After marijuana became legal in Vermont on July 1, Chris and Christine Antoniello, the owners of Harmony Underground, a smoke shop in Brattleboro, had an idea.
In a separate storefront adjacent to their shop, they opened a private club where members who paid a daily, monthly or annual fee, could use the space to enjoy the newly legal substance.
After opening in August, the club hosted events, like “Kara-smokey” singalong nights or “Toke and Joke” stand-up comedy. They planned a Sunday brunch — they’d supply the space and the pancakes. Members could bring infused toppings.
But the club is no more. After an investigator with the Division of Liquor Control — the agency that oversees Harmony Underground’s tobacco license — came in asking questions late last month, the Antoniellos shut down the space. It will soon be converted into a retail arm of the store.
Chris Antoniello says the way Vermont’s marijuana statute is written leaves gray area where it is not clear what exactly is legal. On the question of private consumption clubs, state law enforcement officials agree ambiguity exists. Many are hoping lawmakers will clear up the questions when they reconvene next session.
“We’ve only been able to guesstimate and make assumptions on what is presently there in the law,” Chris Antoniello said. “And we have had to self-regulate the best we can while they’re not regulating what we’re trying to do.”
The Antoniellos were cautious about setting up a private club. In July, in an interview with VTDigger, Chris Antoniello said the goal was to “bring like-minded people together,” but he was vague about many of the details.
Understanding that state law bars consumption of marijuana in public, the Antoniellos sought to create a distinctly private club. In the space, they hosted special events. It also became a hangout for people who could not consume marijuana in their residences for whatever reason, Antoniello said.
They charged fees for membership: $10 for one event, $35 for a month, and $300 for the year. They say that they were not involved in selling or providing marijuana or soliciting sales in any way.
“Our understanding (was) it would make it legal if it was a private event hall because it was private,” Christine said.
The Antoniellos say they haven’t had any inquiries from police about the club.
However, when a DLC investigator began asking questions about their activities in late November, the Antoniellos decided to accelerate a plan they had already been forming to shutter the club and convert the space in to a retail branch of the store.
“We decided we had to do what is safest and best for our family and our business,” Chris Antoniello said.
Brattleboro town officials say they have not had any complaints about activity at the Harmony Underground space. Town Manager Peter Elwell confirmed that the business owners went through the zoning process to have an event space, and said they are in good standing from a regulatory perspective.
“We have not had any allegations of illegal activity in the space or had any incidents where police have had to intervene at the space,” Elwell said.
However, he said, there are some concerns about what was going on there.
“We have some concern about the potential for there to be activity in the space that might push the boundaries or exceed the boundaries of the new state law,” Elwell said.
Brattleboro Police Chief Michael Fitzgerald confirmed Tuesday that local law enforcement hasn’t received any complaints regarding Harmony Underground. He was not aware of private marijuana consumption club activity in Brattleboro.
However, Fitzgerald said, when it comes to private consumption clubs, he sees some confusions — particularly around the question of what constitutes a public space versus a private space.
“There is a lack of clarity, and we’re hoping that in the upcoming session legislators get together and work on that,” Fitzgerald said.
If he was aware of a private club, he said, the police department would likely investigate it, “just simply to see where it fell and to bring it to the Legislature’s attention,” he said.
Meanwhile, an unexpected side effect of marijuana legalization is that the Division of Liquor Control has been confronted with more cannabis-related inquiries, according to Skyler Genest, director of compliance and enforcement in the Department of Liquor and Lottery.
Though DLC is not responsible for marijuana enforcement, there are “interesting nexuses” between tobacco and cannabis that mean that questions about the new legalization law are falling within their regulatory purview, he said.
That’s because in order to sell paraphernalia often used for consuming marijuana, such as bongs or pipes, shops need a tobacco license.
“Realistically how the culture has progressed post-legalization in the state, we frequently get questions from the public about establishments that are kind of on the cusp” of a regulated model, Genest said.
According to Genest, since legalization took effect, the agency has started multiple investigations into reports that licensees around the state are growing marijuana, selling it or “gifting” it — a practice in which customers pay an inflated amount for an item or service and receive a “gift” of marijuana. The attorney general’s office has advised gifting is illegal under current law.
Under the DLC’s regulatory framework, licensees can face sanctions if they allow illegal activity to happen on their premises. So selling or gifting marijuana — both illegal under current Vermont law — in a store that holds a tobacco license opens the business up for enforcement action from the five-member Liquor and Lottery Board.
If retailers are found to be growing, selling or gifting marijuana, they could face fines, or have their license suspended or revoked. DLC officers can, and sometimes do, move forward with criminal drug cases. The department might also work with partners in local law enforcement or the Vermont State Police if a case merits it.
No reports of marijuana-related license violations have been substantiated so far, but there are currently three open investigations. Genest confirmed that one of the open investigations involves Harmony Underground. The case was brought to DLC by “external information,” but he refused to comment further because it could “compromise” an active investigation.
As to whether license holders can allow consumption of marijuana on their property, Genest said retailers that hold licenses clearly would be considered public spaces under Vermont law, and the marijuana policy bars consumption in public.
“Certainly our licensees fit the definition of a place of public accommodation and therefore the consumption of cannabis would be prohibited by Title 18 there,” he said.
However, when it comes to whether consumption would be allowed in a private club, Genest referred comment to the attorney general’s office — but that office offered little insight on the issue.
“Ultimately I think our takeaway is, it’s really unclear and we really would like the Legislature to act to clarify that,” Assistant Attorney General Dave Scherr said Monday.
Scherr said the office does not have any particular policy recommendations at this point, but noted that the Governor’s Marijuana Advisory Committee, of which Scherr is a member, is compiling a report that could provide a “road map” on marijuana policy going forward.
Scherr is not aware of any inquiries to the attorney general’s office about the legality of private clubs.
Under the current law, he said the legality of clubs likely hinges on a few key factors, such as what type of activity is going on in the space and whether the entity truly meets the standard for a private club.
There is some case law in Vermont about what constitutes a private club, he said, though none on the particular question of marijuana consumption.
Sen. Dick Sears, D-Bennington, chair of the Senate Judiciary Committee and a proponent of a system that taxes and regulates marijuana sales, said Monday that while lawmakers had sought to address the issue of gifting, he does not recall considering the issue of private consumption clubs.
“I don’t think it’s something we’ve contemplated,” he said.
Sears said the question of clubs could be addressed as part of a regulated system.
“Once you tax and regulate you can deal with these things in a more rational manner, I think,” he said.
Timothy Fair, an attorney with Vermont Cannabis Solutions, said by his reading of the current law, consumption within a private members’ club should be allowed — though, he cautioned, that is just his interpretation. There is a dearth of statutory guidance or case law on the subject, so it is not clear where the law comes down, he said.
Fair said similar questions about public versus private space arise with vacation rentals, like Airbnb, which are sometimes marketed as “420-friendly” to indicate the host is OK with cannabis use in the home.
At this point, though, Fair said he is advising clients not to push the boundaries. He regards current marijuana policy as a temporary stage, and expects a tax-and-regulate system is on the horizon.
“Our advice is follow the state’s guidelines,” he said. “If you’re doing this, if you’re contacted by the state, is it really worth it to be the test case and fight this out now? Our opinion is no.”
For now, the Antoniellos have ceased operating the club. Chris Antoniello said the space will soon be stocked with items to sell. They’re processing refunds for members who had paid through the month of December.
He is frustrated by what he sees as a lack of guidelines about what is and is not legal. According to Antoniello, he was told by the state that the only places is it legal to consume marijuana is in a private home or a parked car.
He said they are not the only people in Vermont to test the waters around private marijuana clubs. He is hopeful that the law will change soon so they can get more clarity around what is permitted.
“For my entire life, I’ve hidden while smoking weed and I’ve never really had too much fear of getting in trouble for it,” he said. “But now that they’ve made it legal, I’m more afraid of getting in trouble for smoking weed in the state of Vermont than I ever was.”
Read the story on VTDigger here: Under pot legalization, private smoking clubs a hazy area.