Is 'Free' Marijuana in Exchange for 'Donations' Legal in Colorado?
On January 30, the Colorado Springs Independent ran a story about a local business that was testing the limits of Amendment 64, the Colorado ballot initiative that legalized marijuana for recreational use. Although state-licensed pot stores are not expected to open until next year, it is already legal under Amendment 64 for adults 21 or older to possess up to an ounce of marijuana, grow up to six plants at home and keep all the marijuana they produce, and transfer up to an ounce to other people who are 21 or older, provided the transfer is "without remuneration." The business model for Billygoatgreen MMJ was based on the ambiguity of that last requirement. Ostensibly, Billygoatgreen—which, despite the reference to medical marijuana in its name, served anyone 21 or older, not just patients with doctor's recommendations—was not selling pot; rather, it was delivering pot for free while inviting the recipients to make "suggested donation[s] towards researching [marijuana] and improving our cultivation operation." The suggested donation for a quarter-ounce of Sour Kush, for instance, was $55. Asked whether such an operation could be legal, Colorado Springs Police Lt. Mark Comte, who works in the Metro Vice, Narcotics, and Intelligence Division, replied:
If I show up at your house with less than an ounce of marijuana, I'm 21, you're 21, and I say, "Hey dude, it cost me 50 bucks in gas to get over here," and you give me 50 bucks for my gas, there's nothing illegal. I mean, you and I both know what's going on with it, but they know what the loopholes are right now.
Yet the day before that comment appeared, The Denver Post reports, "two undercover Colorado Springs detectives organized a marijuana purchase from Billygoatgreen as part of an investigation into the service" that resulted in the arrest of three men running it, who now face felony charges punishable by long prison terms. No fair, says one of those men, Pritchard Garrett, who tells the Post that Comte "green-lighted this delivery business" in the Independent article, which he says sent potential customers a clear message: "Hey, the cops said this wasn't illegal, so call them up." Comte stands by his comments, saying Billygoatgreen delivered more than an ounce at a time to the detectives: 1.6 ounces on the first occasion, 2.1 ounces on the second.
The focus on quantity suggests that if the service had stayed within the one-ounce limit for transfers, Garret and his partners would have been OK. Other people still seem to be operating under that assumption. Craigslist searches find various offers of "free" marijuana deliveries in exchange for "donations" in Denver and Colorado Springs. A spokeswoman for Colorado Attorney General John Suthers tells the Post all these folks are criminals under state law, since "distributing marijuana in exchange for suggested donations is a scam to get around the laws against the sale of marijuana." Maybe so, but the law is hardly clear on that point. The line between helping to cover the expenses of someone who shares his homegrown marijuana with you and paying him for the marijuana itself is pretty fuzzy. Rob Corry, a Denver attorney and marijuana reform activist, says you could even argue that "reimbursing someone for their time" is legal, although he adds:
My personal view is that I don't think it ought to include reimbursement for time, because that starts looking like profit….My advice to clients is that it has to be direct, out-of-pocket costs [for things such as fertilizer, electricity, and rent], and it has to be documented. Being reimbursed for your time is pushing it.
Corry himself pioneered a different approach with Club 64, a floating pot party where people pay a cover fee to consume marijuana in a commercial space. Club 64 had its first event on New Year's Eve at a hemp clothing store in Denver. "We had a DJ, lights, dancing, good music," Corry says. "We did serve alcohol, [but] we gave it away because we didn't have a liquor license for that event. We also had marijuana that we were giving away. We weren't selling it. The main way way we raised revenue was with an event fee of $30." A variation on this theme would be charging for food and coffee but giving pot away, which could result in something like Amsterdam's cannabis cafés even if on-site consumption is not allowed at the state-licensed marijuana stores. Either operation seems to satisfy Amendment 64's requirements, although much depends on how the initiative's ban on consuming marijuana "openly and publicly" is interpreted. To my mind, marijuana consumption behind closed doors in a private business, whether or not it describes itself as a membership-only "club," is neither "open" nor "public," but Colorado legislators and judges may take a different view.
Another wrinkle is the Colorado Clean Indoor Air Act, which bans smoking in most "public places," including bars and restaurants. The law originally applied only to tobacco; it was amended in 2010 to cover "medical marijuana" but not, by its terms, any other kind. The upshot, says Corry, is that smoking marijuana in a business open to the public apparently would be legal as long as it was for purely recreational purposes. He suspects the state legislature will not allow that loophole to survive, although it could exempt establishments that cater to pot smokers from the Clean Indoor Air Act in the same way that it exempted cigar and hookah bars. Even if it didn't, vaporizers and marijuana edibles would not be covered by a ban on smoking.
[Thanks to CK for the tip.]