Denver City Council. David W. Broadwell, Assistant City Attorney

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1 Department of Law D. Scott Martinez, City Attorney 1437 Bannock St, Room 353 Denver, CO p: f: TO: FROM: RE: Denver City Council David W. Broadwell, Assistant City Attorney Explanation of initiated ordinance concerning the open and public consumption of marijuana DATE: August 10, 2015 Today the office of the Clerk and Recorder is expected to receive petitions for an initiated ordinance designed to significantly expand the locations where the consumption of marijuana can occur under Denver's laws. The full text of the initiated ordinance is attached to this memorandum. Based upon the number of signatures reported to be on the petitions, we can anticipate that the Clerk's office will likely determine the petitions to be sufficient, resulting in the measure appearing on the November ballot. Overview Although both Amendment 20 (2000) and Amendment 64 (2012) provide a defense against prosecution for violation of certain state and local marijuana laws, both constitutional amendments expressly provided that laws prohibiting the public consumption of marijuana remain fully enforceable throughout Colorado. The Colorado Criminal Code has long prohibited the public consumption of marijuana. However, since the adoption of Amendment 64, the General Assembly has made no effort to clarify what it means for marijuana to be consumed openly and publicly. Therefore, in 2013 the Denver City Council adopted amendments to Sec , D.R.M.C. in order to more clearly delineate when and where the consumption of marijuana is deemed to be public under city law. The 2013 enactment provides an explicit exception for consumption on residential property under certain circumstances. The proposed initiative is intended to provide additional exceptions from the prohibition against the public consumption of marijuana as set forth in city law on non-residential property under certain circumstances as explained below. Relationship to state law Home rule municipalities generally do not have the authority to legalize a behavior that is prohibited by state laws. Thus, even if Denver voters add exceptions to the city ordinance regulating the public consumption of marijuana on non-residential property, this enactment will have no effect on the meaning or the enforceability of the state criminal law on the same subject. The state statute broadly prohibits the consumption of marijuana openly and publicly. Although these terms are not specifically defined in the marijuana statute itself, numerous laws define private property that is open to public use e.g. stores, bars and restaurants, entertainment

2 venues, parking areas, common areas in office and institutional buildings, etc. as being public places. (This explains why, since the adoption of Amendment 64, entrepreneurs who have attempted to promote the consumption of marijuana have relied on a private club model in order to assert that the premises are not open to the general public, and thus the marijuana is arguably not being consumed openly and publicly in violation of state criminal laws.) The adoption of the initiated ordinance in Denver will create a serious conflict with state law, and may prompt the General Assembly to address the subject of public consumption of marijuana on a statewide basis as early as the 2016 session. Indoor consumption The initiated ordinance would prevent the city from enforcing its local law on public marijuana consumption in virtually any indoor premises in which the owner or operator of the premises chooses to allow marijuana consumption and restricts access to the premises to persons 21 years of age or older. Because the initiative does not purport to override the Colorado Clean Indoor Air Act (which prohibits the smoking of marijuana in most indoor locations that are accessible to the general public), as a practical and legal matter the sorts of indoor consumption of marijuana that will be exempted from prosecution under the initiative will be limited to marijuana products ingested through edibles and vaping. The authors of the initiative went to some lengths to delineate the types of liquor-licensed establishment where marijuana consumption would be allowed under the city ordinance. Generally, any premises licensed for on-premises liquor consumption (except those located on college campuses) could designate all or a portion of the premises for marijuana consumption as well, while liquor stores could not. Although the initiative is silent on this point, presumably the ordinance could not be interpreted to allow marijuana consumption at an MMJ center or an RMJ store, because such behavior is expressly prohibited by state law. Outdoor consumption The ordinance would prevent the city from enforcing its local law on public marijuana consumption on outdoor premises even if the consumption is occurring in plain view of nearby public and private properties as long as the consumption is occurring no closer than 25-feet from adjacent public property. Again, the consumption must occur with the consent of the owner or operator of the premises in an area restricted to persons 21 years of age or older. Direct impacts on Excise and Licensing policies The initiated ordinance is also designed to countermand two other marijuana policy decisions previously made by the city. When Denver adopted its local RMJ licensing ordinance in 2013, the ordinance declared unlawful any business or commercial activity based upon the consumption of marijuana, because Amendment 64 itself did not provide for licensing and regulation of on-premises marijuana consumption in a commercial setting. The initiative would repeal this prohibition. Second, the city occasionally has threatened licensing action against the holder of a liquor license when the licensee has proposed to allow marijuana consumption on the licensed premises. The initiated ordinance purports to prevent the city from imposing such a 2

3 sanction if the owner or operator of the premises has chosen to allow marijuana consumption in accordance with the provisions of the initiated ordinance. The text of the initiative is ambiguous as to whether or not the city could adopt and require a new type of license for businesses that allow on-premises marijuana consumption. The authors of the initiative expressly acknowledged some authority for the city to regulate matters such as signage, spacing, hours of operation, etc.; however, the initiative stops short of mentioning licensing. (NOTE: Since the charter allows any initiative to be amended six months after it is approved by the voters, ambiguities of this nature can be resolved through future legislation as early as next year if necessary.) Laws that would be unaffected by the initiative Laws prohibiting the sale of marijuana and marijuana products outside of MMJ centers and RMJ stores. (NOTE: There has been and will continue to be ambiguity in regard to businesses that claim to distribute small quantities of marijuana without actually selling it, e.g. as a product sample, as a component of catered food, or as a benefit associated with a membership, or an entry fee to a particular event. Amendment 64 allows the gratuitous transfer of less than an ounce of marijuana from any person over the age of 21 to another.) Laws prohibiting the distribution of marijuana to persons under 21. Laws prohibiting marijuana consumption on publicly- owned property such as streets, sidewalks, parks, and other government buildings and facilities. Laws regulating the consumption of marijuana in motor vehicles. Laws prohibiting the indoor smoking of marijuana on private property. 3

4 Text of the Limited Social Marijuana Consumption Initiative: Shall the voters of the City and County of Denver adopt a measure permitting the consumption of marijuana by individuals twenty-one years of age or older at certain premises that are not private residential property, provided that individuals under the age of twenty-one are prohibited from entering any space where the consumption of marijuana is allowed, the owner, operator, or individual in control of the premises has authorized the consumption of marijuana, and the individual consuming marijuana neither smokes marijuana indoors in violation of Colorado s Clean Indoor Air Act nor consumes marijuana in a location where the consumption of marijuana is visible from a nearby public place; permitting the operation of business and commerce involving the consumption of marijuana; permitting the Denver City Council to adopt ordinances that regulate signage, marketing, and advertising for any business that permits the consumption of marijuana; permitting the Denver City Council to regulate the hours of operation and create distance restrictions for any business that permits the consumption of marijuana that does not also hold a license to sell alcohol for onsite consumption; declaring it unlawful to permit marijuana consumption at a premises that is not private residential property unless certain conditions are met; immunizing businesses and property owners from certain licensing sanctions and public nuisance enforcement actions related to the consumption of marijuana, provided the consumption is in accordance with applicable ordinances; and clarifying that owners and residents of adjacent properties may bring private nuisance actions against any business that permits marijuana consumption and that the City of Denver may enforce air quality standards against these businesses? Be it enacted by the City and County of Denver: Section 1: Denver, Colorado Code of Ordinances, Title II, Chapter 38, Article V, Sec is amended to read in relevant part: Sec Possession or consumption of marijuana. (b) It shall be unlawful for any person to openly and publicly display or consume one (1) ounce or less of marijuana. (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, transportation facilities, schools, places of amusement, parks, playgrounds, and the common areas of public and private buildings or facilities., provided that any portion of a premises that has limited public access in accordance with section 6-206(e) or section 6-206(f) shall not be considered a public place for purposes of this section

5 (e) It shall not be an offense under subsection (b) of this section if: (1) the consumption of marijuana is occurring on private residential property and the person consuming the marijuana is: (1) a. An owner of the property; or (2) b. A person who has a leasehold interest in the property; or (3) c. 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. (2) the consumption of marijuana occurs at a premises that is not private residential property, and: a. the individual consuming marijuana is twenty-one years of age or older; b. the individual does not smoke marijuana indoors in violation of the Colorado Clean Indoor Air Act; and c. the individual is located in a premises or an area designated within a premises where marijuana may be consumed pursuant to section 6-206(e) or section 6-206(f). Section 2: Denver, Colorado Code of Ordinances, Title II, Chapter 6, Article V, Sec is amended to read: Sec Unlawful acts (c) It shall be unlawful for any person to engage in any form of business or commerce involving the cultivation, processing, manufacturing, storage, sale, or distribution or consumption of marijuana other than those forms of businesses and commerce that are expressly contemplated by section 16 of Article XVIII of the Colorado Constitution, the Colorado Retail Marijuana Code, or the Colorado Medical Marijuana Code. (e) It shall be unlawful for any person to knowingly permit the consumption of marijuana at a premises or any part of a premises where a current license or permit permitting the sale of alcohol for consumption on the premises has been issued unless: (1) individuals under the age of twenty-one are excluded from any portion of the premises where the consumption of marijuana is permitted; (2) proof that a person is twenty-one years of age or older is verified in the same manner as required for the purchase and sale of alcohol prior to allowing the person access to the portion of the premises where marijuana may be consumed; (3) the owner, operator, or individual in control of the premises has authorized the consumption of marijuana; (4) any premises or area within the premises where marijuana may be consumed is clearly designated with conspicuous signage; (5) the consumption of marijuana does not occur in a location on the premises where the consumption of marijuana is clearly visible from a public place located within twenty-five (25) feet measured in a straight line from such public place to any part of the location where marijuana may be consumed; (6) the consumption of marijuana does not violate the Colorado Clean Indoor Air Act; and 5

6 (7) the operator of the premises complies with all sign, marketing, and advertising ordinances, including, but not limited to, any sign, marketing, and advertising ordinances related to the consumption of marijuana. (f) It shall be unlawful for any person to knowingly permit the consumption of marijuana at any premises that is not private residential property and is not described in section 6-206(e) unless: (1) individuals under the age of twenty-one, including employees, are excluded from the entire premises; (2) proof that a person is twenty-one years of age or older is verified in the same manner as required for the purchase and sale of alcohol prior to allowing the person access to the premises; (3) the owner, operator, or individual in control of the premises has authorized the consumption of marijuana; (4) the premises is clearly designated with conspicuous signage indicating that marijuana may be consumed; (5) the consumption of marijuana does not occur in a location on the premises where the consumption of marijuana is clearly visible from a public place located within twenty-five (25) feet, measured in a straight line from such public place to any part of the location where marijuana may be consumed; (6) the consumption of marijuana does not violate the Colorado Clean Indoor Air Act; (7) the operator of the premises complies with all sign, marketing, and advertising ordinances, including, but not limited to, any sign, marketing, and advertising ordinances related to the consumption of marijuana; and (8) the operator of the premises complies with ordinances intended to establish hours of operation, create district restrictions from other types of facilities or uses, or limit the smoking of marijuana outside at any premises described in this section 6-206(f), provided that any ordinance or rule that establishes hours of operation or creates a distance restriction from other types of facilities or uses shall be no more restrictive than the most restrictive hours of operation or distance restriction in this Code or any rule promulgated by the Denver Department of Excise and Licenses placed upon new applicants for a license permitting the sale of alcoholic beverages for onsite consumption. (g) Notwithstanding anything contained in section 6-206(e) or section 6-206(f), it shall be unlawful for any person to knowingly permit the consumption of marijuana at a premises or any part of a premises that is included in any Club License that includes the principal campus of a college, university, or seminary, Arts Liquor License that includes the campus of a college, university, or seminary, 3.2 Percent Beer License (Off Premises), Liquor Licensed Drug Store License, Retail Liquor Store License, or any other state or local license that permits the sale of alcohol for offsite consumption only. (h) Nothing contained in this Section is intended to limit any adjoining property owner or resident from seeking relief pursuant to a private nuisance action under applicable law or limit the applicability of Chapter 4 of this Code. 6

7 (i) Subject to the limitation described in section 6-206(g), it shall not be considered a public nuisance under section 37-50(c)(3) or any other section of the Code for a person to regulate the consumption of marijuana on a premises pursuant to section 6-206(e) or section 6-206(f). Section 3: Denver, Colorado Code of Ordinances, Title II, Chapter 32, Article I, Sec is amended to read: Sec Revocation. In addition to any other penalties prescribed by the Revised Municipal Code, the director may, on his own motion or on complaint, and after investigation and a show-cause hearing at which the licensee shall be afforded an opportunity to be heard, suspend or revoke any license previously issued by him for any violation of any of the following provisions, requirements, or conditions: (8) The licensee, or any of the agents, servants or employees of the licensee, have violated any ordinance of the city or any state or federal law on the premises or have permitted such a violation on the premises by any other person, provided, this paragraph does not apply to the possession, consumption, or use of marijuana in compliance with section 6-206(e),section 6-206(f), and section 6-206(g). 7

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