Social Cannabis Consumption: Will Denver Lead Us?

Colorado Cannnabis

Even in states and cities where recreational cannabis is legal, consuming cannabis with others anywhere but in one’s own home is usually problematic. If you want to consume a beer with a friend, you can easily do so at a bar or a restaurant. There are no comparable places for cannabis. The citizens of Denver are trying to change this, but their efforts are being constricted.

On November 8, 2016, the people of Denver by a slim margin voted for Initiative 300 to allow private businesses to offer space for their patrons to consume cannabis. In an apparent effort to counter this vote, the Liquor Enforcement Division of the Colorado Department of Revenue recently approved a rule prohibiting businesses with a liquor license from applying for permits under Initiative 300. This rule means bars and restaurants that serve alcohol cannot also allow their patrons to use cannabis on-site.

In spite of this Liquor Enforcement Division rule, social cannabis consumption in Denver will still be allowed in certain designated areas. Establishments that wish to operate a business that permits its customers to consume cannabis on-site must first approval from a relevant local neighborhood association and then a permit from the City of Denver.

Yes on 300 Initiative explains the reasoning behind this initiative as follows:

In Denver we’ve legalized the purchase and possession of cannabis for adults but have not provided them with a safe and private place to consume it away from city sidewalks, parks and places where children congregate. The City of Denver Cannabis Consumption Pilot Program is a responsible approach to solving this problem that won’t remedy itself. It will provide designated spaces in certain City-permitted business establishments where adults 21 and over can consume cannabis in accordance with the Colorado Clean Indoor Air Act and out of view of the public. The problem stems from the fact that many residents of Denver live in HOA or landlord-controlled properties that disallow cannabis use on the premises, while more than 70 million tourists come to Colorado each year, also with no place to go. This has led to a 500% increase in public consumption tickets issued in Denver since the passing of Amendment 64 in Colorado, with African-Ameri­­cans being arrested at a rate 2.6 times higher than whites.

Yes on Initiative 300 then explains how the initiative will work in practice:

To remedy this, the City of Denver Cannabis Consumption Pilot Program is designed to mutually serve the interests of both cannabis consumers and Denver neighborhoods by requiring a prospective permit holder to garner formal support from an eligible neighborhood organization prior to applying with the Denver Department of Excise and Licenses. To allow neighborhoods the ability to slowly step into this new territory, the proposed permits could be issued for a short duration of time, such as for a single event, allowing for a phased integration of this program that adjusts to current unknowns as they are realized and best practices are developed. Neighborhood organizations will have the ability to mandate certain restrictions on the businesses to ensure they operate in a manner that is most appropriate for the neighborhoods in which they operate, empowering neighborhoods to be part of the process and set high standards of responsibility for cannabis consumers and cannabis consumption permit holders.

In addition to having to contend with the Colorado Liquor Board banning restaurants and bars from participating in the benefits from Initiative 300, it also is likely to face additional legal hurdles. Colorado Amendment 64, which legalized recreational marijuana in Colorado, states that “nothing in this section shall permit consumption that is conducted openly and publicly or in a manner that endangers others.” Supporters of Initiative 300 contend that it does not conflict with Amendment 64’s prohibition against open or public consumption of cannabis because consumption at a private business is neither open nor public. It is expected that opponents of the initiative will mount legal challenges to it by arguing that consumption in private businesses is “open” and “endangers others” in violation of Amendment 64. If these opponents succeed with their legal arguments regarding conflicts between Colorado Amendment 64 and Initiative 300, Initiative 300 will cease to apply because a state level Constitutional Amendment (Amendment 64) supersedes local law (Denver’s Initiative 300).

Denver’s Initiative 300 is nationally important because it is unique in making Denver the only major US city to allow for cannabis consumption spaces. And by way of one example, Washington state expressly forbids these types of cannabis consumption spaces by making it a felony for businesses to allow for cannabis consumption. Alaska’s marijuana laws allow for cannabis consumption spaces, but a recent legal opinion from the state Attorney General has halted cannabis clubs in Alaska. We will be monitoring what happens with Denver’s cannabis consumption spaces and reporting back on developments there.