Marijuana sniff-test ordinance nullifies much of Amendment 64, councilwoman says

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Amendments to Denver's marijuana ordinance have been decried by critics, including the ACLU, as a "sniff test" that would recriminalize behavior made legal by Amendment 64, which lets adults 21 and over use and possess small amounts of cannabis.

Denver City Councilwoman Susan Shepherd also has grave doubts about the proposal -- and she's hopeful that enough of her colleagues feel the same that the controversial elements in the current draft can be removed or repaired before it takes effect.

The amendments represent a collaboration between Denver mayor Michael Hancock and councilman Chris Nevitt. We've included the current draft below, along with a PowerPoint presentation and a fact sheet touting it. The following excerpt from the latter outlines its main provisions:

• Similar to existing city laws that already limit alcohol possession in city parks, this ordinance will explicitly make it unlawful to possess, consume, use, display, transfer, distribute, sell, transport, or grow marijuana within any park, mountain park, parkway or recreational facility. That prohibition will also apply to the 16th Street Mall.

• While it has previously been unlawful to openly or publicly consume one ounce or less of marijuana, this ordinance clearly defines "openly " as occurring in a manner that is obvious through sight or smell to the public.

• The ordinance also clearly defines publicly to mean occurring or existing in a public place or in a location where members of the public can observe or perceive through sight or smell, including in vehicles.

• The ordinance repeals language enacted following a 2007 ballot measure that calls for arrest and prosecution for possession of marijuana to be the lowest law enforcement priority. Because Amendment 64 made possession of 1 ounce of marijuana or less legal for anyone 21 and over, this language is no longer necessary.

• The ordinance will allow the city to prohibit "pot giveaways" in city parks.

Shepherd, who wasn't involved in the crafting of the measure, calls it "very, very broad and far-reaching. In essence, it's basically an attempt to nullify much of Amendment 64 by making the ordinance so overly restrictive in regard to where and how marijuana could be consumed.

"The most glaring part of it," in her view, "is that consumption on private premises was going to be so tight as to basically exclude being able to smoke in your backyard or on your front porch or even inside your home. Let's say you're sitting on your couch in your living room with your windows open, and the smoke comes out. And then there's how it would effect multi-unit dwelling structures, like condominiums or apartment buildings. If you really said you couldn't consume on private property if others could detect the smell, a condo owner would literally have no place in the city where they could consume legally, quote-unquote, under that particular ordinance."

She's also troubled by language that would prohibit anyone from carrying marijuana through a park, parkway or the 16th Street Mall, whether it can be seen by others or not.

"The words 'possession' and 'transport' are used way too liberally," Shepherd maintains. "You could argue that there's a reasonable concern about displaying it publicly, and public use. But having it be against the ordinance just to have it on your person is ridiculous."

Continue for more of our interview with Denver City Councilwoman Susan Shepherd about amendments to the marijuana ordinance, including the current draft and more. "The other piece of this is that our parks and the trail system are used very much by people as alternate transportation routes," Shepherd says. "One of my top priorities has been to encourage multi-modal transportation usage -- especially walking and biking. I want people to be able to grab some groceries, a bottle of wine, a CD or a book, throw it in their backpack and walk or ride home. But it would be technically illegal to transport this product on the trail system under the ordinance. And I'm really not okay with that.

"I've been pushing for more bike lanes, and especially protected bike lanes. But the easiest way to get around the city on a bike for a lot of people is the trail system. So making transport on the trail system illegal is counterproductive."

Another matter of concern for Shepherd is the move to strike text from a 2007 initiated ordinance that made minor marijuana offenses in Denver the lowest law-enforcement priority. "They say that because of Amendment 64, it's redundant," Shepherd points out. "But I'm not comfortable removing that language -- and, to be honest, I don't think they'd have the votes on council to pull that off. When it's a controversial issue, it's pretty hard to get nine votes, and that's how many they'd need."

The politics are a little more complicated when it comes to the ordinance as a whole, as Shepherd acknowledges. But she still sees reason for optimism.

"There are several folks on the council who didn't support Amendment 64, and who don't really support retail marijuana in the City and County of Denver. But even most of them realized this ordinance was overreaching. And like me, many people had an objection to the severe restrictions on private property, and also possession in parks and the 16th Street Mall."

For example, she continues, "there's a provision that says it shall not be an offense for a person to possess these products on the 16th Street Mall if the person is immediately exiting a center on the mall. But we want people to go to the mall and spend some time there. So let's say a person bought their marijuana and then bought a book and went to dinner before walking home: They would be in violation, because they didn't immediately exit the store and leave the mall."

Is it just as silly to push the ordinance in the first place, since Amendment 64 doesn't allow public consumption?

"I'm not 100 percent sure why they're pursuing this," Shepherd concedes. "I guess it's because there have been a lot of different laws and ordinances and ballot initiatives in the last ten years, and in some cases, they have a little bit of conflicting language. I think that's why Councilman Nevitt and the mayor wanted to clarify it -- and the state didn't do that after 64 passed. That's the reason we're talking about this on the city level -- because the state punted on that. But in my opinion, [Nevitt and Hancock] went for the most extreme version of that."

As such, she thinks the ordinance can be saved if "the language about 'open' and 'perceptible'" -- in other words, the sniff-and-see directives -- "is stricken. And I think the words 'possession' and 'transport' need to be taken out of the clauses in regard to parks, parkways, mountain parks and recreational facilities.

"We're not up against a deadline on this, like we were on the tax question," she notes. "We had to get that on the ballot by a certain date. But we can take the time we need to get this right. And I was encouraged that many of my colleagues had a similar reaction to mine. I feel there's enough consensus that we can probably get this hammered out in the next couple of months in a way that would be acceptable to the majority of council."

Continue to see the current draft of the amendments to Denver's marijuana ordinance, plus a PowerPoint presentation and a fact sheet.

Proposed Amendments to City Marijuana Ordinances

Denver City Council Marijuana Legal and Policy Options

Marijuana Possession and Consumption Fact Sheet

More from our Marijuana archive: "Marijuana activists decry 'sniff test' proposal, possible year in jail for home pot smoking."

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