**STORY UPDATE** After this story aired on Oct. 3, Sexy Pizza decided to award Frederick Smith (mentioned in the story below) a free pizza per month "until Colorado voters decide a 2012 ballot initiative that would regulate the recreational simple possession of marijuana across Colorado," says a release sent out by Sexy Pizza on Oct. 6. **STORY UPDATE**
The man was smoking medical marijuana just before the pizza arrived on Friday evening. The delivery driver smelled the marijuana and called the cops. The Papa John's employee, who was not identified, was concerned because the customer's 9-year-old daughter was in the house.
Officers performed a child welfare check and left without filing any charges.
The man who ordered the pizza, Frederick Smith, contacted 9NEWS because he says he was targeted for doing something that's perfectly legal in Colorado.
"I wanted to be able to use medical marijuana and not feel harassed," Smith said.
Smith has a medical marijuana card. He says a doctor prescribed the drug for chronic pain he suffered in a bicycle accident.
"It is daily pain relief for me. I smoked some medical marijuana to relieve by knee pain," Smith said.
Smith says his 9-year-old-daughter was in the bathroom and insists he never uses the drug in front of her.
After smoking a bowl, Smith ordered a pizza from Papa John's. Their meal was interrupted minutes later by what he describes as "a very loud banging" at the door. It was Aurora police.
"A pizza guy had actually called in the complaint," Smith said.
The delivery man said there was a strong smell of marijuana and a young child in the house.
"I was definitely not smoking marijuana in front of my children, which is what he said he saw," Smith said.
Smith says Aurora Police searched the house and left. He called Papa John's to complain and also filed a complaint with the Better Business Bureau. Smith says Papa John's never even apologized.
"I'm going to try and bring a case of slander against them," Smith said.
9NEWS Legal Analyst Scott Robinson says the pizza company is not liable because the driver actions are not part of his job description.
"I can understand his outrage but he's not going to get anywhere trying to sue Papa John's," Robinson said.
Robinson says, even though medical marijuana is legal in Colorado, people who smoke it are still breaking federal law. Robinson says a jury would likely find that the Papa John's employee was justified in calling the police.
"He was acting as a private citizen in notifying the authorities. Anyone who calls the police is almost surely immune from any lawsuit," Robinson said.
Papa John's representatives and the delivery driver declined to speak on camera to 9NEWS. They did send the following statement:
"Papa John's of Colorado wants to stand behind the decision that this delivery driver made. He was acting as a concerned citizen and for what he believes was the best interests of our community."
Smith insists what happened to him was wrong.
"I was astounded that a pizza driver of all people would be the person to start trouble about medical marijuana. This is no laughing matter. What he did was serious," Smith said.
(KUSA-TV © 2011 Multimedia Holdings Corporation)