Friday, April 14, 2023

Boulder’s Cannabis Licensing and Advisory Board is recommending the city allow on-site use of some cannabis products, paving the way for new standalone businesses like smoking lounges, or existing businesses to offer pot-infused drinks, lotions and more.

In an unusual move, such hospitality establishments would be open only to people older than 25 — despite the statewide age limit of 21 for marijuana consumption and sales. Defenders say the move protects public health and Boulder’s youth, while critics say it creates a dichotomy that promotes drinking. 

The recommendation “points all interested 21-24 year olds to liquor and bar establishments,” wrote former CLAB member Alana Malone, in comments shared with city council, “sending the message that they aren’t mature enough to consume cannabis in a legal venue, and should stick with consuming alcohol in public until they turn 25.”

Two years, 22 votes

Colorado began allowing marijuana hospitality establishments in 2019; HB-1230 layed out requirements and created an “opt-in” system for cities. Denver’s first two licenses were approved last year.

Boulder’s CLAB spent nearly two years developing its recommendations, eventually voting on 21 separate measures. (One measure was debated twice; find a full list, as well as vote totals and comments, here)

The initial vote to recommend allowing hospitality licenses — city council would have to adopt changes to Boulder’s laws — was 4-2, with board members Michael Christy and Robin Noble opposed.

Noble, in her dissenting opinion, noted concerns from law enforcement and public health officials over safety and the “normalization” of marijuana among youth, as well as “parents and community members who believe marijuana is having harmful impacts (and) oppose any commercial expansion of marijuana in our community.”

“The downsides of licensing marijuana consumption businesses outweigh potential benefits,” she wrote.

Christy was contacted for comment, but deferred until he received advice from city attorneys. He did not respond in time for publication of this story.

No edibles; beverages OK

CLAB’s other recommendations were to allow on-site sale and consumption of THC-infused beverages and “sublingual” products (those that dissolve under the tongue) as well as topicals (applied to the skin) and flower (for smoking.)

Not allowed under the recommendations are “concentrates intended for inhalation” (more commonly known as dabs) or edibles. Food and beverages were handled differently by the board because the latter are absorbed more quickly — 5-15 minutes minutes for liquid, versus 60-90 minutes for edibles — and have a shorter duration of psychoactive effects: 45-90 minutes, versus three to four hours for infused food. 

“The ability for novice customers to titrate their intoxication and be responsibly monitored in a hospitality setting over more than two hours per serving strains credulity,” wrote CLAB member Brian Keegan, in his dissenting opinion. (Disclosure: Keegan is a member of Boulder Beat’s Opinion Panel)

Hospitality licenses should not be subject to density limits on retail marijuana establishments, CLAB voted, and should be treated the same as bars when it comes to zoning. Like pot shops, hospitality licenses would not be allowed on University Hill. Hours for hospitality licensees would be 8 a.m. to midnight, with sales stopping at 10 p.m. 

“Opening at 8 a.m. could allow for different types of businesses” to use infused products, “such as spas, yoga studios, coffee shops, brunches, etc.” wrote Kathryn Thomson, a non-voting member of CLAB.

Also similar to alcohol-serving establishments, businesses applying for a hospitality license would have to garner support of the surrounding neighborhood, via a “needs and desires” hearing. 

Public health v. constitutional rights

The board’s biggest debate came over the issue of indoor smoking. Colorado law exempts cannabis hospitality businesses from the Clean Indoor Air Act; CLAB voted 4-1 that Boulder grant the same exemption “only if ventilation systems [that] ensure non-consuming customers, workers and first responders are safe from the health impacts of secondhand smoke.”

The debate spilled over into the vote over whether or not to recommend allowing consumption of marijuana flower, which the board passed 4-3. Noble, Christy and Tom Kunstman opposed the measure.

“Similar to the tobacco industry, the marijuana industry says adequate ventilation can protect workers,” Noble wrote in her dissenting comments. “It can’t. CLAB heard from HVAC engineers, including experts invited by industry, who said no ventilation system can effectively remove the safety hazards of secondhand smoke.”

Outdoor consumption was recommended, consistent with current rules about smoking and with additional guardrails. Consumption must occur within the licensed premises and “protected from plain view of the public.” 

For Keegan, the trickiest decision was the suggested 25-and-up age limit. He abstained from that vote, unable to make up his mind. 

There is research suggesting cannabis use could be harmful to still-developing brains, Keegan said — but that’s true of alcohol as well. 

“I’m torn between the public health mindset of regulating cannabis commensurate with its risks, and the reality” that cannabis is legal for Coloradans over 21, Keegan said in a Thursday interview.

“There are many behaviors not regulated commensurate with their risk,” he wrote in notes to council. “Cannabis consumption should not be held to a higher standard given the lack of scientific and medical knowledge.”

Keegan’s abstention counted as a yes vote.

Malone, CEO of concentrate brand Green Dot Labs, said both industry representatives on CLAB were left out of that discussion, which “wasn’t planned.” Malone had already left the meeting when the vote was taken. 

There is no precedent for such an age exclusion, Malone said: the right of 21-24 year olds to buy and consume cannabis is enshrined in the state constitution via AmendmentChange made to existing documents, resolutions, or ordinances 64.

“Only in Boulder would we be required to turn away a 21-24 year old medical patient or veteran who relies on cannabis for medicine from a cannabis hospitality establishment,” Malone wrote in comments on the 4-1 vote.

‘Years away’

Shawn Coleman, a former marijuana lobbyist who helped craft legislation, said Colorado gives local municipalities wide discretion to implement their own restrictions.

“State law is a floor, not a ceiling”, Coleman said.

Coleman found many of the recommendations “absurd” and “ascientific,” including prohibitions on edibles. Fast-acting products are already available that would circumvent concerns over delayed onset, he said.

Malone asked that the vote banning concentrates be revisited. She abstained, on advice from a city attorney that was subsequently overturned. Her peers declined to relitigate the matter.

“Allowing all products that are legal” under state law “is the only right way to approach a product set or menu set” for hospitality purposes, Malone said.

As the science on cannabis — and the products on offer — evolve, Coleman predicts CLAB’s recommendations will need to be revisited. 

“These things don’t come at no cost to the taxpayers,” Coleman said. “Why waste the public’s time?”

CLAB’s recommendations are going to city council next week (ironically, on April 20). There is no discussion or vote scheduled, although Malone said staff has prepared a presentation, and Keegan has been asked to attend in case council members have questions. 

It’s unclear if and when city council may take up the topic; their 2023 work plan is full, and new council members — with new priorities — will be elected in November. Given the strong feelings over aspects like indoor smoking and the 25-plus age limit, Keegan believes they may choose to put it to a vote of the people.

Whichever route elected officials choose, Keegan said, “we’re months or years away from this becoming a final decision.”

— Shay Castle, @shayshinecastle or on Mastodon at toot.bldrweb.org/@shayshinecastle

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Governance Boulder cannabis Cannabis Licensing Advisory Board city council city of Boulder CLAB concentrates flower Indoor Clean Air Act infused products marijuana smoking THC