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Smoke Signals 1/6-1/13

Why legal restrictions are forcing pot into the public



As cannabis legalization unfolds, a hot topic has become public, on-site consumption of cannabis. The default for medical marijuana laws has been to allow consumption only in a private place such as a residence. Recreational cannabis legalization laws have largely followed suit.

Anywhere that could be construed as being "open to the public," even a private social club with membership fees and other requirements, generally does not meet the legal definition of a "private place." That leaves only residences as places to consume cannabis.

But cannabis legalization laws have not affected residential landlord-tenant laws, allowing landlords to continue arbitrary bans on possessing or using cannabis in rentals. This leaves privately-owned homes as essentially the only places where cannabis can be consumed legally under state law.

With stores now selling cannabis to adults 21 and over, many purchasers are left with limited options of where to consume their cannabis. This has led groups such as the Bend Park and Recreation District Board to advocate for restrictions such as a 250-foot buffer between cannabis stores and Bend parks. The logic is that people who purchase cannabis that they cannot consume in their home will be deterred from going to a park to consume the cannabis if the distance they have to travel to reach the park is more than 250 feet.

But regardless of the proposed park buffer, there are no significant legal mechanisms for regulating where people consume cannabis. Police officers can issue a citation to those smoking in public that requires payment of a fine, but in practice many officers give warnings first, partly because so many of the offenders cannot or will not pay the fine. And the whole point of cannabis legalization was to remove criminal-level penalties from smoking cannabis in the first place.

But by banning consumption in so many places, the law seems to have created a perverse situation where the easiest place to consume may often be in public even though in public is the least desirable place for people to consume from a public health policy perspective. Of course, it doesn't have to be this way.

The obvious comparator is alcohol, where the Bend economy depends on the right to consume alcohol in a public place. Allowing consumption in pubs ameliorates many of the issues that would otherwise arise with alcohol consumption. For example, there are many fewer people drinking beer in Bend parks because it is legal for them to drink beer at places like the Crow's Feet Commons patio and the Crux side yard.

The Bend City Council and its Marijuana Advisory Committee apparently will not seek to ban private cannabis clubs locally. But the legality of such clubs would be suspect at best in Oregon, and it seems unlikely that any will appear in Central Oregon in the foreseeable future. Perhaps the wisest choice for the canna-phobic Bend Parks & Rec Board would be to advocate for the right of Oregonians to consume cannabis in rental homes and private social clubs, or even in cannabis lounges.

That bold decision was recently taken by the Alaska Marijuana Control Board, which voted to recommend a rule allowing cannabis consumption on-site at cannabis stores in Alaska. The Board's reasoning for allowing on-site consumption was driven at least in part by the fact that it believes private cannabis clubs are illegal under Alaska law.

The rule, if enacted, would make Alaska the first state to allow on-site consumption. And it could create an entirely new sector of the Alaska economy. The opportunities for businesses creating an on-site cannabis consumption experience are endless, from cannabis coffee shops to cannabis bars, cannabis arcades, cannabis bowling alleys, cannabis movie theatres. One could even open a canna-planetarium. Just to name a few.

Right now, it looks like these businesses will all begin in Alaska. Not Oregon. But it seems fitting that the Last Frontier should be the first frontier for a whole new type of entertainment industry.

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