Denver Assistant City Attorney David Broadwell has an agenda that’s over stepping policy makers. His advise is one sided and policy makers must think and not listen to him. They should seek alternatives for counsel elsewhere, but wait, they have to use available tax payer resources.
The following article by Jeremy P. Meyer was published in the Denver Post October 15, 2013:
The Denver City Council on Monday had a lengthy discussion but made no decisions about a proposed law that would make even the smell of pot coming from someone’s backyard illegal.
“This overreaches,” said Councilwoman Jeanne Robb, whose district includes Civic Center, which has been the center stage for issues around public marijuana consumption.
The park has been the site of a giveaway of marijuana joints during a political rally and the venue for annual April 20 events celebrating marijuana use in which hundreds of people openly light up.
Many believe the flagrant and open marijuana use in Civic Center led city leaders last week to draft a tough new ordinance that defines “open and public use.”
The governor’s marijuana task force failed to define public use and neither did the legislature, said Assistant City Attorney David Broadwell.
“We wanted to go ahead and seize our own destiny,” Broadwell said, later explaining the intent is to force people to be discreet about its use.
The ordinance, which is in a working draft form and still must pass out of committee before heading to the council for a full vote, defines “open” as being “in a manner that is unconcealed, undisguised or obvious, and is observable and perceptible through sight or smell to the public or to persons on neighboring properties.”
Broadwell said state and local laws routinely regulate behaviors on private property that affect people in neighboring properties when it relates to sight, sound and smell.
“This is the bread and butter of what government does,” he said.
Councilman Chris Nevitt, the council’s most vocal advocate for the marijuana industry, wrote the legislation. He said his motivation was to make sure the industry succeeds and doesn’t become an obvious problem for the city.
“We need to move with some care and caution so we don’t spark a backlash,” he said. “How do we balance the rights of an individual who wants to enjoy himself versus how that impacts his neighbor?”
The proposed ordinance would ban possession and outright display of marijuana in city parks as well as on the 16th Street Mall.
It would outlaw people smoking in their private residences if it could be seen from a public street. And it would make even smoking in the privacy of someone’s property illegal if the smell could be detected.
Broadwell said the city’s voters five times since 2000 have approved pro-marijuana initiatives that have always said lawful use would be done privately and discreetly.
“It would be used more discreetly and not in your face and be used in a more lower-profile way than alcohol,” he said.
Now, every type of alcohol except 3.2 percent alcohol beer is banned from parks and on the 16th Street Mall.
This ordinance would be the same, Broadwell said, who added that the proposed legislation is constitutional and could be defended in court.
“We are prepared to defend it if you go in that direction as policymakers,” he said.
But the bill is likely to change.
Several council members on Monday expressed their displeasure about the bill, specifically the part that would ban possession.
“I am concerned about the private possession when it is in my purse, pocket or house,” said Councilwoman Jeanne Faatz. “As long as it doesn’t offend someone else, that should be off limits.”
Councilwoman Robin Kniech said a possession ban could bring illegal search-and-seizure problems. “It’s a slope we don’t want to go down,” she said.
Councilman Paul Lopez said he doesn’t want to be in a park and smell marijuana. “But I don’t support someone looking in your window and saying, ‘Hey, that guy is smoking weed in his house,’ ” he said. “That is overreaching. You have to have some place where you can use it, and that should be in the privacy of your home.”
Council members also were told they could set the fines for the violations, which wouldn’t have to be the general city penalty of $999 or a year in jail.
Nevitt said police have been confused over what level of enforcement should be taken, since city voters in 2007 voted to make private use and possession the lowest law enforcement priority. Now, Colorado voters in 2012 legalized adult use and possession.
As Denver is the first city in the country to set rules around the retail sale of pot, the city’s business and civic leaders are worried about the perception that will bring. A recent event in which marijuana was openly consumed in Civic Center outraged Denver Mayor Michael Hancock and several council members.
In many ways, the ordinance’s wording that specifically designates the parks and the 16th Street Mall as areas of zero tolerance is a not-so-subtle way of giving police guidance of what to do when officers see open public consumption of marijuana.
Denver Police Chief Robert White will be at the next committee meeting to give his input on how his department will enforce the public consumption law.
Members from Smart Colorado spoke to the council, praising them for writing the legislation. Pro-marijuana groups also spoke, chiding the council for the legislation.
Jeremy P. Meyer: 303-954-1367, firstname.lastname@example.org or twitter.com/jpmeyerdpost