Pubdate: Sun, 20 Oct 2013
Source: Denver Post (CO)
Copyright: 2013 The Denver Post Corp
Contact:  http://www.denverpost.com/
Details: http://www.mapinc.org/media/122
Author: Alicia Caldwell

POT PROPRIETY

Regulating Public Consumption Without Infringing on the New Rights of 
Marijuana Users Is a Delicate Task.

If you thought the big decisions about recreational marijuana in 
Colorado were behind us when voters legalized it last year and 
lawmakers set up a retail sales framework, think again.

Colorado is fast approaching a public policy crossroads over the 
issue of marijuana consumption.

The constitutional amendment allowing recreational weed said the 
measure shouldn't be construed as permitting marijuana to be consumed 
"openly and publicly."

As it turns out, that's just the beginning of the conversation.

Differing opinions about the propriety of visible pot consumption, 
punishments for the smell infringing on a neighbor and the intent of 
new law itself are on a collision course.

There's also the issue of defining an "open container" of marijuana 
in a motor vehicle. With booze, it's a simple matter: If the seal is 
broken, generally speaking you're in trouble with the law if you're 
pulled over. But when is marijuana kept in a plastic bag an "open container"?

It's important for Colorado policymakers to get these issues right, 
and not recriminalize small-time, recreational marijuana use or 
possession, or push into secrecy something voters supported.

It's also crucial that police have policy guidance on how to enforce the law.

Some calls are easy. Walking down a public sidewalk smoking a joint? 
That's already not allowed (and it needs to be enforced. Let me say 
that again: It needs to be enforced.) But what if people smoke pot 
while sitting on their own front porch? Back patio? What about 
discreetly eating a pot-laced brownie on an RTD bus?

State legislators should address these issues in a comprehensive 
fashion so they aren't hashed out in court on a piecemeal basis, 
which is what will happen if lawmakers don't take it on.

The kind of clash I'm talking about was on vivid display last week at 
a Denver City Council committee meeting. On the table was a strict 
package of suggested ordinance changes that would, in practice, 
significantly roll back some of the freedoms that many people thought 
Amendment 64 granted.

For instance, the measure would ban the mere possession of marijuana 
in city parks and the 16th Street Mall, on the theory that Amendment 
64 allowed property "owners" to limit possession and consumption on 
their property.

"I cannot believe the drafters of Amendment 64 or the voters intended 
that carve-out to be that broad," Mark Silverstein, legal director 
for the Colorado ACLU, told the committee.

It's a legal leap to assume the amendment language was intended to 
allow cities to prohibit possession on publicly owned property. Yet, 
the Greenwood Village City Council also has banned marijuana 
possession from its streets and sidewalks on the same theory. It's a 
step too far, and state lawmakers ought to say so.

Another draconian element of Denver's proposed ordinance is the 
smoke-wafting piece. People - in their own yards-whose marijuana 
smoke can be smelled by an adjacent property owner face up to $999 in 
fines or a year in jail.

One clearly irritated marijuana advocate told council members that he 
didn't see any of them proposing laws to stop the stink coming out of 
the National Western Stock Show or a nearby dog food plant. It's a 
good point. And there already are laws on the books to address 
nuisance noises and smells. They are administrative infractions 
handled by code enforcement officials armed with smell-o-meters. 
(Yes, the devices have a more formal name, but you get the picture.)

If people are smoking enough weed to register inappropriate levels on 
a smell-o-meter, they ought to get fined, just as they would if they 
left too much dog poop piling up in a backyard on a hot summer day. 
There's no need for a separate weed penalty.

Another conflict that surfaced in Denver's deliberations is over the 
definition of public space versus private space. This is a biggie.

It's hard to envision any reasonable definition that deems 
consumption inside a home as public, even if it can be seen from the 
street. Yet, that is what Denver is proposing.

Christian Sederberg, a lawyer and one of Amendment 64's authors, said 
if Colorado doesn't have a bright line- and a reasonable one- as to 
what constitutes public consumption, policymakers are creating 
potential conflicts with law enforcement. He's right about that. If 
the consumption of marijuana inside someone's house or in their yard- 
albeit visible from outside the property-is justification for police 
intervention, that is going to cause problems.

"That is a fundamental affront to privacy," Sederberg said.

Sederberg, who was a member of the government task force charged with 
rules for implementing Amendment 64, said the task force debated the 
"front porch" question extensively.

Though the task force never formally took a position, Sederberg said 
in a straw poll about 20 of the 24 task force members opposed deeming 
a front porch a public space. Denver, Sederberg said, has gone off 
the beam in its proposals.

"They took an opportunity to provide clarity and used it as an 
opportunity to define what they think should be the social norms in 
Denver," Sederberg said.

But the truth is, you cannot avoid setting broader policy goals about 
marijuana consumption in order to write effective regulations.

Is the goal to keep people from having to smell what some consider an 
unpleasant odor? Is it to appease those still uneasy with legalized 
weed? Or is it to keep consumption away from kids, so they won't be 
lulled into thinking it's OK for them to indulge?

The same goes for another troublesome piece of marijuana regulation 
that a Colorado Commission on Criminal and Juvenile Justice (CCJJ) 
task force is looking at. That is the open container law and how it 
should be used to regulate marijuana.

The mantra has been to treat marijuana like alcohol, but that's not 
always an appropriate transfer of rules and regulations.

If a fat marijuana bud escapes a Ziploc, rolls under a car seat and 
lays there forgotten, should the driver be liable for an open 
container violation if a cop finds it?

As Mike Elliott, executive director of the Medical Marijuana Industry 
Group, astutely observes: "That's busting someone for possession."

Determining what an open bottle of beer looks like is a far easier 
matter than determining an "open container" for weed, and the laws 
should make an effort to address the differences in the substances.

Kevin Paletta, Lakewood Police chief and a member of the CCJJ task 
force looking into the issue, said the marijuana open container law 
also poses questions about effective use of law enforcement time. 
First, you have to prove a container has been opened; then it must be 
tested to ensure it's marijuana.

"How much time do I want my officers spending on something that is a 
traffic infraction?" he said.

Furthermore, the law already prohibits drivers from smoking marijuana 
while driving. (Again: that's something that needs to be enforced. If 
my observations are any measure, Denver area residents routinely 
light up a fattie and drive.)

Frankly, driving while using or while under the influence should be 
more of an enforcement priority than trying to figure out whether a 
container of marijuana has been opened. In the final analysis, the 
aim is to prohibit impaired driving-or, at least, it should be.

As recreational marijuana users devise new ways to indulge 
(vaporization via e-cigarette?) and retail businesses take hold, it's 
going to become clear that rules will have to morph, too.

If the state doesn't take on these issues, there will be a patchwork 
of interpretations of the constitutional amendment expressed in local 
laws and court decisions.

Amendment 64 makes some marijuana issues the purview of local 
government, such as regulating the location and number of marijuana 
retail establishments.

But the definition of what constitutes public consumption is 
something that ought to be uniform throughout the state. Here's 
hoping lawmakers take on these tough issues and come up with a 
framework that is true to the amendment's intent.
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MAP posted-by: Jay Bergstrom