Last week, as we reported, the Denver social-marijuana-consumption measure Initiated Ordinance 300 officially passed. But the initiative's vision of patrons being able to use cannabis in bars or restaurants that serve alcohol is very much in doubt.
Why? The Colorado Department of Revenue has adopted a proposal recommended by the state's Liquor Enforcement Division to prohibit marijuana consumption anywhere that's licensed to serve alcohol.
Opponents such as Protect Denver's Atmosphere, the official no-on-300 campaign, and groups such as Mothers Against Drunk Driving and the Colorado Restaurant Association have reacted to this move with delight and relief.
Meanwhile, 300 proponents aren't yet hitting the panic button, emphasizing that plenty of venues for such usage remain viable.
As we've reported, 300 was one of two competing social-use proposals that petitioned for a space on the November ballot. But an initiative backed by Denver NORML that would have established liquor-free marijuana clubs fell short of approval, leaving 300, a pilot program allowing the social use of marijuana at participating businesses in Denver (including ones that served alcohol), with the field to itself — and it eventually won the day with more than 53 percent of the vote.
After 300's passage, its victory received plenty of attention on national comedy programs, including Late Night With Stephen Colbert, which produced a video that gave the Cheers theme song a weed-friendly update; see the clip below. Kayvan Khalatbari, the ordinance's lead proponent, saw the attention as a mixed blessing, as he expressed in the following Facebook post.
I suppose it's pretty cool that Stephen Colbert, Jimmy Fallon and Seth Meyers all spoke about Yes on 300: Denver Social Cannabis Use after its passing last week. It's additionally neat that Colbert's team took the time to make a little parody video playing off the Cheers intro....but too bad it was full of stereotypes and also referenced things that would still be very illegal in this new Denver environment allowing the social consumption of cannabis. Either way, I'll take it! Visibility and dialogue are the path to change.
But mirth and frivolity quickly took a back seat to a new reality after the Department of Revenue announced that it had adopted an addition to language in regulation 47-900 of the Colorado Liquor Rules under the heading "Conduct of Establishment." It reads:
E. MARIJUANA CONSUMPTION.
NO PERSON OR ENTITY LICENSED UNDER ARTICLE 46, 47, OR 48 OF TITLE 12, C.R.S. SHALL PERMIT THE CONSUMPTION OF MARIJUANA AND/OR MARIJUANA PRODUCTS AS DEFINED IN SECTIONS 14 AND 16 OF ARTICLE XVIII OF THE CONSTITUTION OF COLORADO ON ANY LICENSED PREMISES.
By the way, we've included the pre-amended text from 47-900 at the bottom of this post. As you'll see, the regulations contain references to masturbation, bestiality and a ban against exposing "any portion of the female breast below the top of the areola." This wording is particularly interesting given an order in a Free the Nipple lawsuit in Fort Collins that dooms all anti-topless laws in Colorado in the view of attorney David Lane. During an interview with Lane published late last month, he suggested that any rule that allows the display of male nipples but makes baring female nipples illegal is unconstitutional.
Be that as it may, those who fought against 300 were thrilled by the turn of events. On Facebook, Protect Denver's Atmosphere posted: "The Colorado Department of Revenue has prohibited liquor license holders from allowing marijuana use. Thank you DOR for recognizing that marijuana and alcohol create a dangerous cocktail and don't mix."
Likewise, Mothers Against Drunk Driving released this statement: "Research shows that driving while high on marijuana may double the risk of an automobile crash. When both alcohol and marijuana are consumed at the same time, it is likely to result in greater impairment than either one alone,” said Fran Lanzer, state executive director of MADD Colorado. “Detecting the combined impairment from marijuana and alcohol would be very difficult for servers at bars and restaurants. It’s just not reasonable to expect that servers could effectively identify the combined impairment from alcohol and marijuana and prevent impaired customers from driving.”
As for the Colorado Restaurant Association, it listed three reasons why it favored the ban:
1. Public consumption of marijuana in restaurants and bars will dramatically increase the liability risks for these establishments. Numerous studies have indicated that combining alcohol and marijuana intensifies the effects of THC and can result in dangerous and unpredictable behavior. In addition, researchers have questioned whether smoking marijuana after consuming even a small amount of alcohol is safe if a person is driving. Restaurants and bars are required by law not to serve visibly intoxicated individuals. They train their staff to ensure customers aren’t overserved, to prevent minors from being served, and to identify signs of intoxication. But they aren’t medical professionals. Allowing the consumption of marijuana in a liquor-licensed establishment puts the owner and employees in a difficult situation with both law enforcement and customers. According to the Colorado Department of Public Health and Environment, the effects of marijuana typically last two to three hours after marijuana is smoked or inhaled. When marijuana is eaten, the effects take longer to start and may last 4 to 10 hours. If the consumption of marijuana is allowed in restaurants and bars, proprietors will be thrust into situations where they could be held liable for something that was entirely outside of their control.
2. Several insurance companies have already indicated to us that they will not insure restaurants and bars that allow marijuana consumption. Others have suggested that they may move out of the Colorado restaurant market altogether. A reduction in the number of insurance providers in Colorado may result in significant price increases for insurance coverage in restaurants and bars.
3. If public consumption of marijuana is allowed, it will create a very confusing environment for the consumer, the business owner and law enforcement. Since the private consumption of recreational marijuana was approved in Colorado, many people still don’t fully understand what is legal and allowable in Colorado. If consumption of marijuana is allowed in restaurants and bars as an “opt in” option, this will only create further public confusion about when and where someone can consume marijuana legally. This puts restaurant and bar operators into potentially awkward and difficult situations with customers and employees.
Thus far, the main Yes on 300 backer to speak publicly about the Department of Revenue edict is Mason Tvert, who is also the spokesman for the Marijuana Policy Project. Thus far, he has focused on the fact that the alcohol ban lets businesses without liquor licenses move ahead with the permitting process.
This stance doesn't preclude the possibility of future legal action. But unless the state regulation is tossed, the implementation of Initiated Ordinance 300 could wind up looking a lot more like the Denver NORML vision of social use than anyone expected.
Look below to see the Colbert skit, the state Liquor Enforcement Division rules proposal that includes the marijuana-and-alcohol language quoted above, and the text of Regulation 47-900.
Regulation 47-900. Conduct of Establishment.
A. Orderliness, loitering, serving of intoxicated persons.
Each person licensed under Article 46, Article 47, and Article 48 of Title 12, and any employee or agent of such licensee shall conduct the licensed premises in a decent, orderly and respectable manner, and shall not serve a known habitual drunkard or any person who displays any visible signs of intoxication, nor shall they permit a known habitual drunkard or any person who displays any visible signs of intoxication to remain on the licensed premises without an acceptable purpose, nor shall the licensee, his employee or agent knowingly permit any activity or acts of disorderly conduct as defined by and provided for in Section 18-9-106, C.R.S., nor shall a licensee permit rowdiness, undue noise, or other disturbances or activity offensive to the senses of the average citizen, or to the residents of the neighborhood in which the licensed establishment is located.
B. Attire and conduct of employees and patrons.
No person licensed under Article 46, Article 47, and Article 48 of Title 12, nor any employee or agent of such person licensed under these Articles shall engage in or permit the following:
1. Employment or use of any person in the sale or service of alcohol beverages in or upon the licensed premises while such person is unclothed or in such attire, costume or clothing as to expose to view any portion of the female breast below the top of the areola or of any portion of the public hair, anus, cleft of the buttocks, vulva or genitals.
2. Employment or use of the services of any hostess or other person to mingle with the patrons while such hostess or other person is unclothed or in such attire, costume or clothing as described in paragraph number (1) above.
3. Any person on the licensed premises touching, caressing or fondling the breasts, buttocks, anus, or genitals of any other person.
4. Any employee or person on the licensed premises wearing or using any device or covering of any kind, which exposes or simulates the breasts, genitals, anus, pubic hair or any other portion thereof.
Live entertainment is permitted on any licensed premises, except that:
1. No person licensed under Article 46, Article 47, and Article 48 of Title 12, nor any employee or agent of such person licensed under these Articles shall engage in or permit any person to perform acts of of acts which simulate:
a. Sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law.
b. The touching, caressing or fondling of the breasts, buttocks, anus or genitals.
c. The displaying of pubic hair, anus, vulva or genitals.
2. No licensee nor any employee or agent of such licensee shall engage in or permit any person to use artificial devices or inanimate objects to depict any of the prohibited activities described above.
3. No licensee nor any employee or agent of such licensee shall engage in or permit any person to remain in or upon the licensed premises who exposes to public view any portion of his or her genitals or anus.
4. No licensee nor any employee or agent of such licensee shall wear or use any device or covering of any kind that exposes or simulates the breasts, genitals, anus, pubic hair or other portion thereof.
D. Visual displays.
No person licensed under Article 46, Article 47, and Article 48 of Title 12, nor any employee or agent of such person licensed under these Articles, shall engage in or permit on the licensed premises the showing of film, still pictures, electronic reproduction, or other visual reproductions depicting:
1. Acts or simulated acts of sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law.
2. Any person being touched, caressed or fondled on the breasts, buttocks, anus or genitals.
3. Scenes wherein a person displays the vulva or the anus or the genitals.
4. Scenes wherein artificial devices or inanimate objects are employed to depict, or drawings are employed to portray, any of the prohibited activities described above.
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E. Local ordinances.
This regulation shall not be deemed to authorize or permit any conduct, behavior or attire on licensed premises which is otherwise prohibited by any city or county ordinances.