Last week Denver police
raided and shut down Maryjane’s Social Club, one of the
few places in Colorado, aside from private residences, where people
could legally smoke pot. Or so it seemed. Maryjane’s did not
advertise and was open only to paying members, but in the eyes of
Denver officials that was not sufficiently private. Rob Corry, a
Denver attorney who is representing one of the club members cited
for public marijuana consumption on Friday, argues that the city’s
compromise with the Colorado Symphony Orchestra, which allowed
its “Classically Cannabis” concerts to proceed as invitation-only
events, should apply to clubs like Maryjane’s as well. “This is an
identical situation,” Corry told A.P. “It’s not even close to being
a gray area.”
The city does not see it that way. Daniel Douglas, a lawyer who
works in the Prosecution and Code Enforcement Section of the Denver
City Attorney’s Office, concedes that consuming marijuana in a
genuinely private club would be legal. “If consumption is not
public,” he says, “then it is not against the law.” But to qualify
as a private club, Douglas says, an organization would have to
satisfy the “balancing test” set forth by the U.S. Court of Appeals
for the 3rd Circuit in
U.S. v. Lansdowne Swim Club, a 1990 discrimination case.
That test includes factors such as the club’s selectivity, its
history and mission, the formalities it observes, whether it
advertises for members, whether its facilities are used by
nonmembers, the control that members have over the club’s
operations, and whether the club generates profits for the people
who run it.
Douglas notes that a Colorado appeals court applied the 3rd
Circuit’s test in a
1999 decision involving the Hide-A-Way Spa, an Adams
County bath house “where nude female attendants provide[d] services
to adult male customers,” including “‘finger-tip powder’ rubs,
saunas, and shared bubble bath or hot tub treatments.” In an effort
to escape state and local restrictions on “nude entertainment
establishments,” the spa’s owners restyled it as a private club.
The appeals court rejected that characterization, concluding that
the spa, although renamed the Phoenix Club, was in practice “open
to the public,” since it seemed that anyone who walked in and paid
a $5 fee could become a member and thereby take advantage of the
spa’s services (which carried additional charges). The court cited
ads for the spa in Denver-area newspapers, which “indicated that
the establishment had been in business at the same location for
over 19 years and gave no indication that it was a private club.”
It also noted that “the club did not keep an active roll of its
members,” that “there were no membership meetings or club
activities as such,” and that “the club did not really provide any
services other than those involving a female nude entertainer.” The
court found that “the record supports the trial court’s conclusion
that defendants’ attempt to pass off the Phoenix Club as a private
club is a sham.”
The city’s position, I gather from Friday’s raid, is that
Maryjane’s Social Club is likewise a sham. It’s not clear where
that leaves other Denver cannabis clubs, such as iBake (pictured
above). This issue may ultimately be resolved by the courts as a
result of challenges by the club members or managers. But
Maryjane’s status as a private club is relevant only if the city is
correct that any marijuana consumption in a place open to the
public violates a
Colorado law that makes it a petty offense to consume marijuana
“openly and publicly.”
Amendment 64, which legalized marijuana for recreational use,
left that prohibition in place, saying decriminalization does not
apply to “consumption that is conducted openly and publicly.” But
as I
pointed out last week, the city’s interpretation of that
language makes it difficult for people to exercise the rights
protected by Amendment 64, especially if they are visiting Colorado
and do not own or rent a home there.
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