1,000-FOOT SCHOOL ZONE BUFFER YET ANOTHER GRAY AREA IN RULES FOR
MEDICAL MARIJUANA INDUSTRY

An under-the-radar prohibition of "cannabusinesses" near school zones
in Missoula has rankled at least one City Council member, and reveals
yet another gray area in Montana's evolving medical marijuana industry.

Last month, city planning officials quietly drew up a map charting
so-called "no-fly zones," wherein medical marijuana caregivers are
restricted from setting up shop within 1,000 feet of a school zone,
lest they be vulnerable to prosecution.

The map, created by the Missoula City-County Office of Planning and
Grants at the behest of City Attorney Jim Nugent, depicts 30 such
buffer zones girdling Missoula's elementary and secondary schools.
The so-called "no-fly zones" are illustrated with green circles, some
of them overlapping and concentric, and make up 2,972 of Missoula's
roughly 18,000 acres, or about 17 percent of the city proper.

The policy is grounded in existing state law that criminalizes the
distribution of dangerous drugs on or near school property, and which
carries a minimum sentence of three years in prison. According to
Nugent, the statute (Mont. Code Ann. ? 45-9-109) is not tempered by
Montana's medical marijuana law, which was enacted in 2004.

"The medical marijuana act did not repeal this law," Nugent said.
"It's a peril that people need to be aware of because the penalty is
harsh. I have been telling people that they don't want to violate
this, and I did ask OPG to put together a map illustrating this
1,000-foot radius around Missoula's secondary and elementary schools."

So far, the prohibition has stymied just one of Missoula County's 565
registered caregivers from opening a medical marijuana business in
his home, according to Brentt Ramharter, director of Missoula's
Finance Department, which oversees business licenses.

The status of that caregiver's operation is hanging in limbo because
the applicant, Jason Christ, founder of Montana Caregivers Network,
is seeking a business license for his residence, which lies within
1,000 feet of a school.

"The OPG said it was holding on to it because they are still trying
to determine how to govern the commercial use of residences. The
application has not actually been denied," said Scott Paasch, account
coordinator for the Finance Department.

As of last week, 44 applications had been submitted for medical
marijuana business licenses. Of those, 26 have already been approved,
while 15 are in various stages of the process, Ramharter said.
Another three were withdrawn by the applicants for various reasons.

Missoula City Councilman Bob Jaffe, who heads the Plat, Annexation
and Zoning Committee, said planning officials apparently began
canvassing the issue for a resolution without consulting members of
City Council.

"As far as I know, the council has been excluded from the entire
conversation," Jaffe said. "It's a little disappointing that the
staff and administration chose to leave the council in the dark as
this was evolving."

While Jaffe said he was annoyed that planning officials didn't invite
council members to participate in the brainstorming process, he is
sympathetic with the OPG's need to do something in the face of a
booming industry, however temporary; doing so quietly allowed
Missoula to avoid the controversy plaguing other cities wrestling
with the same issues.

"It's just a tough one because there is so much gray area," Jaffe
said, adding that he expects to make a referral on the subject to his
committee for discussion within the next week.

John Masterson, president of Montana's chapter of the National
Organization for the Reform of Marijuana Laws, wondered if Montana's
criminal statute is really an appropriate beacon for the state's
incipient medical marijuana businesses.

"I'm not an attorney, but it just seems odd to me to use the criminal
distribution of dangerous drugs statute to guide zoning rules about
medical marijuana," Masterson said.

And even Nugent isn't sure that a business license can be rejected
because an applicant is in a no-fly zone. Any permanent fixes, he
said, need to be addressed by the state Legislature, which intends to
shore up the state medical marijuana law when it convenes in 2011.

"I don't think they can technically reject them," Nugent said. "What
we are asking is that they make sure people are aware of the law.
There is a lot of ambiguity that needs to be addressed by the
Legislature to clarify this, and I assume this thousand-foot thing is
an issue they will be trying to address."

Besides the buffer zones around schools, planning officials also
recently developed guidelines for medical marijuana businesses
operating out of homes, ruling last month that such businesses can
serve no more than three patients.

Under existing zoning statutes, a home occupation license must be
obtained when the dominant use of a home shifts from a residential
use to a commercial one. How that should apply to residential-based
cannabusinesses is anyone's guess.

The way OPG interim director Mike Barton figures it, that amounts to
42 plants, a scenario feasible only if a caregiver is living with
three patients. Caregivers can legally grow six plants for each of
their patients, and those patients can grow six plants for
themselves. As long as the caregiver is also registered as a patient,
he may grow an additional six plants. Thus, 42 plants under those
specific circumstances.

"Admittedly it's an arbitrary sort of thing, but where are you going
to draw the line?" said Barton. "The purpose of the home occupation
license is to determine when someone moves beyond what we see as a
residential character. And in this case that has to do with how many
plants you are allowing."

Barton said of the 565 registered caregivers in Missoula County, only
five have applied for home occupation licenses.

"We did deny a few of them because they were in what we have
affectionately been referring to as the no-fly zone," Barton said.
"But it's quite clear that people are operating all over the place
without the benefit of a license."

As of June 30, Missoula County was home to 2,924 registered medical
marijuana patients, more than any other county in Montana, and about
15 percent of the state's 19,635 total patients.

According to Nugent, those patients are not subject to prosecution
for merely growing marijuana in a no-fly zone because there has to be
a transaction to violate the statute.

"It's not necessarily prohibited to grow within 1,000 feet of a
school zone," Nugent said. "It is the transaction, the distribution,
that is prohibited. The law is silent on growing at this time."

The law defines a "transaction" as anyone who sells, barters,
exchanges, gives away, or offers to sell any dangerous drugs, which
could include a telephone call.

"People could quite innocently violate the law if there was a
transaction, which could include a phone call," Nugent said.

Talyn Lang, president of the Missoula Chapter Montana Medical Growers
Association, said the criminal statute exists to protect
schoolchildren and prevent dealers from peddling drugs near schools,
and should not be applied hastily to legitimate businesses.

"The intention of that law never envisioned what was going to happen
with medical cannabis," he said. "Legitimate caregivers are not
illegal drug dealers. They are legitimate and they provide a service
to a significant population of the community."

Lang said he did not object to a city like Missoula enacting
1,000-foot buffer zones around schools. However, he would prefer to
see existing zoning ordinances applied to medical marijuana
businesses, such as those governing pharmacies.

"It's only about 16 percent of the city that these businesses would
be prohibited to be in, and we don't think that's excessive," said
Lang, who is also general manager of Zoo Mountain Natural Care, a
medical marijuana business in Missoula. "At the same time, we feel
there are already ordinances in place for businesses that operate
just like ours, places where sick people go to pick up their medicine."