Hours before the clock expired last week, state lawmakers reached a bipartisan agreement about where it is legal to consume marijuana in Colorado. Moments later, it went up in smoke.
The legislation attempted to define — for the first time — a statewide prohibition on “open and public” pot consumption under Amendment 64, the voter-approved constitutional measure that legalized marijuana in 2012.
And its failure on the final day of the session showcased why the issue remains one of the most profound questions in a state known as the nation’s pot pioneer.
“They got all the way to the 1-yard line and couldn’t punch it in,” said Kevin Bommer with the Colorado Municipal League, the organization that led the effort for a uniform standard.
A look inside the bizarre last-minute negotiations reveals a fundamental divide about marijuana in Colorado and illustrates the challenges for lawmakers tasked with finding a compromise in the months ahead.
“The pivotal question that guides all of this is: What do you think about people who consume marijuana?” said Judd Golden, an attorney and board member of Colorado NORML, a group that advocates for legalization.
The key: What does Amendment 64 actually mean?
The dispute is a public policy question laced with differing legal interpretations. And the first puzzle is one of the hardest: Amendment 64.
Colorado voters enshrined the legalization of recreational marijuana use into the state constitution, giving it greater protection, but at the same time, making it harder to implement.
In the opening lines, the amendment declared that “marijuana should be regulated in a manner similar to alcohol” — a vow that pot advocates say is being ignored, but one that left latitude to the state.
The core of the dispute is deeper into the text, where Amendment 64 states that personal marijuana use is allowed by adults who are at least 21 years old except when “conducted openly and publicly or in a manner that endangers others.”
Sam Kamin, a professor of marijuana law and policy at the University of Denver, argues the language does not prohibit public pot consumption outright, but it doesn’t authorize it either. The point is disputed by others, including the state’s Chief Deputy Attorney General David Blake. But both sides agree that it leaves the decision to state and local policymakers.
“I think a number of very smart people get that wrong,” Kamin said. “They will say, ‘Amendment 64 says there is no open and public use.’ That’s not what it says. It says it doesn’t authorize it.”
The ambiguity led to a stalemate when a task force appointed by the governor to help implement Amendment 64 first considered the issue and issued a report in 2013.
The unanswered questions sound like this: How do you regulate consumption of marijuana like alcohol when the two are not the same in practice? How do private property rights apply to marijuana when the smoke travels outside one’s property and may endanger others? And how do you protect children from exposure — actual and perceived?
Put another way, the trickiest question is this: Can you smoke pot on your front porch?
“A majority of task force members in a straw poll vote believed that smoking on a front porch was not ‘open and public’ and could therefore be allowed under Amendment 64, whereas all task force members believed that smoking in a public park was indeed ‘open and public,’” and therefore not allowed under Amendment 64,” the report stated.
Pot smoking in a public place is illegal. But what is “a public place”?
The inability to reach agreement in the landmark report — and the subsequent legislative session — left a major gap, particularly for law enforcement agencies charged with monitoring Colorado’s great social experiment.
“The popular tactic of making this harder than it has to be is a way to simply not do what is right and should have been done years ago,” complained Greenwood Village Police Chief John Jackson.
In effect, the disagreement left the decision to the state’s 272 local governments. And Denver became the test case on where people can ingest or smoke marijuana.
The city council first backed a measure to ban pot smoking on private property if it takes place in public view, only to later reverse themselves.
Denver’s current ordinance allows marijuana consumption — including smoking — on private property by the owner, leaseholder or anyone granted permission to join them — regardless of whether it’s visible from the sidewalk or street.
But it prohibits open and public consumption in a “public place,” such as streets, bus stops, parks and other locations where “the public or a substantial number of the public have access.”
The other seven states that legalized recreational weed have taken approaches similar to Colorado’s though they have gone further to define what is open and public consumption, according to the National Conference of State Legislatures, a Denver-based nonpartisan organization that tracks legislation.
In California, the NCSL research found, Proposition 64 banned marijuana consumption in public places unless allowed by a local ordinance. It also banned smoking within 1,000 feet of a school, children’s day care or youth center if it is detectable at those locations and children are present.
How do you balance private property and public consumption?
The Denver model is what Colorado pot advocates wanted to see as the statewide standard. Others wanted more restrictions.
“What we worry about the very most is the impact on our kids. The youth in Colorado that are growing up in a brand new landscape,” said Henny Lasley, executive director of Smart Colorado, which lobbied the issue. “Our big thing was to try to follow the will of the voter that this was just for private consumption, and it opens up a whole new realm when it becomes open and public.”
Like the competing factions, the General Assembly initially approved two different approaches in Senate Bill 184.
The Republican-led state Senate approved language to define public places much like Denver but then added a prohibition on consumption in a “place not protected from unaided observation lawfully made from outside its perimeter” — a restriction that could apply to private property.
The Democratic-led House cut that line and approved a measure with a disclaimer: open and public “does not include a private residential property.”
Both allowed local governments to enact more strict regulations.
The two sides came together May 3 in a conference committee to consider compromise language that allowed pot consumption at a residence where it wasn’t visible to outside observers but not where the public could see it. Bombarded with questions of private property rights, it failed.
Is the “party of five rule” the answer?
On May 10, the final day of the session, the committee came together again to find what Republicans and Democrats hoped would be middle-ground: marijuana consumption is allowed “on the exterior of a private residence” but it is limited in size to only the residents and five additional people.
The language also added protections to permit consumption “within the interior of the residence,” a move to allay concerns about large windows and the like.
“It’s an attempt at a compromise,” said Sen. Bob Gardner, a bill sponsor and Colorado Springs Republican. But, he added, “at the same time we don’t want to have marijuana parties on the front porch.”
The so-called “party of five” rule only incited jokes about 1990s television sitcoms and faced significant resistance, sending lawmakers back to the table.
With the clock ticking closer to adjournment, negotiators offered a slight tweak in the language, but it still failed in a House vote after liberal Democrats questioned how to enforce it and whether the bill is constitutional.
“Five is legal but six is a party? There was nothing magic about that,” laughed Bommer, who tried to craft the deal. “That is honestly what happens when you have earnest attempts at trying to create sound public policy running headlong against diametrically opposed public positions.”
The comical turn aside, the efforts represented the closest Colorado came to defining legal consumption. And lawmakers are expected to return to the issue soon because it is key to the burgeoning push to allow pot clubs and social use in private businesses, the latter of which Denver is pursuing after a voter-approved initiative.
“It is the General Assembly’s responsibility to identify the critical terms that appear in the constitution and the statutes, especially when they are in the criminal code,” Bommer said. “This is about … creating a clear standard for people visiting the state and living in the state to know where the line is at.”
Staff writer Brian Eason contributed to this report.
