Can Colorado Cities Re-Ban Marijuana Possession Because They Own the Streets?

Greenwood Village, a Denver suburb that already had pre-emptively banned the marijuana stores that Colorado is supposed to start licensing and regulating next year, recently adopted an ordinance that severely restricts what people can do with marijuana they grow for their own use, as permitted by a provision of Amendment 64 that took effect in December. The ordinance, introduced by Greenwood Village City Council Member Leslie Schluter, prohibits possession of marijuana on city property, including public streets and sidewalks. The upshot is that residents of the town may grow up to six plants in their homes, as allowed by Amendment 64, but may not take any of that marijuana anywhere else. They may not share their marijuana with friends, which is also permitted by the amendment, unless it's consumed in the same place where it's grown. Finally, the town's residents may not buy marijuana at a licensed store in another city and bring it home, since that would require possessing it on the streets of Greenwood Village. Even people passing through town after legally buying marijuana elsewhere apparently would be violating the ordinance.

Schluter, who notes that most residents of Greenwood Village voted against Amendment 64, argues that the city has the authority to impose these restrictions because it owns the property where they apply. "This is appropriate regulation to limit marijuana," she tells me. "Greenwood Village, as the property owner, does not wish to have marijuana on city streets or city sidewalks." Yet the ordinance seems to conflict with the plain language of Amendment 64, which says (emphasis added):

NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE FOLLOWING ACTS ARE NOT UNLAWFUL AND SHALL NOT BE AN OFFENSE UNDER COLORADO LAW OR THE LAW OF ANY LOCALITY WITHIN COLORADO OR BE A BASIS FOR SEIZURE OR FORFEITURE OF ASSETS UNDER COLORADO LAW FOR PERSONS TWENTY-ONE YEARS OF AGE OR OLDER:

             (a) POSSESSING, USING, DISPLAYING, PURCHASING, OR TRANSPORTING MARIJUANA ACCESSORIES OR ONE OUNCE OR LESS OF MARIJUANA.
             (b) POSSESSING, GROWING, PROCESSING, OR TRANSPORTING NO MORE THAN SIX MARIJUANA PLANTS, WITH THREE OR FEWER BEING MATURE, FLOWERING PLANTS, AND POSSESSION OF THE MARIJUANA PRODUCED BY THE PLANTS ON THE PREMISES WHERE THE PLANTS WERE GROWN, PROVIDED THAT THE GROWING TAKES PLACE IN AN ENCLOSED, LOCKED SPACE, IS NOT CONDUCTED OPENLY OR PUBLICLY, AND IS NOT MADE AVAILABLE FOR SALE.
             (c) TRANSFER OF ONE OUNCE OR LESS OF MARIJUANA WITHOUT REMUNERATION TO A PERSON WHO IS TWENTY-ONE YEARS OF AGE OR OLDER.
             (d) CONSUMPTION OF MARIJUANA, PROVIDED THAT NOTHING IN THIS SECTION SHALL PERMIT CONSUMPTION THAT IS CONDUCTED OPENLY AND PUBLICLY OR IN A MANNER THAT ENDANGERS OTHERS.
             (e) ASSISTING ANOTHER PERSON WHO IS TWENTY-ONE YEARS OF AGE OR OLDER IN ANY OF THE ACTS DESCRIBED IN PARAGRAPHS (a) THROUGH (d) OF THIS SUBSECTION.

The staff report on Schluter's bill cites another provision of Amendment 64:

NOTHING IN THIS SECTION SHALL PROHIBIT A PERSON, EMPLOYER, SCHOOL, HOSPITAL, DETENTION FACILITY, CORPORATION OR ANY OTHER ENTITY WHO OCCUPIES, OWNS OR CONTROLS A PROPERTY FROM PROHIBITING OR OTHERWISE REGULATING THE POSSESSION, CONSUMPTION, USE, DISPLAY, TRANSFER, DISTRIBUTION, SALE, TRANSPORTATION, OR GROWING OF MARIJUANA ON OR IN THAT PROPERTY. 

The ordinance could also restrict marijuana consumption on private property. Amendment 64 says smoking pot "openly and publicly" remains illegal, and the ordinance defines that phrase to mean "in a manner perceptible by or in a place accessible to the members of the community." That definition seems to cover not only cannabis businesses (which Greenwood Village does not plan to allow in any case) but also backyards, patios, and porches.

The staff report says the bill "was prepared to restrict the personal use of marijuana as much as possible under the parameters of the constitutional amendment." But by impinging on private use of marijuana, the ordinance clashes with one of the ballot initiative's main goals. If this approach catches on and is upheld by the courts, mere marijuana possession could be unpredictably illegal throughout the state. 

[The ordinance received a second reading on January 7 and became law six days later. I have corrected this post accordingly.]

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  • Raven Nation||

    Dang, she looks like Olivia Dunham's mother.

  • ||

    Uh, what? Only after a disfiguring car accident.

  • ||

    Maybe he meant Lena Dunham.

  • ||

    Actually, I'm pretty sure he meant your mom.

  • ||

    Don't be stupid, stupid. My mom's not Lena Dunham.

  • SIV||

    So she's your sister now?

  • ||

    She's both. Warty loves watching Chinatown because he feels it's biographical.

  • Hugh Akston||

    HAHAHAHAHAHAHAHAHAHAHAHA Classic.

  • ||

    Christ, Hugh, a Futurama reference? Really?

    You know, Hugh, once I thought you were a big pompous buffoon. Then I realized that inside, you were just a pitiful child. But now I realize that outside that child is a big pompous buffoon!

  • ||

    Nice work, Boiler.

  • ||

    Call me Bender.

  • Brandon||

    Olivia Dunham's mother has Downs?

  • JW||

    Oliver Dunham, maybe.

  • Raven Nation||

    They could make this a lot simpler by having the ordinance read: "cannot be consumed..."

  • np||

    So basically, zoning laws writ large.

  • LTC(ret) John||

    Zoning Laws - tinpot tyranny imposed by closed little local minds.

  • Bee Tagger||

    Can Colorado Cities Re-Ban Marijuana Possession Because They Own the Streets?

    Can Colorado Citizens Re-Allow Marijuana Possession Because They Own their Bodies?

  • ||

    "THE FOLLOWING ACTS ARE NOT UNLAWFUL AND SHALL NOT BE AN OFFENSE UNDER COLORADO LAW OR THE LAW OF ANY LOCALITY WITHIN COLORADO.."

    Maybe she should learn to read.

  • Lincoln||

    This is actually fantastic in a backwards sort of sense. Let them have their way for a couple years and then see what the numbers say about their crime rates. It will only serve to bolster marijuana's legalization efforts in the long run.

  • Raven Nation||

    Not disagreeing. But could you expand on this a little?

  • ||

    Why no comments allowed on the 'florida terrorism sweep nets mother of two, non-terrorist' story?

    Damned squirrels

  • Hyperion||

    I posted one.

  • Jordan||

    This is Tulpa-bait, isn't it? STREETZ is the new ROADZ.

  • nicole||

    Basically.

  • Hyperion||

    If you want to know how well that will work out... well, you would already know if you have ever lived in a dry county.

  • Hyperion||

    That's not a woman, that's a man, baby!

  • Anonymous Coward||

    Schluter, who notes that most residents of Greenwood Village voted against Amendment 64, argues that the city has the authority to impose these restrictions because it owns the property where they apply.

    Would someone remind the Councillor that cities and counties exist at the pleasure of the state and are obliged to take no action that would nullify state law?

  • Almanian.||

    SUPREMACY CLAUSE, BITCHEZ!

  • ||

    Would someone also remind the Councillor that the residents pay the taxes so they, in fact, own the streets and the city government (so long as it exists) merely maintains them.

  • Adam330||

    Another example of why legislators should be personally liable for the legal costs of defending laws that are unconstitutional. If that were the case, she would be thinking real hard before trying this. Right now, she has nothing to lose.

  • deified||

    This idea makes me hot and wet.

  • ||

    This is but one example of why using marijuana as the "camel's nose under the legalization tent" is not going to work. If people don't get it that they have the right to put what they choose into their own bodies, well then fuck 'em.

  • The Late P Brooks||

    The staff report says the bill "was prepared to restrict the personal use of marijuana as much as possible under the parameters of the constitutional amendment."

    Extra credit for honesty, I suppose.

    The "Right to never be discomfited" is in the Constitution, you know. It's part of the Commerce Clause.

  • LTC(ret) John||

    I thought it was part of the Good and Necessary Clause?

  • ||

    Her definition seems to cover not only cannabis businesses (which Greenwood Village does not plan to allow in any case) but also backyards, patios, and porches.

    How so? Her argument is that the State can regulate it's own property. It has no rights under Amendment 64 to regulate private property.

    I think she has a sound argument. If she's wrong, does that mean that the State, as an employer, can't regulate it's courthouses and police HQs? And once you go there, the "any other" clause opens up the door to the state regulating all of it's property, including roads and parks.

    In a world where alcohol is generally legal but dry counties still exist, due to this same issue of local control, we'll likely end up with open and smoke-free counties too.

  • John||

    I don't see a problem with it. If people in this town down want legal pot, good for them. I don't see how shoving it down their throats is a very good idea.

  • Zeb||

    But some people in that town want legal pot. Why is it OK to shove that down their throat? I think it is much better to shove allowing some other people to do something that you don't like down your throat than shoving penalties for something harmless down your throat.

  • ||

    "legal pot"

    What does that mean?

    * The freedom to smoke pot in an enclosed room with a filtration system.
    * The freedom to smoke pot in my home.
    * The freedom to smoke pot on my property.
    * The freedom to smoke pot in a public space.
    * The freedom to smoke pot in a public building.
    * The freedom to smoke pot anywhere.

    Welcome to the real world, where politics defines the boundaries of "freedom".

  • Hyperion||

    Which in reality, means nothing more than the fact that people will drive over into the next county to get their weed. Been there, done that.

  • Datrebor||

    Except that you would have to have it on you on the way home. Which if I am reading this right would be illegal, you can grow it at home consume it at home but not take it outside the home.

  • Loki||

    That was in reference to this:

    "Amendment 64 says smoking pot "openly and publicly" remains illegal, and Schluter wants to define that phrase to mean "in a manner perceptible by or in a place accessible to the members of the community."

    If Schluter gets her way than if your neighbor sees you smoking a joint on your patio that could be interpreted as smoking it "in a manner perceptible by or in a place accessible to the members of the community."

  • ||

    I'm pretty sure there are similar alcohol consumption laws.

    But there's still a difference regarding expectation of privacy. Those laws are more likely to apply to areas within public view (i.e. front yards) vs. areas where only the neighbors can view.

    And still, you can be busted for running around naked in your back yard. Local police powers are quite vast.

  • The Late P Brooks||

    How so?

    PROVIDED THAT THE GROWING TAKES PLACE IN AN ENCLOSED, LOCKED SPACE, IS NOT CONDUCTED OPENLY OR PUBLICLY, AND IS NOT MADE AVAILABLE FOR SALE.

    NOTHING IN THIS SECTION SHALL PERMIT CONSUMPTION THAT IS CONDUCTED OPENLY AND PUBLICLY

    Back yards, porches, patios are private property, in most places.

  • Almanian.||

    All your porches and patios are belong to us.

    /The Colorado Borg Society

  • BakedPenguin||

    Man, that's harsh.

    /The Colorado Bong Society.

  • Almanian.||

    Sorry about your mellow.

    OK, not really.

    /TCBorgS

  • Another David||

    So now in addition to speed traps, we'll have pot traps. Thanks, democracy!

  • The Late P Brooks||

    How long until "openly and publicly" becomes,

    "I just know they're in there smoking drugs! They're poisoning my child's mind with their crazy 'freedom'!"

  • Zeb||

    I don't see that happening. We've already been down that road, and most people in CO seem to have rejected it.

  • Brandon||

    Greenwood Village is a shitty little "Town" that only exists to drain tax revenue from the Denver Tech Center. I'm not surprised this Frankenstein-looking bitch could get elected there. So if this law gets passed and nobody actually follows it, then what?

  • Another David||

    Well, judging from experience, police will use it as an excuse to knock down your door, arrest you, shoot your dog and take any cash you have lying around.

  • Finrod||

    No matter whether you actually have any drugs or not. If you don't, they'll supply some for you.

  • Loki||

    Yeah, Greenwood Village strikes me as the place where people who want to live in Cherry Hills but can't quite afford it, but are too snobby and smug to stoop to living in Englewood or Littleton end up living. Fuck them.

  • Cliché Bandit||

    Greenwood Village is the New Rome of Colorado.

    For all you Ohio people out there.

    And being in tech I have worked in that 6square mile despotic city for many years...you get the privilege of paying 2$ a month to do so.

  • The Late P Brooks||

    As far as that business about teh publixes ROOOOOADS goes, what happens when they pass a law forbidding anyone from driving an automobile more than five years old on municipal streets, because it looks tacky to have old beaters cluttering up the place and wrecking the proppity values?

  • Brett L||

    Why does the guy in the blue have to sit with the women? Is he broken?

  • The Late P Brooks||

    So if this law gets passed and nobody actually follows it, then what?

    We're all criminals, now.

  • Finrod||

    Three felonies a day on average.

  • NL_||

    This sounds like a job for jetpacks and helicopters.

  • R C Dean||

    Two reasons why this will fail:

    (1) The prohibition on laws outlawing marijuana prevents any locality from passing a law (such as this one).

    (2) Their law is not saved by the clause on property ownership. First, it refers to "a property" and "that property". I don't think you can read the streets and sidewalks as being "a" property. I'd like to see the legal description, for starters.

    Second, the property ownership allows the property owner to have what amounts to a policy or regulation, but not a law enforceable with criminal penalties (which are prohibited by the prohibition clause). They are free to ban it from their buildings, and perhaps parks, etc., but enforcement would be under their trespass laws.

  • ||

    but not a law enforceable with criminal penalties

    Good thinking. Strongest counter-argument I've seen.

  • Tulpa (LAOL-PA)||

    (2) has possibilities since "property" is sometimes defined in funny ways. I do notice from Google Maps that US 87 and several state highways pass through this Village, and I seriously doubt those are maintained (and thus not owned) by the village in any way. Some of the other main roads are probably maintained by the county.

    "Second" (I think you mean (3) ) it doesn't specify how the prohibition or regulation is enforced. It specifically mentions schools and detention facilities, which presumably could exercise coercive measures in enforcing their property rights.

  • Raston Bot||

    Greenwood Village is all of 8 square miles with 14,000 residents. The residents elected a bunch of busybodies. Fuck em.

  • Cliché Bandit||

    The vast majority of the land is office space...and Fiddler's Green (amphitheater). It would take about 15 mins to WALK out of the city limits from its most central point...and that is if you stop for a beer.

    This law will fail for many many reasons.

  • Cliché Bandit||

    Ohh and not the least of which is much of the housing is A. Large multi million dollar homes like Cherry Hills or B. apartments.

  • Public Citizzen||

    They will only have a chance at making it stick if they can ~prove~ that the city has ~never~ taken any state funds for the maintenance, repair, or improvement of city property.
    If they have taken state money then the state law pre-empts.
    Established case law.

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