The passage and governor's proclamation of Amendment 64 on Monday, which makes Colorado one of the first two states to legalize limited possession and sales of marijuana, has prompted a flood of questions about what happens now.
Herewith, some answers.
Question: Wait, is pot really legal?
Answer: Yes. But also no. It is now not against state law for people 21 and older in Colorado to use marijuana, to possess up to 1 ounce of marijuana and grow up to six marijuana plants. It is also "not unlawful and shall not be an offense under Colorado law" — the words of the amendment — for one adult to give marijuana to another adult. But legal, recreational marijuana sales can only occur through licensed pot shops, which have yet to open.
The federal government, meanwhile, considers all marijuana possession, cultivation and distribution a crime, no matter what state law says.
Q: Do I need a license or a registration to possess marijuana?
Q: So if a local police officer catches me with, say, a half ounce, they won't arrest or ticket me?
A: Not for marijuana they won't.
Q: What about two ounces?
A: Still illegal — unless you're a medical-marijuana patient. With the exception of the few allowances in the amendment, which supporters say cover the vast majority of people who get in trouble for marijuana, all other marijuana-related crimes remain in place.
Q: What about a pipe or a bong?
A: The amendment says that "possessing, using, displaying, purchasing, or transporting marijuana accessories" is not a crime.
Attorney Rob Corry argues that Amendment 64 also makes marijuana paraphernalia legal under federal law in Colorado. The federal Controlled Substances Act says federal rules against drug paraphernalia don't apply to "any person authorized by local, State, or Federal law to manufacture, possess, or distribute such items."
Q: So I can just smoke up wherever I want now?
A: No. The list of places where you can't smoke marijuana post-legalization is probably longer than the list of places where you can. You can't smoke at schools or on school grounds. You can't smoke in privately owned buildings where the owner doesn't want you to — and that includes apartment buildings or other rental properties where the landlord says pot is not allowed. You can't even possess marijuana in federal office buildings, courthouses, national parks or national forests.
And, most significantly, you can't smoke outdoors in public parks or on the sidewalk. The amendment says, "nothing in this section shall permit consumption that is conducted openly and publicly or in a manner that endangers others."
About the only place it is 100 percent clear you can smoke marijuana is in a free-standing home that you own.
Q: What if my home is a college dorm room?
A: Then you should trash your stash. Colleges and universities across Colorado have been uniform in saying that marijuana possession or use on campus — in the dorms and elsewhere — is not allowed. Even if you're over 21 and legal under state law to possess marijuana, you could still face school-code-of-conduct charges for possessing marijuana on campus.
Q: What about smoking inside marijuana-friendly businesses? Can somebody create a cannabis club?
A: Possibly. A lot will depend on the regulations the state and local governments adopt, but nothing in Amendment 64 says businesses can't allow people to bring in their own marijuana and smoke on site. In Washington, whose new marijuana-legalization law is similar in many ways to Colorado's, a bar owner is already doing just that.
Q: Do you have to be a Colorado resident for the law to apply to you?
A: Nope. Amendment 64's possession laws apply to everybody who is in Colorado at any given time — regardless of whether they live here full-time. And, when recreational marijuana stores open up in the state, the amendment's only requirement on their customers is to present "government-issued identification to determine the consumer's age."
Q: So, we're like the Amsterdam of the West now?
A: Actually, some advocates argue that Colorado now has more liberal marijuana laws than the famously dank destination. Amsterdam's cannabis coffee shops are really only half-legal, with marijuana sales in the Netherlands technically illegal. The Dutch government recently backed off a plan to prevent tourists from visiting the shops, but it is pursuing a ban on sales of high-potency marijuana.
In Colorado, at least, the legal place of marijuana stores is now written into the state's constitution. Regulations of the stores will have a big impact on what the market in Colorado looks like, but don't be surprised to see cannabis connoisseurs arriving at DIA, even though tourism boosters aren't thrilled at the idea.
Q: But there aren't currently any recreational marijuana stores, right? Can anyone over 21 shop at medical-marijuana dispensaries now?
A: Medical-marijuana dispensaries are for medical-marijuana patients only. Amendment 64 doesn't change who can shop there. Recreational stores — the kind provided for in Amendment 64 — won't open for about another year. They are the only places where legal, recreational marijuana sales can take place.
Q: How does this affect medical marijuana? Is that gone?
A: No. Medical marijuana is technically unaffected by the passage of Amendment 64. Medical-marijuana patients' cards are still valid. Medical-marijuana dispensaries can still sell only to patients. The entire system remains intact and separate from whatever recreational marijuana system develops.
Q: C'mon. Amendment 64 will have no impact on medical marijuana?
A: It would be silly to think the medical-marijuana system won't see a big change because of Amendment 64. If patients don't need to go see a doctor — and pay an examination fee — to legally possess marijuana, will they continue to do so? Will medical-marijuana business owners choose to continue catering to a customer base of about 100,000 people — when recreational stores can serve a customer base theoretically in the millions? Will the doctors who make most of their money writing medical-marijuana recommendations go out of business, and will the ones who only cautiously write recommendations now decide to stop writing them entirely?
Anticipating this instability, Amendment 64's authors built in an escape hatch for medical-marijuana dispensary owners: If dispensary owners choose to open a recreational store, they can jump to the front of the line and pay a reduced application fee.
Q: Why would anybody stick with medical marijuana now?
A: There are still advantages to remaining medical. Medical-marijuana patients would not have to pay the extra state excise tax that may be eventually levied on recreational marijuana. Medical-marijuana patients can possess up to 2 ounces of marijuana; they can also possess more and grow more than six plants if their doctors say they need to. People 18 and older — not 21 — can legally use medical-marijuana, and kids under 18 can use it to provided they meet some extra requirements.
Lastly, many people believe the federal government is less likely to crack down on the medical-marijuana industry.
Q: If I can't buy recreational marijuana for a year, where do I get it?
A: Amendment 64 creates two ways: either grow it yourself or get it from a friend. The amendment allows people to grow up to six plants — only three of which can be flowering, or ready for harvest, at any given time.
Importantly, you can't sell the marijuana you grow yourself. You can gift it to your friends, provided those friends are 21 or older. But selling it is a crime.
For those without green thumbs or horticulturally inclined friends, the next year will be what one Washington marijuana activist dubbed "the year of the magical ounce." (Washington has a similar valley between legalization and retail sales, though the state doesn't allow home growing.) Basically, if you have it — not matter how you got it — you can keep it.
Q: Can I get somebody to help me grow?
A: Yes. Amendment 64 says that "assisting another person who is 21 years of age or older" in growing, processing and transporting marijuana in compliance with the law is not illegal. The legal boundaries of that provision, though, are unclear.
Corry, the attorney, says it means that people can band together to form massive marijuana-growing cooperatives housed in a single warehouse. Others are more cautious. Brian Vicente, one of the amendment's authors, said at a recent forum that the creation of those kind of cooperatives might provoke a strong federal crackdown.
"We need to do this responsibly," he said.
Q: Can I grow marijuana in my backyard?
A: It's unclear, but very likely no. Marijuana home growing has to be done "in an enclosed, locked space" and "not conducted openly or publicly," according to the amendment. That may create wiggle room for marijuana to be grown in outdoor greenhouses, but it is unlikely to allow you to plant pot next to your rose bushes.
Q: What happens if the plants I grow produce more than I'm allowed to possess? Do I have to throw the extra away?
A: Home growers can keep all the marijuana their plants produce — even if it's more than an ounce. The amendment says "possession of the marijuana produced by the plants on the premises where the plants were grown" is legal.
Q: Are cities OK with residents setting up indoor gardens in their homes? What about code issues?
A: Cities haven't yet adopted rules on recreational home growing, but, based on the example of medical marijuana, it seems like they could. In 2010, for instance, Denver limited the number of plants medical-marijuana patients and caregivers could grow in their homes — citing concerns about odor, mold, fire and other potential problems.
Q: What else can cities do? Can they ban pot shops?
A: Yes. The amendment says cities can ban recreation marijuana stores, marijuana-products businesses and commercial cultivation facilities, either through an ordinance passed by the city council or through a vote of the residents. If they are banned by a vote, though, that vote has to happen during an even-year November election.
Short of a ban, cities can create local rules for marijuana stores and require local licenses. Cities can start issuing marijuana business licenses as early as Oct. 1, 2013.
Q: Why will it take a year for recreational marijuana stores to open?
A: The idea was to give the state time to get its act together, though state officials have said they won't have very much time at all. Both the legislature and the Department of Revenue must create rules for marijuana businesses by the summer, and the state has to start issuing licenses to the businesses by Jan. 1, 2014. That's a pretty tight time frame given that Amendment 64 doesn't spell out in much detail what the regulations should say.
Gov. John Hickenlooper has created a task force to put together the rules. Among the items the task force will consider, according to the executive order, are licensing and security requirements for marijuana stores, labeling and health standards for marijuana products, advertising restrictions and penalties for noncompliance.
Q: What will these stores look like? Could marijuana be sold at 7-Eleven?
A: The best guess is that recreational marijuana stores will look a lot like medical-marijuana stores. Because of the amount of regulations that seem likely to be imposed on the store, they will probably be specially devoted to selling marijuana and accessories. There's nothing right now that says somebody can't run a combination convenience store/pot shop, but it seems really doubtful anyone would.
Q: What will the federal government do about this?
A: Not nothing. But it's unclear how much of something.
Other than to re-iterate that they still consider marijuana illegal and still have the ability to enforce that, federal officials haven't said much about legalization. U.S. Attorney General Eric Holder said on Dec. 11 that the Justice Department will announce its plan of action "relatively soon." Reports, though, indicate Justice Department officials are still trying to figure out what to do.
One option is for the feds to file a lawsuit arguing that marijuana laws in Colorado and Washington are preempted by federal law. There is skepticism, though, that such a lawsuit would succeed.
The Justice Department could go around raiding marijuana stores. But the Justice Department has only so many people, and the federal government has generally dealt with medical-marijuana businesses with softer tactics. Local U.S. Attorney John Walsh, for instance, has previously sent letters to medical-marijuana dispensaries operating close to schools, telling those dispensaries to move or close.
Q: If the Justice Department doesn't do anything, does that mean the store owners can operate freely?
A: When it comes to dealing with people it considers criminals, the federal government has a lot of clubs in the bag. Some medical-marijuana dispensaries have been targeted for Internal Revenue Service audits. The federal government can also use banking regulations to hamper marijuana businesses.
Banks — worried about rules that prevent them from doing business with criminal organizations — have been reluctant to take on medical-marijuana dispensaries. That has left dispensaries scrambling for ways to take payments and pay bills and employees. Many operate cash-heavy or cash-only.
Q: So I'm going to have to take a fistful of cash with me to buy legal marijuana?
A: Looks like it. Some dispensaries have gotten creative with "cashless ATM" machines and other payment methods. But, when it comes to pot, cash is still king.
Q: Will the DEA arrest people for smoking pot?
A: Likely not. Drug Enforcement Administration officials have repeatedly said they don't focus on individual users. Nor do they have the resources to do so. But The New York Times has reported that federal officials have discussed arresting some users in Colorado and Washington in the hopes of using their cases to create some type of beneficial court precedent. The ability of the federal government to prosecute people for marijuana crimes in states where marijuana is legal, though, is not in dispute.
Q: So, if the feds probably won't bust individuals, then I've got nothing to worry about?
A: Whoa, whoa, whoa. Marijuana policy reaches into a surprising number of corners of the law. For instance, a guy in Denver legally growing medical-marijuana in his house was charged with felony child abuse because of the dangers prosecutors said the grow posed. He pleaded guilty to two misdemeanors and avoided jail.
Legal medical-marijuana use has become an issue in child-custody cases, and for people on probation. The Colorado Court of Appeals has ruled the medical-marijuana laws do not give people a right to pot in the state when it comes to their jobs. Another Court of Appeals case will decide whether state-legal medical-marijuana use can be considered lawful for all purposes under state law.
And, most importantly, employers appear to have the ability to fire people who use marijuana at any time.
Q: I can be fired for using marijuana even if I wasn't impaired on the job?
A: Amendment 64 says the measure doesn't require employers to tolerate marijuana "in the workplace" or "affect the ability of employers to have policies restricting the use of marijuana by employees." The question of whether somebody can be fired for off-duty marijuana use will likely be decided in the courts. But it's not looking good for marijuana-using employees.
Q: What about driving?
A: Driving impaired is illegal. Don't toke and drive. Prosecutors will continue charging and convicting people for driving under the influence of marijuana, and they have a high conviction rate for such cases.
Lawmakers this session will also look at giving prosecutors a shortcut to do so. In the previous two years, the state legislature has tried and failed to pass a bill setting a standard at which people would be considered too high to drive — similar to the .08 blood-alcohol level for drinking and driving. Supporters of a limit appear to have cracked the code this year, meaning drivers accused of being stoned behind the wheel will face an even tougher challenge in court.
Q: There seems to be a lot still up in the air. When will we know how this falls out?
A: It could be years.
The state has to have regulations for recreational marijuana stores in place by July 1 and has to start issuing licenses for the business by Jan. 1, 2014. Amendment 64's supporters hope an excise tax on recreational marijuana will go before the voters as early as November.
By the rules will likely evolve — the state is looking to rewrite its medical-marijuana business regulations already — and the legal challenges and debates will likely take months or longer to resolve. Meanwhile, comprehensive data showing how marijuana legalization has impacted teen use, crime rates, law-enforcement policy, tax receipts and many, many other areas are probably years off.
So, grab a chair, Colorado. This could take awhile.
If you have questions about marijuana legalization you would like to see answered, contact John Ingold at 303-954-1068 or email@example.com. You can also tweet him questions @john_ingold. This Q&A will be updated as more questions come in.