Council needs to clarify the ‘incidental advertising’ issue

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Leland Rucker

What a long, strange trip it’s become, even though it’s just been a little more than a month.

Boulder City Council decided to take a look at its cannabis regulations, and the first of three readings took place Sept. 30. For the most part, municipalities and counties in Colorado that allow cannabis sales adopted the state regulations written after the passage of Amendment 64. For whatever reasons, the City of Boulder came up with its own complex set of rules, which often differ from the state’s. Confusion over the differences was at least one reason to prompt the reconsideration.

On Oct. 8, two local dispensaries, The Farm and Terrapin Station, were cited by City Code Enforcement Officer Beverly Bookout, who had been provided photos of the two dispensaries’ booths as part of their sponsorship of the Boulder Pridefest event in September. The citations quoted Boulder code 6-16-8-D (D), which bans advertising which is purely incidental to sponsorship of a charitable event by a recreational marijuana center or a recreational marijuana-infused products manufacturer.

The tickets are just another example of the kind of inconsistent enforcement cannabis business owners have been trying to point out. Chris Woods, owner of Terrapin Station and Jan Cole of The Farm, both local residents who have been operating here for years, argue that they are legal local businesses that aren’t allowed to sponsor community events, support nonprofits or participate in happenings that are open to the rest of the community.

“I am outraged that we have been cited for noncompliance with the City’s ordinance for publicly showing support for the LGBT community at an event celebrating social equality,” Woods wrote in an angry letter to the council.

City Attorney Tom Carr responded by explaining that the rules were written according to Council’s wishes. “Several parents had stated that they wanted to be able to enjoy festivals and events, and move around Boulder with their children without having to explain all the marijuana issues. The advertising limitations were Council’s response.”

Attorneys Brian Vicente and Christian Sederberg, who helped write Amendment 64, weighed in. “State law contains a thorough and comprehensive definition of advertising that was painstakingly drafted to narrowly tailor the language to what is typically considered commercial speech, and thus entitled to more limited free speech protections,” they wrote in an analysis of city codes sent to Council. “By using its own definition, Boulder fails to take advantage of the efforts of the Attorney General’s Office and potentially creates differences in the advertising restrictions imposed on Boulder licensees by the state and by the city.”

The issue came up again at a cannabis forum Oct. 16 at eTown Hall that was attended by 13 candidates, including two sitting Council members up for re-election. When The Farm’s Cole asked a question from the audience about the fairness of the Pridefest citations, Councilman Macon Cowles stood up and said that the citations were “just wrong,” a statement that was met with applause all around.

I attended a press conference last Wednesday afternoon at Terrapin Station. Across the street, members of Out Boulder and the cannabis industry were protesting the Pridefest citations at the old gas-station property. (The media were running after Republican candidates up on campus.)

Taylor West of the National Cannabis Industry Association and Ean Seeb of Denver Relief talked about the growing industry here and how local businesses are working to become part of their communities. Rep. Jonathan Singer spoke of how Colorado is at “the edge of the tipping point” while signs across the street called for “Equal Rights 4 Canna-businesses” and motorists honked while making the left turn onto Canyon. It was almost as surreal as navigating the “rightsized” Folsom a couple months ago.

The third reading of the ordinance comes on Tuesday. Packets were unavailable before deadline, but I spoke with Councilwoman Lisa Morzel, who said that she was going to push to clarify the advertising question at the meeting and hoped there was support among other members to get it done.

Some questions brought up on first and second readings have already been punted to a stakeholders’ group that will come back with recommendations next year.

This shouldn’t be one of those. Parents have the right to shield their kids, but to suggest that City Council should be in the business of excluding local businesses from local events because some people don’t want to talk to their children is among the most specious arguments I’ve ever heard.

Woods intends to file a complaint in federal court on free speech grounds if the city goes through with fines for these violations. I hope it doesn’t come to that. But local cannabis businesses deserve to know whether staff and Council are really supporting them or not.

You can hear Leland discuss his most recent column and Colorado cannabis issues each Thursday morning on KGNU. http://news.kgnu.org/weed