BOULDER — Two Boulder marijuana businesses stand accused of violating the city’s ban on pot advertising because they had booths at Out Boulder’s Pridefest celebration last month.
The stores didn’t distribute marijuana at the booths, but they did feature large signs featuring the names of the businesses, The Farm and Terrapin Care Station.
Boulder City Attorney Tom Carr said the large signs go well beyond the “purely incidental” advertising related to sponsorship that is allowed in city code. Incidental isn’t defined in the code.
Some City Council members say they never intended the ban on advertising to apply to something like a booth at a festival, and they want the city to treat pot businesses like other corporate sponsors of charitable events.
Chris Woods, owner of Terrapin Care Station, said he is “outraged” and is consulting with an attorney about a lawsuit against the city for violating his free speech rights, regardless of the outcome of the violation.
“You can come after marijuana businesses, but when you come after people’s ability to speak freely and partner with an organization we support, that’s not OK,” he said. “In a liberal city like Boulder, I don’t think that should be tolerated. What is the problem with my business having a booth and a banner showing my support for the gay community?”
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Representatives of the The Farm couldn’t be reached Wednesday, but Boulder attorney Jeff Gard, who represents both businesses, said the notices of violation are typical of a very strict approach to marijuana regulation that is out of step with the community’s values.
“This is about not normalizing pot,” Gard said. “That has been the (Boulder County) Department of Public Health’s belief, and it is shared by Tom Carr and (Senior Assistant City Attorney) Kathy Haddock. They have made it very clear.”
The alleged violations have been referred to Licensing Clerk Mishawn Cook, who is out of the office, to determine the penalty. There is no schedule of penalties in the city’s marijuana code, and Cook has broad discretion to levy fines or suspend or revoke a license.
Both businesses have other pending cases, with The Farm accused of selling to minors and Terrapin accused of changing their operations without getting approval from the city.
Haddock said other marijuana businesses have called and asked if they could have booths at festivals, including Fresh Baked, which asked specifically about Pridefest and didn’t do a booth. Terrapin and The Farm did not seek out an interpretation before setting up their booths.
“We’ve consistently said no,” Haddock said.
Woods said he’s had booths at other festivals in Boulder without any problems, and it didn’t occur to him it wasn’t allowed.
The City Attorney’s Office interprets “purely incidental” to mean that a marijuana business’ name can appear alongside other sponsors of an event, but anything more than that isn’t allowed.
Haddock said a member of the community sent pictures of the booths to enforcement officials, and Beverly Bookout, the city’s marijuana enforcement officer conducted an investigation.
Haddock said the restrictions are based on concerns about advertising to children, which Boulder County Public Health officials have consistently raised with the city.
“While marijuana is legalized now, is it something you want to be putting in people’s faces as far as advertising goes, especially in places where children are?” she said.
State law doesn’t allow marijuana businesses to advertise at events where more than 30 percent of those participating could be expected to be children. Out Boulder provided a letter to Terrapin Care Station and The Farm that Pridefest met the criteria, though there was a family section of the festival.
The booths were located along the festival’s main drag on 13th Street. Hazel’s Beverage World, a liquor store, also had a similar booth.
Alcohol businesses are allowed to engage in sponsorship of events and have booths as long as there is no alcohol on site without a permit.
At a City Council meeting earlier this week, members Lisa Morzel and Macon Cowles questioned the interpretation by the City Attorney’s Office, and Cowles proposed an amendment to an ordinance updating several aspects of the marijuana code that would explicitly allow advertising associated with sponsorship of charitable events.
He said marijuana businesses were stepping up to support cultural institutions and community groups in ways other businesses have not. Boulder consistently ranks near the bottom of the state in charitable giving.
Carr said it was inappropriate for council members to be interfering in an ongoing enforcement case and attempting to change the ordinance in the middle of a case.
Carr said the city isn’t stopping marijuana businesses from giving to charity, just from displaying large, stand-alone signs at public events where children might see them.
The council may consider the advertising issue at a Nov. 10 third reading of the marijuana ordinance, but many council members said the issue was complicated and they prefer to get feedback from a working group with to be convened next year to look at further changes to pot rules. Representatives of the industry want the city to remove many rules that are unique to Boulder and come in line with state regulations. Deferring to the working group would place the issue of marijuana advertising in the hands of the next council.
Boulder County Public Health officials said decades of research on tobacco use among youth shows that more exposure to advertising correlates with higher rates of use, and emerging research shows similar trends in marijuana.
“Without looking at a specific proposal, we can’t say what we would or wouldn’t support,” said Andrea Poniers, community health division manager. “But we are in uncharted territory right now. We’re in a data collection period and we don’t know what the impacts might be.”
Mardi Moore, executive director of Out Boulder, said this year’s Pridefest was the largest ever in large thanks to the support of cannabis industry sponsors who provided 36 percent of the budget for the event. With that extra money, Pridefest was able to bring in Hey, Lady!, a B-52s cover band, and pay for additional fencing for a beer garden and more and better portable toilets with hand-washing stations.
Moore said Out Boulder has always been careful to work with marijuana businesses to follow the law. In previous years, before the city eased restrictions on merchandising, their logos couldn’t even appear on the event T-shirt.
“We didn’t even think about (the booth),” she said. “They were provided with the same level of acknowledgment as other sponsors who gave at that level.”
Both businesses gave $2,500. All sponsors who give $500 or more are entitled to a booth. Moore said she knew that Fresh Baked didn’t ask for a booth, but she couldn’t remember why.
Moore said there is a lot of affinity between the LGBT community and the marijuana industry, as both have been stigmatized and forced to be in the shadows. No one raised any complaint with her, and she was bothered that the standard might be whether anyone with children might be bothered by the advertising.
“Someone might have a problem with the liquor store, and they were there,” she said. “Someone might have a problem with the sex toy store that was there. Some people might have had problems with kids being there.
“These are legitimate businesses,” she added. “Don’t let the children know? Schools are being built with marijuana tax money.”
Moore said she feels like she can’t ask for sponsorship from pot businesses until this issue is resolved.
Woods said marijuana businesses are part of the community and seeing their signs gives parents an opportunity to talk to their children about responsible use and waiting until they are older, just as they do with alcohol.
Woods said Terrapin has given $50,000 over the last year to community events, including the Boulder International Fringe Festival and Bike to Work Day. He has pledged $100,000 to eTown for 2016.
“My business does not need this marketing exposure,” he said. “This is a celebration of social equality, and we just wanted to support that.”