Colorado Constitution, Article XVIII, Sections 14(1)(b), (f), (g), and (2)(d). 54. Nowhere in the Constitution does it impose or authorize these statutory or

regulatory limits on qualifying medical marijuana patients or their care-givers. 55. By failing to provide for unregistered qualifying medical marijuana patients, the

medical marijuana legislation and CDPHE regulations require that all qualifying medical marijuana patients and their care-givers be registered with the State to be able to purchase medical marijuana from a licensed medical marijuana business and to have the registry identification card in their possession at all times. C.R.S.12-43.3-402(5), 25-1.5-106(11); 5 C.C.R. 1006-2, Regulation 9(E). As registration is optional under the Constitution, these provisions unconstitutionally interfere with or deny the right of qualifying medical marijuana patients and their care-givers to marijuana as medication as well as their right to privacy. 56. Notably, PCRLP member Lannette F. had to rely on several care-givers for her

care and a reliable supply of her medication. Prior to H.B. 10-1284, Plaintiff Kathleen Chippi and Rico Colibri as primary care-givers provided adequate care for many more than 5 patients as do virtually all less-regulated medical attendants, home-visit nurses and nurses aides, therapists, hospice employees, herbalists, apothecaries, cultivators of medicinal herbs and plants, and other providers of non-medical marijuana therapeutic or health related services in and out of the home to persons with debilitating conditions. These statutory provisions forced PCRLP member Kendra C.s primary care-giver to drop her as a patient to come within the restriction. PCRLP member Scott C. also had to cease acting as a primary care-giver for another patient under the legislations and regulations bar on patients with care-givers acting as care-givers.
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57.

The existence and ready and widespread availability of the services of primary

care-givers to patients, including the in and out of home cultivation, transport, dispensing, and selling of medical marijuana medication, is an integral part of the scheme set out in the Colorado Constitution for the provision of medical marijuana to qualifying patients with debilitating medical conditions. Many patients are infirm, immobile, lack transportation, are too young to get their medication on their own, such as PCRLP member C.M., or lack the ability or desire to cultivate their own medication, or are fearful or embarrassed by the unwarranted social stigma associated with marijuana, and need a primary care-giver to perform those services for them as care-giver Plaintiffs Chippi and Colibri and many other care-givers were doing prior to the medical marijuana legislation and regulations. 58. As with nurses and other in-home and out-of-home care-givers, it is a service that

requires reasonable compensation and income to make it worthwhile and viable as an occupation. By limiting care-givers to 5 or less patients and not allowing them to charge for more than the costs of cultivating or purchasing medical marijuana for their patients, the medical marijuana legislation and regulations force up the cost of care-giving, including cultivation of medication, and effectively makes it cost prohibitive and unviable for providers to act as a caregiver as it did with Plaintiffs Chippi and Colibri and Kendra Cs and Gary I.s care-givers. It denies care-giving services and thus their constitutionally secured medication to those many qualifying medical marijuana patients affected by local bans or who cannot afford the increased costs associated with the reduction in numbers of patients per care-giver or who have no relative or other person available to provide care-giving services at no cost. 59. By baring patients with a care-giver from acting as a care-giver for another

patient, forbidding care-givers from the common cultivation of medical marijuana, and
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forbidding care-givers from charging more than the cost of cultivating or purchasing the medication, the medical marijuana legislation and CDPHE regulations deny patients and caregivers the benefits of exercising their constitutional rights collectively and cooperatively and further significantly interferes with their use and ready access to their medication. 60. The Colorado Constitution does not bar from action as primary care-givers

convicted felons who have had their constitutional rights of citizenship restored to them, such as Plaintiff Colibri, from being qualifying patients or primary care-givers. However, the medical marijuana legislation and regulations do bar persons convicted of a controlled substance felony, without time restrictions, from being issued a medical marijuana business license. C.R.S. 1243.3-307(1)(h). If the Defendants herein construe care-givers who profit in part from growing and selling medical marijuana medication to their patients as businesses subject to the medical marijuana legislation, Plaintiff Colibri is legislatively barred by his past felony from continuing to perform and be compensated for services as a care-giver or grower for qualifying medical marijuana patients. The legislative and regulatory bar is in violation of the Colorado Constitution, Article II, Section 3 (right to engage in business and pursue employment); Article VII, Section 10 (restoration of rights of citizenship; and Article XVIII, Section 14 (medical marijuana). 61. Each of the irrational restrictions the medical marijuana legislation and

regulations places on patients and their primary care-givers makes it more difficult for patients to access their medication and for primary care-givers to effectively and profitably perform these services. The legislatively enacted restrictions undercut the statewide scheme envisioned by the People in Amendment 20 and defeat the constitutional guarantee of ready access of qualifying

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patients to their medication, a de facto denial of their fundamental constitutional rights under the Constitution. Colorado Constitution, Article XVIII, Section 14. 62. The right of Colorado citizens to make decisions pertaining to their medical

treatment is also a fundamental constitutional right. Colorado Constitution, Article II, Sections 3, 7, and 25; C.R.S. 15-18.5-101(1)(a). The unconstitutional restrictions on patients and caregivers further deny qualifying medical marijuana patients their fundamental constitutional rights to seek happiness and to privacy. 63. Section 3 of the Bill of Rights to the Colorado Constitution, provides: All

persons have certain inalienable rights, among which may be reckoned the right of acquiring, possessing and protecting property; and of seeking and obtaining their safety and happiness. Colorado Constitution, Article II, Section 3. This provision secures a fundamental constitutional right in Colorados citizens to pursue employment. By Amendment 20, the People of the State declared medical marijuana a legal product in Colorado and established a statewide scheme for the provision of medical marijuana services by primary care-givers to qualifying patients and for their use and manufacture, sales, distribution, and dispensing of medical marijuana. Colorado Constitution, Article XVIII, Section 14(2)(d). The medical marijuana legislations and the CDPHE and CDOR regulatory bans on care-givers receiving compensation or a profit for all of their medical marijuana related services and for providing of medication to their patients deny care-givers their fundamental constitutional rights to pursue employment, to contract for services, and to engage in business for profit. F. Unconstitutional Violations of Patient and Care-Giver Privacy Rights 64. The medical marijuana legislation and regulations further violate the Colorado

Constitutions strict confidentiality provisions on medical marijuana which narrowly limit

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disclosure of any patients and care-givers registry information only to the State health agency and to law enforcement for the sole purpose of verifying registration of the patient or care-giver as a medical marijuana user following a stop or arrest. Colorado Constitution, Article XVIII, 14(3)(a) and 14(9). 65. Contrary to the Colorado Constitution which expressly and strictly restricts

medical marijuana patient and care-giver information to the CDPHE, the state health agency, and limited disclosures of registry information to law enforcement agencies under certain, very limited circumstances, the House Bill provides for the sharing of patient / care-giver information with a state licensing authority and a local licensing authority. C.R.S. 12-43.3-202(2)(a) (IV) and (XVIII), 12-43.3-701, 12-43.3-901(4)(e). Under the legislation, the state licensing authority is the executive or deputy director of the Colorado Department of Revenue. C.R.S. 12-43.3-201(1). Director of the Department of Revenue is authorized to conduct searches and investigations and, apparently, even seizures at will of the records and contract and sales information of cultivators, product manufacturers, or sellers of medical marijuana which contain the constitutionally protected confidential information of medical marijuana patients and caregivers. C.R.S. 12-43.3-202(2)(a)(IV) and (XVIII), 12-43.3-701. 66. The Department of Revenues Medical Marijuana Enforcement Division has

issued approximately 70 pages of final regulations pursuant to the medical marijuana legislation. Chapter 10 requires video surveillance and tracking of qualifying medical marijuana patients and their care-givers who obtain medication from medical marijuana centers. C.D.O.R. Regulations 1.200, 10.400, and 12.100(B). The few regulatory provisions made to preserve the confidentiality of such information are wholly insufficient and ineffective. These proposed regulatory provisions are in violation of the privacy provisions contained in the Colorado
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Constitution protecting the identities of qualifying patients and their care-givers. Colorado Constitution, Article XVIII, 14(3)(a) and 14(9). 67. Medical marijuana patients also have fundamental privacy interests in regards to

their health treatment and health treatment decisions as well as their communications with their physicians and to their healthcare records which are protected under the Colorado Constitution, statute, and common law. Colorado Constitution, Article II, Sections 3, 7, and 25; C.R.S. 1390-107(1)(d); 15-18.5-101(1)(a); 18-4-412(2)(a); 24-72-202(6)(b). No statutory or other exception to the privacy right and privilege exists in Colorado at least until the passage of the medical marijuana legislation. 68. The medical marijuana legislation and regulations require care-givers to register

with the State medical marijuana licensing authority the location of their cultivation operations. C.R.S. 25-1.5-106(7). These constitutionally unauthorized and over-broad provisions also violate the afore-mentioned optional registry and privacy provisions of the Colorado Constitution pertaining to primary care-givers and their qualifying patients. 69. The medical marijuana legislation and regulations give the Department of

Revenue, and other local, state, and federal law enforcement agencies, broad, virtually unfettered, authority to invade the privacy of medical marijuana patients and their care-givers. This not only contravenes the explicit privacy provisions of the Colorado Constitution, but also discourages qualified patients and citizens, and their caregivers, from asserting their constitutional rights to their medication. It is in direct conflict with the above-mentioned confidentiality and privacy provisions of the Colorado Constitution.

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G. Unconstitutional Violations of Patient and Care-Giver Property Rights to Medical Marijuana Medication and Related Items 70. The Colorado Constitution at Article XVIII, Section 14(2)(e) provides that: Any

property interest that is possessed, owned, or used in connection with the medical use of marijuana or acts incidental to such use, shall not be harmed, neglected, or destroyed while in the possession of state or local law enforcement officials where such property has been seized in connection with the claimed medical use of marijuana. Any such property interest shall not be forfeited under any provision of state law providing for the forfeiture of property other than as a sentence imposed after conviction of a criminal offense or entry of a plea of guilty to such offense. Marijuana and paraphernalia seized by state or local law enforcement officials from a patient or primary care-giver in connection with the claimed medical use of marijuana shall be returned immediately upon the determination of the district attorney or his or her designee that the patient or primary care-giver is entitled to the protection contained in this section as may be evidenced, for example, by a decision not to prosecute, the dismissal of charges, or acquittal. 71. Under the scheme established by the State, such constitutionally protected

medical marijuana property interests of qualifying patients and care-givers may be in the possession of medical marijuana cultivators, product manufacturers, or centers. Any statute, such as C.R.S. 12-43.3-202(2)(a)(IV), or agency regulation purportedly authorizing the seizure, forfeiture, or destruction of any such property interest without prior notice to the patient and care-giver and an opportunity for the patient or care-giver to appear and protect their interests would be in violation of medical marijuana interest protection provision, Article XVIII, Section 14(2)(e), and the due process provision, Article II, Section 25, of the Colorado Constitution.

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H. Qualifying Medical Marijuana Patients Are and Will Be Severely Harmed by the Challenged Legislation and Agency Regulations 72. Coupled with the legislative and regulatory draconian restrictions on care-givers,

the large number of municipal and county bans being enacted across the State under the medical marijuana legislation are already impacting the ready access to medication envisioned by the Colorado Constitution for medical marijuana patients. The thousands upon thousands of qualifying patients who reside in these almost 50 municipalities and 20 counties covering a large part of the State are or will be effectively deprived of ready or all access to their medication. Many will face the hard choice of going without or of obtaining their medication in violation of the medical marijuana legislation and agency regulations and running the risk of arrest and loss of their legal right to use the medication. Care-givers, if lawfully able to act collectively, cooperatively, and for a profit, could fill this void in patient access to medication created by the medical marijuana legislation and regulations. 73. A great many other patients, like PCRLP members Lannette F., Kendra C., Gary

I., and Scott S., have already lost or face the loss of their primary care-givers or ready access to their medication due to the severe restrictions placed on them and their care-givers by the legislation and regulations. For those patients without relatives who can act as primary care givers, the restrictions make the services of care-givers no longer profitable and viable and deprive care-givers of a sufficient incentive for the provision of such important services central to the health and well-being of the patients. Their illness will not grant these many thousands of patients and Colorado citizens any reprieve while they engage in protracted litigation. 74. The implementation of this program by the Colorado Department of Revenue

under the medical marijuana legislation and regulations will also risk exposure of the
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confidential information of the hundreds of thousands of medical marijuana patients and caregivers in direct violation of the Colorado Constitution. The constitutionally secured privacy of over 128,000 qualified medical marijuana patients and 16,000 care-givers, who are Colorado residents and citizens, stands to be irreparably invaded unless there is immediate action by the Court. 75. For example, in December, 2010, a large number of confidential medical

marijuana registry forms with all these peoples personal information on each one of those sheets was found by happenstance by a passerby in a box next to an alleyway trash bin behind a medical marijuana center. The discarded center records contained patient names, addresses, and telephone numbers, social security numbers, dates of birth, and the personal and medical information of dozens of patients. The medical marijuana legislation and regulations require the center to collect this information from patients and their care-givers. 76. It is for these reasons that the Plaintiffs and the more than 100,000 other medical

marijuana patients and care-givers must have immediate, statewide, relief. No other relief that might be available to them is adequate under the circumstances.

III. NO COMPELLING STATE INTEREST OR RATIONAL BASIS EXISTS FOR INFRINGEMENT OF THE CONSTITUTIONALLY SECURED RIGHT OF ACCESS OF HUNDREDS OF THOUSANDS OF QUALIFYING MEDICAL MARIJUANA PATIENTS TO THEIR MEDICATION 77. Doctors, dentists, and other medical providers routinely prescribe and pharmacies

routinely dispense in every municipality in every county of the state a great many controlled pharmaceutical narcotics such as Fentanyl, oxymorphone, hydromorphone, morphine, and codeine, universally recognized as far more potent than medical marijuana. The use of these
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medicinal substances is illegal unless pursuant to a doctors or dentists prescription. 21 U.S.C. 801, et seq. Yet, with the medical marijuana legislation and regulations, patients have much greater access to these far more potent pharmaceutical narcotics prescribed for the same pain than they have to medical marijuana. 78. For example, PCRLP member and qualifying medical marijuana patient C. M. is

permitted by his public high school to have his prescribed highly addictive narcotic pain medicine dispensed to him by the school health clinic, but he is not permitted to have his far safer nonaddictive muscle relaxant medical marijuana medication that was recommended by his same doctors for his seriously debilitating medical condition dispensed to him at the school at the time of onset of each of his daily debilitating attacks. While the school has changed its position and now permits C.M. to have his medical marijuana medication in his blood stream if administered off the school grounds, this is contrary to the medical marijuana legislation and regulations which do not permit him to even have the physician recommended medical marijuana medication if taken prior to arriving at school - in his blood stream. C.R.S. 25-1.5106(12)(b)(IV); 5 C.C.R. 1006-2, Regulation 2(C). As he must leave school to obtain his medication at the time of the onset of an attack, he is still denied effective access to his medication and medical treatment, and is further being deprived of his constitutional right to a public education. Colorado Constitution, Article IX, Section 2. 79. Under the supervision of his doctor, PCRLP member John E., for example, has

been able to reduce his dependence on these narcotics through careful pain management with medical marijuana. 80. Nearly all medicines have toxic, potentially lethal effects. But marijuana

(cannabis) is not such a substance. There is no record in the extensive medical literature
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describing a proven, documented cannabis-induced fatality. Marijuana's therapeutic ratio is impossible to quantify because it is so high. Francis L. Young, DEA Administrative Law Judge concluded: Marijuana, in its natural form, is one of the safest therapeutically active substances known to man. 81. Even alcohol, which is readily available without a doctors approval, is

immensely more harmful and dangerous to the user and our society than medical marijuana. 82. The rights of qualifying patents or care-givers to access and use medical

marijuana in private is an individual, fundamental, constitutional right analogous to those civil rights guaranteed by the Bill of Rights found in Article II of the Colorado Constitution. Colorado Constitution, Article II, Sections 3, 7, 25; Article XVIII, Section 14; C.R.S. 15-18.5101(1)(a). Furthermore, a denial of medical care is a deprivation of an interest in liberty or life that implicates rights to due process under Colorado Constitution. Id. These vested interests extend to the care-givers who provide medical marijuana patients with medication under the Colorado Constitution. 83. In addition to the inherent liberty and life issues that establish a fundamental

right to medical care, Article XVIII, Section 14 of the Colorado Constitution the Colorado Constitution is more expansive of these rights in specifically establishing as a fundamental right of all Colorado citizens and residents the ready access to medical marijuana for debilitating medical conditions. 84. In infringing upon the aforesaid constitutional rights of the Plaintiffs, the medical

marijuana legislation and regulations fail to promote any compelling state interest and are not narrowly drawn to achieve any such interest in the least restrictive manner possible.

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85.

Furthermore, there is no rationale basis for any of these challenged restrictions let

alone any compelling state interest. IV. THE GENERAL ASSEMBLY CANNOT AMEND THE COLORADO CONSTITUTION BY LEGISLATION OR THE STATE BY AGENCY REGULATION 86. Regardless of what the General Assembly or the State may think of a

constitutional amendment expressed through the will of the People of Colorado, it can only enact legislation and regulations that satisfy the mandates of the Colorado Constitution, including the provisions on patient access to medical marijuana. Colorado Constitution, Article II, Section 2. It cannot amend the Colorado Constitution by legislation or agency regulations, as it has done with the above-mentioned restrictions on qualifying patients and their primary care-givers and restrictions on ready access of patients and care-givers to the medication, and with the abovementioned diminishing of the patient and care-giver privacy and property interests protections in the Colorado Constitution. Id.

V. 87. 88.

CLAIM FOR DECLARATORY JUDGMENT AS TO ALL DEFENDANTS

Plaintiffs incorporate by reference each and every allegation above. Plaintiffs seek the following disputed issues be resolved by the Court by ruling as

a matter of law, and for the reasons set forth above, the following statutory provisions, and the agency regulations promulgated thereunder, are unconstitutional as they pertain to qualifying medical marijuana patients and to their care-givers, including but not limited to: C.R.S. 1243.3-102(2), 12-43.3-103(1),, 12-43.3-103(2)(a), 12-43.3-104(8)-(12), 12-43.3-104(16), 12-43.3106, 12-43.3-202, 12-43.3-301, 12-43.3-307, 12-43.3-310, 12-43.2-401(1), 12-43.3-402(5), 1230

43.3-701, 12-43.3-901, 25-1.5-106(7), 25-1.5-106(9), 25-1.5-106(10)(a) through (d), 25-1.5106(10)(e)(V), 25-1.5-106(10)(f), 25-1.5-106(11)(a), 25-1.5-106(12)(a), 25-1.5-106(12)(b)(I), (IV), and (V), and 25-1.5-106(13); CDPHE 5 C.C.R. 1006-2, Regulations 1(A)(2)(d), 1(A)(4), 2(B)(2), 2(C)(6), 2(D), 2(E), 2(G)(5), 2(I), 9, 10, 11, 12(C)(3-6), 12(E), 12(F), and 13; and C.D.O.R. Medical Marijuana Business Regulations, 1.100,1.200, 10.400, and 13.100.

V. 89. 90.

CLAIM FOR INJUNCTIVE RELIEF AS TO ALL DEFENDANTS

Plaintiffs incorporate by reference each and every allegation above. As to the defendants sued in their individual capacity, Plaintiffs seek an order

permanently, preliminary, and / or temporarily enjoining them from implementing, enforcing or otherwise acting upon any and all of the listed and any other unconstitutional provisions of the medical marijuana legislation and agency regulations.

WHEREFORE, for the reasons stated above, A. Plaintiffs respectfully request a declaratory judgment from the Court that

the listed provisions of the medical marijuana legislation pertaining to the Colorado medical marijuana program and the agency regulations promulgated thereunder are unconstitutional. B. Plaintiffs further respectfully request an order from the Court, permanent,

preliminary, and / or temporary, enjoining them, jointly and severally, from implementing, enforcing or otherwise acting upon any and all of the listed provisions of the medical marijuana legislation and agency regulations. C. Plaintiffs respectfully request any further relief the Court may deem just
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and proper. Dated: July 29, 2011. Respectfully submitted, SPRINGER AND STEINBERG, P.C.

By:____/s/ Andrew B. Reid__________________ Andrew B. Reid, Bar No. 25116 (Original signature at the law office of Springer and Steinberg, PC) 1600 Broadway, Suite 1200 Denver, CO 80202 Tel: 303.861.2800 Email: areid@springer-and-steinberg.com Attorneys for Plaintiffs

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