Marijuana: Denver City Council ban on front-porch smoking looks bound for victory

At last night's Denver City Council meeting, members heard public comment about an amendment to the community's pot ordinance that would outlaw smoking pot on one's front porch or balcony.

But despite plenty of vocal opposition among the 26 people who spoke, the council voted 7-5 to approve the measure, with next week's second reading considered mostly a formality.

Could the measure be stopped by a lawsuit? Possibly, but there's no guarantee.

As we noted yesterday in an interview with Amendment 64 proponent Mason Tvert, who scheduled a press conference from the balcony of his apartment to dramatize the subject, the amendment was initially characterized by critics as a sniff test, since it criminalized indoor pot smoking if the aroma could be detected by anyone outside the residence where it was taking place. Complaints about this notion from figures such as council member Susan Shepherd led to some tweaking of the ordinance. However, the latest draft included on the Denver City Council website page devoted to last night's session (see it below) still states that "it shall be unlawful for any person to openly and publicly display or consume one (1) ounce or less of marijuana."

Moreover, the draft defines "openly" and "publicly" as, respectively, "occurring or existing in a manner that is unconcealed, undisguised or obvious" and "occurring or existing in a public place; or occurring or existing in any outdoor location where the consumption of marijuana is clearly observable from a public place," with the latter including but not limited to "streets and highways, transportation facilities, schools, places of amusement, parks, playgrounds and the common areas of public and private buildings or facilities."

Tvert interprets this language as meaning the city council is "still trying to prohibit the use of marijuana by adults on private property," he told us. "It's currently legal for adults to consume alcohol or smoke cigarettes on their porches or balconies, so we fail to understand why it should be illegal to use a far less harmful substance there."

Similar points were made at yesterday's session, but after attempts to delay a vote failed, 9News reports that the amendment passed anyhow, albeit by a narrow 7-5 margin. And while the proposal is back on the agenda for a second reading at the council's December 2 get-together, it's exceedingly rare for an item already passed by a majority of members not to win final approval.

Could legal action stop the rule from taking effect? We put that question to ACLU of Colorado legal director Mark Silverstein last month, and even in the case of the more draconian draft, he didn't portray such an effort as a slam dunk.

"To the extent that the ordinance purports to criminalize what Amendment 64 makes legal, there's a conflict between the ordinance and the state constitution," Silverstein said. "And that could be the basis for a legal challenge."

However, he added that "governments have been willing to make it a crime to do things that are done in the privacy of your home. So most of the legal challenges have to do with the procedures and tactics for enforcing that prohibition."

Understanding this, supporters of the ordinance have soft-pedaled sanctions for violating the ordinance, pointing out that those caught smoking on their front lawn, porch or balcony would be subject to a ticket, not an arrest. But even these comparatively modest sanctions are anathema to folks like Tvert. In his words, "The voters made it clear they think marijuana should be treated like alcohol, and adults should be able to use it responsibly. And there's no compelling reason to prohibit adults from using marijuana outside on their own private balconies and porches."

Here's the aforementioned 9News piece, followed by the most recent draft of the ordinance amendment on the city council's website.

Denver Public Consumption of Marijuana Draft November 12

Send your story tips to the author, Michael Roberts.

More from our Marijuana archive circa October 15: "Marijuana sniff-test proposal recriminalizes pot, invites lawsuits, critic says."

KEEP WESTWORD FREE... Since we started Westword, it has been defined as the free, independent voice of Denver, and we'd like to keep it that way. With local media under siege, it's more important than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" program, allowing us to keep offering readers access to our incisive coverage of local news, food and culture with no paywalls.
Michael Roberts has written for Westword since October 1990, serving stints as music editor and media columnist. He currently covers everything from breaking news and politics to sports and stories that defy categorization.
Contact: Michael Roberts