Denver considers bringing the smell of criminality to some pot use

An activist prepares to hand out free marijuana joints at a rally in Denver criticizing Colorado's proposed 25% tax on recreational marijuana as too steep. The rally was held outside a pro pot-tax fundraiser attended by Gov. John Hickenlooper.

By Michael Muskal

Oct. 14, 2013 1:37 PM PT

The Mile High City is having a tough time living up to its name.

Denver is considering a city ordinance that would impose penalties of up to a year in jail and a fine of $999 for “openly” using small amounts of marijuana in public places. The ordinance notes that openly is defined as being perceptible through sight or smell so that a whiff of secondhand smoke could put someone is jeopardy.

The ordinance is being proposed as Colorado is coming to grips with how to deal with last fall’s action by voters to legalize the recreational use of marijuana. Colorado and Washington became the first U.S. states to legalize the possession and use of small amounts of pot for recreational purposes.

Marijuana remains illegal under federal law, but the U.S. Department of Justice has said the federal government will not target users if they comply with Colorado and Washington state laws. Colorado lawmakers have crafted statewide rules governing the retail sale of pot including licensing and taxation of vendors. But the open use of marijuana is an area in which some local governments can choose to make rules.

“This proposed ordinance clearly communicates what our residents and visitors are and are not allowed to do in public. It respects the will of the voters, who last year approved Amendment 64, which allows people over 21 to have and consume a small amount of marijuana. It also ensures that our public spaces remain enjoyable for residents, families and tourists,” Denver Mayor Michael Hancock, a supporter, said last week.

The ordinance would also specifically prohibit the possession, use and sale of marijuana on the 16th Street Mall, the well-trafficked pedestrian and transit street known for its buskers. The ordinance exempts medical marijuana and any pot purchased from a store on the Mall, if one opens when the marijuana usage laws go into effect in January.

The ordinance is being opposed by the Colorado chapter of the American Civil Liberties Union, which calls the proposal “ill-advised, unnecessary and unconstitutional.”

“The ordinance, as proposed, is an irrational overreach that will inevitably result in unnecessary police-community confrontations. Voters made it clear last year that law enforcement time and resources should not be spent pursuing low-level marijuana arrests,” the group’s legal director, Mark Silverstein, said last week in a prepared statement.

“Two out of three Denver voters agreed that marijuana should be legalized but regulated like alcohol. This proposed ordinance does not regulate marijuana like alcohol: no one risks a year in jail for drinking a beer in their fenced back yard, yet this ordinance would make criminals once again of persons who enjoy a legal joint on their back porch, if anyone can see or smell from a public area or a nearby property. The proposed ordinance also violates the Colorado Constitution by making it a crime to carry a legal product in your pocket if you are walking on the Sixteenth Street Mall,” he argued.

“It’s hard to read this proposal and not wonder what they’ve been smoking up at City Hall,” he said.

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