MARIJUANA LAW WRITTEN FOR PATIENTS, NOT PROFITS

The medical marijuana law was enacted by Montana voters in 2004 as a
mercy for seriously ill individuals, not as a means for growing a
medical marijuana industry. That fact should serve as a guide while
city leaders and state legislators figure out how to deal with the
skyrocketing number of medical marijuana patients and the burgeoning
industry encouraging more Montanans to get medical marijuana cards.

Cities from Hamilton to Sidney have acted to curb medical marijuana
business growth. Some Montana cities, including Billings, have enacted
temporary emergency moratoriums on the licensing and opening of new
medical marijuana businesses. However, that moratorium doesn't apply
to registered medical marijuana patients growing their own supply.

That's an important distinction. As staff attorney Helen Thigpen wrote last
month to the Legislature's Interim Education and Local Government Committee:
"Because MMA (Medical Marijuana Act) specifically allows qualifying patients
to use marijuana for certain medical conditions with the authorization of a
physician, a local ban on personal use would likely be inconsistent with
state law."

Thigpen noted that the state law is silent on whether a community may
ban commercial establishments that cultivate, grow, sell or dispense
medical marijuana. However, she wrote that local government has the
power to regulate for the health, safety and welfare of the public.

Because marijuana is classified as a Schedule 1 drug by the federal
Controlled Substances Act, possessing it is against federal law, even
though the U.S. Justice Department last year announced a policy of not
prosecuting marijuana use that is legal under state laws. At least
four Montana cities are using federal law as the basis of their city
ordinances to keep medical marijuana businesses out of town.

. Helena enacted a city ordinance that says no business that operates
in violation of federal law can be licensed in the city.

. Belgrade this month banned the use of substances that violate
federal law within a mile of the city. However, the Belgrade ordinance
allows existing medical marijuana businesses to continue operating and
allows medical marijuana patients to grow their own.

. Kalispell and Great Falls enacted ordinances that say no land in the
city can be used for a purpose that violates federal law. Great Falls'
city commission passed that ordinance on June 1 on a 3-2 vote. Within
weeks, the city had been sued by three local medical marijuana
patients who claim that ordinance would prevent them from growing
their own personal supplies of marijuana as provided by Montana law.

Bozeman took a different tack. The City Commission on July 12 gave
preliminary approval to limit the number of caregivers in town and to
ban public smoking of medical marijuana.

"Everybody's doing something a little bit different," said Alec Hansen
of the Montana League of Cities and Towns. Municipal leaders are
anxious to see what the 2011 Legislature does on medical marijuana, he
said.

The Billings City Council has medical marijuana on its Aug. 9 agenda.
The council could extend its six-month moratorium on new medical
marijuana business licenses into next year or enact a permanent
ordinance. The council's ad hoc committee on medical marijuana has
recommended zoning medical marijuana businesses out of most of the
city and requiring existing medical marijuana dispensaries to move
into designated zones or cease doing business here within four years.

The committee proposal reflects widespread health, safety and
educational concerns that commercial marijuana operations shouldn't be
near schools, churches, day cares, parks or residential areas. That
eliminates most of the city.

We call on the City Council to support a legally defensible ordinance
that's as simple as possible. Rather than enumerating how many feet a
marijuana dispensary or growing business must be from other many other
structures and land uses, just ban them from the city.

The problem of existing businesses requires careful legal review.
Clearly, the 2004 law didn't anticipate the proliferation of
businesses that has occurred primarily in the past 12 to 18 months.
However, city leaders would be wise to craft a careful ordinance to
avoid unnecessary litigation.

In any case, the city shouldn't promote growth in the medical
marijuana industry. That would be beyond the scope of state law and
contrary to voter intent.

The 2011 Legislature is expected to debate medical marijuana and could
change or even repeal the state law. Tuesday's Gazette opinion will
focus on legislative changes.