Colorado voters legalized recreational marijuana in 2012. Since 2014, any adult 21 and older in the state is able buy weed legally. Overall, it would seem like the transition from an illegal cannabis market to legal one has gone smoothly, yet the law that legalized marijuana failed to adequately address one question so fundamental to protecting public health it is almost stunning: Can you smoke weed in public in Colorado?
The answer, unsurprisingly, is no. Under both medical and recreational marijuana laws in Colorado, weed cannot be used publicly. However, the law had left vague what “public” ultimately meant.
In this article, we will explore the legal challenges associated with being able to use weed in public in Colorado, from the legal definition of “public” to the loopholes and voter-backed initiatives allowing companies to extend the social concept of a cafe or bar or other public/ private space to the cannabis user.
Colorado Amendment 64 – A Dilemma of Vagueness
While Colorado voters passed marijuana legalization with a 55% majority, the measure had a considerable vagueness built into the definition of personal use. Consider this excerpt from Amendment 64, the constitutional amendment legalizing weed for adults 21 and up:
“…nothing in this section shall permit consumption [of marijuana] that is conducted openly and publicly or in a manner that endangers others.”
Answering if you can smoke weed in public in Colorado, under this definition, presents a lack of specifics as to where someone is acting openly and publicly. This has two effects, each potentially capable of undermining the other. First, this could mean law enforcement ultimately has the final say in what and where “public” may be generally applied, enhancing the deterrent power of the police under the legal marijuana laws. Think the front porch is private? The police, under this definition, may be able to say otherwise.
Second, the same lack of clear boundaries relating to “openly and publicly” can be quickly used by excited marijuana users, visiting or otherwise, who have never bought marijuana legally. Colorado gives marijuana consumers a place to buy the plant and products made from it, yet fails to offer a place to consume it.
If marijuana legalization was meant to mimic alcohol laws, this is an example of the persistent disparities between the two industries and their respective regulation. While the regulatory end is often not considered by the consuming public beyond potential legal penalties, the position of putting weed into the hands of users and expecting them to have a private place to use it is both presumptuous and potentially limiting, allowing law enforcement the edge to collect revenue rather than resolve an issue.
Potential Penalties for Public Use
Often, common sense could be seen as a qualifier, totaling in a reflexive use of logic to figure out what is public and what is private. If you are wondering if you can smoke weed in public in Colorado, a city park, for instance, is likely going to be the last place someone would consider private. Yet, the definition provided by the Colorado constitution includes another factor which must be considered when operating under the vague “openly and publicly” definition.
The “in a manner that endangers others” portion of the definition enacted in Colorado’s constitution adds another potential issue when evaluating what is open or public. Presumably, “others” includes anyone who has not explicitly invited marijuana use within their proximity, especially in cases when the individual is under 21. Making sure minors are not going to be affected by marijuana use is a top priority of the police.
Under Amendment 64 and the regulations and law changes following its enactment, penalties have been changed for adults 21 and over in three ways:
- Possession of marijuana
- Growing marijuana
- Distribution of marijuana
While you cannot smoke weed in public in Colorado, the law now allows recreational marijuana users to possess one of the following:
Recreational marijuana consumers can grow as many as six (6) plants, with no more than three (3) mature and flowering at any time. Adults 21 and up can gift up to one ounce (28 grams) of marijuana flower to other adults. Exceeding these legal specifications can lead to a number of legal issues.
According to NORML, possession of up to two ounces (56 grams) of marijuana and public and open display or use of marijuana or marijuana-infused products fall into two separate legal penalties, each petty offenses. If you are curious if you can smoke weed in public in Colorado, consider the following penalties:
“Possession of more than 1 – 2 ounces is a drug petty offense that is punishable by a maximum fine of $100. The offender will be summoned and a court appearance is mandatory. Failure to appear in court is a Class 3 misdemeanor, which is punishable by up to 6 months in jail and a fine of up to $750.
“One who openly and publicly displays, uses, or consumes 2 ounces of marijuana or less is guilty of a drug petty offense and may be subject to24 hours of community service as well as a maximum fine of $100.” (NORML, 2017)
City Regulations Offer Needed Clarity
Denver City Council has passed regulations relating to the use of marijuana, clarifying whether you can smoke weed in public in Colorado’s capital city by evaluating what openly and publicly can mean. Hopefully, the state of Colorado will adjust the constitutional definition to provide more guidance as the cannabis industry continues to grow. For now, the expanded definition provided by the Denver City Council provides clarity where there was previously only vagueness:
“This includes but is not limited to areas accessible to the public such as transportation facilities, schools, amusement/sporting/music venues, parks, playgrounds, sidewalks and roads and outdoor and rooftop cafes. It is also illegal to smoke at indoor-but-public locations like bars, restaurants and common areas in buildings.”
For information on how this is expected to change with Ordinance 300 in Denver, keep reading here.