Speaker – Panel discussion,  “Doses and Mimosas: Addressing Drug Use at Music Festivals” 

I cannot give you legal advice as I am not your attorney. However, this summary of the “RAVE” Act is presented as a legal resource for any owner, promoter or other industry professional who is considering implementing “harm reduction” measures at his or her festival.

It is my hope that this legal overview will help in any discussion you may need to have with your insurer or lawyer as to what is and is not prohibited under the law.

• Section 856 of Title 21 US Code – The original “crack-house statute” passed in 1986. Used in early 2000s against “underground raves.” 

In 1986 the Federal Government added section 856 of Title 21, to the U.S. Code. – The statute is commonly referred to as the, “crack house statute,”

Legally speaking, the “crack-house statute” is what is called a “vicarious liability” statute.  In other words the statute made it possible for the Feds to go after and prosecute landlords of any private residence where crack cocaine was being used, manufactured or sold by the tenants.

The original language of the “crack-house law” made it illegal to:

(1) Knowingly open or maintain any place for the purpose of manufacturing, distributing, or using any controlled substance;

(2) Manage or control any building, room, or enclosure, either as an owner, lessee, agent, employee, or mortgagee, and knowingly and intentionally rent, lease, or make available for use, with or without compensation, the building, room, or enclosure for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance.

• Rave prosecutions involving the “crack-house statute.”

The late 1990s and early 2000s saw a virtual media frenzy about the problem of Ecstasy use, especially at “underground raves.”   Law enforcement began to target US rave promoters and venue owners using the “crack-house statute.”

For example, police raided Club La Vela, home to MTV’s Spring Break in Panama City Beach, Florida, in April 2000.  (See Mike Clements, Police Shut Down Party of Thousands, NEWS HERALD (Panama City Beach, Fla.), April 29, 2000, http://www.newsherald.com ) The owners of Club La Vela ultimately were acquitted.

In August, 2000, the DEA raided the State Palace Theater in New Orleans. See McClure v. Ashcroft, 335 F.3d 404, 406 (5th Cir. 2003). This was the so called “Disco Donnie” prosecution.

Charges against the owner and promoter of the State Palace Theater were dropped, but the government also brought suit against the company managing the State Palace Theater, Barbeque of New Orleans, Inc. (Barbeque), for conspiracy to violate 21 U.S.C. § 856(a)(2).133

This case was settled by a plea agreement that required Barbeque, the Brunets,and other associated businesses to take a number of measures to restrict the admission, use, or sale of items regarded as “drug paraphernalia.”  Included among these items were “pacifier[s], objects that glow . . . vapor rub products . . . [and] masks of any description.” In addition to this, the parties to the plea agreement may not provide “masseurs, massage tables, or ‘chill rooms’ (i.e. kept 15 degrees cooler than the rest of the building),”  McClure, 335 F.3d at 406–07.

• RAVE Act – Introduced in 2002. Ultimately passed in a modified form as The “Illicit Drug Anti-Proliferation Act”  (IDAPA) in 2003  

In 2002, then Senator Joe Biden introduced the, “Reducing Americans’ Vulnerability To Ecstasy “ (RAVE) Act in the Senate, a bill intended to expand the federal “crack-house statute.”

Law enforcement argued that the “crack-house” statute needed to be expanded to go after “rogue promoters”.  The RAVE Act was intended to go after “illegal” or “underground” raves with rampant drug use.

There was strong opposition to the bill in its original form and it was rejected. Ultimately some portions of the bill were struck out and it was passed as a rider to the “Amber Law” legislation.

The new statute was renamed the “Illicit Drug anti-Proliferation Act” (IDAPA) and passed in 2003. However it is still most commonly referred to by its earlier name, the RAVE Act.

The IDAPA  expanded the “crack-house” statute in the following technical ways:

• Summary of the  changes made by  The Illicit Drug Anti-Proliferation Act (IDAPA) in 2003  

2003—Pub. L. 108–21, §608(b)(2), substituted “Maintaining drug-involved premises” for “Establishment of manufacturing operations” in section catchline.

Subsec. (a)(1). Pub. L. 108–21, §608(b)(1)(A), substituted “open, lease, rent, use, or maintain any place, whether permanently or temporarily,” for “open or maintain any place”.

Subsec. (a)(2). Pub. L. 108–21, §608(b)(1)(B), added par. (2) and struck out former par. (2) which read as follows: “manage or control any building, room, or enclosure, either as an owner, lessee, agent, employee, or mortgagee, and knowingly and intentionally rent, lease, or make available for use, with or without compensation, the building, room, or enclosure for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance.”

Subsecs. (d), (e). Pub. L. 108–21, §608(c), added subsecs. (d) and (e).

2000—Subsec. (c). Pub. L. 106–310 added subsec. (c).

The RAVE Act essentially created a new crime, now making it illegal for promoters or landlords to “maintain a drug-involved place”    It did this by making three major alterations to the original “crack-house” statute.

First, the RAVE Act changed the  statute  to include those who “open, lease, rent, use, or maintain any place, whether permanently or temporarily  for the purpose of manufacturing, distributing or using any controlled substance”

The purpose of adding the “permanently or temporarily” language was to expand the law to apply not just to ongoing drug distribution operations, but to “single-event activities”

Secondly, the RAVE Act statute deleted the words “building, room or enclosure” and substituted the word “place.”   Again the intent was to expand the law from traditional structures to broader locations.

The third change to the crack house law was to add a new section creating civil penalties for violations of either of the above sections.

This change meant that owners and promoters could now be found guilty of violations by a preponderance of the evidence standard instead of beyond a reasonable doubt, and could now be sued in civil court. The law also added substantial fines: civil liabilities can be up to the greater of $250,000 or two times the gross receipts from the offender’s violation

RAVE ACT DEFINED –  CRIMINAL JURY INSTRUCTIONS OF THE SEVENTH CIRCUIT (2012 Ed.)

21 U.S.C. § 856(a)(1)   Maintaining drug-involved premises – elements

[The indictment charges defendant with maintaining a drug-involved premise. In order for you to find the defendant guilty of this charge, the government must prove both of the following elements beyond a reasonable doubt:

1.    The defendant knowingly [opened; leased; rented; used;  maintained] a place; and
2.    The defendant did so for the purpose of [manufacturing; distributing; using] a controlled substance. The government is not required to prove that was the defendant’s sole purpose.

If you find from your consideration of all the evidence that the government has proved each of these elements beyond a reasonable doubt [as to the charge you are considering], then you should find the defendant guilty [of that charge].

If, on the other hand, you find from your consideration of all the evidence that the government has failed to prove any one of these elements beyond a reasonable doubt [as to the charge you are considering], then you should find the defendant not guilty [of that charge].

ARE LEGITIMATE OWNERS AND PROMOTERS AT RISK UNDER THE RAVE ACT ?

It is a crime to maintain a drug involved premise  under 21 U.S.C. S856.  But does this statute apply to legitimate owners and promoters who seek to introduce so called “harm reduction” measures?

The elements that the government must prove beyond a reasonable doubt in order to convict a defendant of this offense are as follows:

“Knowingly”  – The defendant acted knowingly and intentionally. To satisfy this element, it must be proven that drug activity was occurring, the defendant knew about it, and the defendant allowed it to persist. “Intentionally” means deliberately, and “knowingly” means that there was no accident or mistake.

“Maintaining” – means exercising significant control over the people who are in the place over a period of time or over the activities of the place.

“ Place” –  The word “place” as used in this statute has its ordinary meaning. Generally, it only applies to real property, but in one case a court accepted a guilty plea from an individual who made his car available for drug storage.

“For the purpose of using a controlled substance” This is where things get super tricky.  The statute talks about people who knowingly maintained a place for the purpose of using a controlled substance.

The question is whose purpose are we talking about?  Is it the “purpose” of the patrons who have come to a location and are using drugs?  Or is the “purpose” of the owners and promoters maintaining the place. Clearly, these persons may be aware of incidental drug use at their event but certainly don’t have any purpose to manufacture, distribute or use drugs.

Unfortunately, the  cases interpreting this part of the law are ambiguous and contradictory

Some federal courts considering this issue have required that the illegal purpose be “a significant purpose” or “one of the primary or principal uses” of the premises. See United States v. Russell, 595 F.3d 633, 643 (6th Cir. 2010); United State v. Soto-Silva, 129 F.3d 340, 346 n.4 (5th Cir. 1997); United States v. Verners, 53 F.3d 291, 296 (10th Cir. 1995).

The legal question is whether the “purpose” of the “place” was primarily to  use drugs or is using drugs just an  “incidental or collateral use.  Courts assess the primary or principal use of the place by  comparing the frequency of lawful to unlawful use as well as efforts  by the owner to stop the illegal activity.

Others courts have rejected a “primary use” standard.

And finally some courts have decided rather unhelpfully that the statutory phrase “for the purpose” requires no further elaboration. See United States v. Payton, 636 F.3d 1027, 1042 (8th Cir. 2011).    For example in United States v. Church, 970 F.2d 401, 405–06 (7th Cir. 1992), a case under § 856(a)(1), the Seventh Circuit held that the meaning of the phrase  “for the purpose lies within the common understanding of jurors and needs no further elaboration.”  Id. at 406 n.

IS THERE A LEGAL “SAFE HARBOR” FROM PROSECUTION FOR LEGITIMATE OWNERS AND PROMOTERS UNDER THE RAVE ACT? 

In 2003, amid hearings to confirm Karen Tandy as administrator of the Drug Enforcement Administration, Biden discussed 21 U.S.C. § 856 made it clear that he did not in any way think a legitimate owner  or promoter could ever be prosecuted under the RAVE Act.

As explained by the Federal courts, then, section 856 means what it says–the law only applies to defendants who have actual knowledge that their property will be used for drug use and who intend that very outcome. As a result, section 856 could never be used–as some critics have irresponsibly suggested–against the promoters of a rock concert whose patrons include some who are suspected of doing drugs during live music performances…..

Throughout Congressional Hearings on this topic, then Senator Biden insisted the intent of the Act  was solely to go after “rogue promoters” who were actively promoting drugs at their events or basically doing nothing  to stop drugs from being used.  It was never to go after legitimate promoters, owners and business people.

I know that there will always be certain people who will bring drugs into musical or other events and use them and use them without the knowledge or permission of the promoter or club owner. This is not the type of activity that my bill addresses. The purpose of my legislation is not to prosecute legitimate law-abiding managers of stadiums, arenas, performing arts centers, licensed beverage facilities and other venues because of incidental drug use at their events. In fact, when crafting this legislation, I took steps to ensure that it did not capture such cases. My bill would help in the prosecution of rogue promoters who intentionally hold the event for the purpose of illegal drug use or distribution. That is quite a high bar.

Senator Joe Biden, Congressional Record Volume 149, Number 116, 31 Jul. 2003.

Given this background, it’s clear that the intent of the Act was NEVER to discourage legitimate owners and promoters from offering drug education and other public safety and health measures at their events. Unfortunately, due to some vagueness in the language of the Act, that is exactly what has happened.

UNINTENDED CONSEQUENCES OF THE RAVE ACT 

Unfortunately, when the Rave Act was first passed, some members of law enforcement misunderstood the intent of the Act and prosecuted legitimate event promoters and owners based on the drug use of some of the attendees of these events.

In fact, in a few rare instances some Federal Prosecutors even suggested that implementing so called “harm reduction” measures (such as supplying free water or having “chill out” rooms where people can rest to avoid the dangers of heatstroke) showed that the “purpose” of the premises was to use drugs.  Almost immediately, Senator Biden expressed his concern to the DEA that his law was being misapplied.

In response, the DEA issued a  June 2003 memo clarifying that the intent of the Act was only to go after  owners and promoters who were personally involved in promoting illicit drug activity at  their events. In other words, the RAVE Act was never intended to prosecute legitimate owners and promoters of music events because of incidental drug use at their events.

The June 2003 DEA  supplemental memo states the following:

Property owners not personally involved in illicit drug activity would not be violating the Act unless they knowingly  and intentionally permitted on their property an event  primarily for the purpose of drug use. Legitimate property      owners and event promoters would not be violating the Act simply based upon or just because of illegal patron behavior.

Unfortunately, this June 2003 DEA memo clarifying some of the vague parts of the law was never formally passed into law.  As a result, it remains largely unknown to today’s owners and promoters.

Worse, the vagueness of the Rave Act (and some of the early erroneous threats of prosecution for “harm reduction” measures) has caused a widespread and deeply held fear among promoters and owners (and more specifically, their lawyers) that if they  allow drug education or public safety and health measures at their events they will be prosecuted either civilly or criminally for  “maintaining a drug-involved premise”.

HOW LIKELY ARE LEGITIMATE OWNERS AND PROMOTERS TO BE PROSECUTED UNDER THE RAVE ACT?

The EDM “scene” is far different than it was in the early 2000’s. The problem of underground or illegal “raves” is largely gone. Instead, EDM has joined the mainstream. These days, an EDM “festival” is a massive three-day event with intense security and safety planning. Accusing a modern promotion group of, “maintaining a drug involved premise” is ludicrous.

But a lot of the event producers of today are survivors of the first wave of “crack-house”/RAVE Act prosecutions in the early 2000’s.

For example, Pasquale Rotella, the CEO of Insomniac Events, explained during a recent Reddit AMA that it was his past experiences with the Feds that caused him to be cautious about “harm reduction groups.”

“When the DEA started going after innocent event producers under the Crack House Law, having DanceSafe at an event was one of the things they looked at to justify putting them in jail for 20 years,” he said. “If you don’t know about the Crack House Law, you should look into it. Dance culture has had a very challenging past. It’s amazing where it is right now.”

It is extremely difficult to get accurate information about the likelihood of RAVE Act prosecutions due to the incidental drug use of patrons at events. Although there is clearly a lot of concern and fear on the part of attorneys and insurers, I have been unable to find many actual prosecutions for close to a decade.

More than anything it may be the fear and the uncertainty of the RAVE Act that causes concern. Many attorneys and insurers worry that allowing drug education or public safety and health measures (especially drug testing), they might be opening themselves up to criminal or civil liability. This is true even though many music festivals now incorporate many of these same  “harm reduction” measures at their events without any threat of prosecution.

THE AMEND THE RAVE ACT CAMPAIGN 

There is currently a campaign to amend the RAVE Act to allow a “safe harbor” provision. This “safe harbor” would track the language of the 2003 DEA memo that makes it clear that legitimate owners and promoters cannot be prosecuted simply based upon the illegal incidental drug use of patrons at their event.

The amendment would also make it clear that safety measures taken by property owners and promoters in an effort to reduce the medical risks associated with illegal drug use at their events do not constitute evidence of maintaining a drug involved premise under this Act.

You can read more about the background and history of the campaign to Amend the RAVE Act here.

https://www.amendtheraveact.org/

SIGN THE PETITION TO AMEND THE RAVE ACT

https://www.amendtheraveact.org/sign-the-petition/

RESOURCES 

Integrating “harm reduction” measures at your event can be a little overwhelming. One of the most important things you can do as you begin to integrate these services is to make sure you have supportive allies in your host community: city officials and law  enforcement in particular.

The organizations listed here have experience advocating for and implementing drug use management best practices and would be happy to help you facilitate new relationships or help build on existing relationships.
I would strongly encourage you to reach out to groups with experience navigating this issue. Also, please feel free to contact me directly if I can help make an introduction or start you on the right path to integrating these measures.

DanceSafe is a 501(c)(3) public health organization promoting health and safety within the nightlife and electronic music communities. DanceSafe provides onsite setups that distribute free water, earplugs and drug and sexual health information in addition to drug checking services where possible.

Missi Wooldridge, Executive Director | [email protected]

The Drug Policy Alliance (DPA) is the nation’s leading organization promoting drug policies that are grounded in science, compassion, health and human rights. Within the nightlife and festival community DPA advocates for expansion of drug education and harm reduction as well as policy changes that will protect both partygoers and event producers.

Stefanie Jones, Nightlife Community Engagement Manager

[email protected]

Mutual Aid Response Services (MARS) provides the festival and event industry with comprehensive consulting, risk management, and emergencymedical services, including permitting, policy, government and media relations with a focus on progressive approaches to public health and emergency management.

Joseph Pred, Founder and CEO | [email protected]

The Zendo Project is an onsite harm reduction service providing compassionate care and education for individuals having difficult psychedelic experiences.

Linnae Ponte, Zendo Project Coordinator | [email protected] 

LAW REVIEW ARTICLES 

Owner and Promoter Liability in “Club Drug” Initiatives

http://moritzlaw.osu.edu/students/groups/oslj/files/2012/03/66.3.haas_.pdf

Drug Panics in the Twenty-First Century: Ecstasy, Prescription Drugs, and the Reframing of the War On Drugs – Deborah Ahrens  – Seattle University School of Law Digital Commons

Tammy L. Anderson, a sociology and criminal justice professor at the University of Delaware, recently presented an academic paper, “Molly Deaths and Why the Drug War Won’t Clean Up Rave Culture.”   She has graciously allowed me to link to her paper which concludes that the RAVE Act is currently doing more harm than good in terms of keeping patrons at festivals safe.

http://contexts.org/articles/fall-2014/molly-deaths-and-the-failed-war-on-drugs