When aging Grateful Dead members and their fans broke into song at Verizon Center late last year, a cloud of marijuana smoke rose from the audience. Under D.C. law, the collective exhale constituted more than enough for Mayor Muriel E. Bowser to swoop in and shut down the city’s marquee sports arena — not just for the night, but permanently.
The fact that she did not, or even threaten to, has emerged as Exhibit A of why the city’s rules on when and where people can smoke pot have become unworkable and in need of change, say D.C. Council members and other critics of the mayor’s law. They argue that because Bowser has never exercised the powers she sought a year ago to shut down a business large or small for public pot consumption, the law is effectively a sham and should be changed.
But this week, Bowser (D) will ask the council to make her powers to do so permanent. Bowser has warned that without such authority, Amsterdam-style pot clubs could spring up across the city and it would have no power to regulate them because of restrictions from Congress.
Several council members disagree. They say that with polls showing over half of the city’s 670,000 residents now routinely encountering pot smoke, corralling use into clubs would be better than having it everywhere.
Hanging in the balance is the uncertainty for thousands of business owners over how to carry out shifting pot laws. Bowser also faces potentially long-lasting political ramifications: Less than a year after standing up to Congress and implementing legalization, which many saw as a key victory for the young mayor, Bowser now risks losing control of city policy on a defining social issue of her term.
“The train is moving — it’s something that can’t be stopped,” said D.C. Council member Vincent B. Orange (D-At Large). “The people went through a lawful procedure to get this approved . . . so you have to give the people what they want.”
The battle in the District follows fights underway in Denver and Oregon about acceptable levels of public pot use, which has emerged as the next frontier for marijuana advocates in places where possession has been legalized. But in the nation’s capital, it comes with the added complication of further putting the liberal city at odds with its overseers in a Republican-controlled Congress, which has forbidden Bowser and the council from going further to enable its use.
On Saturday, council members were privately rounding up support for competing amendments to gut the mayor’s ban, potentially sending the city on a first-in-the-nation experiment toward regulating cannabis clubs. Another proposal circulating Saturday would reduce penalties for smoking pot in the city’s bars and restaurants, and a third would scrap the mayor’s authority altogether in hopes of forcing a confrontation with Congress over whether the city has the power to fully tax and regulate pot, as states do.
Orange, an ally of the mayor’s, said that on Tuesday, he will propose a plan to end her ban and have the city license one pot club in each of the District’s eight political wards. The amendment appeared to have the support of nearly half the council, which is in favor of some loosening of city law.
This week’s showdown is Round 2 for Bowser to maintain the ban. For a brief time this month, the council voted to let her rules expire. Bowser rushed in, and the council reconsidered but promised to revisit the issue within a month.
If Bowser’s opponents on the issue are successful, it would dramatically shift the delicate line the mayor has tried to walk on legalization since last February. Then, she said the city would move forward with the letter of the ballot measure, which allowed possession of up to two ounces, home cultivation and private use.
Orange’s plan would rewrite that, setting up a city task force to decide where, when and how eight businesses — and possibly more in the future — could convert to allowing pot consumption on their premises.
Orange and others say doing so would not only give advocates for social pot use outlets to gather and smoke, but also get some pot smoking out of homes, where it can still put poor residents in federal housing complexes at risk of eviction and expose children to secondhand smoke.
The plan would also give the city a way to test how strongly Congress will continue to oppose legalization.
In an attempt to prevent the District’s ballot measure from taking effect in 2014, House Republicans inserted language in a budget bill banning the city from spending any money to further loosen marijuana laws.
Bowser let it go forward, maintaining that the law was already written by passage at the ballot box and required no money to implement. But the text of the ballot measure did not prescribe a regulatory plan for taxation and sales, so the congressional ban made it off-limits for the District to do so.
Orange’s measure would allow for regulated businesses to allow pot smoking in areas reserved for those 21 and older.
His proposal would force the city to take a calculated risk that there is a buffer between what Congress clearly prohibited in loosing its drug laws and having the city regulate building codes and operating hours for establishments where a now-legal substance, under city law, can be used.
To do so, however, his measure would require a companion effort to change the city’s smoking laws, allowing an exemption for pot smoking at the eight cannabis clubs akin to those for the city’s handful of cigar bars.
Council member Brianne K. Nadeau (D-Ward 1) has been coordinating with Orange to introduce that.
She has been working with council lawyers to frame the bill as a tightening, rather than a relaxing, of city smoking laws, which might run afoul of the congressional ban. Her amendment would require increased ventilation and one-way entrances and exits for new indoor smoking facilities, among other changes.
“The irony is I don’t even smoke. For me, this is an autonomy issue,” she said. “The argument from the mayor is we don’t want the wild, wild West. But in the absence of nothing, we need something.”
Asked whether the mayor could support the plan for eight cannabis clubs, Bowser spokesman Michael Czin suggested that she could not. “Our concern has always been about national marijuana businesses setting up shop in neighborhoods like Trinidad, Woodley Park or Barracks Row. I don’t foresee how the council can address that issue.”
Bowser has the support of sometimes political foes Phil Mendelson (D), the D.C. Council chairman, and council member Kenyan R. McDuffie (D-Ward 5) in trying to stamp out allowing pot clubs. Mendelson said he thought the idea was premature, and McDuffie said he does not believe residents of his ward would want one.
Some council members who could be swing votes on Orange’s and Nadeau’s measures said they were still weighing which way to go, but one path for the authors to secure passage appeared to be limiting access to cannabis clubs to only those licensed to use medical marijuana.
Still, other council members are agitating for broader change. Some are pushing for the council to back a controversial tactic to do an end run on Congress and pass a law authorizing the sale and taxation of the plant. Under a theory advanced by attorneys who advocate for D.C. statehood, the District could use local surplus revenue not accounted for by Congress to pass such a law.
In a major shift, D.C. Attorney General Karl A. Racine said in an interview that he was preparing a memo for the council. Last year, he warned the council about even having a hearing to discuss the topic, but he said he now believes that until the District can regulate the safe sale of marijuana, “the current situation in the District is unnecessarily chaotic and raises a host of issues related to public safety, health and basic fairness.”
Council member Jack Evans (D-Ward 2) said he would introducean amendment Tuesday to repeal at least the part of the mayor’s ban that can lead to a business being permanently closed for a single instance of someone using pot.
Evans acknowledged that could open the door to more public use, but he said it was unfair to put business owners’ livelihoods at risk if someone lights up if and when the law is enforced.
Several D.C. bar owners said that over the past year, it has become common to have to ask patrons to stop smoking marijuana on patios or on rooftop bars, and that the public remains confused about what is permissible under District law.
Mike Benson, a part-owner of Café Saint-Ex and Bar Pilar, said the two 14th Street gathering spots in Northwest have tried to handle the pot ban this year the same way as the city’s smoking ban: They’ve told patrons wanting to light up to take it down the street.
Mark Lee, head of the D.C. Nightlife Hospitality Association, said that under the mayor’s law, bars and restaurants have unfairly become the primary enforcers of the city’s public ban on pot smoking. The threat of permanently closing “shifts the culpability for individuals violating the law from offender to business,” he said.
That could have been the case at Verizon Center the night of the Dead & Company concert in November.
Asked about the heavy use of marijuana during the concert, Kurt Kehl, a spokesman for Monumental Sports & Entertainment, which runs Verizon Center, said: “Were patrons violating our smoking policy? Yes. Were we attempting to enforce our policy? Yes.”
Some of those in violation, in fact, were in Bowser’s skybox. That night, the mayor had given her suite to advocates for marijuana legalization.
Asked whether the invitation to the group undercut the mayor’s argument for the ban, Czin said he “strongly disputes” that idea. Whether or not guests of the mayor smoked in her suite, “the mayor is serious about this bill.”