Denver Considers Unconstitutional Limit on Homegrown Marijuana

The Denver City Council, which on
Monday
thought better of trying to stop people from smoking pot on
their own porches, is now
considering limits on home cultivation that go beyond
those imposed by Amendment 64, Colorado’s marijuana legalization
measure. A bill proposed by Jeanne Robb, the same councilwoman who
wanted to ban marijuana consumption in outdoor areas on private
property, would cap the number of cannabis plants at 12 per
household, regardless of how many adults live there.
Amendment 64, by contrast, allows every resident who is 21 or
older to grow up to six plants, “notwithstanding any other
provision of law.” It says doing so “shall not be be an offense
under Colorado law or the law of any locality,” as long as “the
growing takes place in an enclosed, locked space, is not conducted
openly or publicly, and is not made available for sale.” Since
Amendment 64 is now part of the state constitution, it is hard to
see how Robb’s proposed ordinance could pass legal muster.

Leaving aside that rather significant point for the moment,
Robb’s justification for the 12-plant-per-dwelling limit, which
parrots the talking points of the anti-pot group Smart Colorado, seems pretty weak.
“The police are very worried about the homegrows and the problems
they could cause,” she
tells The Denver Post. Specifically, she claims
to be worried about “fires, pesticide use, the mold,
structural damage, children who might be living in these areas, and
THC on surface areas.” HomeGrow.CO, a site that covers home
cultivation under Amendment 64, debunks these
concerns one by one. Regarding “THC on surface areas,” for example,
it says:

I am not sure what Smart Colorado or the Council Woman thinks
happens when cannabis is grown.  THC IS NOT SPEWED OUT OF THE
PLANT, contaminating surfaces in the area….I checked, [and]
apparently dispensaries do NOT have a problem with THC
contamination on surfaces. I figured since they have 1000’s of
plants, SURELY they would have THC contamination issues.  But
no, they didn’t seem to know what the heck I was talking about. So
I explained it to them, [and they] still [have] no idea.

More to the point, any valid safety concerns would apply to
growing 12 plants as well as 13 (or 18), and they can be addressed
without arbitrarily denying Coloradans their constitutional rights.
According to the Post, “Robb said police have stories of
homes with dozens of plants, including an 80-year-old grandmother
with more than 100 plants in her home.” Robb’s bill has nothing to
do with a situation like that, since 100 plants is already 94 more
than any one person is allowed to grow under Amendment 64.

Granted, homes with three or more adults, all of whom want to
grow marijuana and at least two of him plan to do so up to their
personal limits, are fairly unusual. But HomeGrow.CO argues that
Robb’s restriction would disproportionately affect college
students, families of modest means, and people caring for elderly
parents who use marijuana as a medicine, all of whom are especially
likely to live in households that include more than two adults.

Robb and her friends in the police department may be offended by
the idea of three roommates growing a total of 18 plants and
sharing the produce with their friends (one ounce at a time).
Furthermore, it is in the city’s financial interest to keep a lid
on DIY production so as to maximize revenue from the taxes on sales
at state-licensed stores. But the informal, nonprofit distribution
of homegrown pot is perfectly legal under Amendment 64, and it can
serve as an important restraint on politicians’ urge to tax and
regulate.

[Thanks to Kris Kaiser for the tip.]