Is it illegal in Boulder for marijuana businesses to sponsor booths that prominently display their names at public events?
Boulder's City Attorney suggests that it is, while the man in charge of a local dispensary accused of violating the law by way of a booth at Out Boulder's Pridefest celebration last month sees the charge as a huge overreach and a violation of the First Amendment.
Terrapin Care Station president Chris Woods confirms that his shop received a letter from Beverly Bookout, Boulder's marijuana enforcement officer, informing him that the presence of the booth violated a city ordinance.
According to the Boulder Daily Camera, another dispensary, The Farm, was also cited for the same alleged violation.
The letter is on view below, as is the interpretation of the law sent to Woods by Boulder City Attorney Tom Carr, who feels Terrapin Care Station and The Farm ran afoul of advertising restrictions spelled out in the following Boulder statute:
6-16-8 (p) Advertisement.
A recreational marijuana business may not advertise in a manner that is misleading, deceptive, false, or designed to appeal to minors. The following conditions shall apply:
(1) Except as otherwise provided in this paragraph, it shall be unlawful for any person licensed under this chapter or any other person to advertise any recreational marijuana or recreational marijuana-infused product anywhere in the city where the advertisement is in plain view of, or in, a place open to the general public, including advertising utilizing any of the following media: any billboard or other outdoor general advertising device as defined by the zoning code; any sign mounted on a vehicle; any handheld or other portable sign; or any handbill, leaflet, or flier directly handed to any person in a public place, left upon a motor vehicle, or posted upon any public or private property. The prohibition set forth in this paragraph shall not apply to:
(A) Any sign located on the same zone lot as a recreational marijuana center which exists solely for the purpose of identifying the location of the recreational marijuana center and which otherwise complies with this code and any other applicable city laws and regulations, which sign includes only the name and address of the center;
(B) Any advertisement contained within a newspaper, magazine, or other periodical of general circulation within the city or on the internet;
(C) Any products marked with the name or logo of the licensed recreational marijuana center, including wearable or non-consumable merchandise, packaging in which marijuana is sold, or on recreational marijuana accessories sold; or
(D) Advertising which is purely incidental to sponsorship of a charitable event by a recreational marijuana center or a recreational marijuana-infused products manufacturer.
Section D would seem to sanction the dispensaries' Pridefest sponsorship. However, Carr feels the booths, which included what the Daily Camera characterizes as "large signs," ran afoul of the "purely incidental" language.
Woods feels otherwise. In a letter of his own that we've also shared here, he characterizes the City of Boulder's actions as violating his right to free speech and promises legal action against Carr and Boulder City Manager Jane Brautigam.
Continue for Woods' manifesto, Carr's legal interpretation and the Bookout letter.
Chris Woods letter:
We support and embrace the LGBT community throughout the world and locally within our community. I am outraged that we have been cited for non-compliance with the City's ordinance for publicly showing support for the LGBT community at an event celebrating social equality. I am further enraged that the appointed City Attorney is attempting to restrict my rights as a citizen of this country by suppressing free speech and not allowing my company to show public support for the gay and lesbian community.
I feel Mr. Carr's actions on this issue is likely inconsistent with what I believe to be Boulder values and certainly my right to support gay individuals in this community celebrating the value they bring to Boulder. Although attention to matters related my business have prevented me from expressing these concerns previously, this injustice has made me realize that the issues in the City from the treatment of the homeless to occupancy limits demonstrate a troubling inconsistency of the policy of City Attorney’s office and my values. I now recognize a pattern of policy making that I believe is beneath the dignity of this City and inconsistent with a City that has branded itself as not merely tolerant but accepting and embracing of diversity.
We will be honoring the LGBT community by wearing rainbow themed Terrapin Care Station merchandise throughout all of our Colorado stores until this issue is resolved. We will also be selling this merchandise to the general public and all profit from those sales will be donated to Out Boulder. Asking Out Boulder to be silent about who provides them critical funding is not only in my opinion a violation of Boulder’s law and the U.S. Constitution, it is also unacceptably tone-deaf to the mission of Out Boulder. Before taking this action, did anyone consider how incongruous with Boulder values it is to prohibit corporate social engagement and support for non-profits? Did anyone stop to think how it would be for an organization like Out Boulder which strives to ensure society accepts the gay community to learn the City cannot tolerate the private sector supporting them?
I intend to file a formal complaint against Mr. Carr and Jane Brautigam in Federal District court seeking damages, injunctive relief and attorney’s fees if this issue is not remedied. This action is borne of equal parts obligation to my businesses, employees and civic commitment to the community we serve. Policies that abuse the spirit and undermine the trust of the public must be answered by the public if our elected officials fail to provide that relief. We believe the letter of the law supports our case and the values of Boulder not the interpretation of Mr. Carr. As stated above, my concerns of the administration of this city go beyond this issue. I believe the pattern of disregard for sensitive communities and incompatibility with broad community values suggests the best remedy may be a change in leadership. I no longer have confidence that Tom Carr is an appropriate City Attorney for Boulder.
I view his continued service as a grave injustice to the entire community because of all of the issues listed above. It is unwise to trust the solution to a problem to the source of it. My Boulder organization alone has provided over $50,000 in the last year to various community charities; we have just pledged an additional $95,000 for the start of 2016 and will continue to increase our contributions as our business continues to grow because we believe in beneficial civic engagement. All of this funding will dry up should Mr. Carr continue to take this hard line stance of suppressing individual free speech. We will take every step necessary to ensure that support continues.
I ask all members of LGBT community, members of the non-profit community and anyone in the community promoting social equality help me organize a peaceful protest in response.
Thank you so much for your support and please let me know if there is anything I can do be of service.
President, Terrapin Care Station
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Tom Carr legal interpretation:
Staff has interpreted the language ”purely incidental to sponsorship” to mean including the marijuana business’ name on any publications or signage for the event on which other sponsors are identified. It has not been interpreted to allow a separate publication, booth, distribution point, or other activity that is in addition to sponsorship of the event. This is how interpretation was balanced with the intent of the language originally and the exceptions. For example, the affirmative defense for handing out a business card indicates that distributing or advertising in a more overt manner is a violation of the section. At the time the advertising restriction was adopted, the discussion related to protecting the community, particularly minors, from being exposed to marijuana advertising in public places. Several parents had stated that they wanted to be able to enjoy festivals and events, and move around Boulder with their children without having to explain all the marijuana issues. The advertising limitations was council’s response.
For the PrideFest event, at least one other marijuana business asked before the event whether they could have a booth. Staff advised that such a booth would be a violation of the advertising provision because it was not purely incidental to that business’ sponsorship of the event.
While the term “incidental” is used several times in the Code, it is not defined. The closest the code comes to defining “incidental” is with respect to accessory dwelling units in 9-6-3(a)(2)(C). In such an event, we defer to the rules of construction and interpretation in Chapter 1-1 of the code, and the common and technical meaning of the word when read in context using rules of grammar and common usage. In 6-16-8(p), “incidental” is used as an adjective and narrowed by the word “purely”. Usually “incidental” is construed to mean something that is a minor and necessary part of the main subject. Staff did not interpret a separate tent that was staffed during PrideFest as incidental to sponsorship.