At first blush, the meaning of the phrase “open and public” seems straightforward, but these three little words are hotly disputed and at the heart of the debate over the legality of recreational marijuana consumption clubs.
The language of Amendment 64 — the constitutional amendment that voters passed in 2014 that legalized recreational marijuana use for adults over 21 years old — includes a prohibition on any “consumption that is conducted openly and publicly or in a manner that endangers others.” That language is not further defined by the amendment, nor has the Colorado legislature passed a bill that provides a definition of what is and what is not “open and public” consumption, likely leaving the issue for the courts to decide.
The uncertainty around what “open and public” consumption means has left local communities at the forefront of the debate. For example, in 2016, voters in Denver passed local Initiative 300, which created a new “cannabis consumption establishment” business license within the city to allow businesses to allow the on-site consumption of marijuana brought by patrons. Under Denver’s bring-your-own model, the sale or distribution of marijuana at these businesses is prohibited.
Further, consumption cannot occur in a place that can be seen from a “public place,” defined as a place where “the public or a substantial number of the public have access without restriction.” This includes “streets and highways, transportation facilities, schools, places of amusement, parks, playgrounds and the common areas of public and private buildings or facilities.”
In February, Denver issued the first cannabis consumption establishment business license to a coffee shop located next door to a recreational marijuana store. A second license is expected to be issued to a spa, soon.
Denver’s citizen-approved initiative authorizing marijuana consumption clubs notwithstanding, the measure has put a magnifying glass on the meaning of “open and public” set forth in Amendment 64. Is the term “public” as it is used in Amendment 64 synonymous with the way “public” is used in Denver’s definition of “public place,” with the way the term is used in the well-established line of “public accommodation” law or something else entirely? If “public” has a broad meaning that is more analogous to the way it is used in the public accommodation doctrine than the way it is used in Denver’s laws, then the prohibition on “open and public” consumption set forth in Amendment 64 would likely extend to private businesses that the public has the right to enter, even if entry is restricted to those over 21 years old.
Such a reading of Amendment 64’s language would likewise comport with Colorado’s liquor laws, which prohibits the consumption of alcohol “in any public place except on any licensed premise.”
It therefore could be argued that the exception allowed in Colorado’s law for consumption of alcohol on a licensed premise does not exist in Amendment 64. Framed another way, where Amendment 64 prohibits any “consumption that is conducted openly and publicly or in a manner that endangers others” without exception, Colorado’s liquor laws similarly prohibit public consumption except on licensed premises.
Thus, the prohibition on “public” consumption in Amendment 64 could be construed as a categorical prohibition that does not allow for any exception, including on a licensed premise — unless, of course, the language is amended by the voters.
This issue is unlikely to be resolved any time soon. Currently, there are two proposed pieces of legislation moving their way through the legislature that would allow recreational marijuana consumption clubs. One bill, House Bill 18-1258, would allow current recreational marijuana license holders to apply for and receive an accessory license that would authorize the operation of a recreational marijuana consumption club. Senate Bill 18-211 would allow anyone to apply for and receive a recreational marijuana consumption club license, not just current licensees.
The closest the legislature has been to defining “open and public” was in Senate Bill 17-184 last year. The bill passed both chambers, but the differences in the language approved by the House and Senate proved a bridge too far. Even with what appeared to be consensus language after a record number of conference committees, the bill died in the House after privacy concerns were raised that the meaning of “open” would prohibit individuals from consuming marijuana in their homes and on their properties. Ultimately, the conference committee settled on a compromise that would allow individuals to consume marijuana on their front porches but only with four other people. The absurdity of this so-called “party of five” exception demonstrates just how challenging it will be for the legislature to resolve this issue on its own.
Accordingly, until this issue is before the courts, what Amendment 64’s prohibition on “open and public” marijuana consumption actually means is anyone’s guess.
—Melissa Kuipers Blake is a shareholder and Sarah Mercer is a senior policy advisor and counsel at Brownstein Hyatt Farber Schreck.