Colorado pot law bans smoking in public. But what’s public?

During the campaign to legalize marijuana in Colorado, backers of the drug promised it would be regulated the same as alcohol.

Now, however, many Coloradans and pot tourists are discovering that attempting to smoke marijuana outside the privacy of a home is not as easy as going to a bar for a drink.

A statewide initiative, approved by voters last year, legalized recreational use of marijuana but bans its “open and public consumption.” Marijuana advocates say they weren’t expecting the definition of “public” to encompass private businesses and large, ticketed events where alcohol flows freely.


“We are very disappointed and frustrated,” said Toni Fox, a Denver dispensary owner. “Every time we turn around, a cannabis-friendly event is being turned down.”

Those who opposed legalization and the Denver city attorney said authorities are merely capturing an accurate definition of “public.”

“We are happy to see Denver city officials step up and defend what voters expected,” said attorney Rachel O’Bryan, who volunteers with Smart Colorado, a watchdog group monitoring implementation of the marijuana law. O’Bryan also served on a state committee that helped set up marijuana rules.

The clash over public consumption became a high-profile one last week when the city of Denver demanded that the Colorado Symphony kill plans to hold three fundraising concerts where guests are invited to bring and smoke their own marijuana while listening to an ensemble.

On Tuesday, the symphony said it negotiated with the city attorney’s office and mutually agreed the fundraisers could move forward as invite-only gatherings. Tickets will no longer be sold to the general public.

“Classically Cannabis: The High Note Series,” announced two weeks ago, had drawn more than $37,000 in sponsorships and ticket sales from the pot industry, event planner Jane West said last week. Tickets to the fundraisers, capped at about 250 people each, had been on sale for $75. People who had bought tickets will receive refunds.

City Attorney Scott Martinez said since recreational use of marijuana became legal Jan. 1, the city has sent about three or four letters a week asking people to quash plans to hold events that promote public consumption.

“What’s great about Denver is, so far, everyone has come into compliance when they have received this letter,” Martinez said in an interview. “We’re happy to provide clarity to event organizers.”

Calling the symphony an “important partner” for the city and a “valued institution” in the community, Martinez had expressed hope that the nonprofit would accede to the city’s request just as everyone else has.

He said years of case law has made it an “easy call” that any space or event that the public can access, even if tickets are required, is a public place. He declined to speculate on what would not be a public space, except to say that a private home was clearly intended to be considered nonpublic during the drafting of the legalization measure.

Denver City Councilman Albus Brooks said he warned the symphony before it announced the concert series that the events teetered on thin ice.

“Symphonies are finding it tough to relate and connect with the newer, younger generation,” Brooks said by phone Tuesday. “The Colorado Symphony did something bold, but unfortunately you have to abide by the rules.”

Those rules have not been overbearing, Brooks said. But he noted that they have caught many tourists by surprise and he hopes the symphony’s situation sends a message to people that they will be cited for public consumption.

“We’re still trying to protect the image of our city,” Brooks said. “We will not be the capital [of marijuana], nor do we want to be. We think we led the world in responsible regulation and enforcement, and more municipalities will be joining us soon.”

Fox, who runs the 3D Cannabis Center, had wanted the symphony to be the first group to put up a fight.

“No one really anticipated the hammer coming down on these events because we’ve never had these types of events before,” she said. “The pendulum automatically shifted to the more restrictive than to the accepting of it.”

But in announcing the deal with the city attorney Tuesday, symphony Chief Executive Jerome Kern told the Denver Post, “The symphony does not want to be the poster child for determining the distinction between public and private.”

Fox said that she’s also been frustrated personally by enforcement of the new pot law. Last week, city inspectors cited her for hanging signs outside the dispensary in violation of the pot ordinance’s ban on advertising. She said the flag banner she hung each morning was just to signal to customers that her business was open.

“It’s just shocking that we’re getting such a kickback,” she said, vowing to vote against anti-marijuana politicians this year. “I’m hoping they will loosen up eventually.”

For O’Bryan and others in Smart Colorado, the symphony’s sudden alliance with the pot industry was disappointing. The symphony said it was not passing judgment on the drug, but O’Bryan said the sponsorship was sending a message to children that marijuana is “cultural and good.”

“As we shift as a culture, we have to decide, when is it and when isn’t it appropriate?” she said. “Does marijuana need to be consumed in all circumstances?”

After recreational use was legalized, cities were left to decide whether to allow marijuana stores. Among the handful of cities that have allowed them, the biggest -- Denver and Aurora -- have ordinances that limit the type and number of businesses that can benefit from the sale or use of marijuana.

In supporting the ordinance, Denver Mayor Michael Hancock has said he was against legalization but would carry through the decision of a majority of voters. He helped champion a ban on private marijuana clubs.

“The more we restrict it, to me, the better, the more safer our community will be,” Hancock said at a hearing last year.

The only private facility that’s been allowed to host private smoking gatherings in the state is in Colorado Springs. The marijuana club Studio A64 recently won a battle with the city to stay open because of the absence of any zoning regulations that specifically banned it. A second smoking lounge, Club Ned, is expected to open soon near Boulder.

KC Stark, owner of Studio A64, said 20 to 50 people come by any given day. He built the cost and time of a legal battle into his business plan, anticipating concerns.

“We knew we would have to be proven and tested,” Stark said. “This is the end of prohibition and the beginning of a revolution. You have to fight.”