By: Melissa Kuipers Blake and Sarah Mercer
BROWNSTEIN HYATT FARBER SCHRECK
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.”