DENVER MARIJUANA ORDINANCES (As amended December, 2013) 1

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1 DENVER MARIJUANA ORDINANCES (As amended December, 2013) 1 Sec Possession or consumption of marijuana. (a) It shall be unlawful for any person under the age of twenty-one (21) to possess one (1) ounce or less of marijuana. 2 (b) It shall be unlawful for any person to openly and publicly consume one (1) ounce or less of marijuana. 3 (1) The term openly means occurring or existing in a manner that is unconcealed, undisguised, or obvious. (2) The term publicly means: (a) Occurring or existing in a public place; or (b) Occurring or existing in any outdoor location where the consumption of marijuana is clearly observable from a public place. (3) The term public place means a place to which the public or a substantial number of the public have access, and includes but is not limited to streets and highways, 1 This document reflects adopted and pending amendments to Denver marijuana ordinances as provided in: CB concerning public consumption and display of marijuana (adopted December 9, 2013); CB concerning zoning restrictions on the growing of marijuana plants (adopted December ); CB concerning decriminalization of marijuana possession offenses for person under the age of 21 (which may be adopted by December 23, 2013); and CB concerning display of marijuana on city-owned property within 1000 feet of a school (which may be adopted by December 23, 2013). 2 Denver s ordinance on marijuana possession, insofar as it relates only to possession by persons under the age of 21, dates from In that year, via a citizens initiative, this code section was amended to eliminate any penalty under the D.R.M.C. for possession of one ounce or less of marijuana by adults. The Colorado Criminal Code currently contains no law directly and specifically addressing marijuana possession by persons under the age of 21. However, the Colorado Commission on Criminal and Juvenile Justice has recommended amendments to the current statute on underage alcohol possession, , C.R.S., to include parallel provisions for underage marijuana possession. 3 While Amendment 64 allows for the consumption of marijuana by persons 21 years of age or older, the amendment states: nothing in this section shall permit consumption that is conducted openly and publicly. Art. XVIII, sec. 16 (3)(d), Colo. Const. In addition to this city ordinance, open and public consumption of marijuana is prohibited by the Colorado Criminal Code (although the terms open and public are not currently defined in state statute), and is treated as a drug petty offense punishable by a fine of up to $100 and up to 24 hours of community service (5)(b)(I), C.R.S. Furthermore, in regard to medical marijuana, Amendment 20 states that patients shall not, Engage in the medical use of marijuana in plain view of, or in a place open to, the general public... In addition to any other penalty provided by law, the state health agency shall revoke for a period of one year the registry identification card of any patient found to have willfully violated the provisions of this section.... Art. XVIII, sec. 14 (5), Colo. Const. 1

2 transportation facilities, schools, places of amusement, parks, playgrounds, and the common areas of public and private buildings or facilities. 4 (c) It shall be unlawful for any person within one thousand feet 5 of the perimeter of any public or private elementary school, middle school, junior high school, or high school to display, transfer, distribute, sell, or grow marijuana upon any city-owned street or sidewalk or upon any other property owned by the city. 6 (d) For the purposes of this section, section , and section 39-10, the term "marijuana" shall mean and include all parts of the plant of the genus cannabis whether growing or not, the seeds thereof, the resin extracted from any part of the plant, and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or its resin, including marijuana concentrate. "Marijuana" does not include industrial hemp, nor does it include fiber produced from the stalks, oil, or cake made from the seeds of the plant, sterilized seed of the plant which is incapable of germination, or the weight of any other ingredient combined with marijuana to prepare topical or oral administrations, food, drink, or other product. 7 (e) It shall not be an offense under subsection (b) of this section if the consumption of marijuana is occurring on private residential property and the person consuming the marijuana is: (1) An owner of the property; or (2) A person who has a leasehold interest in the property; or (3) Any other person who has been granted express or implied permission to consume marijuana on the property by the owner or the lessee of the property. 8 4 This definition of public place is identical to the definition contained in the Colorado Criminal Code (3)(n), C.R.S. 5 The 1000-foot radius is modeled after the provisions of existing federal and state laws that require enhanced sentencing for unlawful distribution of controlled substances near schools, i.e. so-called Drug Free School Zone Acts. See: (1)(g), C.R.S.; 21 U.S.C The authority for subsection (c) is derived from the provision of Amendment 64 that allows the owner of any property to prohibit the possession, consumption, use, display, transfer, distribution, sale, transportation, or growing of marijuana on or in that property. Art. XVIII, sec. 16 (6), Colo. Const. Note, however, that subsection (c) does not prohibit the mere possession or discreet transportation of marijuana on city-owned property in proximity to schools. Instead, it is designed primarily to prohibit any public displaying or transferring marijuana in these locations. 7 The definition of marijuana is copied verbatim from the definition of the term in Amendment 64. Art. XVIII, sec. 16 (2)(f), and thus the term encompasses both plant materials as well as derivatives, including marijuana concentrate. 8 Although owners, tenants and their guests are exempted from prosecution for consumption of marijuana under this 2

3 (f) Any violation of this section is hereby declared to be a non-criminal violation 9 and, upon an admission or finding or judgment of guilt or liability by default or otherwise, the violator shall be subject to the following maximum penalties: (1) First violation: one hundred and fifty dollars ($150.00). (2) Second violation: five hundred dollars ($500.00). (3) Third and each subsequent violation: nine hundred and ninety-nine dollars ($999.00). 10 If the violator is under the age of eighteen (18) years of age at the time of the offense, any fine imposed may be supplanted by treatment as required by the court. Sec Marijuana prohibited on the 16 th Street Pedestrian and Transit Mall and adjacent streets. (a) It shall be unlawful to consume, use, display, transfer, distribute, sell, or grow marijuana on the 16 th Street Pedestrian and Transit Mall or on any city-owned street or sidewalk within a distance of one block from the 16 th Street Pedestrian and Transit Mall. 11 (b) For the purposes of this section, the 16th Street Pedestrian and Transit Mall shall mean the portion of 16th Street between the west curb line of Broadway, and the southeasterly curb line of Chestnut Street. (c) Any violation of subsection (a) of this section is hereby declared to be a non-criminal violation and, upon an admission or finding or judgment of guilt or liability by default or otherwise, the violator shall be subject to the following maximum penalties: ordinance even if the consumption is clearly visible from a public place, medical marijuana patients may be subject to suspension of their patient registration by the Colorado Department of Health and Environment if they consume marijuana in plain view of the general public. See footnote 2, above. 9 See: 1-13 (c), D.R.M.C. 10 The escalating fines for violation of this section were modeled after the maximum fines that may be imposed for matters that are subject to administrative citations as provided in 2-293, D.R.M.C. 11 The authority for this section is derived from the provision of Amendment 64 that allows the owner of any property to prohibit the possession, consumption, use, display, transfer, distribution, sale, transportation, or growing of marijuana on or in that property. Art. XVIII, sec. 16 (6), Colo. Const. Note, however, that subsection (c) does not prohibit the mere possession or discreet transportation of marijuana on the 16 th Street Mall and the adjacent blocks. Instead, it is designed primarily to prohibit any public displaying or transferring marijuana in these locations 3

4 (1) First violation: one hundred and fifty dollars ($150.00). (2) Second violation: five hundred dollars ($500.00). (3) Third and each subsequent violation: nine hundred and ninety-nine dollars ($999.00). Sec Alcohol beverages and marijuana. 12 (a) It shall be unlawful, without legal authorization, to sell, serve, possess or consume alcohol beverages at or within any park, parkway, mountain park or other recreational facility. (b) It shall be unlawful, without legal authorization, for any person to possess or consume alcohol beverages or 3.2 beer within fifty (50) feet of any roadway, playground, recreation center, or swimming pool at or within any park, parkway, mountain park or other recreational facility. (c) It shall be unlawful to consume, use, display, transfer, distribute, sell, or grow marijuana at or within any park, parkway, mountain park or other recreational facility. 13 (d) Any violation of subsection (c) of this section is hereby declared to be a non-criminal violation and, upon an admission or finding or judgment of guilt or liability by default or otherwise, the violator shall be subject to the following maximum penalties: (1) First violation: one hundred and fifty dollars ($150.00). (2) Second violation: five hundred dollars ($500.00). (3) Third and each subsequent violation: nine hundred and ninety-nine dollars ($999.00). 12 Subsections (a) and (b) of this section addressing alcohol in parks are preexisting city laws; and the circumstances under which alcohol may be possessed or consumed in city parks are also addressed in rules promulgated by the Manager of Parks and Recreation. CB added subsections (c) and (d) addressing marijuana in parks 13 The authority for subsection (c) is derived from the provision of Amendment 64 that allows the owner of any property to prohibit the possession, consumption, use, display, transfer, distribution, sale, transportation, or growing of marijuana on or in that property. Art. XVIII, sec. 16 (6), Colo. Const. Note, however, that subsection (c) does not prohibit the mere possession or discreet transportation of marijuana in parks or parkways. Instead, it is designed primarily to prohibit any public displaying or transferring marijuana in these locations 4

5 Zoning Code Amendments In 2010, the Denver Zoning Code 14 was amended to include various provisions related to medical marijuana cultivation, including a cap of twelve marijuana plants in any residential dwelling unit and a requirement that medical marijuana be cultivated only within a completely enclosed structure. Via CB , the Zoning Code was further amended to address marijuana cultivation for all purposes, regardless of whether the marijuana is deemed to be medical or not. Among other things, CB includes the following provisions for personal cultivation of marijuana. Marijuana cultivation is permitted in a dwelling unit (e.g. a home or apartment) provided the following conditions are met: 15 The dwelling if the primary residence of the person(s) growing the marijuana. No more than 6 plants per adult 21 year or older, or no more than 6 plants per adult 18 years or older if that adult holds a patient registry identification card (for medical marijuana). Regardless of the number of adults living in the dwelling unit, no more than 12 plants per dwelling. The marijuana must be grown and stored inside a completely enclosed structure (e.g., inside the home, a garage, or a greenhouse.) 16 In an apartment or condo building, marijuana growing is not allowed in common areas (e.g., the lobby or common laundry room, etc.) The marijuana must be for personal use of the resident(s): both sales and distribution of the marijuana plants or products from the plants is prohibited. Individuals are also permitted under the Zoning Code to cultivate marijuana for personal use in the I-A or I-B industrial zone districts or in the OS-B 14 As adopted in Chapter 59, D.R.M.C. 15 These restrictions are codified at of the Denver Zoning Code. 16 Note: In addition to being a zoning violation, the outdoor cultivation of marijuana may constitute a criminal offense under state law. Amendment 64 provides that the personal possession of up to six marijuana plants by persons 21 years of age or older is not unlawful, provided that the growing takes place in an enclosed, locked space, is not conducted openly and publicly, and is not made available for sale. Art. XVIII, sec. 16 (3(b), C.R.S. The Colorado Criminal Code makes it unlawful for a person to knowingly cultivate, grow, or produce a marijuana plant or knowingly allow a marijuana plant to be cultivated, grown, or produced on land that the person owns, occupies, or controls, (3), C.R.S., but the Code goes on to state, The provisions of this Part 4 do not apply to a person twenty-one years of age or older acting in conformance with section 16 of Article XVIII of the constitution , C.R.S. Thus, personal cultivation of marijuana plants anywhere other than in an enclosed locked space (i.e. other than in strict conformance with Amendment 64) may be considered unlawful under the Colorado Criminal Code. 5

6 open space district, where plant husbandry 17 land use is allowed, provided the growing occurs in a completely enclosed structure. The I-A, I-B and OS-B zone districts allow marijuana cultivation as a permitted plant husbandry use regardless of whether the marijuana is cultivated for personal use, cultivated for distribution to other adults without remuneration, 18 or sold commercially. Marijuana commercially grown is subject to state and local licensing laws governing both medical and retail marijuana. 17 See: (B)(4), Denver Zoning Code. 18 See: Art. XVIII, sec. 16 (3)(c), Colo. Const. 6