Marijuana

A Pain In The Bud: The 'Legality' Of 'Coffee Shops' And Other Marijuana Consumer Venues And Events In The U.S.

We have bars and pubs for alcohol, wine, and spirits, and the equivalent for marijuana should not be a hard sell as legalization gains momentum -- but not anytime soon.

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Those who have been to Amsterdam may know a thing or two about Dutch “coffee shops.” Though these shops operate in a legal gray area, they still attract droves of foreigners who come to buy and use marijuana in a pleasant coffeehouse setting. Think Starbucks, but with patrons rolling joints or consuming edibles instead of drinking lattes and eating bagels. No state with legal marijuana here in the United States has embraced the coffee shop model, though that may change soon since there are increasingly fewer places in which one can consume marijuana outside one’s own home and, sometimes, not even there.

Most states with robust marijuana regulations (in line with the Cole Memo) prohibit using cannabis inside any state-licensed marijuana business. Those states also usually require that cannabis only be consumed outside the view of the public. In both Colorado and Washington, using marijuana in most hotels, clubs, and bars is also forbidden under both public consumption and general smoking laws. Even cherished Cannabis Cups and competitions are feeling the heat from increased state marijuana regulations surrounding public consumption, prohibition on open containers, and operational licensing. Both Washington and Colorado essentially confine consumption to one’s actual residence. Since many rental apartments and HOA-controlled condos already forbid smoking or any federally illegal drug activity, many marijuana users are left without a lawful venue in which to indulge.

A number of private entrepreneurs are trying to solve this venue problem. For instance, in May, the Colorado Symphony hosted three nights of “Bring Your Own Green” (BYOG), with its “Classically Cannabis: The High Note Series.” Entrepreneurs in both Colorado and Washington have advertised for and sought to provide private marijuana clubs, “Bud and Breakfasts,” cannabis-friendly hotels, marijuana-focused travel agencies, and “canna crawls” for touring state-licensed marijuana businesses. Toke’n Brush even puts on a marijuana-friendly painting class. But are these sorts of events and offerings legal under state law?

Colorado has allowed establishments like Club Ned, “the club with altitude” in Nederland, Colorado, where you can BYOG and recreate accordingly:

Club Ned took advantage of an exception to the Colorado Clean Indoor Air Act for “a place of employment that is not open to the public and that is under the control of an employer that employs three or fewer employees … [Club Ned] will be open only to dues-paying members, who will have to make appointments and bring their own pot. But Club Ned will have tables and sell refreshments, creating something resembling the convivial, tavern-like atmosphere at Dutch ‘coffee shops’ (which are not legal, strictly speaking, but have been tolerated for decades).

Club Ned holds only 30 people and it appears to be the only legally sanctioned club of its kind in Colorado. Denver is currently pursuing a city initiative to allow consumption of cannabis in local bars and clubs. If that initiative passes, Denver will gain an edge in providing people with a venue for marijuana use. At this point, Colorado state law neither explicitly permits nor prohibits marijuana bars or lounges.

Washington State has been tougher than Colorado on recreational cannabis clubs and on any other businesses that seek to generate revenue from anything approaching the coffee shop model. Almost immediately after Washington legalized recreational cannabis, the Washington State Liquor and Cannabis Board barred smoking cannabis in liquor-licensed bars. Washington has nothing akin to Club Ned and one bar, Frankie’s, faced significant legal problems when it tried to add a “members only” cannabis lounge upstairs from its bar. Most recently, Washington passed House Bill 2136, making it a Class C felony to operate “a club, association, or other business, for profit or otherwise, that conducts or maintains a premises for the primary or incidental purpose of providing a location where members or other persons may keep or consume marijuana on the premise.” In other words, marijuana clubs and lounges are now banned in Washington State. It is not clear whether this law also applies to hotels and bud and breakfasts, though presumably it could because of its broad language.

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Though Colorado seems to be warming to some restricted form of marijuana “coffee shops” and other marijuana-friendly venues and events, Washington has taken a very different tack. Undoubtedly, each state with marijuana laws will handle the issue of consumer venues differently. Still, the normalization of marijuana dictates that there should be some provisions for safe and controlled venues in which consumers can use their marijuana — without promoting overconsumption. We have bars and pubs for alcohol, wine, and spirits, and the equivalent for marijuana should not be a hard sell as legalization gains momentum. But, until then, do not expect to visit a marijuana coffee shop in either Colorado or Washington.

Hilary Bricken is an attorney at Harris Moure, PLLC in Seattle and she chairs the firm’s Canna Law Group. Her practice consists of representing marijuana businesses of all sizes in multiple states on matters relating to licensing, corporate formation and contracts, commercial litigation, and intellectual property. Named one of the 100 most influential people in the cannabis industry in 2014, Hilary is also lead editor of the Canna Law Blog. You can reach her by email at hilary@harrismoure.com.

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