Two weeks ago, the Colorado Symphony
Orchestra (CSO) announced
a series of pot-friendly concerts to be held at Space Gallery, a
private event venue on Santa Fe Drive in Denver. Last week Denver
officials
threatened to withhold permits for the concerts, saying that
letting ticket holders bring their own legally acquired pot and
smoke it on Space Gallery’s enclosed patio would violate a 2013
ordinance that prohibits consuming marijuana “openly and
publicly.” Yesterday the CSO
said it had reached a deal with the city that allows the
“Classically
Cannabis” concerts to proceed as invitation-only fundraisers.
What gives?
The Denver ordinance defines openly as
“occurring or existing in a manner that is unconcealed,
undisguised, or obvious.” It defines publicly as
“occurring or existing in a public place,” which it defines as “a
place to which the public or a substantial number of the
public have access.” The CSO’s lawyers obviously though that Space
Gallery, which the symphony is renting for concerts that would have
been open only to people who made reservations and paid for
tickets, did not count as a “public place.” The city disagreed,
insisting on an added layer of exclusivity: Instead of letting
anyone with $75 and a phone get in, the CSO will be admitting only
“a closed list of VIP guests,” an approach that seems to conflict
with the financially troubled orchestra’s goal of reaching out to a
newer, younger, less stodgy audience.
Critics of Denver’s pot restrictions were hoping that the CSO
would challenge the city’s position in court, where it would have a
good chance of prevailing. As University of Denver law professor
Sam Kamin
told The Denver Post about the orchestra’s
original plan, “that sure looks more private than public.” Amendment 64,
which legalized marijuana in Colorado, says :nothing in this
section shall permit consumption that is conducted openly and
publicly.” But it does not define “openly and publicly,” so
ultimately the courts will have to decide what that means.
Rob Corry, a Denver attorney and marijuana activist who has
experimented with floating pot parties that charge admission to
people who bring their own marijuana, argues that
the phrase imposes two distinct conditions: To be prohibited,
marijuana use must be open (visible to
passers-by) and public (occurring on public
property). Smoking pot while walking down a crowded sidewalk would
be the paradigmatic example. But according to Corry’s reading of
the law, smoking pot in a secluded area of a park would be public
without being open, while smoking pot on your front porch or on the
patio of a restaurant would be open without being public. Smoking
pot on an enclosed patio at a private venue like Space Gallery
would be neither open nor public.
Although Amendment 64 declared that “marijuana should be
regulated in a manner similar to alcohol,” the lack of places
outside the home where people can consume cannabis is a striking
departure from the alcohol model. You are not allowed to consume
marijuana in the state-licensed stores that sell it, and under
Denver’s reading of Amendment 64 you are not allowed to take it to
a bar or restaurant and consume it there either, since those
businesses are open to the public. “We’re still trying to protect
the image of our city,” Councilman Albus Brooks
tells the Los Angeles Times. “We will not be the
capital [of marijuana], nor do we want to be. We think we led the
world in responsible regulation and enforcement, and more
municipalities will be joining us soon.”
But if the CSO’s invitation-only model is acceptable, what about
cannabis clubs that are open only to members? That approach not
only keeps consumption private; it allows indoor pot smoking, which
the Colorado
Clean Indoor Air Act prohibits in bars and restaurants
(although the law allows smoking in outdoor seating, and it does
not mention vaporization or edibles). A cannabis club called Studio
A64 is already operating in Colorado Springs, where the city
council recently
gave its blessing after opponents tried to close it
down. Another club is scheduled
to open soon in Nederland, where local officials likewise have
assented. If Colorado Springs, where the sale of recreational
marijuana is
banned, can nevetheless tolerate its consumption in settings
other than private residences, surely Denver, which has more pot
shops than the rest of the state combined, can loosen up a
little.
[Thanks to Marc Sandhaus for the L.A.
Times link.]
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