Jacob SullumThe Denver City Council is
considering an ordinance that would make it illegal to consume
marijuana when other people can see or smell it. According to

The Denver Post, “offenders could face a fine of $999 and
up to a year in jail”—a pretty steep penalty for offending people’
sensibilities by consuming a legal product. “Your activities should
not pervade others’ peace and ability to enjoy,” Mayor Michael
Hancock tells the Post. “Marijuana is one of those
elements that can be quite pervasive and invasive. I shouldn’t have
to smell your activities from your backyard.” By the same logic,
shouldn’t it be illegal to grill steaks or smoke a cigar on your
patio? Mark Silverstein, legal director for American Civil
Liberties Union of Colorado, calls the ordinance a “tremendous
overreach, ill-advised, unnecessary and unconstitutional.”

Amendment 64, Colorado’s marijuana legalization initiative,
says “nothing in this section shall permit consumption that is
conducted openly and publicly.” But the proposed ordinance’s

definition of “openly and publicly” is much broader than voters
probably imagined:

The term “openly” means occurring or existing in a manner that
is unconcealed, undisguised, or obvious, and is observable or
perceptible through sight or smell to the public or to persons or
neighboring properties.

The term “publicly” means: (a) occurring or existing in a public
space as defined by C.R.S. 18-1-901, or (b) occurring or existing
in a place or location to which members of the public have access,
or (c) occurring or existing in a place, location or in such a
manner that members of the public or persons on neighboring
properties may observe or perceive it by sight or smell, including
but not limited to vehicles on public streets or highways.

The statutory definition of “public place” cited by the
ordinance is “a place to which the public or a substantial number
of the public has access,” so the ordinance’s first and second
definitions of “publicly” are the same. Furthermore, the
ordinance’s definition of “openly” is essentially the same as its
third definition of “publicly,” so it collapses the two
conditions specified by Amendment 64 into one. If someone can smell
you smoking a joint in your fenced backyard, according to the
ordinance, you are consuming marijuana both openly and publicly. If
you use a low-odor vaporizer to consume marijuana in an isolated
part of a public park, by contrast, the act is “public” but not
“open”; it would still be illegal, however, because another part of
the ordinance bans marijuana consumption (or possession) in a
public park or “other recreational facility.” What if you smoke pot
in a cannabis club where entry is limited to members? In that case,
consumption is “open” (since other people can see you) but arguably
not “public” (since the place is not open to the general public).
And if you consume a marijuana edible, the act presumably is “open”
only if other people know what’s in your brownie. 

Rob Corry, a Denver attorney and longtime marijuana activist,
argues that the phrase “openly and publicly” in Amendment 64
imposes two distinct conditions: To be prohibited, marijuana use
must be “open” (visible to
passers-by) and “public” (occurring on public
property). Smoking pot while walking down a crowded sidewalk would
be the paradigmatic example. But according to Corry’s reading of
the law, smoking pot in a deserted area of a public park would be
public without being open, while smoking pot on your front porch or
on the patio of a restaurant would be open without being public.
Denver’s ordinance, by contrast, equates “open” with “public”; if
people can see or smell pot smoking, that makes it illegal, even if
you’re doing it on your own property. At the same time, the
ordinance leaves open the possibility of private clubs where people
could pay to consume marijuana (but not purchase it, since state
law prohibits on-premise consumption in pot stores) in a
social setting where food and drinks are available. The upshot
could be that people are free to consume marijuana in businesses
catering to pot smokers but not on their own porches, patios, and
balconies.