Proposed pot ordinance might not pass smell test

Some wonder what bill sponsor Nevitt is smoking
The Colorado Statesman

As voters consider taxing a new marijuana marketplace, the Denver City Council and Mayor Michael Hancock are at odds over whether the city needs strict enforcement on smelling and seeing the newly legalized drug.

Many on the council feel the bill is an over-reach that violates a constitutional right to privacy.

The ordinance would:

• Make it illegal to possess and use marijuana in city parks and the 16th Street Mall;

• Define “open” marijuana to include sight or smell;

• Define “public” to include observation through sight or smell, including vehicles;

• Repeal a 2007 voter-approved initiative that made marijuana enforcement the police department’s lowest priority; and

• Prohibit marijuana giveaways in city parks.

Violation of the ordinance could result in a fine of $999 and up to a year in jail.

Marijuana advocates hold a news conference outside the City and County Building on Oct. 11 to protest a proposed city ordinance that would crack down on public nuisances associated with marijuana.
Photo by Peter Marcus/The Colorado Statesman

Hancock has long opposed Amendment 64 and previous legalization efforts, expressing fears that proliferation will damage the city’s brand. He has been calling for strict rules and regulations specific to the city.

State lawmakers this year passed dozens of comprehensive laws, but left some of the regulation up to local governments. Some feel the state legislature failed when it came to public nuisance issues.

Hancock in August had pushed for a 5 percent city tax rate on marijuana sales, on top of an already proposed 25 percent statewide tax. But the City Council settled on a 3.5 percent sales tax, which voters will decide this November.

The August council bill also created new licensing requirements that offer neighbors the opportunity to express concerns about public safety, health and welfare of neighborhoods before recreational marijuana businesses open.

But Hancock believes more is necessary in order to protect the community, and especially their children, from exposure.

“I promised the people of Denver that we would implement Amendment 64 in a responsible manner that protects neighborhoods, children and our quality of life,” the mayor said in a statement on Oct. 11, as opposition to the ordinance was building. “We are working hard to balance the needs and wants of many in the community.

“This proposed ordinance clearly communicates what our residents and visitors are and are not allowed to do in public,” Hancock continued. “It respects the will of the voters, who last year approved Amendment 64, which allows people over 21 to have and consume a small amount of marijuana. It also ensures that our public spaces remain enjoyable for residents, families and tourists.”

So far, only one council member appears to be strongly in Hancock’s corner, Councilman Chris Nevitt, who is the primary drafter of the bill. Several council members and marijuana advocates have privately expressed to The Colorado Statesman awe over Nevitt introducing the bill.

During his time on the City Council, which included a period as president, Nevitt has been the industry’s leading advocate. He has been the shining light for cannabis business owners seeking assistance in navigating a regulatory maze, and even advocated for no new taxes during the August sales tax debate.

When insiders heard that he was behind the bill, speculation ran rampant, suggesting that he has political motivations. Nevitt is considering a run for city auditor in 2015.

“Councilman Nevitt’s proposal is a significant departure from his otherwise sensible approach to the implementation of Amendment 64,” said Mason Tvert, one of the lead proponents of Amendment 64. “He has supported fair and reasonable treatment of marijuana businesses, and there is no reason why that sentiment should not be extended to responsible adult marijuana consumers. While it might be well-intentioned, this proposed law is clearly misguided and puts the city at risk of a costly legal battle it is sure to lose.”

Rob Corry, a prominent marijuana attorney who has been an outspoken critic of prohibition, has no idea why Nevitt is suddenly working against marijuana advocates.

“There was a time when Councilman Nevitt was a strong supporter. I supported him. I told people to vote for him… I don’t know what happened to him along the way,” expressed Corry.

Councilwoman Robin Kniech, who is strongly opposed to the current draft of the ordinance, said she believes Nevitt is only attempting to address community concerns through a legislative draft process that is usually fluid.

“I believe that Chris introduced something that was the furthest conceivable to address some real economic and tourism controls, and I know that he is a big believer in the process, getting folks to the right point,” said Kniech. “I was not surprised, but I was not in agreement.

“This was him trying to really respond to some deep concerns about Denver’s image and about how Denver is seen by visitors,” she continued. “My sense is that he introduced it with every knowledge that the process would involve compromise and movement.”

For his part, Nevitt acknowledged his previous support of legalization.

“You all know me as somebody who has been an advocate for treating marijuana like any other business and imposing regulations on it like any other business,” he addressed his colleagues at Monday’s Amendment 64 committee meeting.

“We also are faced with the fact that we are doing something new and out on a limb here,” he continued. “How fast do we go down that road? How quickly and thoroughly do we embrace the normalization of marijuana? We need to move with some care and caution so that we don’t spark a backlash.”

In a later interview with The Statesman following the meeting, Nevitt said he is simply trying to strike a balance. He said the state legislature failed, as did a task force convened by the governor at the beginning of the year to make policy recommendations. After debating the issue, the majority of the task force agreed that laws were not needed around nuisance related to private use.

“Putting aside the question of what’s the right pace at which to introduce marijuana so that it becomes a simple, normal, everyday thing that nobody cares about… is simply the interest of weighing people’s ability to do what the hell they want and the interest of other people not to be subjected to the negative consequences of people doing what the hell they want,” said Nevitt.

“This is one of those loose ends that we need to tie up,” he continued. “The task force failed to tie it up, the state legislature failed to tie it up in the 2013 session. Our police are feeling unclear about what their mandate is. So, we don’t want to wait for the state legislature to go through its whole process and then have a law on the books with respect to what open in public means. We want to get it done now.”

Nevitt agreed, however, that the city is not seeing the “gold rush” that some had feared from legalization. Of 612 medical marijuana centers eligible to convert to recreational, only 135 retail marijuana licenses have been forwarded to the city from the state. Currently, only existing medical marijuana businesses are allowed to convert to recreational.

Widespread disagreement

It appeared on Monday that the majority of Nevitt’s colleagues disagree that there is a need for such strict regulation. Kniech suggested that there is no comparable legal precedent to the ordinance being proposed by council.

“If we continue in this direction I think it’s really important for us to understand whether there’s any similar comparable interpretation as broad as what’s been drafted here,” said Kniech.

“When you have a ban on possession, what you do then is create a whole question for the police about what is probable cause to do a search…” added Kniech. “It’s a slope we don’t want to go down.”

She said she is open to a ban on consumption on the mall. But Amendment 64 already prohibits public consumption. Kniech said if the city is to head in that direction, then it should also prohibit cigarette smoking on the mall.

Councilman Charlie Brown, who chaired the committee meeting, said he doesn’t understand why the city needs an ordinance to specifically address consumption in any parts of the city.

“There’s no sense passing laws unless they can be enforced…” said Brown. “It’s already illegal to smoke on the mall.”

Councilwoman Susan Shepherd is concerned that the ordinance would make it illegal to simply walk down the 16th Street Mall and through parks with marijuana.

“If I go buy marijuana on the 16th Street Mall and then I go to the bookstore and then I go have lunch at a restaurant on the 16th Street Mall and then I’m walking around the mall, as I leave the mall am I all of a sudden in violation because I did not immediately exit the mall?” she asked.

Councilwoman Debbie Ortega questioned what impact the ordinance might have on renters, fearful that it could lead to a spike in the eviction rate.

“I have a concern about the impact this might create for people who are renters that may then result in evictions, and the concern that that would have a ripple effect on where these folks end up, especially if there’s lower income individuals,” she said.

Councilwoman Peggy Lehmann is worried that the ordinance might drive marijuana away from the 16th Street Mall and into other nearby parts of the city, which would just create a new problem.

“I am somewhat concerned about just confining possession to the 16th Street Mall because I really think that won’t solve the problem at all. It will just drive the people out the door of the shop either to 15th Street, or to 17th Street, or to someplace closer,” surmised Lehmann.

Councilwoman Jeanne Faatz, the only Republican on the council, said she’s not sure why people would be peering into someone’s private window in the first place.

“Why did it even come up that it would be a problem if somebody did something in their own house and had their window blind up?” asked Faatz. “If we can see in the house, just don’t look.”

She then asked whether the marijuana industry could simply develop a strain that was odorless. Tvert said if that were possible, it likely would have already been invented.

“I just have a feeling that if there was marijuana that didn’t trigger police by smelling, it would have been developed a long, long time ago,” explained Tvert.

Councilman Paul Lopez is also concerned about the provision of the ordinance that would repeal the 2007 voter-approved initiative that made marijuana the police department’s lowest enforcement priority. He pointed out that it would take nine votes of the council to repeal a referred initiative.

“This gives me the most heartburn,” he said. “I do not like to see people arrested for low-level offenses, and we know who those folks are who end up in those jail cells,” commented Lopez.

Even Councilwoman Jeanne Robb, who has repeatedly stated her concerns with legalization, expressed her fears over the bill.

“I do think this ordinance over-reaches, although I understand the motivation behind it,” said Robb. “I think we’re going to come to some kind of an agreement.”

Legally defensible?

Mark Silverstein, legal director for the ACLU of Colorado, said at the committee meeting that the ordinance over-reaches by stating that Denver has a right to pass the ordinance because it owns the parks and 16th Street Mall.

“I cannot believe that the drafters of Amendment 64, or the voters, could have intended that carve-out to be that broad,” opined Silverstein.

He also believes that if the city is to move forward with the ordinance, then it must maintain the 2007 voter-approved initiative that made marijuana the lowest law enforcement priority.

“The proposed measure now once again recriminalizes possession of marijuana… and to repeal the language that makes marijuana possession arrests the lowest law enforcement priority at the same time that possession is recriminalized sends a message to law enforcement that this is now a priority,” explained Silverstein.

He also pointed out that Amendment 64 specifically legalized “display” of marijuana, while the ordinance would define “display” as part of “open and public,” which would be illegal everywhere.

Opponents generally agree that current nuisance ordinances can be used to address the issue without enacting new laws. They also believe that civil laws can be utilized, rather than making the matter a criminal issue.

Assistant City Attorney David Broadwell acknowledged that the council could just keep the issue a civil matter. But he believes the proposed ordinance is legally defensible on several levels, including on the sight and odor issues.

He also says the 2007 initiative is no longer necessary since marijuana is now legal, making it zero priority for the police department since simple possession is no longer a crime.

“To continue to have a law on the books saying citing for one-ounce private possession is our lowest law enforcement priority becomes arguably archaic and obsolete in light of the way the world has changed since the adoption of Amendment 64,” said Broadwell.

He also explained the need for the sight and odor rules: “When the negative effects of the behavior on your property goes across your property line, per se it becomes public,” said Broadwell. “That’s the theory behind that approach…

“State and local laws routinely regulate behavior on private property that effect persons on adjacent properties… this is the bread and butter of what government is doing,” he continued.

“I do believe it’s defensible constitutionally for various reasons… We’re prepared to defend it if you go in that direction,” Broadwell concluded.

Bill unifies marijuana world

The issue has brought the overall marijuana community back together during an ongoing family squabble over whether to support a proposed statewide ballot question that would enact a 15 percent excise tax and a separate 10 percent special sales tax on recreational marijuana sales.

The marijuana business world has largely supported the tax, while a grassroots uprising of cannabis activists has opposed the tax question.

But bad blood was forgotten on Monday as the community rallied together to oppose the proposed ordinance. Leading their list of concerns is the legality of the bill, suggesting that it violates Amendment 64, which was placed in the state constitution.

Corry, who in addition to his marijuana legal practice is also a bit of a rabble-rouser in the cannabis activism world, is at the center of the controversy. He believes the ordinance is a knee-jerk reaction to a protest he led last month in Civic Center Park opposing the statewide marijuana tax question.

Corry is leading the opposition to the tax question. As part of his campaign, he organized a free marijuana joint giveaway in Civic Center, which frustrated city leaders. The proposed ordinance would specifically make such joint giveaways illegal.

“I invented the joint giveaways, this whole thing is about joint giveaways, that’s what prompted it,” said Corry, adding that he has no regrets about the controversial event.

“I reject the mentality that I should restrict my own exercise of the constitutional rights that I personally fought very hard for on the off chance that it’s going to offend some bureaucrat who then attempts unconstitutionally to limit the same rights that I should be able to enjoy,” he added.

“It’s just totally invalid that we should fight hard for these rights and then not exercise them because it might offend somebody,” Corry continued.

But he is grateful that the bill has unified the marijuana community in the name of ending prohibition.

“We were having this little family spat about taxes,” said Corry. “Using the family analogy, if your family is sitting around the dinner table and you’re arguing, and then somebody is pressing their nose against your dining room window and peeking in your house, which is what Denver proposes to do, then you stop the family argument pretty quickly and deal with the peeping Tom and become unified as a family.”

Brian Vicente, who chairs the Committee for Responsible Regulation, which is leading support for the tax question, put his differences with Corry aside as part of the unified message.

Vicente and Tvert held a news conference on Oct. 11 in which the two stood next to a poster of Hancock holding a beer. “Hypocrite!” the poster read. They held their news conference just as the Great American Beer Festival was kicking into high gear, a festival that has been supported by city leaders for many years.

Several police officers watched the news conference from a distance to make sure there was no public consumption. Hancock’s deputy chief of staff, Evan Dreyer, also watched from a distance.

At the heart of Amendment 64 was the idea that marijuana should be regulated just like alcohol. Tvert and Vicente said the proposed ordinance flies in the face of that vote.

“If the mayor were to be using alcohol in his own home and police were to see him and come in and arrest him for it and threaten him with jail, I’d have a feeling he’d think it’s ridiculous,” said Tvert. “It’s equally ridiculous to do that with marijuana.”

Tvert then went on to threaten to oppose the city’s 3.5 percent marijuana sales tax question as a community if the city proceeds with the ordinance.

“If the city moves forward with this, if they do not make it clear that they are dropping this, then the movement here in the state of Colorado will very likely be opposed to this Denver city tax,” declared Tvert.

“At the end of the day, what this is doing is setting up the city for a large and costly lawsuit they’re inevitably going to lose,” added Vicente.

Group supports the proposal

But at least one group is supporting the proposed ordinance. Smart Colorado, which describes itself as a group of concerned citizens who put the interests of the public ahead of the marijuana industry, has been lobbying for strict rules ever since legalization. They feel the legislature failed, and are hoping that Denver can serve as an example.

Rachel O’Bryan spoke on behalf of Smart Colorado before the council on Monday.

“We want to applaud the Denver City Council for introducing this ordinance… this is of monumental importance to the city of Denver, its residents, its children, its reputation and its visitors,” said O’Bryan.

“It’s critical to have the tightest regulations possible to send the right message to our youth…” she continued. “Your leadership is required on this matter.

“Today the City Council is telling the marijuana industry it’s time to pay your bill…” O’Bryan continued. “When marijuana smoking takes place next to the bedroom of a child, we believe the best and most prudent course of action is to assume it is an example of consumption conducted in a manner that endangers others.”

Diane Carlson, who has also been an outspoken critic of legalization, raised similar concerns on behalf of Smart Colorado.

“Hundreds and hundreds of our members have expressed concern about public consumption of marijuana in the city of Denver,” said Carlson. “They are concerned about Denver’s reputation, Denver’s economic future, Denver’s ability to continue to attract desirable businesses and industry, and most importantly the message the city is sending to our youth in Denver and the surrounding areas.

“It is concerning that many in the marijuana industry are resisting such safeguards,” she continued. “Like supporting the taxes, this is a situation where the marijuana industry has an opportunity to put teeth to their promises and assurances.”

Peter@coloradostatesman.com