Recently the possession and use of cannabis recreationally was legalized in Colorado, and the state experienced a tremendous spike in tourism.
Many medical marijuana users have difficulty finding a place to smoke, because many hotels in Colorado have banned smoking altogether and specifically prohibit the consumption of cannabis on their property.
How is this possible if laws were passed legalizing cannabis?
The current law is that hotels are located on private premises, and they may make their own rules for people who wish to be on their premises, as long as these rules do not violate U.S. Constitutional prohibitions or discriminate against others because of age, race, color, religion, or disability.
Under Colorado’s Clean Indoor Air Act, cannabis smoking isn’t allowed anywhere that cigarette smoking is also banned and there’s no cigar-bar style exemption for blunts. This includes bars and restaurants.
Amendment 64, which is the law in Colorado that was passed allowing the sale, use and possession of cannabis for recreational as well as medical marijuana purposes, also has a provision that allows private property owners (including hotels) to prohibit the use of cannabis on their premises.
A hotel’s rules and regulations cannot violate U.S. Constitutional prohibitions against discrimination for age, race, color, religion, or disability.
Wouldn’t prohibiting medical marijuana patients from consuming cannabis as it relates to their illness or medical affliction be a violation of the ADA—Americans with Disabilities Act?
The current answer to that question is not very clear, but cannabis legislation is rapidly changing nationwide.
According to the ADA—which is a federal, not a state statute—a person currently using illegal drugs is not a “qualified individual with a disability” and thus is not protected by the ADA.
Therefore under federal law, despite state legalization in Colorado and other states, cannabis remains an illegal drug and technically disqualifies users protection under the ADA.
But what about when doctors prescribe medical marijuana to patients? This creates an unusual issue.
Under the ADA, illegal drug use does NOT include use of drugs “taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provision of Federal law.”
This suggests that if a doctor prescribes cannabis to a patient, it would then be excluded from the definition of illegal drug use under the ADA.
Another federal legislative provision, the Federal Civil Rights Act of 1964, prohibits discrimination by privately owned places of public accommodation on the basis of race, color, religion or national origin.
Places of “public accommodation” include hotels, restaurants, theatres, banks, health clubs and stores. In conjunction with the ADA, the right of public accommodation is also guaranteed to disabled citizens, which prohibits discrimination by private businesses based on disability.
This is a potential legal issue that could be raised in litigation, as would be the issue of religion.
It is well known that some religions use cannabis as a part of their spiritual ceremonies.
So, pursuant to the Federal Civil Rights Act of 1964, if part of your religion includes the use/possession/consumption of cannabis, can a hotel prohibit you from exercising that religious right in the privacy of your own hotel room?
This is another area of law that could be explored and/or challenged.
If the hotel lobby was presented with the proposition that an anti-discrimination lawsuit would be filed, perhaps a Class Action in which millions of dollars in damages could be at stake, would the hotel lobby shoulder the defense cost for such litigation and risk an adverse judgment, or would the hotel lobby offer some type of settlement in which the rights of medical marijuana patients to consume their medication on-premises would be recognized?
We won’t know until we try. ORGANIZE. Then LEGALIZE.
Until the social stigma against cannabis disappears—and until the world realizes there are people who consume cannabis and medical marijuana because it improves their quality of life—we need to stand up and protect the rights of others to legally consume cannabis in the privacy of their own hotel room if necessary, where it does not infringe upon the rights of others.
1. ORGANIZE. Then LEGALIZE.
Organization is critical in the effective formulation and execution of any business plan.
Who are the key players involved in seeking and obtaining change, and how are we going to accomplish these goals?
Are there groups or individuals already engaged in pursuing this endeavor that we can join or network with?
Are there costs involved that need to be raised?
2. Communicate—NOT Litigate. Communication is the key
Lawsuits should be a last resort, but sometimes are necessary to force modifications when people or industries refuse to budge.
A dialogue needs to be established between the hotel industry and proponents of change for legal consumers of cannabis. And it looks like that may already have started.
Even though we may disagree, respectful communications need to be established because the hotel industry needs to understand our position regarding change—and why it’s the right thing to do.
A cordial relationship with the hotel industry allows us to advocate our position in a calm and respectful manner, because what we are eventually seeking is understanding.
We also need to fully understand the hotel industry’s views and where they are coming from, so we can address those concerns and try to change their minds or reach some sort of compromise.
Are the hotels concerned about some type of infringement upon non-smoking guests, such as a permeating smell in the common areas of the hotel, or an added cost for cleaning? If so, how can we address these concerns in a way that will get us closer to common ground?
3. Talk to Municipal Officials
Different municipalities have different local rules and ordinances that apply to cannabis-related businesses.
It’s going to take time and effort, but it’s necessary that we meet and educate every municipal official about the rights of patients who are legitimately prescribed cannabis for medicinal purposes.
We must slowly change their mentality and perception about this—direct, respectful communication is the first step in fostering change.
It’s time for the hotel industry in Colorado and elsewhere to remove prohibitions for the legal consumption of cannabis.
If we are successful in advocating our position to local officials, the next step would be to ask for a municipal ordinance requiring all hotels within that city to allow that a certain percentage of their rooms—or a certain floor—be designated for the purpose of the consumption of cannabis.
4. Talk to State Legislators and/or Get it on the Ballot!
Just like Colorado was able to get the legalization of recreational use of cannabis on the ballot with Amendment 64, proponents of change also need to get this amendment modified to provide an exception for medical marijuana patients who stay in hotels.
Again, we need to lobby and talk to our state legislators—convince them of our position and why it is the right thing to do—and if we can’t convince our legislators that Amendment 64 needs to be modified, we need to get it on the ballot so the voters can decide!
5. Talk to Federal Legislators about the ADA
The ADA needs to be amended to specifically include persons who are prescribed cannabis by a doctor as “qualified individuals with a disability” that are protected by the ADA.
The only way that we will be able to get the ADA changed is through diligent and persistent lobbying and communication with our federal legislators in an effort to convince them that this change is the right thing to do.
If we are fortunate, we may be able to testify at senate hearings regarding this issue. It’s not going to be easy, but it’s an effort that we need to undertake immediately.
Obviously, litigation needs to be used at times in an effort to compel change. The hotel industry needs to understand that if they do not agree to a reasonable accommodation for those who consume cannabis on their premises for medicinal purposes, litigation will be necessary in order to seek a judicial determination that these accommodations are required under the U.S. Constitution and other federal/state laws.
Cannabis is being used for many legitimate reasons—from controlling epileptic seizures to PTSD to chronic pain relief.
More Americans over the age of fifty are admitting to cannabis use today than ever before, not because they “want to get high”—they just want to improve the quality of their life.
It’s time for the hotel industry in Colorado and elsewhere to show compassion by removing prohibitions for the legal consumption of cannabis in the privacy of their own rooms.