Why private marijuana clubs are likely in Seattle's future

Owners of the medical marijuana collective Have a Heart, which has three storefronts in Seattle, recently opened what might become the model for future private marijuana clubs for recreational use in Seattle.

Have a Heart’s storefront in the University District has a café where medical marijuana patients can consume cannabis – indoors, in a comfortable groovy atmosphere.

Co-owner Ryan Kunkel opened the café because, he said, he’d heard too many stories of how some of the medical marijuana patients from out of town were smoking marijuana in their cars, out on the street or in parks.

“You had your average suburban housewives who need to medicate, so they were doing it in their minivans,” he said. “After I heard more stories like that, I thought, ‘This is crazy.’ We needed to make a place for them to use it.”

So, Kunkel and co. decided to open a cafe-style club for medical marijuana members of its cooperative. You can get a variety of espresso and also “dabs” in the dab bar, those would be hash oil concentrates inhaled from a vaporizing device.

“Patients can go upstairs, take their dab and come down here to hang out,” Kunkel said, sitting on one of the half-dozen comfy couches in the café area, where vaporizing is also allowed.

Kunkel et al. believe they are solidly within a grey zone of the legal system because they only allow vaporizing inside, thus circumventing the state laws against smoking indoors.

And, only members of the collective can get in to use the space, so it is technically a private club … they believe.

When recreational pot is available, where will it be used?

Seattle is looking for some remedy to keep tourists and apartment dwellers from taking their chances on the civil violation front and clouding up the city streets and parks with marijuana smoke.

Entrepreneurs like Kunkel are likely to test the boundaries of the law to open private clubs for recreational use. And, it seems the city of Seattle will be open to that sort of thing.

In a letter of recommendation to the Liquor Control Board, Seattle City Attorney Pete Holmes wrote,

“For renters and tourists, allowing marijuana use in certain types of establishments other than private residents may be the only mechanism to enjoy marijuana. This is both a race and social justice and an economic development issue. Renters and tourists should not be forced to use marijuana in parks or on sidewalks. We recommend that the Board study private use clubs or similar accommodations and propose appropriate rules governing their establishment and regulation.”

He also complained to the board that “It is not clear whether this limits marijuana use only to private residences or also, allows it in establishments that may be private and not ‘in view of the general public’ because the phrase ‘in view of the general public’ is not defined in I-502.”

However, the board isn’t going to take up the issue, said board spokesman Mikhail Carpenter.

The board is taking action to stop bars or any place with a liquor license from allowing the use of marijuana on the premises. But since licensing private clubs for consuming marijuana is not covered in I-502, the board isn’t going to make any rules about it.

So, it’s up to local jurisdictions and potentially the state legislature to either make rules governing private marijuana club specifically or simply allow them to grow in that grey zone.

Does I-502 allow private clubs?

Alison Holcomb, an ACLU attorney and lead architect of the initiative legalizing marijuana, said there isn’t a rule against using marijuana in a private club. And, she said, a private club setting may not be in “public view,” which would be a violation.

However, there are questions around what constitutes a “private club.”

“The trick is to be very clear about what a private club is,” she said. “We don’t have a great deal of case law around that issue.”

If a tourist with marijuana walks up to a door somewhere, fills out an “application” to become a member of the “club” and makes a $10 “annual” donation would that constitute a private club? Would the tourist then be using marijuana outside of the “public view”?

“I don’t know that we have a real good answer,” Holcomn said. “I don’t think that there’s any magical formula for that. I imagine we’re going to find out. I think some people are going to see.”

And, while a store licensed by the state under I-502 can’t sell anything other than marijuana nor allow cannabis use on the premises, a “private club” for marijuana use could sell other things such as coffee.

Is vaporizing “smoking”?

Adding to the complexity are the state’s indoor smoking laws.

If someone wanted to combust marijuana and inhale the smoke, the Washington Supreme Court ruled in 2008 that smoking anything in a private club is illegal if that club has employees of any kind.

So, it looks like smoking is going to be out for the most part, although entrepreneurs have already been testing those limits.

At Seattle’s first open-to-the-pubic marijuana party celebrating the pot holiday on April 20th, organizers of the party put up a tent outside of the main venue and allowed pot smoking there.

For the most part, however, the smoking ban leaves vaporizing – or heating up the cannabis bud or concentrate to the point that THC and other active chemicals turn into vapor without actual combustion.

“Yes,” admitted Jim Church, communications director for the state’s department of health, “vaporizing is a bit of a grey area because you are not burning a substance being smoked.”

However, Church pointed out, while the health department is charged with establishing the smoking rules, enforcement of those rules happens on the local level. And, this grey area of vaporizing will have to be dealt with by local officials.

“Local health departments and local law enforcement have to decide,” he said. “I’ve seen it go both ways. Some have said no (to using vaporizers indoors) and others have allowed it to occur.”

Okay, what will the law in Seattle do?

John Schochet, the deputy chief of staff in the Seattle City Attorney’s Office, said enforcing the rules for marijuana use can be unclear on the local level.

“There aren’t easy answers to these questions,” he said. “I think that the old system where marijuana laws were lightly enforced but they were on paper quite strict was not an ideal system. And, the fact that the people voted for I-502 indicated that they wanted to do something differently.”

He added that one key issue to keep in mind as these grey areas get explored is that the violations we’re talking about are all civil violations now and not criminal violations.

“You can’t go to jail for jaywalking or not wearing a bicycle helmet, but for years before 502, if a prosecutor wanted to get tough on marijuana – and this was true in other jurisdictions – you could be charged for the crime … You could go to jail.”

So there’s that.

Otherwise, he said, enforcing these civil rules with fines of around $100 will be up to the cops on the street, just like tickets for jaywalking or smoking (pot) where you shouldn’t.

And, each city will have to decide if it will attempt to stop the likely proliferation of private marijuana clubs.