Wednesday, March 23, 2016

Council bans cannabis clubs knowing full well lawsuit is coming

Posted By on Wed, Mar 23, 2016 at 2:54 PM

click to enlarge NAT STEIN
  • Nat Stein
A marathon session at City Hall on Tuesday featured council dissenters of all stripes: those who pushed back on Councilor Andy Pico’s proposed resolution opposing refugee resettlement; those who delivered a petition demanding repeal of the recently enacted Pedestrian Access Act; those who bemoaned the proposed land-swap deal with The Broadmoor; and finally, those pleading, once again, for council to keep cannabis clubs unshuttered. None of that was resolved except for the club issue (but not in the way most had urged.)

The clubs — which are membership-based social clubs that allow for adult marijuana use — have caused consternation for city officials for several years now. They first started springing up after a voter-approved Amendment 64. In 2014, Studio A64 won a zoning violation appeal in which the city granted the downtown club a similar use determination — in essence saying that cannabis clubs are like social clubs, so are zoned as such (permitted in multifamily residential, commercial and industrial zone districts.) More clubs opened up all over town, even after the six-month moratorium on new marijuana business licenses began in September. (The city couldn’t stop issuing a license that didn’t exist.)

Then, earlier this month, the planning commission recommended banning the clubs outright. Councilor Don Knight took the ordinance to council, proposing the group prohibit the opening of any new clubs, mandate licensure for all clubs that operated prior to the moratorium (subject to all sorts of new rules) and force those clubs to close doors after eight years. This is the ordinance council gave a final reading on Tuesday.

Councilor Bill Murray moved to table the ordinance for six months so council could work with the industry to develop more moderate regulations. In the end, council voted 6-3 in favor of adopting Knight’s original proposal. Councilors Jill Gaebler and Helen Collins joined Murray in voting “no.”

“We talk about limited government all the time, but limited government is not about number of employees, it’s about limited laws,” Murray said. “We’re turning democracy into a morality play.”

Gaebler said she was skeptical of the public process behind the measure — or lack thereof. Collins, on her part, said she didn’t think a ban would be constitutional.

Knight and Councilor Keith King both argued that council had already exercised its right, under Amendment 64, to opt out of the retail side of marijuana. Knight cited articles from the Gazette and Fox news as proof. (Those articles highlight the clubs’ practice of offering marijuana to patrons who didn’t bring their own, sometimes in exchange for a donation or reimbursement. “Assisting” another adult in the use of marijuana is permissible under Amendment 64.)

Club owners and goers took their opportunity during public comment to try and correct some misconceptions.

Ambur Racek, owner of Studio A64, insisted that cannabis clubs are benign relative to bars that serve alcohol.

“I get off at 1 a.m. in the morning and every time I drive downtown I see people outside the bars, stumbling around, causing problems, getting into fights. We are peaceful people,” she said. “All we want is a place to be accepted as human beings. Smoking weed is how we choose to relax, and it isn’t hurting anyone. It’s our right.”

Presence Mercier, patron and cousin of a local club owner, took a different tack. “Even if you hate pot, that’s fine,” she said. “But we all love money, right? Think of what you’d gain from these clubs.”

Jason Warf, lobbyist who represents nearly all of the local clubs, pointed out that the council sought no industry input in developing regulations. “You’ll never be able to achieve sensible policy unless you include us,” he said. “The way it stands as of today, a bill at the state level will be out next week. I’ve gone back to the drafters to make sure what you’re doing here will conflict with what we’re doing at the state level.”

Joking that being from Denver shouldn’t be held against him, activist attorney Robert Corry reminded council that Amendment 64, which he had a hand in drafting, protects the activities in question. “In Colorado, adults have the right to associate with each other, consume marijuana, cultivate it, distribute it and help others with all those things,” he said. “That’s the supreme law of the land. The voters have spoken.” And just like other constitutional rights which council members swore to uphold, the rights afforded by Amendment 20 and Amendment 64 are “non-negotiable,” Corry said. “That may be difficult for you, but that’s the reality.”

Jill Gaebler asked Corry how other municipalities in the state are dealing with cannabis clubs.

"Not a single one has banned them, because they can’t,” he answered. Plus, a city devoid of venues for social consumption creates other problems, he explained. “Marijuana will be smoked by adults in groups no matter what you do. You can’t prevent me from inviting 50 of my closest friends over to smoke pot together. So where are they going to go? … Coming soon to a neighborhood near you.”

At the end of his testimony, Corry made a show of delivering the city attorney a draft lawsuit he intends to file as soon as the mayor signs the club ban ordinance. On behalf of nine clubs and 14 individuals who own or operate those clubs, the complaint asks for the ordinance to be struck down for violating plaintiffs’ right of association, freedom of speech and due process under the U.S. Constitution as well as their right to life, liberty and the pursuit of happiness, religious freedom and right to medical and personal use of marijuana under the Colorado Constitution.

Councilor Knight took exception to the claim that council has no right to ban cannabis clubs.    

“We will talk about that in district court,” Corry said.  

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