On November 8, the voters of Denver approved Initiative 300, a ballot measure originally allowing bars, restaurants, and other types of businesses to create onsite “consumption areas” for marijuana use that are either indoors (to permit vaping and edibles but not smoking) or outdoors (to allow smoking). Denver would have been the first city in the United States with “cannabis lounges” and “marijuana cafes.” But in yet another strange twist in this strangest of election years, it now appears that state officials will step in to prevent certain businesses in Denver from obtaining pot consumption permits.

Only ten days after the November election, the Colorado Department of Revenue’s Liquor Enforcement Division announced that businesses holding liquor licenses will not be permitted to become cannabis bars. The announcement was welcomed by the Colorado Restaurant Association and by Mothers Against Drunk Driving. Both groups expressed apprehensions about people consuming pot and alcohol simultaneously and publicly. The Colorado Restaurant Association also stated that “several insurance companies have already indicated to us that they will not insure restaurants and bars that allow marijuana consumption.”

Some pro-pot activists immediately charged that the Department of Revenue was acting on behalf of the liquor industry. Speaking for the National Marijuana Policy Project, Mason Tvert told the Los Angeles Times, “This rule will not prevent bar-goers from consuming marijuana, but it will ensure that they consume it outside in the alley or on the street rather than inside of a private establishment.” The Department of Revenue, however, says that the new rule was not linked to the passage of Initiative 300 in Denver – despite the timing of the announcement.

WHAT DID INITIATIVE 300 LEGALIZE?

Originally, Initiative 300 allowed Denver’s bars and restaurants to apply for permits allowing consumption areas that would let customers use marijuana with some restrictions. Customers would have to be adults and bring their own weed. However, the new rule announced by the Department of Revenue doesn’t necessarily disqualify coffee houses, cafes, art galleries, yoga studios, and similar venues from submitting applications for pot consumption permits.

Initiative 300 is supposed to be a four-year “pilot” program. It was approved by 53.4 percent of Denver’s voters, and it was expected to increase tax revenue, particularly from tourists visiting the Denver area. Marijuana for recreational use by adults in this state became legal in 2014 after Colorado voters approved Amendment 64, but tourists who arrive in Denver for the cannabis quickly discover that hotels, bars, and restaurants won’t allow it. For now, marijuana consumption in this state is legal only in private residences and in a small number of obscure “cannabis-only clubs” that several Colorado jurisdictions have approved.

Rachel O’Bryan led the opposition to Initiative 300 in Denver as the campaign manager for the group “Protect Denver’s Atmosphere.” Ms. O’Bryan now wants the Colorado attorney general, Cynthia Coffman, to examine the legality of Initiative 300. “We used to have a problem with people smoking pot in the parks and now they will be smoking in our neighborhoods,” Ms. O’Bryan said.

WHAT DO PRO-POT ACTIVISTS SAY ABOUT INITIATIVE 300?

Still, and in spite of the many obstacles that the ballot initiative has faced, some pot activists insist that Initiative 300 is a positive, progressive step forward. Mason Tvert told the Los Angeles Times, “This is a groundbreaking law that reflects the shift in public attitude toward marijuana. The first was legalizing marijuana, and now the next step is to ensure that adults who legally purchase it have a place they can legally use it.”

State Representative Jonathan Singer also supported Initiative 300 as a positive, progressive step forward. Representative Singer told the Denver Post that the initiative would “be a good bellwether to see whether there’s a real appetite among the electorate to solve this problem” of visitors and Denver residents having nowhere they can consume marijuana when landlords don’t allow it.

Before Initiative 300 takes effect in January, Denver’s Office of Marijuana Policy will be designing the application form that businesses will submit to apply for onsite cannabis consumption areas. Dan Rowland, communications advisor for the City and County of Denver, says, “There’s a lot of work to be done in terms of how someone would go about applying for this permit and the time frame that will happen between now and then. Folks may be lining up to challenge it in the interim, just on the potential conflict with the state constitution.”

IS INITIATIVE 300 ON SHAKY LEGAL GROUND?

That’s because Amendment 20, the ballot measure that legalized marijuana for medical purposes in Colorado in 2000, clearly states: “No patient shall…engage in the medical use of marijuana in plain view of, or in a place open to, the general public.” In addition to Amendment 20’s clear language, the vaguer language of Amendment 64 could also be used in a potential legal challenge to Initiative 300. The bottom line is that, even though Initiative 300 was approved by the voters in November, Denver’s residents and visitors should not expect to take advantage of the ballot measure any time in the near future.

While marijuana for recreational use by adults in Colorado has been legal since 2014, driving under the influence remains a serious crime. It doesn’t matter if a driver is drunk on alcohol or high on pot – it’s the same criminal charge, and anyone facing the charge in the Denver area will need the counsel of an experienced Denver DUI attorney. Even a conviction for a first DUI without injuries or property damage is punishable by up to a year in jail and a $1,000 fine.

As you celebrate this holiday season, don’t drink and drive, and don’t smoke weed and drive. It’s that simple. This is the season when Colorado law enforcement agencies conduct more DUI checkpoints and focus on finding impaired drivers. While an experienced Denver DUI attorney can help suspects accused of driving under the influence, there’s no reason to ruin the holidays with DUI trouble. Before you drink, arrange for a limousine, a taxicab, a ride-share service, or a designated driver, or rent a room for the night. Pot is legal in Denver, so there’s no reason to get in legal trouble for using it.

By: Dan Murphy

Denver criminal defense lawyer Daniel M. Murphy provides clients in the Denver area with aggressive and sympathetic legal representation. He graduated from the University of Denver Law School in 1994 and worked as a public defender before starting his own practice in 1996. He has defended clients accused of the most difficult criminal and alcohol-related charges. He also serves as a Moot Court Judge for Denver-area law students who rely on his mentorship.