Colorado's Shadow Tourist Boom
Visitors can openly buy marijuana, but they still have to consume it on the sly.
For cannabis consumers accustomed to the black market's meager selection and iffy quality, Colorado's state-licensed dispensaries are a revelation: dozens of strains, each with a distinctive bouquet, fresh enough that you can smell the difference. Denver-area budtenders, who say tourists account for most of their recreational business, are used to amazed reactions, reminiscent of the scene in Moscow on the Hudson where Robin Williams, playing a Soviet defector, encounters an American supermarket for the first time. But once a visitor settles on a gram of Budderface or a quarter-ounce of Cinderella 99, he has a problem: Where can he smoke it? It turns out there is no easy answer to that question.
Colorado's cannabis consumption conundrum illustrates a broader pattern in the state's approach to marijuana regulation. Amendment 64, the 2012 ballot initiative that legalized marijuana for recreational use, declared that "marijuana should be regulated in a manner similar to alcohol." But in several important respects, including rules for advertising, packaging, sales, and consumption, the state's treatment of marijuana is quite different from its treatment of alcohol. To some extent, this divergence reflects marijuana's continued federal illegality. But it also reflects the attitudes of government officials, many of whom view the newly legal industry as distasteful and embarrassing.
Since legalization, more people have been visiting Colorado than ever before. The travel site Hopper.com reported that flight searches for Denver surged around the time that recreational sales began in January. Denver International Airport saw record numbers of incoming passengers in January and in April, a month that included the first 4/20 holiday since pot stores opened. Although it's not clear how much marijuana has to do with Colorado's increased popularity as a tourist destination, dispensaries regularly see tourists who are drawn by the novelty of buying pot from friendly and knowledgeable salespeople in clean, well-lit stores instead of getting it on the sly from some dude whose apartment smells like old pizza and incense.
"We've had people book vacations who have never been to Colorado before, and the single reason is because of the freedom that we have here," says Kent McBride, a Denver-area limo driver. Others are "coming back specifically because they can buy cannabis. They say, 'I can't believe I can walk around with up to an ounce of pot and not have to worry about getting busted."
"At least once every two weeks there is a bus from Kansas of tourists who come in for the weekend," says Toni Fox, owner of Denver's 3D Cannabis Center, the first dispensary to start serving recreational customers. "It's amazing."
Alex Troester is a budtender at Mind Body Spirit, a dispensary right off Interstate 70 in Dumont, about 40 miles from Denver. He says tourists account for as much as three-quarters of his recreational customers, visiting from states such as Minnesota, Iowa, Nebraska, Texas, and California. "People are coming to Colorado right now just because it's a cannabis-friendly spot," he says. "There isn't really another place where you can just walk in and pick out a bunch of different strains of weed and go home with a bag of it without the fear of prosecution and all that jazz."
Yet if you stop by a visitor center in Denver, you will not find any pamphlets about this exciting new attraction. If you search for "marijuana" on Colorado.com, "The Official Site of Colorado Tourism," you will be taken to a page that explains all the things you are not allowed to do with cannabis in Colorado. "It is illegal to consume marijuana in public," it says. "It is illegal to take marijuana out of state. Only licensed establishments may sell marijuana products. It is illegal to give or sell retail marijuana to minors. You must be 21 or older to have or use retail marijuana. It is illegal to drive high." Fun! The search results for "beer" are decidedly more inviting: a cheery article titled "Colorado Breweries: Defining the Craft," beneath which are links to "related trip ideas," including a "Colorado Tasting Tour."
Gov. John Hickenlooper, a former brewer who opposed Amendment 64, does not seem eager to promote the state's marijuana industry. "Colorado is known for many great things," he said in 2012. "Marijuana should not be one of them."
Denver Mayor Michael Hancock, who also opposed legalization, takes a similar view. "[For] those of us who may have not supported the amendment," he told WBUR, the Boston NPR station, in April, "it was really about how do we protect the image of our state and our cities-that we maintain the important industries such as tourism, and that people feel safe, and they don't feel like they're going to be inundated with marijuana, marijuana smell and things of that nature." Last year Hancock unsuccessfully championed an ordinance that would have made it illegal to consume marijuana on your own property if passers-by or neighbors can see or smell it. "Your activities should not pervade others' peace and ability to enjoy," he told The Denver Post. "Marijuana is one of those elements that can be quite pervasive and invasive."
Rules Written in 'Prohibitionville'
Public officials who do not welcome marijuana tourists have ways of making marijuana tourists feel unwelcome, most conspicuously when it comes to finding a place to legally enjoy the cannabis they are legally allowed to buy. Because Amendment 64 prohibits consumption of cannabis on the premises of the state-licensed stores that sell it, Colorado does not have anything like Amsterdam's famous "coffee shops," where you can buy and consume marijuana along with soft drinks and snacks.
The Colorado Clean Indoor Air Act, which has been amended to cover marijuana as well as tobacco, bans smoking inside bars and restaurants. Outdoor areas of those businesses are exempt from the smoking ban, but that does not necessarily mean tourists can enjoy their newly purchased pot there. The section of Amendment 64 that eliminated penalties for marijuana use does not apply to "consumption that is conducted openly and publicly," which remains a petty offense under state law. Last year Denver, the state's largest city and the center of marijuana retailing, passed an ordinance defining "openly and publicly" broadly enough to foil the plans of visitors who thought they could legally smoke pot on the patio of a bar or restaurant.
Denver's ordinance defines openly as "occurring or existing in a manner that is unconcealed, undisguised, or obvious." It defines publicly as "occurring or existing in a public place" or "occurring or existing in any outdoor location where the consumption of marijuana is clearly observable from a public place." Finally, Denver defines public place to include not just city sidewalks and parks but any business open to the public, such as a bar or restaurant.
Fine, you might say. Let's go back to the hotel. But that is also a problem, because hotels generally prohibit marijuana consumption, although whether they actually enforce that policy is another matter. "In my conversations with hotels, it's kind of vague," says Nick Brown, co-owner of Spiro Tours, which arranges marijuana-themed itineraries. "Cannabis is a 'don't ask, don't tell' type of thing."
Peter Johnson, founder and CEO of Colorado Green Tours, thinks it will be a while before big hotels officially welcome cannabis consumers. "They've got an odd interpretation of the law," he says. "They have smoking policies. They make you sign [a form] saying it's illegal to consume cannabis, when technically it's not. You have to keep in mind that they're not Colorado-only businesses. Their rules are being written over in Prohibitionville; that's where there's a big disconnect."
Some Colorado-based businesses do explicitly offer cannabis-friendly lodging, and renting apartments is another option. If you happen to have friends in Colorado (or make some during your trip), consuming marijuana in their homes is clearly legal. According to Brown and Johnson, so is consuming marijuana in a private, for-hire vehicle such as a limo, a van, or a bus (as long as you're not the driver). Relying on that exception, tour companies let customers sample their dispensary purchases en route to the next destination. They even offer free samples to enjoy during the ride, since Amendment 64 allows people to share up to an ounce "without remuneration."
Dude, Where's the Orchestra?
Denver's definition of "openly and publicly" seems to leave room for lighting up in limos, which are not open to the public. But what else might the city allow? This is territory that Jane West has been exploring since last year, when she founded Edible Events, a Denver business that plans cannabis-friendly gatherings.
West's first event, a Prohibition-themed party in January celebrating the beginning of legal marijuana sales, featured live music, "customized libations," and "a sophisticated menu especially designed to sate cannabis-induced munchies." Her second event, dubbed "A Threesome With Mary Jane," was a Valentine's Day party featuring an open bar, a DJ, "live art," and "heavy appetizers of modern Italian cuisine." That was followed by "Me So Hungry," a party in March featuring Asian cuisine and origami. All three parties were held at Denver's Space Gallery, a private event venue on Santa Fe Avenue, and all three were BYOC ("bring your own cannabis").
The events attracted a lot of press coverage. West, whose main job at the time involved producing educational conferences for high school students interested in medicine, recalls flying back to Denver from Washington, D.C., where her employer was based, and noticing a promo for an MSNBC story featuring Edible Events on the in-flight entertainment system. "I had told my boss, 'This is going to get big," she says. "He said, 'It will be fine.' So I get on the airplane, and there on the screen is me and my kids with Brian Williams. The title was 'Gone to Pot' or something ridiculous like that. And that was it. My phone got shut off. The airplane took off. I landed, and I had 57 messages. Three of them were from my boss." Just like that, she was out of a job.
But there were no police visits or cease-and-desist letters. West's first brush with the law happened toward the end of "Wake 'n' Bacon," a BYOC brunch at a Denver bakery on April 20, the semi-official pot holiday. "Eight SWAT people showed up with three suited police officers," West says. Officially, the issue was not marijuana but alcohol-specifically, whether West needed a liquor license to serve Mimosas and Bloody Marys at an event that was open only to people who bought tickets in advance. That disagreement resulted in a misdemeanor charge that West is contesting.
West's first marijuana-related run-in with the city came after she teamed up with the Colorado Symphony Orchestra (CSO). "The development director of the symphony had come to my March 28th event," West says, "and he was like, 'This is awesome. We should be doing this for fundraisers, because this would totally work." West sums up the orchestra's situation: "We need to get more money yesterday. We're losing our concert hall. We're losing our audience. They're dying. How do we make ourselves cool and hip?" The answer: "Classically Cannabis," a series of three CSO concerts at Space Gallery and at Red Rocks, an amphitheater near Denver. While pot smoking is officially prohibited (though commonly smelled) at Red Rocks, the two Space Gallery concerts would be BYOC. Jerry Kern, the CSO's executive director, "loved it," West says, and "it all happened very quickly."
The orchestra announced the series, which was scheduled to begin on May 23, at the end of April, and the idea of such a staid institution reaching out to pot smokers made a big splash. "I was on the phone with people all over the world," West says. About a week later, Kern got a letter from Stacie Loucks, director of Denver's Department of Excise and Licenses, who warned that "the event, as advertised, could violate both City and State law."
The CSO's plan was to let anyone who bought a $75 ticket bring his own marijuana and consume it on Space Gallery's enclosed patio. West even ended up wrapping the chain-link fence around the patio in opaque plastic, to avoid exposing passers-by to the horrifying spectacle. But that was not sufficiently private for city officials.
Loucks noted that Amendment 64 allows penalties for "consumption that is conducted openly and publicly." She also cited a Denver ordinance saying "it shall be unlawful for any person to engage in any form of business or commerce involving the cultivation, processing, manufacturing, storage, sale, distribution or consumption of marijuana" unless he is licensed to do so. The implication was that the CSO, by letting concertgoers consume their own cannabis at Space Gallery, could be deemed to be running an unlicensed marijuana business. Loucks urged the CSO to cancel the concerts, saying the city would "exercise any and all options" to stop them from happening and warning that "failure to follow the law may result in civil and criminal penalties."
Less than a week later, the CSO announced that it had reached a compromise with the city: Everyone who had bought a "Classically Cannabis" ticket would receive a refund, and the concerts would proceed as invitation-only fundraisers. "It was a giant headache because this was nine days before the event," West says. "I had to send you an email. You had to respond to me saying you wanted to donate to the symphony and make a reservation. Then I had to forward that email to the symphony, which then had to call you and get you registered." In the end, the first concert generated donations from 300 people, 225 of whom actually made it to the concert.
'This Irrational Fear of Being Amsterdam'
Christian Sederberg, a Denver attorney who helped run the Amendment 64 campaign and represented the CSO in discussions with the city, sees the understanding they reached as a victory, despite the hoops the symphony had to jump through. "That solution represented real progress," he says. "Before they never would have let anyone have marijuana. They didn't change their opinion under pressure. They looked at the law more carefully and basically realized that there is a distinction to be drawn here. We had an event that was blessed, and we were like, 'OK, we can do this. It's totally legitimate."
Unadvertised, invitation-only events, of course, will not be much use to people visiting Colorado for a few days or a week. But Rob Corry, a Denver lawyer who specializes in marijuana issues, thinks the CSO compromise means the city should be OK with private, members-only clubs where people consume their own cannabis. "The symphony has shown us the way," he says. "It probably took a wealthy, yuppie, white institution to break that barrier, but so be it. The rest of us are going to follow that model."
One example is iBake, a pipe shop and cannabis club located just outside Denver, in an unincorporated part of Adams County. Littletree Oppy, iBake's co-owner, says the business, which has been open since February 2013, qualifies as a tobacconist and is therefore exempt from the state's smoking ban. Smoking and hanging-out privileges are reserved for members who pay a $10 monthly fee. Oppy says iBake, which sells soft drinks and snacks as well as marijuana paraphernalia, has not had any trouble with local officials.
By contrast, Maryjane's Social Club, a hangout for cannabis consumers in Denver, was raided by police in June. The Associated Press reported that "the officers handcuffed smokers, seized drug paraphernalia and ticketed the club's owner for violating [a] state law banning indoor cigarette smoking." In addition, "three people were cited for smoking in public." Corry told A.P. the raid was inconsistent with the city's position on the CSO's cannabis-friendly concerts, since Maryjane's did not advertise and was open only to members. "This is an identical situation," Corry said. "It's not even close to being a gray area."
The city does not see it that way. Daniel Douglas, a lawyer who works in the Prosecution and Code Enforcement Section of the Denver City Attorney's Office, concedes that consuming marijuana in a genuinely private club would be legal. "If consumption is not public," he says, "then it is not against the law." But to qualify as a private club, Douglas says, an organization would have to satisfy the test set forth by the U.S. Court of Appeals for the 3rd Circuit in U.S. v. Lansdowne Swim Club, a 1990 discrimination case. That test includes factors such as the club's selectivity, its history and mission, the formalities it observes, whether it advertises for members, whether its facilities are used by nonmembers, the control that members have over the club's operations, and whether the club generates profits for the people who run it.
Douglas notes that a Colorado appeals court applied the 3rd Circuit's test in a 1999 decision involving the Hide-A-Way Spa, an Adams County bath house "where nude female attendants provide[d] services to adult male customers," including "'finger-tip powder' rubs, saunas, and shared bubble bath or hot tub treatments." In an effort to escape state and local restrictions on "nude entertainment establishments," the spa's owners restyled it as a private club. The appeals court rejected that characterization, concluding that the spa, which was renamed the Phoenix Club, was in practice "open to the public," since it seemed that anyone who walked in and paid a $5 fee could become a member and thereby take advantage of the spa's services. The court found that "the record supports the trial court's conclusion that defendants' attempt to pass off the Phoenix Club as a private club is a sham."
Evidently the city considers Maryjane's a sham as well, although it's not clear exactly why. According to Corry, who represents one of the members cited for public consumption, the cops who raided the place said it was not a bona fide private club because they were able to join by filling out an application and paying a fee. Douglas says no single factor in the private-club test is decisive, although turning a profit would count strongly against any operation claiming that status. If so, there does not seem to be much room in Denver to make money by catering to people seeking an environment similar to a cafe or tavern where they can consume cannabis. "Denver has this irrational fear of being Amsterdam," Corry observes.
'They Can't Smoke It Anywhere'
Kayvan Khalatbari, co-owner of Denver Relief, a well-known dispensary, says catering to cannabis consumers requires discretion. One of Khalatbari's other projects is producing cannabis-friendly comedy shows at Denver's Oriental Theater. "What we're doing is the same thing [as the CSO did]," he says. "We're just not throwing it in people's faces. Our ads have the Sex Pot Comedy logo [which features a woman holding a pot] on the bottom there. Folks in the network understand those to be cannabis-friendly shows. Nobody makes a big deal about it, because we're not promoting the fact. We're not being idiots about it. We're simply gathering adults in a place that also serves alcohol and saying if you want to do this, you can. Just be responsible."
Yet that sort of sly marketing is apt to go over the heads of tourists, the people who most need a spot where they are allowed to consume cannabis. "We're telling millions of people around the world that they can come here and purchase cannabis," Khalatbari observes, "but they can't smoke it anywhere."
Counterintuitively, Colorado Springs, a conservative city that has banned the sale of marijuana for general consumption, is friendlier to cannabis clubs than Denver, which is much more liberal and has about 60 recreational pot stores. Studio A64, which opened in 2013 at the corner of Colorado and Wahsatch avenues in Colorado Springs, endured one attempt after another by hostile city officials to shut it down. But last February the Colorado Springs Planning Commission said the club complied with local zoning regulations, and in April the Colorado Springs City Council agreed. The city council concluded that Studio A64 meets the criteria for a "civic organization" and therefore can legally let members smoke marijuana on its premises. Colorado Springs is also home to at least one other cannabis club: the Speak Easy Vape Lounge, on East Bijou Street.
Invitation-only events and cannabis clubs are aimed at preventing consumption from being "public." Another approach is to make consumption so discreet that it does not count as "open." Although Loucks' letter to the CSO mentioned consumption of "edible marijuana" as potentially illegal, a cannabis-infused mint or gummy candy looks just like the unspiked versions of those products. How can marijuana consumption be open if no one knows you're doing it? Similarly, the vape pens used to consume marijuana concentrates look just like e-cigarettes. Except for a quickly dissipating cannabis scent that people might not notice unless they are standing right next to you, these devices are indistinguishable from the ones that deliver nicotine.
"Vaping is not smoking," Corry says. "Go out on any Friday or Saturday night in Colorado to a crowded bar, and you'll see somebody whipping out a vape pen and hitting on it. No problems." Sederberg agrees that the city should tolerate discreet cannabis consumption (which is in any case hard to punish because it is hard to detect by definition). "If you're smoking a vape pen that looks exactly like an e-cigarette, or if you're eating a brownie," Sederberg argues, "you are not consuming marijuana openly." He also thinks Denver's definition of public is too broad. "'Open and public' was meant to be someone standing out here smoking pot," Sederberg says, pointing at the sidewalk along a restaurant patio on Denver's 16th Street Mall. "It was not intended to stop people here [on the patio], with permission from the owner, from smoking marijuana."
Since Amendment 64 is now part of Colorado's constitution, Denver's definition of "openly and publicly" can be legally challenged. Although Sederberg thinks "there is a decent legal argument that 'open and public,' the way they're interpreting it, is overreach," for now he'd rather work with the city than take it to court. "They're struggling with the idea of Denver becoming like Amsterdam," he says. "They don't want a coffee shop model."
Still, Sederberg says, "if they set the floor in a place that we don't agree with, you've got to look at the part of the amendment that says private landowners have the ability to prohibit or otherwise regulate marijuana consumption." That ability, he says, implicitly includes the power to allow marijuana consumption as well as ban it. "We will continue to dialogue about it," he says. "But if people are going to come here from other places to use marijuana, they need a place to do that."
