The URL can be used to link to this page

Home My WebLink AboutOrdinance No. 1786, Regulating Use of Medical Marijuana within the CityStaff Report: Provisional Adoption of Ordinance 1786 regulating the use of medical marijuana within the city of Bozeman. Page 1 of 7 Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Greg Sullivan, City Attorney; Chris Saunders, Ass’t Director of Planning and Community Development; Brit Fontenot, Assistant to the City Manger; and Marty Kent, Deputy Chief of Police. APPROVED BY: Chris Kukulski, City Manager. SUBJECT: Provisional Adoption of Ordinance 1786 Regulating the Use of Medical Marijuana within the city of Bozeman. MEETING DATE: July 12, 2010 AGENDA ITEM TYPE: Action. RECOMMENDATION: Conduct a public hearing and after consideration of public testimony provisionally adopt Ordinance 1786. Also, we recommend you adopt the staff findings in the zoning report as well as carefully consider the Zoning Commission’s amendment of the distance separation for forced air vent discharge points and the option for mechanical filtration discussed on pgs. 4-5 of this memorandum. BACKGROUND: In 2004, Montana voters adopted Initiative 148 which legalized certain uses of marijuana if done for medical purposes as authorized in the initiative. The initiative was codified as the Medical Marijuana Act (the “Act”) (Title 50, Chpt. 46, MCA). This staff report does not discuss the Act or current efforts to amend the Act; rather, this staff report discusses the contents of proposed Ordinance 1786 (attached) that would provide local regulatory control regarding the medical use of medical marijuana in the city of Bozeman. The effect of provisionally and finally adopting this ordinance and having the ordinance become effective would be to put in place local regulation of medical marijuana in three main categories: (i) business licensing; (ii) public use; and (iii) land use (i.e. zoning). Before we discuss the contents of the proposed ordinance we feel it important to make three critical points: 1. This ordinance does not regulate an individual’s ability to grow medical marijuana for their own use or to consume medical marijuana in a private residence; 147 Staff Report: Provisional Adoption of Ordinance 1786 regulating the use of medical marijuana within the city of Bozeman. Page 2 of 7 2. Adopting this ordinance will have the effect of repealing Interim Zoning Ordinance 1782 prior to its expiration. If this ordinance is effective prior to September 11, 2010, however, the result will be no lapse in time between the requirement medical marijuana business be located 1000 feet from schools contained in the interim ordinance and the effective date of this “permanent” ordinance; and 3. Ordinance 1786 contains several provisions that have been amended since a DRAFT of the staff recommended ordinance was released on June 24th. These amendments have been highlighted in the version for provisional adoption. Organization of this memorandum: This memorandum first discusses the process the city of Bozeman implemented to obtain public input since the Commission adopted Ordinance 1782, the interim zoning ordinance currently in effect. Then, this memorandum briefly discusses each of the above general subject areas addressed in the ordinance including a discussion on an unresolved issue regarding forced air discharge points for commercial medical marijuana facilities and concludes by discussing possible Commission alternatives. I. City of Bozeman’s Public Process After adoption of the interim zoning ordinance, city staff developed a public process that provided interested citizens and numerous stakeholders an opportunity to participate in the development of a long-term ordinance. Most important of these outreach efforts were the two public forums organized and held by city staff (April 21st and May 5th) where interested citizens came to discuss numerous issues related to medical marijuana. To help facilitate the public forums, staff developed an “issues and options” document previously made available to the public and which is continues to be available at www.bozeman.net. As you recall, each City Commissioner attended a forum as did numerous city staff including planners, law enforcement, prosecutors, and city administrators. The city staff also worked with the Gallatin City-County Health Department and administrators from the Bozeman school district regarding their concerns. City staff also provided the Inter- Neighborhood Council a direct opportunity to give input after a staff presentation before the INC on April 13. For all zoning related amendments (Sections 6, 7, and 8 of the ordinance) the Zoning Commission conducted a public hearing. The Zoning Commission’s Resolution and minutes are attached. Lastly, on June 24, via the City of Bozeman website (www.bozeman.net) city staff provided the public an opportunity to view and comment on the draft ordinance prior to the Commission’s scheduled public hearing. II. Highlights of Ordinance 1786 a. Business Licensing 148 Staff Report: Provisional Adoption of Ordinance 1786 regulating the use of medical marijuana within the city of Bozeman. Page 3 of 7 Sections 1 – 4 of Ordinance 1786 contain recommendations to address business licensing requirements. The proposed amendments to Title 5 of city’s code include: i. Adding definitions for “medical marijuana;” ii. Clarifying that transactions or uses involving medical marijuana operations are not exempted from the city’s current business license permitting requirements; iii. Establishing $25 licensing and $75 inspection fees ($100 total fee); and iv. Creating a new chapter with specific licensing provisions for medical marijuana businesses that include the following: 1. All “caregivers” as defined in the Act that provide any act related to medical marijuana for more than three patients1 in the city must have a business license even if those caregivers do not have a physical location in the city but only deliver to a patients home located within the city limits; 2. Applications for business licenses must be submitted to the city Finance Department and contain the identity of all principles, agents, contractors, and employees of the licensee to ensure each person who is involved in the business complies with Montana law regarding medical marijuana; 3. A requirement to notify the Finance Department within ten (10) days if the information included on a medical marijuana business application and license changes; 4. A notification that a business license issued for medical marijuana is not transferable; 5. As a condition of the license, the licensee grants inspection authority, during normal business hours, to city personnel without additional notice; and 6. In any licensed location where medical marijuana is stored overnight or where medical marijuana is grown, the licensee must provide appropriate security measures including alarms and a security safe. 1 This section of the proposed ordinances requires a business license when a caregiver provides care to “more than three patients.” A zoning provision in Sect. 7 of the ordinance provides an exception to commercial uses related to medical marijuana when a person acts as a caregiver to “not more than two qualifying patients who reside within the same dwelling as the caregiver.” City staff believe the business licensing standards can differ from the zoning standards and thus warrant a distinction in these thresholds because we have learned the majority of caregivers provide care to a limited number of individuals and a standard of “more than three” would allow these caregivers who do not engage in activity beyond this threshold from having to obtain a yearly business license. As for the zoning requirement, it’s an exception from the distance requirement from schools and as such staff thought of it as an issue distinct from the business activity of a single caregiver. It must be noted this threshold was determined by a realization a residence in this situation would be permitted up to 24 marijuana plants but only if those plants were to be used by the individuals who reside in that residence. 149 Staff Report: Provisional Adoption of Ordinance 1786 regulating the use of medical marijuana within the city of Bozeman. Page 4 of 7 b. Public Use Section 5 of the proposed ordinance makes it a absolute liability misdemeanor criminal offense for any person to “… on the Ways of the City Open to the Public, display, smoke, or consume Medical Marijuana in an open or visible manner.” A “Way of the City Open to the Public” means “any highway, road, driveway, alley, lane, parking area, sidewalk, park, trail, or other public or private place within the city of Bozeman that is adapted and fitted for the use of the public and that is in common use by the public.” The recitals also contain several legislative findings found at pages 3 – 4 of the ordinance related to this new criminal offense including a finding that “the Commission intends the phrase ‘open or visible manner’ to include but not be limited to visual or sensory observations either during the act or within a reasonable time thereafter.” Please review the findings closely. c. Zoning Attached to this staff memorandum is a report prepared by Chris Saunders, Assistant Director of Planning and Community Development, regarding Sections 6, 7, and 8 of this ordinance. We do not repeat the substance of that report here except to point out the highlights of the ordinance provisions. For more detailed discussion and findings please consult the zoning report. The zoning component of the ordinance: i. Maintains the 1000 foot separation between schools and commercial medical marijuana businesses but removes the inclusion of facilities that are licensed as day cares or provide only kindergarten instruction. This is a change from the interim zoning ordinance; as such, please see the zoning staff report for more information on changes from the interim zoning ordinance related to the distance requirement; ii. Recognizes the current zoning rule that restricts a medical marijuana activity meeting a definition of Agriculture, Manufacturing, Office or Retail as established in Chapter 18.80 which is for the purpose of growing, processing, distribution, and/or any other activity related to Medical Marijuana from operating in any residential zoning district and clarifies that such a medical marijuana activity may not be located in the R-4, Residential High-Density district and the R-O, Residential Office district when it overlays a residentially oriented growth policy designation; iii. Includes a medical marijuana enterprise in the list of activities that are not permitted as “home based businesses;” iv. Includes an exception to the home based business prohibition and the limitation on businesses operating in the zoning districts mentioned in Section II.c.i and iii of this memo, (immediately above), if a caregiver 150 Staff Report: Provisional Adoption of Ordinance 1786 regulating the use of medical marijuana within the city of Bozeman. Page 5 of 7 provides medical marijuana to not more than two qualifying patients residing within the same dwelling as the caregiver; v. Prohibits a medical marijuana business from opening within the core area of the B-3 central business district as defined in 18.18.010.C, BMC. This includes the Main Street from Grand Avenue to Rouse Avenue and also includes the alleys one-half block north and south of Main Street; vi. Requires any forced air vent discharge point serving a Medical Marijuana growing operation serving 24 or more plants to be located no closer than 50 feet from an adjacent property line or a residence or provide specific mechanical filtration of the vented air. City staff presented the Zoning Commission with requirement for the forced air vent discharge point for a “commercial” grow or processing operation to be located no closer than 50 feet and the Zoning Commission recommends the City Commission reduce this distance to 30 feet. City staff has since reconsidered this provision and recommends the Commission adopt this provision as contained in the ordinance presented to you. The proposal would remove the phrase “commercial” and implement a threshold of 24 or more plants in a grow operation before the distance separation or, as discussed below, a mechanical filtration provisions would apply. That being said, we ask you please specifically consider the Zoning Commission’s amendment in its original context and also within this new staff proposal. vii. As stated, the Zoning Commission discussed, but did not adopt by motion, an alternative to the distance requirement that would allow mechanical filtration of discharged air from a commercial medical marijuana facility. As such, after conducting additional research, we have added to the ordinance an alternative to the distance separation for discharge points that would allow as an option to the physical separation the installation of a mechanical filtration system “to control discharges of particulates and odors.” The ventilation filtration system “shall be designed by a mechanical engineer licensed to practice in the State of Montana such that odors and particulates may not be detected by unaided human observation at the property boundary, and noise produced by the system shall be controlled and minimized.” and viii. Section 8 amends the definition of “Agricultural Activity”, recognizing that not all medical marijuana is grown in “soil”. 151 Staff Report: Provisional Adoption of Ordinance 1786 regulating the use of medical marijuana within the city of Bozeman. Page 6 of 7 UNRESOLVED ISSUES: Currently, the only formally unresolved issues that remain include the recommendations by the Zoning Commission to: i. As mentioned above, reduce the separation distance from a commercial medical marijuana facility’s air discharge from 50 feet to 30 feet; and ii. Consider a discussion on providing an alternative to the separation by use of “mechanical filtration.” For information on the Zoning Commission’s recommendation to reduce the separation distance please see the attached Zoning Commission Resolution and minutes. ALTERNATIVES: Cities in every state, including Montana, that has adopted medical marijuana policies have grappled with a plethora of possible regulatory programs. In Montana, cities have taken a diverse approach to this subject including adopting “bans” that either prohibit “commercial” businesses or rely on historic ordinances that recognize any act that violates federal law represents a violation of the city’s code. Other Montana municipalities, Missoula for example, has not adopted any specific requirements for medical marijuana businesses other than new administrative processes for business licensing. After extensive and in depth public discussions with stakeholders, professional staff and our colleagues around the Bozeman community and state of Montana, it is the staffs professional opinion the approach to regulating medical marijuana contained in Ordinance 1786 is the best fit for the city of Bozeman and its residents. That being said, page 3 of the zoning staff report contains a list of land use regulatory options available for the City Commission. These include a range of options from full prohibition of all commercial and private use to taking no additional action, allowing the interim ordinance to expire and rely on the city’s current regulatory program to control. Options we explored for the “public use” component of the proposed ordinance include having the public use offense categorized as a civil infraction rather that criminal offense and linking the offense to “involuntary exposure” of medical marijuana. Under an involuntary exposure approach, if a person consumed marijuana in a manner that involuntarily exposed another person to marijuana, the individual causing exposure to another would be subject to an offense. Staff explored these two options and decided in favor of the criminal sanction as a more stringent penalty and deterrent and decided against the involuntary exposure option because of the difficulty in proving an “exposure occurred”. Other than the proposed amendments to Title 5 included in the ordinance, we do not present any specific alternatives here for the suggested business licensing amendments. 152 Staff Report: Provisional Adoption of Ordinance 1786 regulating the use of medical marijuana within the city of Bozeman. Page 7 of 7 FISCAL EFFECTS: Certain provisions of Ordinance 1786 will undoubtedly have fiscal effects on Bozeman city government. These effects include additional requirements to the business licensing process and related inspections, as well as costs of police, prosecutors, and municipal court if a person violates the public use component. The purpose of the inspection fee is to cover part of the cost of inspections under the business license. The purpose of the fine and allowable court costs is to cover part of the costs of police, prosecution and courts. At this time, there is no definitive way to determine the precise fiscal effects of the proposed ordinance. Attachments: · Ordinance 1786 · Zoning Report with numerous attachments: · Zoning Commission Resolution and Minutes Report compiled on: July 7 – 9, 2010 153 ORDINANCE NO. 1786 Regarding Medical Marijuana Page 1 of 14 ORDINANCE NO. 1786 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, CREATING CHAPTER 5.06 AND AMENDING SECTIONS 5.02.100, 5.04.110, 5.04.040, 5.05.010 OF THE BOZEMAN MUNICIPAL CODE RELATING TO LICENSING REQUIREMENTS FOR MEDICAL MARIJUANA TRANSACTIONS; CREATING CHAPTER 8.52 PROHIBITING THE DISPLAY, CONSUMPTION, OR SMOKING OF MEDICAL MARIJUANA IN PUBLIC; AND AMENDING SECTIONS 18.40.110, 18.40.220, AND 18.80.080 OF TITLE 18, UNIFIED DEVELOPMENT ORDINANCE, TO REGULATE COMMERCIAL ACTIVITIES RELATED TO MEDICAL MARIJUANA TO DEFINED DISTRICTS AND IN CONFORMANCE WITH ESTABLISHED STANDARDS. WHEREAS, Section 7-1-101, MCA, states, “As provided by Article XI, section 6, of the Montana constitution, a local government unit with self-government powers may exercise any power not prohibited by the constitution, law, or charter;” and WHEREAS, Section 7-1-104, MCA, states, “The powers of a self-government unit, unless otherwise specifically provided, are vested in the local government legislative body and may be exercised only by ordinance or resolution;” and WHEREAS, Section 7-1-105, MCA, states, “All state statutes shall be applicable to self- government local units until superseded by ordinance or resolution in the manner provided in chapter 5, part 1 and subject to the limitations provided in this part;” and WHEREAS, Section 7-1-106, MCA, states, “The powers and authority of a local government unit with self-government powers shall be liberally construed. Every reasonable doubt as to the existence of a local government power or authority shall be resolved in favor of the existence of that power or authority;” and WHEREAS, Section 7-1-113, MCA, states, “(1) A local government with self-government powers is prohibited the exercise of any power in a manner inconsistent with state law or administrative regulation in any area affirmatively subjected by law to state regulation or control. (2) The exercise of a power is inconsistent with state law or regulation if it establishes standards or requirements which are lower or less stringent than those imposed by state law or regulation. (3) An area is affirmatively subjected to state control if a state agency or officer is directed to establish administrative rules governing the matter or if enforcement of standards or requirements established by statute is vested in a state officer or agency;” and 154 ORDINANCE NO. 1786 Regarding Medical Marijuana Page 2 of 14 WHEREAS, Title 7, Chpt. 5, Part 1, MCA, provides standards and procedures for adoption of local ordinances; and WHEREAS, Title 76, Chpt. 2, Part 3, MCA, authorizes municipalities to enact zoning to regulate the use and development of land and the activities of individuals and businesses within its boundaries subject to certain standards of procedure; and WHEREAS, the voters of the State of Montana adopted Initiative 148 (the Medical Marijuana Act, Title 50, Chpt. 46, MCA (the "Act")) in November 2004 decriminalizing the use of marijuana if conducted for medicinal purposes subject to specific legal processes and restrictions; and WHEREAS, marijuana continues to be classified as a Schedule I narcotic under the federal Controlled Substances Act and is listed as an illegal drug under Montana law such that the growing, distribution, and possession of marijuana, except as provided for in the Act, constitutes criminal activity; and WHEREAS, it is widely understood the use of marijuana pursuant to the Act increased significantly in Montana and elsewhere after the United States Attorney General's office, on October 19, 2009, issued a memorandum requesting each state's United States Attorney to focus their law enforcement efforts regarding controlled substances on significant traffickers of illegal drugs rather than on those whose use of marijuana appears to be "in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana;" and WHEREAS, in March 2008, the State of Montana's Department of Health and Human Services had 736 registered qualifying patients and 233 caregivers and in March 2010 the number of registered qualifying patients increased to 12,081 and the number of caregivers increased to 2,797 - clearly demonstrating a remarkable increase in the prevalence of medical marijuana in Montana's communities; and WHEREAS, as of May 31, 2010, Gallatin County, Montana, had 2,344 registered "qualifying patients" and 497 "caregivers," as those terms are defined by the Act and clearly a significant but unknown portion of these patients and caregivers live, work, travel, or conduct business within the city of Bozeman as the city is a primary economic hub of Gallatin County; and WHEREAS, because of this increase, especially during the most recent six to nine months, the city of Bozeman has seen a corresponding increase in development of a commercial industry surrounding medical marijuana; and WHEREAS, to address concerns related to this increase in medical marijuana businesses on March 11, 2010 the City of Bozeman City Commission adopted Ordinance 1782 as a six-month interim zoning ordinance pursuant to authority granted in Section 76-2-306, MCA; and WHEREAS, upon adoption of Ordinance 1782, the City of Bozeman City Commission directed staff to research and prepare for consideration a permanent ordinance relating to the appropriate regulation and control of medical marijuana within the Bozeman city limits; and 155 ORDINANCE NO. 1786 Regarding Medical Marijuana Page 3 of 14 WHEREAS, immediately after adoption of Ordinance 1782, the city staff scheduled and held two forums as an opportunity for the citizens of Bozeman to participate in development of long-term solutions to the increase in the use of medical marijuana within the city of Bozeman; and WHEREAS, the city staff also solicited comments from members of the Bozeman primary education community, local public health officials, and from various law enforcement agencies regarding observations and concerns regarding medical marijuana; and WHEREAS, testimony from law enforcement officials indicates the illegal use of marijuana is becoming more prevalent in Bozeman than it was prior to the October 19, 2009 directive from the United States Attorney General particularly among young people; and WHEREAS, the comment received at the public forums demonstrates many within the community, including numerous caregivers, support a requirement that any medical marijuana retail establishment be separated by no less than 1000 linear feet from a school grounds/facility and the City Commission finds this separation requirements is necessary to control the availability and use of marijuana proximate to the community's schools; and WHEREAS, the City Commission finds a legitimate governmental interest exists in prohibiting the display, consumption, or smoking of marijuana in an open or visible manner on the ways of the city open to the public because the inadvertent direct and indirect exposure to marijuana has the potential to significantly affect the health, legal, and financial interests of the citizens of Bozeman; and WHEREAS, the City Commission finds a legitimate governmental interest in prohibiting the display, consumption, or smoking of marijuana in an open or visible manner on the ways of the city open to the public because the display, consumption, or smoking of marijuana in an open or visible manner is detrimental to the public health, safety, and general welfare as these acts are visually indistinguishable for the general public from the open public smoking of illegal marijuana and these acts have the potential to lead to an increase in the use of illegal marijuana; and WHEREAS, the Commission finds prohibiting the display, consumption, or smoking of marijuana on the ways of the city open to the public in an open or visible manner is vital to maintaining a community that is free from the negative effects of the illegal use of drugs yet the Commission also recognizes medical marijuana is lawful under state law and nothing in such a prohibition unduly burdens a person’s exercise of the privilege of using medical marijuana; and WHEREAS, the City Commission finds a prohibition on the open public display, smoking, or consumption of medical marijuana on the ways of the city open to the public is narrowly tailored to these concerns as a prohibition of the open public display, smoking, or consumption of marijuana in no way reduces a qualifying patient's ability to display, smoke, or consume medical marijuana in a private residence or on private property that is beyond the ways of the city open to the public and outside of public view; and WHEREAS, the City Commission finds a prohibition on the display, consumption, or smoking of marijuana on the ways of the city open to the public in an open or visible manner is in keeping with the spirit of the Act in that the Act currently lists numerous locations where the smoking of medical 156 ORDINANCE NO. 1786 Regarding Medical Marijuana Page 4 of 14 use of marijuana is specifically prohibited and a prohibition on the open public display, smoking, or consumption of medical marijuana is consistent with the Act's existing prohibitions; and WHEREAS, the Commission intends case law established by the Montana Supreme Court regarding what constitutes a “way of the state open to the public” under Title 61, MCA, to assist the Bozeman Police Department, the City Attorney, County Attorney, and the courts in determining whether a location constitutes a “way of the city open to the public;” and WHEREAS, the Commission intends the phrase “open or visible manner” to include but not be limited to visual or sensory observations either during the act or within a reasonable time thereafter; and WHEREAS, the Commission intends a violation of the prohibition on public display, smoking, or consumption of medical marijuana on the ways of the city open to the public to be an absolute liability offense; and WHEREAS, since the first medical marijuana related business was licensed in the City of Bozeman in September, 2009 the city has experienced an unexpected increase in business license applications relating to commercial activity for medical marijuana and the city currently has 16 businesses actively licensed to conduct business related to medical marijuana with several additional applications currently in review; and WHEREAS, the City Commission understands the need to create specific provisions related to the licensing of medical marijuana businesses to ensure those businesses and their employees are in full conformance with the Act and the Bozeman Municipal Code; and WHEREAS, the Commission intends the requirement that a business engaged in medical marijuana be located greater than 1000 feet from any school facility contained in Ordinance 1782 be continued in full force and effect with the adoption of this Ordinance without any lapse in time or jurisdiction; and WHEREAS, it is also the intent of the Commission that any business licensee who obtained approval for the sale or cultivation of medical marijuana from the City of Bozeman Department of Planning and Community Development prior to adoption of Ordinance 1782 and who does not conform to the 1000-foot separation requirement is, subject to the law, to be considered a lawful nonconforming use and furthermore it is the intent of the Commission the limitation imposed by Section 1 of Ordinance 1782 regarding expanding the number of qualifying patients is no longer applicable to any such licensee; and WHEREAS, the proposed amendments to the Bozeman Municipal Code included in this ordinance have been properly submitted, and reviewed, and all necessary public notice was given for all public hearings; and WHEREAS, the Bozeman Zoning Commission held a public hearing on June 15, 2010 to receive and review all written and oral testimony on the proposal to amend the Unified Development Ordinance (Title 18, Bozeman Municipal Code); and 157 ORDINANCE NO. 1786 Regarding Medical Marijuana Page 5 of 14 WHEREAS, as shown in Zoning Commission Resolution Z-10027, the Bozeman Zoning Commission recommended to the Bozeman City Commission that the proposed text amendments to the Unified Development Ordinance (Title 18, Bozeman Municipal Code) be adopted as modified by the Zoning Commission; and WHEREAS, after proper notice, the City Commission held a public hearing on July 12, 2010, to receive and review all written and oral testimony on the request for amendments to Titles 5, 8 and 18 of the Bozeman Municipal Code; and WHEREAS, the City Commission reviewed and considered the relevant Unified Development Ordinance text amendment criteria established by Title 76, Chpt. 2, Part 3, MCA, and found the proposed Unified Development Ordinance text amendment to be in compliance with the purposes of zoning as locally adopted in Section 18.02.040, BMC; and WHEREAS, at its public hearing, the City Commission found that the proposed Unified Development Ordinance text amendments would be in compliance with Bozeman’s adopted growth policy and applicable statutes and would be in the public interest. NOW, THEREFORE, BE IT ORDAINED by the City Commission of the City of Bozeman, Montana, that: Section 1 The following definitions shall be added to Chapter 5.02 of the Bozeman Municipal Code: 5.02.100. Marijuana/Usable Marijuana. “Marijuana” and “Usable Marijuana” have the meanings as defined in 50-46-102, MCA. 5.02.110 Medical Marijuana. "Medical Marijuana" means the uses of marijuana described in 50-46-102, MCA. Other phrases herein such as the "use of medical marijuana" or "the medical use of marijuana" shall have the same meaning. All other definitions in Chapter 5.02 shall remain in effect and shall be sequentially renumbered in alphabetical order. Section 2 That 5.04.040 of the Bozeman Municipal Code shall be amended to read as follows: 5.04.040 Exemptions 158 ORDINANCE NO. 1786 Regarding Medical Marijuana Page 6 of 14 A. No license shall be required of any person or entity for any mere delivery in the city of any property purchased or acquired in good faith from such person or entity as his the person or entity’s regular place of business outside the city where no intent by such person is shown to exist to evade the provisions this ordinance. B. No license shall be required of any nonprofit organization as defined by this Ordinance. C. No license shall be required of any person under 18 years of age. D. No license shall be required for any property manager managing or renting less than three rental units. E. The exemptions listed in subsections A, B, C, and D of this section do not apply to a transaction, use, or business involving Medical Marijuana. Section 3 That 5.05.010 shall be amended to add, under SPECIFIC BUSINESSES, the following business license fee: Medical Marijuana: Registration and License Fee ($25.00); Special Services and Regulatory Inspection Fee ($75.00); and Total Fee ($100). Section 4 The following chapter shall be added to Title 5 of the Bozeman Municipal Code: Chapter 5.06 MEDICAL MARIJUANA Sections: 5.06.010 Applicability – Failure to Maintain State Authorization 5.06.020 License - Application – Fee – Change - Confidentiality. 5.06.030 Inspection. 5.06.040 Security Requirements. 5.06.010 Applicability – Failure to Maintain State Authorization. A. For purposes of this chapter, the definitions, words, phrases, and expressions as set forth in this chapter are to be construed the same as those set forth in the Montana Medical Marijuana Act (Title 50, Chpt. 46, MCA). 159 ORDINANCE NO. 1786 Regarding Medical Marijuana Page 7 of 14 B. Any individual or entity licensed under this chapter to conduct any transaction, use or business, involving Medical Marijuana, in addition to the requirements of this chapter, is subject to all other requirements of this title, the Bozeman Municipal Code, and the Montana Medical Marijuana Act and any limits on possession, clean air, etc. and any applicable administrative rules established by the State. Should such rules or laws change, any person or entity licensed under this chapter shall immediately come into compliance with any newly adopted state rules. C. Notwithstanding the above, nothing in the Bozeman Municipal Code shall be construed to authorize any person or entity to perform any act or conduct any enterprise not in conformance with state or federal law. D. Compliance with this Title does not shield any person, corporation, or other legal entity from the requirements of, or enforcement by, other governing entities, or from civil liabilities. E. Each individual or entity issued a license under this chapter shall at all times maintain authorization from the State of Montana under Title 50, Chpt. 46, MCA to acquire, possess, cultivate, manufacture, deliver, transfer, or transport Medical Marijuana. Failure to maintain authorization under the Medical Marijuana Act shall be cause for immediate suspension of a license issued under this chapter and may be cause for revocation or cause for criminal prosecution as provided by law. 5.06.020 License - Application - Fee – Change - Confidentiality. A. Any individual or entity desiring to conduct any transaction, use, or business regarding Medical Marijuana within the city of Bozeman for more than three (3) qualifying patients regardless of whether the Medical Marijuana is sold, bartered, exchanged, or gifted must first submit and obtain approval for an application for a business license from the Director of Finance and pay the fee for such license as established by this Title. B. An application under this chapter, in addition to the requirements of 5.04.060.B, shall include the following: i. The name of all owners/principals of the business as applicable and the name of all agents, contractors or employees, if any; ii. Documentation demonstrating the applicant and all owners/principals, agents, contractors or employees, as applicable, that may be involved in transactions regarding Medical Marijuana within the city of Bozeman are registered with the State of Montana under Title 50, Chpt. 46, MCA, and are duly authorized by state law to acquire, possess, cultivate, manufacture, deliver, transfer, or transport Medical Marijuana; and iii. A sworn statement signed by the applicant verifying the number of qualifying patients which name the applicant and any other owner/principal, agent, contractor, or employee of the applicant as the qualifying patient's caregiver. The number of qualifying patients to be included in the sworn statement shall include all patients who may be registered with a caregiver acting as an agent, contractor, employee or owner/principle of the applicant. 160 ORDINANCE NO. 1786 Regarding Medical Marijuana Page 8 of 14 iv. A statement addressing how the applicant will comply with the security requirement provisions of 5.06.040. C. An individual or entity licensed under this chapter to conduct a transaction, use, or business related to Medical Marijuana must inform the Director of Finance within ten (10) days of the occurrence of the following: (i) any change to the licensed individual or entity's number of registered qualifying patients (including those of a principal/owner, agent, contractor, or employee); and/or (ii) a change in the principals of the business or a change of agents, contractors or employees. If either of these conditions occur a new statement under 5.06.020.B.iii is required. Failure to inform the Director of Finance of the changes listed herein within ten (10) days of the change shall be cause for revocation of the license pursuant to 5.04.170 and 5.04.180. D. An application for business license under this chapter is a public document except that the names of all agents, employees and/or contractors and the number of qualifying patients provided to the city in fulfillment of the requirements of this chapter are to be kept on a separate form and are to be considered confidential by the City unless disclosure is required by law. Nothing herein shall prevent a duly authorized agent of the city of Bozeman from sharing the information described in this section with other authorized city employees or other state or local law enforcement as necessary to perform official duties. E. A license issued under this chapter is not transferable and the provisions of 5.04.080 shall not apply. 5.06.030 Inspection. In addition to the authorization to inspect under 5.04.150, as a condition of receiving a business license under this chapter, a city employee, including city of Bozeman law enforcement, may without notice during normal business hours inspect any premise under license pursuant to this chapter to determine whether the licensee is in compliance with the Montana Medical Marijuana Act or any other state or local regulation, and may inspect the number of plants or amount of marijuana or usable marijuana on the premises or in control of the licensee to determine whether these amounts corresponds to the amounts established by Title 50, Chpt. 46, MCA, which the licensee is authorized to lawfully possess. 5.06.040 Security Requirements. Prior to issuance of a license under this Chapter, a Medical Marijuana commercial business where any amount of Marijuana or usable marijuana is stored on the premises beyond normal business hours or where Marijuana is grown in any amount shall be secured at all times by a physical barrier with suitable locks and also by an electronic barrier or alarm that is designed to detect entry by unauthorized persons at any time. In addition, any Marijuana or Usable Marijuana grown or stored on the premises after normal business hours shall be kept in a security safe incorporated into the building’s structure or securely attached thereto. 161 ORDINANCE NO. 1786 Regarding Medical Marijuana Page 9 of 14 Section 5 That a new chapter of the Bozeman Municipal Code, Chapter 8.52, shall be created to read as follows: Chapter 8.52 PUBLIC USE AND DISPLAY OF MEDICAL MARIJUANA. Sections 8.52.010 Purpose and Intent. 8.52.020 Definitions. 8.52.030 Public Display, Smoking, or Consumption of Medical Marijuana – Prohibited 8.52.040 State law superseded and applicable. 8.52.050 Violation and Penalty. 8.52.060 No Private Right of Action. 8.52.010 Purpose and Intent. A. The purpose of this chapter is to identify acts regarding the medical use of marijuana within the city of Bozeman that are not authorized to be conducted in a manner open or visible to the general public. In addition, the purpose of this chapter is to identify that acts related to smoking, consuming, or displaying Medical Marijuana in certain public areas are to be punished as criminal acts and as such shall be subject to criminal penalties. The purpose of establishing these acts where the use is further limited by the City as criminal is to protect the public's health, safety, and general welfare. B. It is the intent of this chapter that the visible or open display, smoking, or consumption of Medical Marijuana is to be confined to private property where that property or portions thereof are not adapted and fitted for public travel or are not in common use by the public. 8.52.020 Definitions. A. “Marijuana” has the meaning provided in 50-32-101, MCA (2009). B. “Medical Marijuana” means the uses of marijuana described in 50-46-102(5), MCA. Other phrases herein such as the "use of medical marijuana" or "the medical use of marijuana" shall have the same meaning and includes the term “usable marijuana.” C. “Ways of the City Open to the Public” means any highway, road, driveway, alley, lane, parking area, sidewalk, park, trail, or other public or private place within the city of Bozeman that is adapted and fitted for the use of the public and that is in common use by the public. 162 ORDINANCE NO. 1786 Regarding Medical Marijuana Page 10 of 14 8.52.030 Public Display, Smoking, or Consumption of Medical Marijuana–Prohibited No person authorized by Title 50, Chpt. 46, MCA, to acquire, possess, cultivate, manufacture, deliver, transfer, or transport Medical Marijuana, may, on the Ways of the City Open to the Public, display, smoke, or consume Medical Marijuana in an open or visible manner. A violation of this section is an absolute liability offense. 8.52.040 State law superseded and applicable. The provisions of this chapter shall supersede Title 50, Chpt. 46, MCA, only in so far as this chapter expands the limitations on the use of Medical Marijuana. All other provisions of state law related to Medical Marijuana or Marijuana shall be applicable. 8.52.050 Violation and Penalty. A violation of 8.52.030 is a misdemeanor and upon conviction a person shall be fined not more than five hundred dollars ($500) or imprisoned in the Gallatin County Detention Center for a period not to exceed six (6) months or both such fine and imprisonment. A person so convicted shall also be required to pay all costs and expenses of prosecution and the courts as authorized by law. 8.52.060 No Private Right of Action. Nothing in this chapter shall be construed to create a private right of action regarding the acquisition, possession, cultivation, manufacture, delivery, transfer, or transport of either Marijuana or Medical Marijuana. Section 6 That Subsection E of 18.40.110 (Home Based Businesses) of the Bozeman Municipal Code shall be amended to read as follows: 18.40.110.E. Uses That Are Prohibited. The following uses, by the nature of their character or the investment of operation, have a pronounced tendency, once started, to rapidly increase beyond the limits permitted for home based businesses and thereby impair the use and value of a residentially zoned area for residential purposes. Therefore, the following uses shall not be permitted as home based businesses: adult businesses; auto repair, minor or major; carpentry work; dance instruction; dental offices; medical offices; Medical Marijuana not meeting the exclusion in 18.40.220.C; mobile oil and lube services; painting of vehicles, trailers or boats; private schools with organized classes; radio or television repair; and upholstering. 163 ORDINANCE NO. 1786 Regarding Medical Marijuana Page 11 of 14 Section 7 That Chpt. 18.40 of the Bozeman Municipal Code shall be amended to add the following: 18.40.220 MEDICAL MARIJUANA Any activity involving Medical Marijuana must meet all requirements of state law including, but not limited to, the standards of Title 50, Chapter 46, MCA, and limits on possession, clean air, etc. and any applicable administrative rules established by the State. Should such rules or laws change, any Medical Marijuana facility shall immediately begin any required process to come into compliance with the new rules. This includes submittal for review of applications to the City of Bozeman as they may relate to zoning, business licensing, or other municipal programs. Compliance with City of Bozeman zoning regulations does not shield any person, corporation, or other legal entity from the requirements of, or enforcement by, other governing entities, or from civil liabilities. A. Unless specifically exempted, any person or an existing or proposed entity intending to conduct activities which meet the definitions of Agriculture, Manufacturing, Office or Retail as established in Chapter 18.80 which is for the purpose of growing, processing, distribution, and/or any other activity related to Medical Marijuana shall in addition to this section, comply with all other provisions of the Bozeman Municipal Code, and shall not be located within 1,000 linear feet of the exterior property line of: 1. All schools or facilities owned or operated by Bozeman School District 7 whether located inside or outside the city limits; or 2. All private schools, not including home schools, whether located inside or outside the city limits, which provide instruction in the class range from 1st to 12th grade and which are subject to Section 20-5-109, MCA. 3. For purposes of this section, specified distances will be measured in a straight line, without regard to intervening structures from the property line of a school as stated in subsections 1 and 2, above, regardless of whether those schools are located within the jurisdictional limits of the city of Bozeman, to the property line of the business providing Medical Marijuana. B. Any activities meeting the definitions of Agriculture, Manufacturing, Office or Retail as established in Chapter 18.80 which is for the purpose of growing, processing, distribution, and/or any other activity related to Medical Marijuana businesses may not be located in the R- 4, Residential High-Density district and the R-O, Residential Office district when it overlays a residentially oriented growth policy designation; or within the core area of the B-3 district as defined in 18.18.010.C, BMC. C. The requirements of subsections A and B do not apply to: 1. An individual registered qualifying patient who possesses marijuana in accordance with the limits and requirements of Title 50, Chapter 46, MCA solely for that qualifying patient’s own use; or 2. To a caregiver providing care to not more than two qualifying patients who reside within the same dwelling as the caregiver. The caregiver and qualifying patients shall 164 ORDINANCE NO. 1786 Regarding Medical Marijuana Page 12 of 14 maintain appropriate state agency qualification at all times that Medical Marijuana is present. D. Establishing a Medical Marijuana facility may result in a change in the designation of building code occupancy type. A change in use or occupancy type may require physical modifications to the structure which must be approved by the Building Division prior to any construction as required by Section 18.64.100, BMC. E. Air Discharge Control: Any forced air vent discharge point serving a commercial Medical Marijuana growing or processing operation that contains twenty four (24) or more marijuana plants at any one time or processing operation shall provide a forced air vent discharge point that is: 1. Located no closer than 50 feet from an adjacent property line or a residence; or 2. Provides a mechanical filtration system to control discharges of particulates and odors. The ventilation filtration system shall be designed by a mechanical engineer licensed to practice in the State of Montana such that odors and particulates may not be detected by unaided human observation at the property boundary, and noise produced by the system shall be controlled and minimized. F. Any person making application for a zoning approval for a Medical Marijuana business shall provide evidence of DPHHS approval as a caregiver at the time of application and shall maintain such DPHHS approval at all times. Failure to maintain approval immediately suspends zoning approval to operate a Medical Marijuana business in the City of Bozeman. G. These regulations are for review of applications to the City and do not restrict property owners from establishing more stringent standards for their properties. Section 8 That 18.80.080 of the Bozeman Municipal Code shall be amended to read as follows: 18.80.080 AGRICULTURAL ACTIVITY. The cultivation or tilling of soil or use of other growing medium for the purpose of producing vegetative materials for sale or for use in a commercial operation and/or the raising or tending of animals for commercial sale or use. Agriculture does not include gardening for personal use, keeping of house pets or animals as authorized under Title 6, BMC, or landscaping for aesthetic purposes. Section 9 Severability. That should any sentence, paragraph, subdivision, clause, phrase or section of this ordinance be adjudged or held to be unconstitutional, illegal, or invalid, the same shall not affect the validity of this 165 ORDINANCE NO. 1786 Regarding Medical Marijuana Page 13 of 14 ordinance as a whole, or any part or provision thereof, other than the part so decided to be invalid, illegal or unconstitutional, and shall not affect the validity of the Bozeman Municipal Code as a whole. Section 10 Savings Provision. This ordinance does not affect the rights or duties that matured, penalties and assessments that were incurred, or proceedings that began before the effective date of this ordinance except any application for a city zoning or business license not approved as of the effective date of this ordinance must comply with the terms of this ordinance prior to approval. Section 11 Codification Instruction. The provisions of Sections 1 - 8 shall be codified as appropriate in Titles 5, 8, and 18 of the Bozeman Municipal Code. Section 12 Transition/Repealer. Upon the effective date of this ordinance as established in Section 13, the provisions of Section 7 shall supersede and replace the provisions of Section 1 of Ordinance 1782 without any lapse in jurisdiction; as such, Section 1 of Ordinance 1782 is hereby repealed in its entirety. The result is any use of land that was approved while Ordinance 1782 was in effect shall continue to be regulated under the provisions of this Ordinance and shall not give rise to any claim of a lawful nonconforming use. Section 13 Effective Date. The effective date of this ordinance is 30 days after passage on final reading. 166 ORDINANCE NO. 1786 Regarding Medical Marijuana Page 14 of 14 PROVISIONALLY PASSED by the City Commission of the City of Bozeman, Montana, on first reading at a regular session held on the 12th day of July, 2010. ______________________________ JEFFREY K. KRAUSS Mayor ATTEST: _____________________________________ STACY ULMEN, CMC City Clerk APPROVED AS TO FORM: ______________________________ GREG SULLIVAN City Attorney 167 CITY COMMISSION STAFF REPORT UDO TEXT AMENDMENTS RE MEDICAL MARIJUANA FILE NO. #Z-10027 #Z-10027 UDO Text Amendment Staff Report 1 Item: Unified Development Ordinance Text Amendment Application #Z-10027, to amend the text of the Unified Development Ordinance to set standards for medical marijuana. Applicant: Bozeman City Commission P.O. Box 1230 Bozeman, MT 59771-1230 Representative: Department of Planning and Community Development P.O. Box 1230 Bozeman, MT 59771-1230 Date/Time: Before the Bozeman Commission on Monday July 12, 2010 at 6:00 p.m. in the Commission Room, City Hall 121 N Rouse Avenue, Bozeman, Montana. Report By: Chris Saunders, Interim Director of Planning and Community Development PROJECT LOCATION The proposed edits would be applicable throughout the City of Bozeman. This amendment process does not alter the boundaries of zoning districts. It does establish standards and locations for medical marijuana based businesses. This report only addresses those portions of the medical marijuana ordinance relating to zoning. PROPOSAL AND BACKGROUND INFORMATION On November 2, 2004, initiative 148 enacted a state law (Medical Marijuana Act, Title 50, Chpt. 76, MCA) with certain requirements for state review and issuance of possession permits. It did not give specific direction or guidance on how local governments could or should address areas of local concern such as zoning, business licensing, local clean air regulations, or enforcement of already existing laws as they pertain to the use, consumption and distribution of medical marijuana. The state’s Department of Public Health and Human Services (DPHHS) is responsible for the registration of individual caregivers and recipients. No person may lawfully grow or distribute medical marijuana prior to registration with and approval by DPHHS. Recently, there has been a large increase in the number of registrations through DPHHS for medical marijuana. This has generated much discussion by communities throughout the state. Many are taking different approaches. Interim committees of the state legislature are also considering issues resulting from the increased activity. See the two memos attached for information and issues presented to the committees. 168 Gallatin County has the largest number of registered persons, both individuals and caregivers, in the state. The City of Bozeman has to date primarily regulated medical marijuana within the existing land use ordinance definitions, procedures, and zoning districts. Title 18, Unified Development Ordinance, Bozeman Municipal Code (UDO) contains these definitions, procedures and zoning districts. These procedures were created in advance of and independent of the subject of medical marijuana. These standards and procedures are in place to provide a review process that addresses and balances the many interests, rights, and responsibilities inherent with the development and use of land. The existing standards and procedures adequate to the majority of zoning related matters arising from medical marijuana. The City distinguishes throughout the zoning regulations contained in the UDO between personal activities by an individual and a commercial endeavor conducted on behalf of others. The commercial activities have a more intensive set of impacts that justifies distinctions in regulations. In response to the increased interest and registrations for medical marijuana, the City Commission, on March 1, 2010, directed staff to prepare a draft interim ordinance for consideration of temporary restrictions on the location of commercial medical marijuana establishments. Section 76-2-306, MCA establishes the process for an interim zoning ordinance. The section allows the adoption of a zoning ordinance through an expedited process but the ordinance has a limited duration. The purpose is to create a short-term ‘hold’ while a community researches an issue and prepares a thoughtful and appropriate response to an unexpected land use issue. The Commission adopted Ordinance 1782 on March 11, 2010 in order to provide time for a reasoned process to establish appropriate standards for the regulation of location and operations of medical marijuana. Ordinance 1782 imposes a separation requirement between medical marijuana businesses and schools or daycares. It does not prohibit the establishment of new businesses in appropriately zoned locations outside of the separation areas. The ordinance is limited to regulation of caregivers and does not restrict access or growing of marijuana by individuals for personal use when in conformance with state law. The interim ordinance will expire in early September 2010 unless extended by the City Commission. As of June 2, 2010 there were 16 medical marijuana related businesses possessing City of Bozeman business licenses. Ten of those were located within the City limits. The City conducted two public forums on April 21st and May 5th to collect input from the community on the subject of medical marijuana. Approximately 90 people attended the two sessions. Thirty-three non-staff signed attendance sheets on the two evenings. The format was to have staff members to collect notes and facilitate discussion of citizens, but not to steer the discussion. The summary of the received comments are attached to this report. Staff has looked at how other communities in the state have addressed, or are considering, the matter of medical marijuana throughout the state. There is a broad diversity of approaches ranging from no special regulation to prohibition of all commercial activity. A number of the identified issues are not zoning related. The zoning amendments will be part of a larger package of amendments to the Bozeman Municipal Code. These amendments will be presented to the City Commission as a single ordinance on July 12, 2010. #Z-10027 UDO Text Amendment Staff Report 2 169 In research, the Staff found many different approaches including some that are not included in the draft now available for public review. Text implementing these alternatives has not been drafted at this time. Any draft to apply the alternatives would require review by the City Attorney. These alternatives could be included with or replace sections in the draft in the final ordinance at the discretion of the City commission. The alternatives are not included in the recommended text. These are summarized below. Alternative approaches: 1) Prohibition on establishment of new caregivers. Helena, Great Falls, Belgrade, and Kalispell have used this approach through their business licensing provisions that require all issued business licenses to conform to federal law. Presently, marijuana remains a controlled Schedule I drug at the federal level. This approach could be more based on business license rather than zoning standards. 2) Restrict the number of medical marijuana caregiver establishments per a defined number of Bozeman residents. This is a general parallel to how the State handles the alcohol licensing. A number of caregivers per population would need to be set. 3) Establish requirements for special physical features for medical marijuana for alarms and monitoring systems and construction standards, e.g. steel doors, masonry walls. The intent is to recognize and proactively act to reduce the probability of theft or other marijuana related criminal activity. The City has established special zoning standards relating to other kinds of uses to address specific areas of concern. These are primarily contained in Chapter 18.40, BMC. 4) Require a conditional use permit (CUP) for review of all medical marijuana related businesses. A CUP is a zoning review process including public hearings and formal notice to the community and adjacent property owners. The CUP process is an existing process in the Bozeman Municipal Code. 5) Establish special fees or inspection requirements. A caregiver or individual may only grow, possess, or use marijuana legally if they conform to the standards established in state law. Any growing, possession, or use outside of the state law standards remains a criminal offense. A limitation on the number of plants or quantity of material is included in those standards. An inspection of commercial facilities to ensure compliance with law is a regular requirement for many types of activities ranging from food preparation to sale of certain goods. 6) Require a minimum separation between caregivers. This would be intended to prevent clustering of caregivers should that be considered to generate undesirable impacts. 7) Additional types of uses from which a separation distance must be maintained. The interim ordinance included state licensed daycares as one of the activities from which medical marijuana must maintain a separation. The present draft does not include daycares. They could be added back to the separation requirement as well as other locations such as parks. 8) Limit size and placement of signs advertising for medical marijuana related businesses in a manner different from other types of businesses. 9) Establish no standards unique to the issue of medical marijuana and rely upon the existing standards and procedures as apply to other businesses. There are many issues relating to medical marijuana in addition to the issues that involve zoning. These issues are typically addressed elsewhere either in state law or other portions of the municipal code. Under present law, some issues are not addressed. Some of these issues will be affected by other provisions in ordinance amendments. Others may be affected by pending changes in state law that may be considered by the Legislature. Many of these issues are addressed for other types of businesses by #Z-10027 UDO Text Amendment Staff Report 3 170 State administrative rules and departments and have therefore not been addressed locally. The Zoning Commission is charged only with reviewing and making recommendations regarding the zoning. The City Commission will consider a broader scope of issues during their review and public hearing. The Zoning Commission conducted their required public hearing on June 15th. Three members of the public spoke. The recommendation of the Zoning Commission and the minutes of the meeting are included with the City Commission packet. Discussion on specific amendment elements: It is important to understand how a provision of the City's development standards interacts with other local, state, and federal laws. Rather than using much text to reapply every possible standard, it is common practice in code drafting to provide direction by reference to important matters. The draft amendments do not create new procedures for zoning but instead rely on existing procedures. It is also important to describe what is required to happen if there are changes to applicable standards. Ignoring relevant requirements and limitations does not serve the public well. The draft zoning related text of the amendments is shown below. If adopted, this text would wholly replace the interim standard adopted through Ordinance 1782. New text is shown with underlines, deleted text with strikeouts. Text in italics is a commentary or explanation on the amendment text. The complete text of the City’s existing land development standards may be found on-line at http://www.bozeman.net/bozeman/planning/UDO/UDO.aspx or they may be reviewed in person at the City of Bozeman Department of Planning and Community Development, 20 E. Olive Street. Incorporating and using the existing definitions and procedures for activities treats medical marijuana on essentially the same basis as other non-residential activities. This minimizes the complexity of the ordinances, making it simpler to understand, for applicants to find suitable locations, and to prepare applications to establish a business. These definitions and procedures will not apply to an individual person growing or possessing plants for their own use when consistent with the requirements of state law as contained in Title 50, Chapter 46, MCA and any successor. 18.40.220 MEDICAL MARIJUANA Any activity involving medical marijuana must meet all requirements of state law including, but not limited to, the standards of Title 50, Chapter 46, MCA, and limits on possession, clean air, etc. and any applicable administrative rules established by the State. Should such rules or laws change, any medical marijuana facility shall immediately begin any required process to come into compliance with the new rules. This includes submittal for review of applications to the City of Bozeman as they may relate to zoning, business licensing, or other municipal programs. Compliance with City of Bozeman zoning regulations does not shield any person, corporation, or other legal entity from the requirements of, or enforcement by, other governing entities, or from civil liabilities. The interim ordinance established a separation requirement from schools and daycares to medical marijuana facilities. If this type of requirement were to be continued, the following language would remove most daycares from the separation distance and would describe how to measure the distance. It would include all facilities owned by School District 7 since they own several properties which are either being held for future construction of a school or are used for educational purposes that are not the standard daily instruction but are frequently used by students during both optional and compulsory #Z-10027 UDO Text Amendment Staff Report 4 171 activities. There is no statutory definition of a ‘school’. The referenced section of state law is that section which requires reporting of attendance and exemption from compulsory attendance. Home schools are excluded due to the difficulty in identifying them and the small scale of pupils with which they operate. The instructional range will generally limit the restriction to those schools serving pupils under the age of 18. A separation distance needs to be of a size which addresses the identified concerns. The relevant state law, sections 50-46-101 through 50-46-210, MCA does not specify whether a commercial operation for medical marijuana could be established within a certain distance of a school or other use such as parks although smoking of medical marijuana in either location is prohibited. Where the state has already established a separation distance between uses as part of a state licensing program, such as the 600 foot separation for alcohol sales and gaming from schools, the City does not impose its own separation distance. In the current circumstance, the state has yet to address the issue leaving the matter to local control. However, Montana’s criminal code does currently prohibit the distribution of dangerous drugs, including Schedule I substances such as marijuana, on or within 1,000 feet of school property. Section 45-9-109, MCA. Marijuana remains a federal Schedule I drug, except for the specific circumstances set out in sections 50-46-101 through 50-46-210, MCA. It is desirable to maintain consistency between different sections of law. Maintaining consistency avoids the possibility of additional penalties being imposed on businesses located closer than 1,000 should the state or federal stance on prosecution change. The 1,000 foot distance also provides a means to limit exposure to children by reducing proximity and likelihood of visual exposure to advertising, public use, and lesser ease of access. Alternate options such as trying to identify primary travel routes to schools or relying on visual distance are less predictable, harder to document, require greater work by applicants, and may be more restrictive than a specified distance. A fixed distance is readily understood, easy to document, and persons inquiring about possible locations for a business can obtain reliable information. A distance of 1,000 feet is approximately the three blocks along Main Street between Grand Avenue and Black Avenue. In reviewing the issue of separation of uses, Staff considered where children are required to be in contrast with where they may choose to go. Children are required by state law to attend school and are subject to attendance reporting beginning in first grade. The interim ordinance imposed a separation requirement from facilities providing education beginning at the kindergarten level and from daycares. The draft ordinance presented removes the limitation from daycares and kindergarten since children are not required to be in these locations. The parents may choose to enroll their children in these services. The change between the interim ordinance excludes from the separation facilities which may be considered educational such as private music lessons, martial arts schools, or vocational schools which are discretionary choices to attend. This change would eliminate five locations from the buffers. See the attached map where the kindergarten locations which would be removed are indicated by stars. Some kinds of uses which may appear similar to medical marijuana are allowed in commercial zoning districts without City or State separation requirements. As noted earlier in this report, some uses are already subject to regulation and oversight by agencies other than the City of Bozeman. As an example, pharmacies are subject to state professional licensing, product tracking, and physical security standards as well as a variety of federal controls. See the attached excerpts from the Administrative Rules of #Z-10027 UDO Text Amendment Staff Report 5 172 Montana. The City has to date seen no need to establish additional local standards in these circumstances. When there is no, or inadequate, state or federal standards a local standard may be adopted to address matters of concern. When considering what is an appropriate separation distance a variety of factors work together. These include but are not limited to: • nature of the use • primary character of adjacent and nearby uses, • what controls of on-site activity will already be in place for other purposes, • likelihood and intensity of potential negative impacts, • potential for significant impact to non-client persons. A description of the impacts on available area of the separation distances is presented below. A. Unless specifically exempted, any person or an existing or proposed entity intending to conduct activities which meet the definitions of Agriculture, Manufacturing, Office or Retail as established in Chapter 18.80, BMC which is for the purpose of growing, processing, distribution, and/or any other activity related to medical marijuana shall in addition to this section, comply with all other provisions of the Bozeman Municipal Code, and shall not be located within 1,000 linear feet of the exterior property line of: 1. All schools or facilities owned or operated by Bozeman School District 7 whether located inside or outside the city limits; or 2. All private schools, not including home schools, whether located inside or outside the city limits, which provide instruction in the class range from 1st to 12th grade and which are subject to Section 20- 5-109, MCA. 3. For purposes of this section, specified distances will be measured in a straight line, without regard to intervening structures; from the property line of a school as stated in subsection 1 and 2, above, regardless of whether those schools are located within the jurisdictional limits of the city of Bozeman; to the property line of the business providing Medical Marijuana. Zoning divides uses into districts where groups of complimentary uses may occur and separating uses which have potential to conflict. Zoning typically works at a broad level rather than lot by lot to determine where uses are appropriate. Zoning protects residential properties from activities which have the potential to injure the value or function of the site for residential uses. There may be many specific points of concern or a single point of concern which is the basis for the decision of where a specific use should be allowed or prohibited. For example, for years offices have not been allowed in a small part of the B-3 zoning district (downtown) on the main floor but are allowed elsewhere in the district. Higher intensity residential uses increase the likelihood of involuntary exposure. The limitation on the R-O or R-4 districts is not expected to affect activities such as distribution of product in association with an assisted living facility since the persons receiving are residents. The medical marijuana caregiver could deliver to the individual residents the same as if they were in any other individual dwelling. The caregiver could not grow or process marijuana on the site, nor maintain a primary business location on the site. Offices, including medical offices, are already prohibited on the ground floor of the core area of the B-3 district. Other areas outside of the defined core do allow #Z-10027 UDO Text Amendment Staff Report 6 173 medical offices and they are currently in operation within the B-3 district. The total acres of land, excluding street right-of-ways, within the City of Bozeman as of June 7, 2010 is 10,181 acres. Not all areas within the City are available for immediate use since existing businesses use some and portions have not yet been subdivided and prepared for site development. The acres, again excluding street right-of-ways, zoned for commercial or industrial uses which would allow for offices, processing, and distribution uses for medical marijuana is 2,504. The combination of both the separation and buffer and location restrictions in draft paragraphs A above and B below still allows for 2,143 acres (3.348 square miles) of commercially or industrially zoned property where a medical marijuana business may locate for the purpose of processing or distribution. This assumes the full 1,000 foot buffer around schools is applied which would remove 15.5% of commercially or industrially zoned property. This minor impact to overall area is due to the fact that most of the schools are located in primarily residential areas. The RS district is the only district where commercial agriculture is a permitted use. There are 856 acres, excluding right-of-ways, within the RS district. B. Any activities meeting the definitions of Agriculture, Manufacturing, Office or Retail as established in Chapter 18.80 which is for the purpose of growing, processing, distribution, and/or any other activity related to Medical Marijuana businesses may not be located in the R-4, Residential High-Density district and the R-O, Residential Office district when it overlays a residentially oriented growth policy designation; or within the core area of the B-3 district as defined in 18.18.010.C, BMC. The primary emphasis of the zoning regulations under consideration with these amendments is commercial (including non-profit) activity, not the individual person's activity when in compliance with state law. To ensure clarity, a distinction should be made between activities conducted for commerce and those for an individual. The City recognizes that a caregiver may register with DPHHS in order to provide assistance to a person who lives with them rather than as a commercial endeavor. This kind of service relationship is of a nature and intensity which is not expected to generate the same level of impact to others that a commercial endeavor would and is therefore distinguished. Paragraph C provides for an individual person or caregiver taking care of residents within their own dwelling, e.g. a spouse or dependent, without having to move. Neither of these two described circumstances will involve advertising of a commercial activity and the on-site activity intensity will be low and directly related to the residents. A business license is required for a caregiver in all circumstances in order to enable for correct activity monitoring and distribution of information. C. The requirements of subsections A and B do not apply to: 1. An individual registered qualifying patient who possesses marijuana in accordance with the limits and requirements of Title 50, Chapter 46, MCA solely for that qualifying patient’s own use; or 2. To a caregiver providing care to not more than two qualifying patients who reside within the same dwelling as the caregiver. The caregiver and qualifying patients shall maintain appropriate state agency qualification at all times that medical marijuana is present. Development and use of land and buildings affects more than just zoning. State adopted building codes govern the physical construction methods and materials for structures in Bozeman and elsewhere. The Bozeman Building Division administers the building code within Bozeman City limits. The building #Z-10027 UDO Text Amendment Staff Report 7 174 codes are based on the physical function of a building and are focused directly on ensuring that the site is safe and functional. A change in the use of a building may trigger a need to comply with different standards in the building code. Changes to comply with different standards can be costly. The zoning review for use or reuse of a site occurs prior to building code review. Including this wording in the zoning requirements provides an early notice of the potential for necessary remodeling to meet building code avoids unpleasant surprises later and helps business owners make informed decisions about locating their business. D. Establishing a medical marijuana facility may result in a change in the designation of building code occupancy type. A change in use or occupancy type may require physical modifications to the structure which must be approved by the Building Division prior to any construction as required by Section 18.64.100, BMC. Public comment has been received regarding concerns about odors, allergic reaction, and airborne impacts from marijuana. Odors from a variety of activities can travel substantial distances and have caused problems between neighbors in Bozeman before. Control of odors is often addressed by providing a separation of uses or of ventilation equipment from adjacent properties. This allows odors to diffuse and be minimized while still allowing the odor generating activity. The City has standards which prohibit objectionable odors, see section 18.38.070.G, BMC, however odors may not be detected until after a use has begun operation when it can be difficult to make adjustments. A separation requirement is proactive and minimizes the potential for costly fixes later. It also helps to reduce the likelihood of noise from mechanical ventilation systems from negatively impacting others. Other alternatives such as charcoal air filtering systems also exist and could be used in combination with vent location requirements if needed to control problem odors. A requirement for venting prevents build up of humidity and other side effects of indoor cultivation and processing. The Zoning Commission recommended the inclusion of an option for mechanical filtration of the air from a commercial growing operation prior to discharge. Staff has conducted some research on the matter and has added a second option to paragraph E. The Zoning Commission also recommended, as shown in the Zoning Commission resolution, that the setback option in E.1 be reduced to 30 feet. To meet the intent expressed by the Zoning Commission to not have the setback limit development in the B- 1 district on lots which are the minimum allowed width the setback would need to be less than 25 feet. E. Air Discharge Control: Any Medical Marijuana growing or processing operation that contains twenty four (24) or more marijuana plants at any one time shall provide a forced air vent discharge point that is: 1. located no closer than 50 feet from an adjacent property line or a residence; or 2. provides a mechanical filtration system to control discharges of particulates and odors. The ventilation filtration system shall be designed by a mechanical engineer licensed to practice in the State of Montana such that odors and particulates may not be detected by unaided human observation at the property boundary, and noise produced by the system shall be controlled and minimized. F. Any person making application for a zoning approval for a medical marijuana business shall provide evidence of DPHHS approval as a caregiver at the time of application and shall maintain such DPHHS approval at all times. Failure to maintain approval immediately suspends zoning approval to operate a medical marijuana business in the City of Bozeman. #Z-10027 UDO Text Amendment Staff Report 8 175 Zoning is an action by the City. Individual owners and operators of property may believe that their interests are better served by standards which are more strict than those adopted by the City. As stated in Section 18.02, BMC, the City has adopted its zoning standards as minimums. Private owners have the right to establish other additional standards. The private owners will be responsible for the enactment and enforcement of such standards, not the City. Inclusion of this language is advisory. G. These regulations are for review of applications to the City and do not restrict property owners from establishing more stringent standards for their properties. Home-based businesses are governed by Section 18.40.110, BMC. They are required to be incidental and secondary to the host residence. This includes limitation on percentages of building area, consumption of utilities, and impacts on building code requirements so that the average neighbor will not notice the commercial activity. These standards have been in place for many years and serve to protect the residential nature of the residential districts. As a person’s home is typically their largest asset and investment, ensuring the protection of those characteristics is important not only locally but is also included as an required review criteria in state law for any changes to zoning. For further discussion see the review criteria below. Businesses which cannot meet the standards of Section 18.40.110, BMC are not allowed as a home- based business but may an conduct their operations in an area zoned for commercial or industrial enterprises and activities. As noted above, there is a large amount of land available where a medical marijuana related business could establish. Some uses have a tendency to begin small and quickly outgrow the capacity of the home as an appropriate site. Since this often creates problems both for enforcement staff and the neighbors some uses are simply prohibited as home-based businesses. For example, medical offices are currently prohibited as a home-based business. All home-based businesses are required to have a business license. Home occupations occur at two levels of intensity. The accessory level is least intense and have the greatest restrictions. The conditional use permit level is allowed a greater, but still low, level of intensity and has a lesser, but still high, level of restrictions. Conditional use permit intensity is only allowed on property occupied by single-household detached residences. An accessory level home occupation requires a business license and an administrative zoning review. A conditional use permit requires a business license and an extensive zoning review including public hearing before either the City Commission or Board of Adjustment. Section 18.40.110.B.3 sets out the necessary conditions for a home based business at the accessory level. Section 18.40.100.C.3 sets out the necessary conditions for a home based business at the conditional use permit level. After consideration of the existing requirements and purposes for those requirements it is recommended that medical marijuana not be permitted as a home occupation if it exceeds the limits recommended for Section 18.40.220.C.as shown above. This is because the breadth of activities has a high likelihood of not being able to conform to the established standards for home based businesses. Items of particular concern are highlighted below. Growing facilities are likely to not conform as they require various extensive physical renovations to comply with the state adopted standards of the building code. The City of Missoula had an experience this spring where a home was used a marijuana growing facility. No building permit or review was conducted and the necessary facilities for indoor agriculture were not provide. The home developed such an infestation of mold that it had to have all sheetrock removed and #Z-10027 UDO Text Amendment Staff Report 9 176 mold cleaned out. Indoor intensive growing needs some specific facilities in place which are not suitable for residential construction. A summary of the building code standards is attached to this report. These standards are not unique to cultivation of marijuana, but would also apply to other types of plants. The text of those paragraphs describing required conditions for home based business approval follows: 3. Necessary Conditions for Accessory Use. Accessory home based businesses are permitted accessory uses in residential districts only so long as all the following conditions are observed: a. Such home based business shall be conducted by resident occupants in their residence with not more than one on-premise halftime nonresident employee; b. No more than 25 percent of the gross area of all structures shall be used for such purpose; c. No use shall require internal or external alterations or involve construction features or the use of electrical or mechanical equipment that would change the fire rating of the structure; d. No home based business shall cause an increase in the use of any one or more utilities (water, sewer, garbage, etc.) so that the combined total use for dwelling and home based business purposes exceeds the average for residences in the neighborhood; e. There shall be no outside storage of any kind related to the home based business; f. The use may increase vehicular traffic flow and parking by no more than one additional vehicle at a time. Depending on the individual circumstances of each application, an additional off-street parking space may be required; and g. No use shall create noise, dust, vibration, smell, smoke, glare, electrical interference, fire hazard or any other hazard or nuisance to any greater or more frequent extent than that usually experienced in an average residential occupancy in the district in question under normal circumstances wherein no home based business exists. 3. Necessary Conditions for Conditional Use. Home based businesses permitted through the conditional use permit process are allowed in residential districts only so long as all the following conditions are observed: a. Such home based business shall be conducted by resident occupants with not more than one on- premise halftime nonresident employee; b. No more than 30 percent of the gross area of all structures shall be used for such purpose; c. No use shall require internal or external alterations or involve construction features or the use of electrical or mechanical equipment that would change the fire rating of the structure beyond that allowed in a residential use; d. No home based business shall cause an increase in the use of any one or more utilities operated by the City of Bozeman so that the combined total use for dwelling and home based business purposes exceeds the average for residences in the neighborhood; e. There shall be no outside storage of any kind related to the home based business; f. No use shall create noise, dust, vibration, smell, smoke, glare, electrical interference, fire hazard or any other hazard or nuisance to any greater or more frequent extent than that allowed by this title; g. Home based business by conditional use permit may only be allowed on lots occupied by single- household detached dwellings; h. Such conditional use shall be subject to all conditions set forth in this title, except the provisions of §18.48.060, BMC, Landscape Performance Standards; and #Z-10027 UDO Text Amendment Staff Report 10 177 i. All permits required by the City, including, but not limited to, building permits and business licenses, shall be received prior to establishing the home based business. 18.40.110.E, Home Based Businesses. Uses That Are Prohibited. The following uses, by the nature of their character or the investment of operation, have a pronounced tendency, once started, to rapidly increase beyond the limits permitted for home based businesses and thereby impair the use and value of a residentially zoned area for residential purposes. Therefore, the following uses shall not be permitted as home based businesses: adult businesses; auto repair, minor or major; carpentry work; dance instruction; dental offices; medical offices; medical marijuana not meeting the exclusion in 18.40.220.C; mobile oil and lube services; painting of vehicles, trailers or boats; private schools with organized classes; radio or television repair; and upholstering. The City defines various terms so that their meaning is clear when applying the City's regulations. Agriculture has been active in Bozeman since its founding and has been practiced at many different scales. Bozeman has traditionally drawn a distinction between personal hobby or aesthetic growing of plants and commercial scale activities. This is continued in the current draft amendment language. As technology changes it is also necessary to update definitions. Since the City's primary concerns related to intensity of operations and impacts on others rather than the technicalities of production it is suggested to clarify the definition of agriculture to take into account changing means of production. When considering what constitutes agriculture in specific situations the City considers the nature of the relationship between the parties. Many people share flowers or vegetables with their neighbors or friends when they happen to have a surplus. Such activities are not considered agriculture since the grower planted primarily for their own needs and not to produce on behalf of someone else. This issue was scrutinized carefully by the City Commission in the discussion about allowing urban chickens. Part of the reason for limiting the number of fowl was to ensure that the chickens and eggs remained for the individual household rather than for others. In the context of medical marijuana, state law allows a person to possess and grow up to six plants for their personal use. In order to grow any plants on behalf of another the grower must be registered as a caregiver and the individual must register their relationship to the caregiver with the State. This is not a casual or incidental relationship but an on-going relationship. There is a strong distinction between the caregiver/recipient situation and the occasional sharing of garden produce between neighbors or friends. 18.80.080 Agriculture. The cultivation or tilling of soil or use of other growing medium for the purpose of producing vegetative materials for sale or for use in a commercial operation and/or the raising or tending of animals for commercial sale or use. Agriculture does not include gardening for personal use, keeping of house pets or animals as authorized under Title 6, BMC, or landscaping for aesthetic purposes. Nonconformity to changed regulations Sometimes a business is lawfully established in accordance with the regulations in effect at the time and then the rules subsequently change. Chapter 18.60, BMC addresses the issue of non-conforming uses. A business which was lawfully established may continue to operate at their approved location even if the rules change after the initial establishment of the business. If the business relocates it will need to meet #Z-10027 UDO Text Amendment Staff Report 11 178 the standards in place at that time for the new location, even if they are different than at the time the business first began operations. REVIEW CRITERIA The Zoning Commission criteria for review are established in statute. The analysis below notes that review criteria are met with the term ‘yes’; are not met with the term ‘no’; or are not materially affected with the term ‘neutral’. This report is a summary of the Staff’s analysis. Interpretation and application of the Unified Development Ordinance must take into account the document as a whole. If a substantial change is made then a particular point may be emphasized. To prevent redundancy, when an earlier review criterion has addressed an issue a later review criterion addressing the same issue may refer back to the prior answer. According to Section 18.70.020 of the Unified Development Ordinance (UDO), the Bozeman Zoning Commission shall cause to be made an investigation of facts bearing on each UDO text amendment application relevant to zoning. The Zoning Commission must review the information they consider necessary to assure that the action of each UDO text amendment application is consistent with the intent and purpose of the UDO. Specifically, the investigation must address the following criteria as required in Section 76-2-304, Montana Code Annotated. The Zoning Commission is charged to offer a recommendation only on those criteria established by Section 76-2-304, MCA which are identified by letter below. Section 76-2-304, MCA Criteria A. Be in accordance with a growth policy. Yes. There is no text in the Bozeman Community Plan (the growth policy) which is specific to medical marijuana. Overall, the Bozeman Community Plan encourages protection of the public safety, protection of neighborhoods, mitigation of the impacts of land uses, sustainability, sense of place, and a healthy economy. Generally applicable principles are illustrated by the following excerpts from the Bozeman Community Plan. Chapter 1, Addressing Growth and Change, Section 1.3 “Objective G-1.3: Require development to mitigate its impacts on our community as identified and supported by evidence during development review, including economic, health, environmental, and social impacts. Chapter 2, Principles and Planning, Section 2.1, Intent and Background. In describing the guiding principles of the growth policy, first listed is: “Strives to achieve a fair and proper balance among conflicting interests, to protect the rights of citizens, and to affirm community values as they have been expressed by citizens and throughout the planning process.” Chapter 3, Land Use, Section 3.2, Major Themes and Related Chapters. This section describes seven major organizing themes for the use of land in Bozeman. The first two are Neighborhoods and Sense of Place. These themes emphasize that not everywhere is the right place for everything. Bozeman has distinct areas for primarily residential and non-residential uses. Although mixed uses are allowed and in some circumstances encouraged they are done in balance to protect interests of all and not favor one user over another. #Z-10027 UDO Text Amendment Staff Report 12 179 Chapter 3, Land Use, Section 3.4, Land Use Category Descriptions. This section gives the baseline parameters for activities expected in each kind of land use. The Residential description includes “This category designates places where the primary activity is urban density dwellings. Other uses which complement residences are also acceptable such as parks, low intensity home based occupations...” The protection of residential activities from incompatible activities is necessary to implement the various themes identified in this criteria. Chapter 4, Community Quality, Section 4.1, Intent and Background. “In many ways, the perceived image of a community affects the quality of life enjoyed by current residents, influences the desirability of the community to newcomers and visitors, and ultimately impacts its economic viability…. Community Quality extends from the framework of the City, that which supports it and gives it physical form (streets, utilities, trails, natural features) to the individual architectural details and materials used on new buildings.” Chapter 13, Disaster and Emergency Preparedness, Section 13.1, Intent and Background. “Risk and the possibility of things going wrong are inescapable. However, many risks can be foreseen and proper forethought and action can reduce the likelihood and severity of impacts…” Section 13.3, Disaster and Emergency Preparedness Goals and Objectives, “Goal D-2: Recognize and strive to address both chronic as well as acute hazards and the effect of cumulative actions on increasing or decreasing hazards. Rationale: While some problems occur quickly and have obvious impacts, others can be inconspicuous and only recognized after longer term evaluation. Some problems, like flooding, can be increased incrementally by actions that individually are not significant. However, as many actions are taken the cumulative effect can result in a substantially increased hazard level and impact to the community.” The draft regulations have been carefully crafted to address reasonably predictable matters of concern such as proximity of location to particularly vulnerable populations, suitability of location based on physical characteristics of use such as probable traffic generation, and clearly identified procedures. B. The effect on motorized and non-motorized transportation systems. Neutral. The amendments as presented place a commercial use within districts zoned for commercial purposes. The general development standards of Title 18 have made provision for ensuring that necessary transportation infrastructure is in place. C. Secure safety from fire, panic, and other dangers. Yes. The amendments as presented direct commercial activities into commercial zones. Within commercial areas the building codes will have been applied to address necessary building exiting requirements and similar issues. Location of commercial activities within residential areas where construction standards are not suitable to such intensity is not allowed. The incorporation of the existing standards for home based businesses will ensure that intensity of business use remains suitably low within residential areas. D. Promote public health, public safety, and general welfare. Yes. The amendments ensure that locations for commercial uses are suitable and adequate area is #Z-10027 UDO Text Amendment Staff Report 13 180 available, medical marijuana is reasonably separated from the population of minors, and standards are in place to ensure that occupancy of buildings is appropriate to the physical construction. E. Reasonable provision of adequate light and air. Neutral. None of the edits change setbacks, required area per dwelling or, allowed lot coverage. The building codes and other standards remain in place and will ensure that adequate light and air is provided. The draft amendments require management of forced air ventilation to control odors to preserve air quality for adjacent owners and occupants. F. Prevention of overcrowding of land. Neutral. These amendments are not altering requirements for lot coverage or building density. Objectively, overcrowding is a condition where the use of land overwhelms the ability of infrastructure and buildings to meet the needs of users. This functional problem is addressed by ensuring the installation of water, sewer, transportation, and other services. G. Avoiding undue concentration of population. Neutral. The proposed amendments do not change standards for density of population. H. Facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirement. Neutral. These amendments do not address public facilities. I. Conserving the value of buildings. Yes. As discussed above in the Proposal and Background Information section the establishment of medical marijuana businesses have the potential for negative impacts to residential properties. The draft amendment has been written to minimize such impacts. J. Character of the district. Yes. As discussed above in the Proposal and Background Information section the establishment of medical marijuana businesses have the potential for negative impacts to residential properties. The draft amendments have been written to minimize such impacts. These include limiting the intensity with which commercial activities can intrude into residential districts. Commercial activities are focused into commercial and industrial zoning districts where physical construction, traffic flow, and other development related impacts are expected and mitigation can be provided. The separation requirement from schools protects the character of the school setting for the K-12 students. K. Peculiar suitability for particular uses. Yes. See discussion under the Proposal and Background and item J. L. Encourage the most appropriate use of land throughout the jurisdictional area. Yes. The proposed amendments encourage the use of commercial and industrially zoned properties for more intensive business and non-profit activities which are more likely to be compatible with other types of uses within those zoning districts. Residential areas are preserved for dwellings and intensity of uses consistent with the character and needs of residences. M. Promotion of Compatible Urban Growth. Neutral. The proposed amendments do not expand the development area of the City nor are likely to materially change the growth pattern of the city. #Z-10027 UDO Text Amendment Staff Report 14 181 #Z-10027 UDO Text Amendment Staff Report 15 STAFF FINDINGS/CONCLUSION Planning Staff has reviewed this application for a Unified Development Ordinance text amendment against the criteria set forth in statute and reflected in the Unified Development Ordinance. Staff’s analysis finds that this application does not conflict with the required criteria. Pursuant to Sections 76-2-304, Montana Codes Annotated, the Zoning Commission reviewed the Unified Development Ordinance text amendment application to determine if the proposed zoning change met the requirements of the adopted Growth Policy, state statute, and other adopted state and local ordinances. The Zoning Commission recommends approval of the Unified Development Ordinance text amendment in whole. The Bozeman Zoning Commission consideration was only for those criteria specified in Section 76-2-304, MCA. The Zoning Commission is required to make findings review criteria from Section 76-2-304, MCA. The City Commission is also required to make findings on all criteria. PUBLIC COMMENT No additional public comment was received after the two public forums when this report was prepared. Summary comments from the forums are attached. In the case of protest against these changes signed by the owners of 25% or more of either of the area of the lots included in the proposed change; or those lots 150 feet from a lot included in a proposed change, such amendment may not become effective except upon a favorable vote of two- thirds of the present and voting members of the City Commission. ATTACHMENTS Map showing the buffer areas from identified schools Summary of the two public forums Summary of building code standards Memos to state legislative interim committees Excerpts from Administrative Rules of Montana Section 45-9-109, MCA Title 50 Chapter 46, MCA 182 ^_ ^_ ^_ ^_ ^_ INTERSTATE 90 HWY LOVE LN DURSTON RD S 19TH AVE GOOCH HILL RD COTTONWOOD RD HUFFINE LN STUCKY RD FOWLER LN DAVIS LN S 3RD AVE BAXTER LN FRONTAGE RD BOZEMAN TRAIL RD W MAIN ST E VALLEY CENTER RD BLACKWOOD RD BRIDGER CANYON RD SOURDOUGH RD BIG GULC H D R PATTERSON RD BEAR CA N Y O N R D N 7TH AVE W OAK ST STORY MILL RD KELLY C A NYO N RD MANLEY RD M CIL H A T T A N R D FORT ELLIS RD W COLLEGE ST S 11TH AVE W KOCH ST E MAIN ST CHAPMAN RD HARPER PUCKETT RD L ST HIGHLAND BLVD FS 712 HAGGERTY LN G A N T RD MOUNT ELLIS LN TAYABESHOCKUP RD S 4TH AVE E KAGY BLVD N 15TH AVE FALLON ST S 6TH AVE A N NIE ST OAK ST N 5TH AVE BOH A RT L N W OLIVE ST MOFFIT GUL C H R D W OAK ST GRAF ST FRONT ST FLANDERS MILL RD W GARFIELD ST ROBIN L N KAGY RD CA TRON ST S BLACK AVE SANDERS AVE N 17TH AVE E LAMME ST W BABCOCK ST WATTS LN P E A CE P I P E DR OLD FARM RD SIMMENTAL WAY ROSE CR E E K R D WESTRID G E DR TEXAS WAY T R O O PER T R L RENOVA LN S TRACY AVE GOLDENSTEIN LN N ROUSE AVE WILDFLOWER WAY COMF O R T L N I NTERSTATE 90 HWY FRONTAGE RD BAXTER LN Legend ^_Kindergarten only Schools with 1,000 ft bufferResidential Suburban districtCommercial and Industrial zoning districtsCity Limits Public and Private School Buffersand Commercial/Industrial Zoning DistrictsRevised: This map was created by theCity of BozemanDepartment of Planningand Community Development ¯ 1 inch = 4,000 feet Intended for Planning purposes onlysome layers may not line up properly. 183 http://www.mtrules.org/gateWay/Print_RV.Asp?RV=15470 24.174.814 SECURITY OF PHARMACY (1) Each pharmacist, while on duty, shall be responsible for the security of the pharmacy, including provisions for effective control against theft or diversion of drugs. (a) A Schedule II controlled substance perpetual inventory shall be maintained and routinely reconciled in all pharmacies. (2) The pharmacy shall be secured at all times by either a physical barrier with suitable locks and/or an electronic barrier to detect entry by unauthorized persons at any time. Such barrier shall be approved by the board or its designee before being put into use. (3) Prescription and other patient health care information shall be maintained in a manner that protects the integrity and confidentiality of such information as provided by the rules of the board. (4) Sections (1) and (2) of this rule shall be effective February 1, 2004. History: 37-7-201, MCA; IMP, 37-7-201, MCA; NEW, 2002 MAR p. 794, Eff. 2/1/02; AMD, 2006 MAR p. 1615, Eff. 6/23/06. http://www.mtrules.org/gateWay/Print_RV.Asp?RV=15470 [3/26/2010 3:35:32 PM] 184 http://www.mtrules.org/gateWay/Print_RV.Asp?RV=5337 24.174.817 AUTOMATED RECORD KEEPING SYSTEMS (1) An automated system may be employed for the record keeping system, if the following conditions have been met: (a) The system shall have the capability of producing legible documents of all original and refilled prescription information. During the course of an on-site inspection the records must be accessible for viewing or printing. (b) The individual pharmacist responsible for completeness and accuracy of the entries to system must provide documentation of the fact that prescription information entered into the computer is correct. In documenting this information, the pharmacy shall have the option to either: (i) maintain a bound log book, or separate file, in which each individual pharmacist involved in such dispensing shall sign a statement each day, attesting to the fact that the prescription information entered into the computer that day has been reviewed and is correct as shown. Such a book or file must be maintained at the pharmacy employing such a system for a period of at least two years after the date of last dispensing; or (ii) provide a printout of each day's prescription information. That printout shall be verified, dated and signed by the individual pharmacist verifying that the information indicated is correct and then sign this document in the same manner as signing a check or legal document (e.g., J. H. Smith, or John H. Smith) . Such printout must be maintained at least two years from the date of last dispensing. (c) An auxiliary recordkeeping system shall be established for the documentation of refills if the automated system is inoperative for any reason. The auxiliary system shall insure that all refills are authorized by the original prescription and that the maximum number of refills is not exceeded. When this automated system is restored to operation, the information regarding prescriptions filled and refilled during the inoperative period shall be entered into the automated system within 96 hours. However, nothing in this section shall preclude the pharmacist from using his professional judgment for the benefit of a patient's health and safety. (d) Any pharmacy using an automated system must comply with all applicable state and federal laws and regulations. History: 37-7-201, MCA; IMP, 37-7-201, MCA; NEW, 1985 MAR p. 1017, Eff. 7/26/85; AMD, 1998 MAR p. 3103, Eff. 11/20/98; AMD, 2002 MAR p. 178, Eff. 2/1/02; TRANS, from Commerce, 2002 MAR p. 904. http://www.mtrules.org/gateWay/Print_RV.Asp?RV=5337 [3/26/2010 3:37:17 PM] 185 April 21, 2010 public forum public comments re medical marijuana • Discussion on landlord/tenant issues including whether MM protected property owners against federal forfeiture law. • A question came up: "why is there fear with MM?" • Home Occupation: our group spent much time discussing whether MM should be allowed as a home occupation. A threshold of five patients was mentioned. Another person mentioned using the number of plants or # of patients per hour rather than simply the # of patients as the gauge. • A comparison was made between growing tomatoes at home and taking them to the farmer's market. • We discussed the need to have the industry "self-regulate" in terms of spot checking on issues such as power supply and other fire issues. • Question came up whether a caregiver whose business location is outside of city limits needs a business license to deliver. The answer was yes but then someone asked whether the UPS needed a business license to merely deliver. • We discussed legal non-conforming uses and the relationship between the interim zoning and a permanent zoning. • Schools: most felt a distance requirement was acceptable although 1000 feet was questioned as being not related to protecting kids. • Scenario: 96 year old patient grows her own and lives directly across from school. Should she be allowed where a storefront space maybe not. • Discussed whether school district building should be considered the same as a school. • Comparison was made between alcohol and tobacco and the argument was made that MM is not a vice the same way the alcohol and tobacco are. • Why not regulate pharmacies adjacent to schools? • As an alternative to a straight distance discussion was had on using line of sight rather than a straight distance. • Smell: most folks around the table recognized it is easy to mitigate the smell by using a charcoal filter and that it would be very reasonable to include this as a requirement of zoning. • Discussion on how people consume in relation to "public use:" caregivers stated that smoking was one of the least preferred methods whereas vaporizers and this did not produce any second hand smoke that could effect someone else. • Need to keep edibles away from children and others and clearly mark them. Page 1 of 4 186 • Discussion on whether it was necessary to smoke (i.e. to take medicine) in public? • Involuntary exposure: may be a way to handle the public aspects. • Educational programs by the industry were important. • Does this apply to just the City limits? What about the County? Interesting to note that there are pockets of County land surrounded by the City. Are there talks occurring between the City and County in these regards? • The 1,000 feet seem arbitrary in an urban developed City. Especially when other medical offices are allowed (and they dispense controlled substances). • Need to understand what we are regulating. It’s a controlled substance like many others that are allowed without these additional City regulations (e.g. buffers). Person votes for alternative #5 of the public use options (prohibit use in a manner that creates a likelihood another person would be involuntarily exposed to marijuana). • Distribution and growth are two different things – fundamental is this discussion is protecting the patient’s rights! Person is not in favor of it being used in a public environment. • Ask patients how they feel it impacts their children. Get a firsthand account. • 1,000 feet may be too restrictive. • Why are there different laws on tobacco or alcohol? • The perception of what marijuana is changing. • Person has an 18 month old baby and has to medicate. Does not medicate inside the home or near the baby. But reasonable accommodations have to be made to allow someone to medicate on their own property. Also has home within 1,000 feet of school and needs to be able to medicate at home. • A lot of the existing laws (on the books) will deal with hazardous actions from the use of controlled substances (e.g. driving while impaired, etc.). Need to review the existing laws that are on the books. • Person is a student that has to medicate where he is at that time (within reason). Most people self regulate where to protect others. Just need to be provided reasonable accommodations as to where and how he can medicate. • Can the plants be grown in one’s own garden for personal medicinal use? Even if not zoned R-S its not agriculture, it’s for personal use. • Doesn’t feel that R-S is the only zoning district where it should be allowed to be grown. Should be expanded to allow in other appropriate locations. • This is not the same as growing corn! It is grown in a controlled building/environment. It should be accommodated (i.e. growing) in other that R-S zoning. • Need to look at whether small home offices or growing operations can be accommodated. Page 2 of 4 187 • All staff/City Commission need to visit a grower and provider so they can see what they are regulating. • The majority of people get their medicine via delivery (80% plus). • The cost of locating in a special or limited district/area or building increases the final cost to the patient. • Challenges the City to be progressive and realize that this may be legalized in 5 years. It could help tourism and the City’s economy to promote this industry. However, it does need reasonable controls. • It terms of public safety – aspirin is more dangerous – marijuana is not the monster it has been made out to be. • Taxes and licensing are a concern. • Enforcement will be an issue depending on how the regulations are crafted. • Concerned with comparing it to alcohol. Should be allowed in public spaces. Feel the existing public use restrictions (via State law) are adequate. People shouldn’t have to hide to medicate. • Look at Columbia Falls. Perhaps we should simply wait to see what the Legislature does. We may be just spinning our wheels. • Make sure we do it correctly and avoid lawsuits or settlements that ultimately cost the taxpayer. • Allow smaller caregivers to participate. Don’t make the regulations such that only big business can operate or locate as a caregiver. Allow mom and pop operations. Don’t make it too hard to do business otherwise it may go underground. • Allow co-ops. Don’t create a separation requirement of individual growers or caregivers. • Where do I find information? • Public use - Open container at events like Music on Main. Follow similar to existing open container provisions. • Use in proximity to minors - Is it legal? How do you distinguish between alcohol, medical marijuana, and other restricted substances. • Second hand smoke - Is it equivalent to tobacco, odor can be unpleasant, what documentary evidence has been gathered as to its harm? • Residential districts - It is ok to limit activities in these areas, need to respect the neighbors with issues like traffic. • How does the approved card holder partake in density areas with the restrictions on involuntary indoors and out, where do you go if you want to avoid use in front of others, need to respect others. • Why have a separation from schools? Can be illegal by schools but presently both OK and prohibited. Care providers need to demonstrate to the community that they can be Page 3 of 4 188 Page 4 of 4 trusted. All need to agree to move forward, not to constantly revisit the past. All need to use discretion in exercising the law's permissions. • Expressed concern on growing in residential area and possible impacts of crime, lowered home values, home upkeep, exposure to children, who will give oversight of the business, control of odor, ensure the building code is followed. • Who gives oversight and ensures quality of the material so it is effective, need some regulations. • Daycares - locations change often, what happens if a caregiver is granted approval to a location and then a daycare moves within the restricted distance. Could there be a limit on the scale of operations in proximity to a daycare? • Could the City appoint a medical marijuana advisory board to monitor the situation on an on-going basis? • Consider the revenues generated by medical marijuana sales and the reinvestment in the community. • The City will put the link to the on-going state legislative committee who is looking into this issue. 189 May 5, 2010 public forum public comments re medical marijuana • Person thinks this is all outrageous. What’s next…medical cocaine? Medical heroine? This is something just pushed by the marijuana community. Where does it end! Showed brain scans printed off the internet. • Person that is attending and interested in learning about medical marijuana for the treatment of his ailments. • Person pointed out this medical marijuana is simply an alternative to other drugs. It is a legitimate medicine. For many it is the best alternative for pain. • Person that felt that the 1,000 feet school buffer seems too large. • Young person testified that he was once on 4-5 prescription pills before medical marijuana. Now just takes medical marijuana. It is a legitimate effective medicine but it should come from licensed and regulated caregivers versus someone being forced to get it from the street (as he had been forced to do in the past). Zoning should not be so restrictive that it forces people to drive elsewhere to get their medicine. • Person who would not want his residence impacted by a neighbor dispensing medical marijuana (not supportive of locating caregivers in residential neighborhoods). • Person feels that the separation distance from schools shouldn’t be any different than what a liquor store is subject to. • Person concerned with being impacted by second hand smoke. • In regards to public use……..it should be treated the same as cigarette smoke. • Person who grows locally…..supports some type of protocol for security of the resource. • In regards to the buffers, person feels that the City should simply follow State law and not to with buffers. How/why are pharmacies different? They are not subject to the 1,000’. • Person believes that growing or dispensing should not be allowed in residential zones (beyond what’s allowed for personal medicinal use). • Person believes the buffers create exclusive areas that only benefit a few or isolated part of the City. This needs to be adjusted so the entire commercial community can benefit. • Person supports reasonable regulations and precautions. • Oral ingestion (such as a laced cookie) should be allowed in public spaces by patients. • Discussion on the difficulties with testing to determine “under the influence” as regulated by state law for operation of a motor vehicle. How is this tested? • Can the City impose special taxes on this? As a minister, has seen medical marijuana’s effectiveness with critical care patients. However, supports the need for regulation and bona fide doctors to prescribe it! Supports taxes to help appropriately regulate and monitor. • Caregiver who indicates that the medical marijuana community is supportive of reasonable guidelines or regulations imposed by the City. (Staff note: this seemed to be a general consensus of the attendees in order to establish/continue public acceptance by the “majority” of citizens for continuing to allow medical marijuana). Page 1 of 2 190 Page 2 of 2 • What about caps on the number of providers? General consensus at the table was to let the market dictate. • Person voiced that the economy need to be taken into account at this business is now an economic factor. • Need for education regarding how medical marijuana smoking interacts with Clean Indoor Air act. Lots of rumors and bad information circulating. • Concern on ability to counterfeit cards, needs to addressed by the State DPHHS • Use by under 18 requires parental oversight and control • Where might be the tipping point where a caregiver operation is too intensive to be appropriate to a residential area? • Driving under the influence. A definitive measure equivalent to blood alcohol level hasn't been developed yet, needs to be set by the state. Impairment will vary by person and the strain of plant they used. Different plant strains have different effects and concentrations of THC. • Home based businesses - what is an allowed intensity, what definitions exist to help minimize impacts? • Possibility of crime related to medical marijuana, crime also occurs with other reasons like liquor store robberies. • Need adequate regulation, treat similar to other drugs and alcohol • State oversight and regulation to address issues beyond City control. 191 Montana's Medical Marijuana Act: Emerging Issues Prepared by Sue O'Connell for the Children, Families, Health, and Human Services Interim Committee April 2010 Background In November 2004, Montana voters approved the use of medical marijuana through passage of Initiative 148. The measure was approved by 62% of the voters. In the first year after passage, the Department of Public Health and Human Services (DPHHS) issued medical marijuana registry cards to 176 individuals. The number of patients remained relatively low in the next two years and did not reach 1,000 until June 2008. A year later, there were 2,923 registered patients. Just six months after that, in December 2009, the number had increased to 7,339. And in the first three months of this year, DPHHS has issued nearly 5,000 more cards. As of March 31, there were 12,081 patients with active registry cards. In addition, 2,797 people were registered to provide marijuana on behalf of one or more patients. With the explosive growth in these numbers, government entities at all levels have faced a host of questions that are not always easily answered by existing law. So the Children, Families, Health, and Human Services Interim Committee decided in spring 2010 to take a look at the new and emerging issues related to the Montana Medical Marijuana Act. This briefing paper summarizes the law, the use of the program, and some of the key issues facing policymakers. First, a Note About Terminology People often talk about medical marijuana being "prescribed" and "dispensed." However, those terms are not contained in the law itself. Marijuana remains a Schedule I controlled substance under federal and state law, meaning doctors cannot write prescriptions for it and pharmacies cannot stock or dispense it. In Montana, doctors instead provide "written certification" that: • a person has a "debilitating medical condition" that is listed in the Montana Medical Marijuana Act; and • the potential benefits of the medical use of marijuana are likely to outweigh the health risks of using the marijuana. Likewise, marijuana is not "dispensed." However, individuals who are designated as "caregivers" may grow marijuana and provide it to patients who have specifically chosen the person to act as their caregiver. The role of the caregiver varies. Some provide medical marijuana to only one patient, while others have created businesses and supply medical marijuana to a relatively large number of patients. Montana also does not have "dispensaries" as some medical marijuana states do. Dispensaries may sell marijuana to any registered medical marijuana user. There is no direct patient-provider relationship in those states, as there is in Montana. Page 12 contains a glossary of terms used in the medical marijuana program. 192 2 What Exactly Does the Law Allow? The Montana Medical Marijuana Act contains the following key provisions: • A qualifying patient who has received a physician's written certification of a debilitating medical condition may apply for a medical marijuana registry identification card. • A qualifying patient may designate an individual to serve as a caregiver; that caregiver may legally grow and provide medical marijuana for that patient. • A qualifying patient may possess up to six plants and one ounce of usable marijuana. A caregiver may possess the same amounts for each patient who has named the person as a caregiver. • DPHHS must process medical marijuana registry applications and issue and renew registry cards for qualifying patients. <DPHHS must approve or deny applications within 15 days of receipt and must issue registry cards within five days of approval of an application. <DPHHS may deny an application if a person does not provide the information required by the law, if the agency determines that the information was falsified, or if the person is not qualified to receive a registry card. • Caregivers do not apply separately for a registry card; they receive a card when patients designate them on the patient's application form. <A person with a felony drug conviction is prohibited from being a caregiver. <Caregivers may not use marijuana. • A patient may not: <operate a vehicle, aircraft, or motorboat while under the influence of marijuana. <smoke marijuana in a school bus or on public transportation, on school grounds, in a correctional facility, or at a public park, beach, recreation center, or youth center. • Employers are not required to accommodate the medical use of marijuana. • Governmental medical assistance programs and private health insurers aren't required to reimburse a patient for the costs of its use. • A patient or caregiver with a may not be arrested, prosecuted, or penalized for growing, buying, or having amounts of marijuana within the legal limits. <Patients and caregivers are presumed to be engaged in the medical use of marijuana if they posses a registry card and don't have more marijuana than allowed. <Patients and caregivers may use as a defense to any criminal charge involving marijuana the fact that they are engaged in the medical use of marijuana. • Possession of or application for a registry card does not constitute probable cause for any government agency to search the person or the person's property. 193 3 Who Qualifies for Medical Marijuana, and How? A person may apply for the program by submitting the following materials to DPHHS: • a one-page form providing personal information and identifying a caregiver, if the patient chooses to have another person provide the medical marijuana; • a one-page statement signed by a physician licensed in Montana that certifies the patient's debilitating medical condition; and • a fee of $25 for a new application or $10 for a renewal application. A registry card is valid for one year. A patient may renew the card by submitting a new form and a $10 fee. Both adults and minors are eligible for the medical marijuana program. However, a minor's custodial parent or legal guardian must sign a minor's application for a registry card, agree to act as the minor's caregiver, and agree to control the minor's acquisition and use of the marijuana. DPHHS statistics through March 2010 showed that 295 physicians had certified the debilitating medical conditions of the 12,081 people enrolled in the registry. Fourteen of those physicians had certified more than 100 patients, while 23 had written certifications for more than 20 but fewer than 100 patients. Another 106 physicians had provided written certification for just one patient, while 83 doctors had written certifications for two to four patients. Who Has a Medical Marijuana Card, and Why? DPHHS statistics show that medical marijuana patients live in every county of the state except two — Garfield and Petroleum. The number of patients as a percentage of population is highest in Mineral County, where nearly 3% of the county's population holds a registry card. A table on Pages 10 and 11 lists the number of patients in each Montana county as of March 31, 2010. DPHHS lists the average age of a medical marijuana patient as 41. But 21- to 30-year- olds make up the largest percentage of cardholders, at nearly 25%. They are followed by 51- to 60-year-olds, who represent nearly 23% of the cardholders. DPHHS also collects information on the debilitating medical conditions that doctors have certified for registered patients. More than half of the patients have a debilitating condition that involves severe or chronic pain, with 6,988 of the patients listing that medical condition on their applications. People with severe or chronic pain and muscle spasms make up the second-largest category of cardholders, with 2,634 people listing that condition. The tables on the following page provide more information about the ages and medical conditions of medical marijuana patients. 194 4 Medical Marijuana Patients by Age Age Group # of Patients % of Cardholders Under 18 22 0.18% 18-30 397 3.29% 21-30 2,981 24.68% 31-40 2,503 20.72% 41-50 2,476 20.49% 51-60 2,762 22.86% 61-70 917 6.76% 71-80 105 0.87% 81-90 16 0.13% Over 90 2 0.02% Total 12,081 100% Medical Marijuana Patients by Medical Condition Debilitating Medical Condition # of Patients Cachexia or Wasting Syndrome 400 Cancer, Glaucoma, or HIV (AIDS) 355 Multiple Sclerosis 23 Seizures 116 Severe Nausea 218 Severe or Chronic Pain 6,988 Severe or Chronic Pain/Muscle Spasms 2,634 Severe or Chronic Pain/Nausea 616 Severe or Chronic Pain/Seizures 106 Severe or Chronic Pain/Nausea/Muscle Spasms 372 Severe or Persistent Muscle Spasms 211 Severe Seizures and/or Nausea and/or Muscle Spasms 42 195 5 Who's Providing It, and to How Many People? Medical marijuana patients may either grow the marijuana on their own or select someone to act as a caregiver who will grow and provide the marijuana to them. Caregivers do not register with DPHHS or pay a fee of any kind to serve as a caregiver. Instead patients designate a caregiver on their own applications for a registry card. The price a patient pays for the marijuana is negotiated between the patient and the caregiver. DPHHS statistics through March 2010 showed that patients had designated 2,797 caregivers. However, 776 of the 12,081 patients with active cards had not identified a caregiver. That means those patients are growing their own marijuana for medical use. Another 1,554 caregivers were providing marijuana to just one patient, and 746 were providing it to two to four patients. At the other end of the spectrum, 109 caregivers had 20 or more patients, while 47 had 15 to 19 patients. A caregiver with 15 patients would be authorized to possess 90 plants and 15 ounces of marijuana. A table showing the number of caregivers in each county is on Pages 10 and 11. What Questions Are People Asking, and Why? Some issues related to medical marijuana — particularly those involving law enforcement — have been simmering below the surface since the law passed. But with the recent growth in the number of patients and caregivers, a wide range of entities have found themselves facing questions about the law. And as they look for answers, some people feel the law provides too little guidance in many areas. Many of these interested parties, including businesses that grow and provide medical marijuana, have been involved in discussions to see where they may agree on potential changes to the law. Following is a summary of some of the more high-profile questions and issues that have surfaced in recent months. The points below by no means cover all of the questions that have arisen. State Government Issues •What resources should DPHHS put toward the medical marijuana program? With hundreds of applications arriving daily at the DPHHS offices, the agency has fallen behind in processing applications and has had to hire temporary staff to help with the process. It also must store applications securely, because they contain confidential information. •How should complaints by applicants or program participants be handled? DPHHS has no authority to investigate or regulate activities related to the application process. However, the agency does receive complaints from people unhappy with third parties handling their applications. 196 6 •Are the requirements in place for physician certification sufficient? Some physicians appear to be conducting appointments via Web cams or telemedicine. Some do not require medical records. Some are not the doctor a person sees on a regular basis. People have questioned in particular what constitutes a "bona fide physician-patient relationship." The law uses this term but does not define it. •Is there a standard of care that physicians who provide written certification should follow? The Board of Medical Examiners is looking at this issue. •Are there any circumstances in which pharmacies can handle medical marijuana? Pharmacies, particularly those located in hospitals, have asked the Board of Pharmacy for guidance on this question. •Do other state agencies have a role in the medical marijuana program? The Department of Agriculture has determined it may license a caregiver as a nursery if the caregiver is selling whole plants or parts of plants. Licensing fees would apply and would be based on the sales generated by the business. Community Issues •What city zoning and licensing laws should apply to caregivers? Do other local regulatory activities come into play? As caregivers have begun setting up storefront businesses, local governments have dealt with a host of issues related to zoning and business licenses, as well as questions related to inspections for compliance with requirements such as building and fire codes. Some cities have established moratoriums on the issuance of business licenses as they examine these issues. •What requirements should or could be placed on the location of caregiver operations? Community residents have expressed concern about the location of caregiver operations near schools, day care centers, and churches. •How should schools handle students or employees who are registered medical marijuana users? School districts believe the Federal Drug-Free Schools and Communities Act allows them to prohibit the use of medical marijuana on school grounds. Questions may remain, however, about students or employees who use medical marijuana off campus but may be under the influence of the drug when they are in school. The University of Montana has banned medical marijuana from its campuses based on the provisions of the Drug-Free Schools and Communities Act; Montana State University is expected to follow suit. •Should medical marijuana patients be allowed to use marijuana when they're admitted to a hospital? The Clean Indoor Air Act prohibits smoking in any public place and covers any "smokable product." That would prevent patients from smoking marijuana in the hospital, but patients have sometimes asked to ingest marijuana in another form. Hospitals are uncertain how to ascertain the dosage of marijuana the patient may be receiving and how the marijuana may interact with other treatment being provided by the hospital. The hospitals are also uncertain whether they can legally store marijuana on hospital premises. 197 7 •What requirements may employers place on employees who have a medical marijuana card? The law specifically says an employer is not required to "accommodate" the use of medical marijuana in the workplace, but questions remain about what limitations may be set. A wrongful discharge suit is currently pending in Great Falls. •Are there any additional locations where use of medical marijuana should be prohibited? A medical marijuana user currently may use marijuana in public as long as the use does not occur in the specific locations listed in the law. Law Enforcement Issues •Should additional people be prevented from being caregivers? Law enforcement is concerned that only people with felony drug convictions may be prevented from serving as a caregiver. Officers raise questions about whether people who have committed sexual offenses or violent offenses should be allowed to be in the position of selling marijuana, possibly marketing to young people •Should background checks of potential caregivers be expanded beyond Montana? Currently, background checks do not include offenses in all other states so someone with a felony drug conviction in another state may still receive a caregiver card in Montana. •Should caregivers be required to report the location of their growing operations so they can be inspected? Law enforcement officials note that the businesses are not subject to inspection to make sure they are in compliance with the Medical Marijuana Act or other state laws or regulations related to public health or taxation. •How can issues related to driving while under the influence of medical marijuana be addressed? The Montana Medical Marijuana Act prohibits a person from driving while under the influence of marijuana but enforcement can be a problem. •Is it possible to arrest and charge a person for possessing marijuana if they've applied for a registry card but not yet received it? Officers have sometimes stopped a person who is in possession of marijuana only to be told that the person has applied for a medical marijuana card or will be named as a caregiver after an application is processed. •Do the limits on the amount of allowable marijuana need to be clarified? The law allows possession of one ounce of usable marijuana, but makes no distinction about the form of the marijuana or the strength of the product. Questions abound about how the limits should be applied to such varying products as baked goods, hashish, and liquid tinctures. •Should the strength of the marijuana be a factor? The strength of not only dried marijuana but also other products may vary greatly. 198 1 Johnson v. Columbia Falls Aluminum Co., LLC, 2009 MT 108N, 2009 Mont. LEXIS 120 (2009). 8 Industry Issues •Are people hired to help a caregiver with the growing or delivery of marijuana covered by the Montana Medical Marijuana Act? Caregivers with many patients may need to hire employees to help them grow and provide the marijuana, but the law is unclear on whether those employees are protected by the provisions of the law. •May caregivers exchange marijuana among themselves to ensure an uninterrupted supply to their patients? This question comes into play if a caregiver loses some plants and is unable to meet a patient's needs. •Should restrictions be placed on the location, signage, or advertising of storefront businesses? Some caregivers have been willing to work with local government officials on these questions because they want to accommodate community concerns. •Should the list of debilitating medical conditions be expanded to include additional conditions? Advocates believe there are other medical conditions that could be alleviated by the medical use of marijuana. •Should the state regulate the industry? Stakeholders have said some licensing and oversight requirements — including record-keeping and reporting requirements — may ensure transparency and create a higher comfort level about the industry among state and law enforcement officials. What Have the Courts Said? Courts often rule on questions brought before them and establish case law that serves as guidance on legal issues, until or unless a statute is changed. However, few court actions involving the Montana Medical Marijuana Act have been filed. The Montana Supreme Court has ruled in two cases. A 2008 case involved conditions imposed on a person as part of a sentence in a drug case. A 2009 case involved a wrongful discharge case that included medical marijuana as an issue. While the Supreme Court decided in favor of the employer in the 2009 case, it did so in a decisions that may not be cited as case law.1 The 2008 case involved an appeal by Timothy S. Nelson, who had been charged with seven counts related to manufacture of methamphetamine and possession of marijuana and drug paraphernalia. At the time of his arrest in April 2006, he told authorities he had applied for a medical marijuana card. DPHHS issued a registry card in December 2006. In February 2007, Nelson entered into a plea agreement in which he pleaded no contest to the criminal possession or manufacture of dangerous drugs. He received a three-year deferred sentence. The court imposed two conditions on his sentence that related to his medical use of marijuana. One condition allowed him to use medical marijuana only in a pill form that 199 9 contains a legal synthetic version of the active ingredients of marijuana and that is prescribed by a physician. The other required him to comply with all laws, including federal laws. Federal law prohibits the possession of marijuana. Nelson appealed the imposition of those two conditions on the grounds that they illegally restricted his use of medical marijuana. The Supreme Court ruled in his favor, saying the plain language of the Montana Medical Marijuana Act prevented the court from limiting the ability of a person to use medical marijuana while under state supervision. The Supreme Court did say that a court could impose some restrictions on where the medical use may occur and may prohibit a person from abusing medical marijuana. But it determined that the blanket prohibition on using medical marijuana in any form other than a pill form was not allowed under current law. In Summary Only limited case law exists to guide people on questions related to the Montana Medical Marijuana Act. In addition, many people who have reviewed various aspects of the law agree that many provisions are unclear. The growth in the number of patients and caregivers has clearly given rise to numerous questions that remain unresolved. For those reasons, the Children, Families, Health, and Human Services Committee may want to step in to see where and how the Legislature may clarify issues of concerns to the many parties interested in the law. In making any decision, the Committee may want to consider the following questions: • Are there specific issues the Committee believes warrant continued review this interim? • If so, the Committee may want to determine: <which issues are the highest priority for the committee; <how members would like to proceed with the review process; <how stakeholders should to be involved in the review; and <whether the Committee anticipate its review will result in a committee bill draft? • If the Committee does not want to continue reviewing this issue, do members want other entities working on related matters to bring their proposals to the committee at a future meeting? 200 10 Patients and Caregivers by County County Caregivers Patients Population Patients as % of Population Beaverhead 15 76 8,903 0.85% Big Horn 5 20 12,841 0.16% Blaine 1 22 6,491 0.34% Broadwater 16 86 4,704 1.83% Carbon 19 69 9,657 0.71% Carter 1 1,234 0.08% Cascade 196 1,244 82,026 1.52% Chouteau 6 29 5,225 0.56% Custer 9 47 11,149 0.42% Daniels 6 1,643 0.37% Dawson 13 53 8,490 0.62% Deer Lodge 5 79 8,843 0.89% Fallon 17 2,716 0.63% Fergus 25 76 11,195 0.68% Flathead 381 1,593 88,473 1.80% Gallatin 645 1,849 89,824 2.06% Garfield 1,184 0.00% Glacier 2 32 13,297 0.24% Golden Valley 2 3 1,081 0.28% Granite 4 34 2,821 1.21% Hill 19 168 16,454 1.02% Jefferson 12 88 11,255 0.78% Judith Basin 3 8 2,014 0.40% Lake 71 349 28,690 1.22% Lewis and Clark 135 786 60,925 1.29% Liberty 5 10 1,725 0.58% Lincoln 104 364 18,971 1.92% Madison 28 121 7,509 1.61% McCone 1 3 1,676 0.18% Meagher 3 21 1,868 1.12% Mineral 21 114 3,862 2.95% 201 11 County Caregivers Patients Population Patients as % of Population Missoula 351 1,749 107,320 1.63% Musselshell 14 66 4,498 1.47% Park 117 447 16,189 2.76% Petroleum 436 0.00% Phillips 3 19 3,904 0.49% Pondera 17 45 5,852 0.77% Powder River 1 1,694 0.06% Powell 6 44 7,041 0.62% Prairie 4 1,064 0.38% Ravalli 171 632 40,664 1.55% Richland 2 18 9,270 0.19% Roosevelt 1 11 10,089 0.11% Rosebud 1 17 9,190 0.18% Sanders 55 163 11,034 1.48% Sheridan 4 3,283 0.12% Silver Bow 56 302 32,803 0.92% Stillwater 9 39 8,687 0.45% Sweet Grass 1 31 3,790 0.82% Teton 9 60 5,992 1.00% Toole 4 27 5,141 0.53% Treasure 2 637 0.31% Valley 10 34 6,892 0.49% Wheatland 1 13 2,010 0.65% Wibaux 1 4 866 0.46% Yellowstone 222 981 142,348 0.69% Totals 2,797 12,081 967,440 1.25% Source: Department of Public Health and Human Services, April 12, 2010 202 12 Glossary: Montana Medical Marijuana Act Terms Bona fide physician-patient relationship: In order to obtain a written certification allowing the use of medical marijuana, a doctor is supposed to examine the patient's medical history and current medical condition "in the course of a bona fide physician-patient relationship." The term is not defined in statute. CarCaregiver: A person 18 years of age or older who grows or provides medical marijuana for one or more patients. A person who has been convicted of a felony drug offense may not be a caregiver. Debilitating Medical Condition: One of several conditions for which the use of medical marijuana is allowed. The conditions include cancer, glaucoma, positive status for human immunodeficiency virus (HIV) acquired immune deficiency syndrome (AIDS), or the treatment of one of those diseases. The definition also covers any chronic or debilitating disease or medical condition or its treatment that produces: • cachexia or wasting syndrome; • severe or chronic pain; • severe nausea; • seizures, including those caused by epilepsy; • severe or persistent muscle spasms; or • any other medical condition adopted by rule by DPHHS. (DPHHS has not added to the list of debilitating medical conditions) Medical Use: This term covers any of the following activities: • acquisition, possession, cultivation, manufacture, delivery, transfer, or transportation of marijuana or drug paraphernalia by a patient or a caregiver if it relates to the use of marijuana to alleviate the symptoms or effects of a qualifying patient's debilitating medical condition; • the use of marijuana or paraphernalia by a patient to alleviate the effects of the patient's condition; or • the use of paraphernalia by a caregiver to grow, manufacture, deliver, transfer or transport marijuana for use by a patient. Qualifying Patient: A person who has been diagnosed by a physician as having a debilitating medical condition. Usable Marijuana: The dried leaves and flowers of marijuana and any mixture or preparation of marijuana. A patient or a caregiver may each have up to six plants and one ounce of "usable marijuana. The caregiver may have those amounts of plants and usable marijuana for each patient for whom the person is a registered caregiver. Cl0429 0105soxa. 203 1Emerging Issue: Medical MarijuanaSummary of Proposed Legislative ChangesPrepared for the Children, Families, Health, and Human Services Interim CommitteeJune 2010The table below summarizes recommendations provided by the work group on medical marijuana and additional ideas provided by otherstakeholders. It also indicates the section of law that would be affected and whether additional policy decisions would be needed to put therecommendation into effect. Work Group Recommendations: CaregiversLevel ofSupport MCA Section Pursue?PolicyIssues?Create a state-level regulatory board to license, inspect, and regulate caregivers Full New XEstablish a tiered system of licensing and regulation for caregivers Full New XAllow a parent to select a caregiver for a minor child who has a card Full 50-46-103(3)Allow caregivers to sell marijuana to other caregivers in a "closed-loop" system Full New XCreate a new non-caregiver category for a person who may handle medical marijuana Full Throughout XClarify that caregivers may also be patients Full ThroughoutEstablish additional offenses that would prohibit a person from being a caregiver Majority 50-46-103(4)(b)Require a 50-state background check before registering a caregiver Majority 50-46-103(4)(b)Establish ethical and educational requirements for caregivers Majority New X204 2Work Group Recommendations: Patients and/or PhysiciansLevel ofSupport MCA Section Pursue?PolicyIssues?Review the time period for which a registry card is valid Full 50-46-107(7) XReview issues related to the definition/diagnosis of chronic pain and physicianstandardsMajority 50-46-102 XReview the use of mass screening clinics Minority New XWork Group Recommendations: General ProvisionsLevel ofSupport MCA Section Pursue?PolicyIssues?Review all definitions Full 50-46-102 XRevise confidentiality provisions to allow additional sharing of information among stateand local government agencies Full50-46-103(8)50-46-202(1) XReview and amend the allowable amounts of marijuana Full 50-46-201(2) XAmend the reciprocity provisions for out-of-state patients and in-state caregivers Full 50-46-201(8) XEstablish a procedure for adding to the list of debilitating medical conditions Full New XRequire patients and caregivers to carry their registry cards; establish penalty Full New XEstablish a penalty for intentionally falsifying a registry application Full New XClarify that medical marijuana must be grown in Montana MajorityNew or 50-46-103Clarify disciplinary authority of licensing boards for unprofessional conduct or otherviolations related to medical use of marijuana Majority50-46-201(1)50-46-201(4)Require diagnosis of a medical condition before use of the affirmative defense Majority 50-46-206(1)(b)Determine whether to strike or amend 50-46-206(1)(b) Split 50-46-206(1)(b)205 3Work Group Recommendations: ProhibitionsLevel ofSupport MCA Section Pursue?PolicyIssues?Amend the term "school grounds" to include any property owned by a school district Full 50-46-205Prohibit use and possession of marijuana on school property Majority 50-46-205Give local governments authority to regulate public use of marijuana Majority 50-46-205Prohibit involuntary exposure to medical use of marijuana Minority 50-46-205The following ideas were raised during the Committee's April meeting, in public comment received on the issue, or by state agency representatives.However, they were not fully discussed by the work group members so were not among the group's formal recommendations. The ideas arepresented here in case the Committee would like to obtain additional information or incorporate any of them into draft legislation.Ideas Raised But Not Resolved: CaregiversAdditionalInformation?DraftLegislation?Limit the number of patients a caregiver may haveRequire caregivers to pay a fee for the registry cardConsider establishing fire, safety, and zoning regulations for caregiver operationsProhibit caregiver operations within 1,000 feet of schoolsEstablish residency requirements for caregiversAllow laboratory testing of medical marijuanaProhibit financial relationships between a physician and caregiver in connection with a physician'sappointments with patients seeking written certification206 Emerging Issue: Medical Marijuana Proposed Changes to Definitions in the Medical Marijuana Act Prepared for the Children, Families, Health, and Human Services Interim Committee June 2010 Background The work group reviewing Montana's Medical Marijuana Act recommended that the Children, Families, Health, and Human Services Interim Committee review the entire definitions section of the Act. Work group members considered — but did not specifically act on — several ideas for changing or adding to the definitions. This briefing paper discusses the issues raised by the work group and others in relation to existing and suggested definitions. Existing Definitions Caregiver: A caregiver is a person who undertakes responsibility for "managing the well-being of a person with respect to the medical use of marijuana." Issues: The term appears to place a health care responsibility on the caregiver, the person who grows and provides marijuana for medical use. While caregivers may make recommendations on the strains or types of marijuana to use, they do not generally have a health care role. Some people have suggested the term should be changed to more accurately reflect the person's actual role. Debilitating medical condition: This definition lists some specific medical conditions and their treatments as debilitating medical conditions and also includes any "chronic or debilitating disease or medical condition or its treatment" that produces several symptoms, including severe or chronic pain and severe nausea. Issues: Some people suggested that the list of debilitating conditions be expanded. Others suggested that the definition of chronic pain be defined in a more limited way. Marijuana and Usable Marijuana: The law provides definitions for both of these terms, creating possible conflicts. Issues: Some participants felt the use of these two terms throughout the Act should be reviewed to ensure that they aren't used interchangeably or in ways that create conflicts. Physician: The law requires a physician to be licensed in Montana. Issues: Some people suggested that the definition should be expanded to require that the physician be in good standing with the Board of Medical Examiners or not under a disciplinary order relating to medical marijuana. Qualifying patient: The current definition requires the person to have been diagnosed by a physician as having a debilitating medical condition. Issues: The definition does not require that the person have a written certification from a physician, which is needed to apply for a registry card, and it does not require that the person be registered with the state. However, the term is used in other areas of the law, including the definition of medical use. The use of the term as currently defined may create confusion about whether a person must register with the state to be able to use 207 medical marijuana. Some people suggested that this definition should be clarified and its use throughout the Act be reviewed to ensure that only registered patients may obtain and use medical marijuana. Usable marijuana: Currently, the definition includes the dried leaves and flowers of marijuana and any mixture or preparation of marijuana. Issues: Some people have questioned whether all preparations, such as hashish, should be allowed as medical marijuana. Others asked that the word "dried" be changed to "cured." Suggestions for New Definitions Grower: This term would be reserved for caregivers with a large number of patients. Issues: Work group participants agreed it may be necessary to create a new definition for caregivers with many patients. These caregivers would be subject to more regulation but also would be allowed to sell excess marijuana to other caregivers who may not have enough to meet the needs of their patients. Handler: This term would be defined for people who work for caregivers but do not have a full caregiver role. Issues: Many caregivers employ people to help with the growing and delivering of medical marijuana. Currently, these employees may legally handle marijuana only if they are registered as caregivers. Some people have suggested that a new definition for these employees is needed, to recognize their more limited role. Plant: This definition would be added to indicate that a plant is any portion of a marijuana plant that contains a root system. The definition of plant is important, because patients are limited to possessing six plants and caregivers may have a maximum of six plants per patient. Issues: Law enforcement representatives, in particular, expressed support for creating a definition of plant. They indicated that some caregivers start new plants with cuttings from existing plants. If cuttings have established root systems, law enforcement currently is uncertain whether to count them as a plant or not. Standard of Care: The Board of Medical Examiners has issued a policy paper on the standard of care expected when a physician is providing care to any patient, including providing a written certification of a debilitating medical condition for medical marijuana. The standard of care includes taking a medical history, performing a relevant physical exam, reviewing prior treatment and the patient's response to that treatment, obtaining and reviewing relevant diagnostic test results, discussing potential treatment options, monitoring the patient's response to a treatment, creating and maintaining patient records, and notifying the patient's primary care physician when appropriate. Issues: Some stakeholders suggested creating a definition for a standard of care and incorporating all or most of the elements established by the Board. The Board has recommended striking the use of the phrase "bona fide physician-patient relationship" and instead using "standard of care" as appropriate throughout the Act. Cl0425 0167soxd. 208 4Ideas Raised But Not Resolved: Patients and/or PhysiciansAdditionalInformation?DraftLegislation?Allow physicians to revoke a written certification and notify DPHHSRequire certifying physicians to be Montana residents and have an established practice in MontanaProhibit or regulate the use of telemedicine for written certificationsRequire more detailed information on applications to ensure medical marijuana is a treatment of last resortAllow an expedited process for certain medical conditionsRequire in-person meetings between the physician and patient and a physical exam or complete medicalrecords examRequire physicians, not a third party, to keep records of patient visitsIdeas Raised But Not Resolved: General ProvisionsAdditionalInformation?DraftLegislation?Establish penalties for violations of various requirements for patients and caregiversAllow a registry card to be revoked for a violation of a drug law involving marijuanaEstablish a waiting period before a person whose card has been revoked may apply for a card againRequire state-level health care programs that subsidize or provide reimbursement for prescription drugs to dothe same for medical marijuana for patients who qualify for health care supportIdeas Raised But Not Resolved -- ProhibitionsAmend the Clean Indoor Air Act to specify that medical marijuana is a prohibited smokable productClarify that the workers' compensation program doesn't have to cover the costs of medical marijuanaCl0425 0168soxd.209 Emerging Issue: Medical Marijuana Updated Registry Statistics Prepared for the Children, Families, Health, and Human Services Interim Committee June 2010 The following tables update statistics from the medical marijuana registry that were provided in the April 2010 briefing paper entitled "Montana's Medical Marijuana Act: Emerging Issues." The statistics are current as of May 31, 2010. Medical Marijuana Patients by Age Age Group Number of Patients Percentage of Cardholders March 31, 2010 May 31, 2010 March 31, 2010 May 31, 2010 Under 18 22 32 0.18% 0.20% 18-20 397 600 3.29% 3.69% 21-30 2,981 4,121 24.68% 25.35% 31-40 2,503 3,384 20.72% 20.82% 41-50 2,476 3,279 20.49% 20.17% 51-60 2,762 3,614 22.86% 22.23% 61-70 917 1,059 6.76% 6.51% 71-80 105 135 0.87% 0.83% 81-90 16 29 0.13% 0.18% Over 90 2 2 0.02% 0.01% Total 12,081 16,255 100% 100% Medical Marijuana Patients by Medical Condition Debilitating Medical Condition Number of Patients March 31, 2010 May 31, 2010 Cachexia or Wasting Syndrome 400 446 Cancer, Glaucoma, or HIV (AIDS) 355 448 Multiple Sclerosis 23 21 Seizures 116 145 Severe Nausea 218 246 Severe or Chronic Pain 6,988 10,479 Severe or Chronic Pain/Muscle Spasms 2,634 2,923 Severe or Chronic Pain/Nausea 616 713 Severe or Chronic Pain/Seizures 106 118 Severe or Chronic Pain/Nausea/Muscle Spasms 372 399 Severe or Persistent Muscle Spasms 211 248 Severe Seizures and/or Nausea and/or Muscle Spasms 42 69 Total Patients 12,081 16,255 210 2 Number of Patients Per Caregiver Number of Patients Number of Caregivers March 31, 2010 May 31, 2010 No caregiver identified 776 904 1 patient 1,554 1,820 2-4 patients 746 938 5-9 patients 258 349 10-14 patients 83 122 15-19 patients 47 64 20 or more patients 109 145 Total Caregivers 2,797 3,438 Number of Patients Per Certifying Physician Number of Patients Number of Physicians March 31, 2010 May 31, 2010 1 patient 106 100 2-4 patients 83 95 5-9 patients 53 47 10-14 patients 9 16 15-19 patients 7 8 20 -100 patients 23 21 More than 100 patients 14 20 Total Physicians 295 307 211 3 Patients and Caregivers by County County Caregivers Patients Population Patients as % of Population 3/31/2010 5/31/2010 3/31/2010 5/31/201 3/31/2010 5/31/2010 Beaverhead 15 19 76 111 8,903 0.85% 1.25% Big Horn 5 7 20 43 12,841 0.16% 0.33% Blaine 1 7 22 45 6,491 0.34% 0.69% Broadwater 16 26 86 117 4,704 1.83% 2.49% Carbon 19 24 69 92 9,657 0.71% 0.95% Carter 1 1 1,234 0.08% 0.08% Cascade 196 247 1,244 1,563 82,026 1.52% 1.91% Chouteau 6 6 29 35 5,225 0.56% 0.67% Custer 9 10 47 59 11,149 0.42% 0.53% Daniels 6 9 1,643 0.37% 0.55% Dawson 13 17 53 67 8,490 0.62% 0.79% Deer Lodge 5 17 79 107 8,843 0.89% 1.21% Fallon 17 17 2,716 0.63% 0.63% Fergus 25 37 76 148 11,195 0.68% 1.32% Flathead 381 520 1,593 2,132 88,473 1.80% 2.41% Gallatin 645 497 1,849 2,344 89,824 2.06% 2.61% Garfield 1,184 0.00% 0.00% Glacier 2 3 32 50 13,297 0.24% 0.38% Golden Valley 22341,0810.28%0.37% Granite 4 6 34 45 2,821 1.21% 1.60% Hill 19 28 168 271 16,454 1.02% 1.65% Jefferson 12 27 88 148 11,255 0.78% 1.31% Judith Basin 3 5 8 14 2,014 0.40% 0.70% Lake 71 96 349 477 28,690 1.22% 1.66% Lewis and Clark 135 183 786 1,037 60,925 1.29% 1.70% Liberty 5 5 10 15 1,725 0.58% 0.87% Lincoln 104 121 364 432 18,971 1.92% 2.28% Madison 28 34 121 161 7,509 1.61% 2.14% McCone 11331,6760.18%0.18% Meagher 3 7 21 27 1,868 1.12% 1.45% Mineral 21 30 114 130 3,862 2.95%3.37% 212 4 County Caregivers Patients Population Patients as % of Population 3/31/2010 5/31/2010 3/31/2010 5/31/2010 3/31/2010 5/31/2010 Missoula 351 479 1,749 2,390 107,320 1.63% 2.23% Musselshell 14 14 66 83 4,498 1.47% 1.85% Park 117 142 447 519 16,189 2.76% 3.21% Petroleum 1 436 0.00% 0.23% Phillips 3 8 19 29 3,904 0.49% 0.74% Pondera 17 19 45 59 5,852 0.77% 1.01% Powder River 1 3 1,694 0.06% 0.18% Powell 6 14 44 76 7,041 0.62% 1.08% Prairie 2 4 6 1,064 0.38% 0.56% Ravalli 171 224 632 804 40,664 1.55% 1.98% Richland 2 5 18 27 9,270 0.19% 0.29% Roosevelt 1 2 11 23 10,089 0.11% 0.23% Rosebud 1 2 17 28 9,190 0.18% 0.30% Sanders 55 70 163 218 11,034 1.48% 1.98% Sheridan 3 4 11 3,283 0.12% 0.34% Silver Bow 56 86 302 438 32,803 0.92% 1.34% Stillwater 9 13 39 62 8,687 0.45% 0.71% Sweet Grass 1 3 31 37 3,790 0.82% 0.98% Teton 9 8 60 72 5,992 1.00% 1.20% Toole 4 7 27 39 5,141 0.53% 0.76% Treasure 2 3 637 0.31% 0.47% Valley 10 13 34 40 6,892 0.49% 0.58% Wheatland 1 5 13 20 2,010 0.65% 1.00% Wibaux 1144 8660.46%0.46% Yellowstone 222 336 981 1,559 142,348 0.69% 1.10% Totals 2,797 3,438 12,081 16,255 967,440 1.25% 1.68% Source: Department of Public Health and Human Services Cl0425 0167soxb. 213 PO BOX 201706 Helena, MT 59620-1706 (406) 444-3064 FAX (406) 444-3036Education and Local Government Interim Committee 61st Montana Legislature SENATE MEMBERS HOUSE MEMBERS COMMITTEE STAFF KELLY GEBHARDT--Vice Chair WANDA GRINDE--Chair LEANNE KURTZ, Research Analyst GARY BRANAE ELSIE ARNTZEN JEREMY GERSOVITZ, Staff Attorney KIM GILLAN RUSSELL BEAN CLAUDIA (CJ) JOHNSON, Secretary BOB HAWKS JOHN FLEMING DANIEL MCGEE BOB LAKE JIM PETERSON EDITH MCCLAFFERTY MONTANA LEGISLATIVE SERVICES DIVISION STAFF: SUSAN BYORTH FOX, EXECUTIVE DIRECTOR • DAVID D. BOHYER, DIRECTOR, OFFICE OF RESEARCH AND POLICY ANALYSIS • GREGORY J. PETESCH, DIRECTOR, LEGAL SERVICES OFFICE • HENRY TRENK, DIRECTOR, OFFICE OF LEGISLATIVE INFORMATION TECHNOLOGY • TODD EVERTS, DIRECTOR, LEGISLATIVE ENVIRONMENTAL POLICY OFFICE To: Education and Local Government Committee From: Helen Thigpen, Staff Attorney Date: June 1, 2010 Re: Local regulation of medical marijuana. The purpose of this memorandum is to provide background information to the Education and Local Government Committee on the local regulation of medical marijuana. The memorandum provides: (I) a brief overview of the Montana Medical Marijuana Act; (II) a description of some of the challenges facing local governments following the legalization of medical marijuana; and (III) an analysis of the current statutory framework for the local regulation of medical marijuana. The memorandum concludes with a few options the committee may want to consider during the next Legislative session. While the following discussion is limited to an analysis of the local regulation of medical marijuana and does not address health or law enforcement concerns, the committee should note that the Children, Families, Health, and Human Services (CFHHS) interim committee is also investigating medical marijuana. The next CFHHS meeting is scheduled for June 28, 2010. I. Montana Medical Marijuana Act The use of marijuana for medical purposes in Montana was approved by 62% of voters in 2004 through the passage of Ballot Initiative No. 148. The Medical Marijuana Act (MMA), codified at §§ 50-46-101 through 50-46-210, MCA, allows a "qualifying patient" to use marijuana for certain medical conditions with the authorization of a physician. A “qualifying patient” is a person who has been diagnosed by a physician as having a debilitating medical condition such as cancer, glaucoma, human immunodeficiency virus (HIV), or acquired immune deficiency syndrome (AIDS). Section 50-46-102(8). A debilitating medical condition also includes a disease or condition that produces severe or chronic pain, seizures, severe nausea, or severe or persistent muscle spasms caused by conditions such as multiple sclerosis. Section 50-46-102, MCA. A person who has a registration card from the Department of Public Health and Human Services (DPHHS) may not be "arrested, prosecuted, or penalized" if he or she does not possess more than six plants and one ounce of usable marijuana or uses marijuana for medical use. Section 50-46- 201(1), MCA. The MMA also provides certain affirmative defenses to individuals who do not possess a registration card. For example, under § 50-46-206, MCA, it is an affirmative defense 214 1 Department of Public Health and Human Services, History of Qualifying Patients, Caregivers, and Doctors, http://www.dphhs.mt.gov/medicalmarijuana/mmphistoricaldata.shtml (last accessed May 31, 2010). 2 21 U.S.C. §§ 841(a)(1) through 844(a). 3 21 U.S.C. § 812(b)(1). -2- to any criminal offense involving medical marijuana that the person charged has a physician who states or has medical records that indicate that "the potential benefits of medical marijuana would likely outweigh the health risks for the person". Section 50-46-206(1)(a), MCA. The MMA allows a patient to grow marijuana for personal use or to designate another person to serve as a "caregiver." A caregiver is someone, other than the patient’s physician, who is 18 years of age or older and who has agreed to take on the responsibility of managing the well-being of the patient with respect to the use of medical marijuana. Section 50-46-102(1), MCA. A caregiver may not have a previous felony drug conviction or possess more than six marijuana plants and one ounce of usable marijuana for each patient. Section 50-46-201(2), MCA. There is no restriction on the number of patients a caregiver may serve. There are several additional limitations on the use and possession of marijuana for medical purposes. Section 50-46-205, MCA. The MMA does not allow (1) any person to operate a motorized vehicle while under the influence of marijuana; (2) a caregiver to use marijuana; or (3) a patient to smoke marijuana on a school bus, in any form of public transportation, on school grounds, in a correctional facility, or in public parks, beaches, or recreation or youth centers. In addition, the MMA does not require an employer to accommodate medical marijuana in the workplace or require a government medical assistance program or health insurer to reimburse costs associated with the use of medical marijuana. Section 50-46-205(2), MCA. II. Challenges Over the past year there has been a significant increase in the number of Montanans who have obtained identification cards for medical marijuana. In 2005, DPHHS issued approximately 180 registration cards. By March 2010, DPHHS issued over 12,000 registration cards.1 This growth has raised several concerns for local governments. A primary concern is the relationship between state and federal law. Currently it is unlawful under federal law to manufacture, distribute, or possess a controlled substance except in accordance with the Controlled Substances Act (CSA).2 Under the CSA, substances are classified into five different "schedules" based upon various factors such as their potential for abuse, medical use, and physical and psychological effects. Marijuana is classified as a Schedule I substance under federal law, meaning that it has: (1) a high potential for abuse; (2) no accepted medical use for treatment; and (3) a lack of accepted safety for use under medical supervision.3 Because marijuana is classified as a Schedule I substance, the federal government has the authority to investigate and prosecute the illegal use or distribution of marijuana. In 2009, the United States Department of Justice (Department) issued a guidance document to federal 215 4 National Conference of State Legislatures, State Medical Marijuana Laws, http://www.ncsl.org/default. aspx?tabid=19587 (Updated April 2010). 5 Cal. Health and Safety Code, § 11362.765. -3- prosecutors clarifying its position on the prosecution of medical marijuana. The document stated: The [Department] is committed to the enforcement of the [CSA] in all States. Congress has determined that marijuana is a dangerous drug, and the illegal distribution and sale of marijuana is a serious crime and provides a significant source of revenue to large-scale criminal enterprises, gangs, and cartels. However, the Department also stated that federal resources should not be focused on "individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana." The practical result of this document is that the federal Drug Enforcement Administration ended its raids on operations that cultivate or distribute marijuana for medical purposes in states that have authorized its use. The Department reiterated that it remains committed to prosecuting "significant traffickers of illegal drugs, including marijuana." While the guidance document provided some clarification on the federal investigation and prosecution of marijuana for medical use, many questions remain unanswered at the state and local level. For example, the MMA does not address whether local governments are authorized to regulate the use and distribution of medical marijuana. The MMA also does not provide whether medical marijuana may be distributed commercially through stores or "dispensaries" to qualifying patients. Some states provide specific regulations relating to how medical marijuana may be distributed.4 In California, for example, dispensaries are allowed but are prohibited from cultivating or distributing marijuana for profit.5 In addition, while the MMA prohibits a caregiver from possessing more than a specified amount of marijuana for medical use, there is no limitation on the number of patients each caregiver may serve. Communities have also raised concerns about whether schools would be required to accommodate the use of medical marijuana by students who obtained a valid identification card with the consent of a parent or guardian. The MMA specifically prohibits smoking marijuana on school property, but it is silent on whether a student may ingest marijuana in another form. Concerns have also been raised about the proximity of commercial operations to educational facilities. The MMA does not specify whether a commercial operation for medical marijuana could be established within a certain distance of a school. However, Montana’s criminal code does currently prohibit the distribution of dangerous drugs, including Schedule I substances, on or within 1,000 feet of school property. Section 45-9-109, MCA. III. Analysis Many Montana communities have recently moved to regulate medical marijuana. Most of these communities have adopted interim ordinances that temporarily ban commercial establishments 216 -4- that grow or sell marijuana to registered patients. Billings, for example, recently adopted an interim ordinance that prohibits new commercial establishments that cultivate or distribute medical marijuana to registered patients from opening within the city. However, the ordinance does not apply to a qualifying patient who does not possess more than the statutory limit of marijuana for personal use or to a caregiver that obtained a license to operate from the city before the ordinance took effect. In contrast, Columbia Falls has stated that it will regulate medical marijuana businesses in accordance with its existing zoning laws, whereas Helena has determined that it is prohibited from issuing a business license to an establishment that is illegal under federal law. The following section describes the authority of local governments to enact ordinances such as these to regulate the use or distribution of medical marijuana. It also describes the existing framework for the adoption of regulations related to land use and zoning. A. General Powers v. Self-Governing Powers The authority of local governments to regulate is derived from state law. Traditionally local governments could exercise only those powers expressed or implied by law. Article XI, section 4, of the Montana Constitution provides that local governments without self-governing powers have the powers provided or implied by law. Generally this means that governments with general powers must receive a legislative grant of authority before they can take a particular action. Under § 7-1-4124, MCA, municipalities with general powers are vested with a number of specific powers, including the power to enact ordinances and resolutions and "to exercise powers not inconsistent with law necessary for effective administration of authorized services and functions." County powers are more limited. These powers are set forth in § 7-1-2103, MCA. The majority of Montana’s local governments are organized as general powers governments. With the adoption of a new constitution in 1972, local governments gained the ability to organize as self-governing units. Article XI, section 6, of the Montana Constitution states that local governments with a self-governing charter "may exercise any power not prohibited by [the] constitution, law, or charter." Courts are required by statute to construe self-governing powers liberally and to resolve doubts regarding these powers in favor of self-governing authority. Section 7-1-106, MCA. However, the power of self-governing units is not unlimited. Governments with self-governing powers may not exercise certain powers related to the public school system, any power that affects professional occupation standards, or "any power that defines as an offense conduct made criminal by state statute . . . ." See § 7-1-111(3), (8), (11), MCA. There are also certain powers that cannot be exercised without express delegation from the state. These limitations are set forth in § 7-1-112, MCA. In addition, while state statutes apply to local governments with self-governing powers until they have been superseded, a self- governing unit may not "exercise any power in a manner inconsistent with state law or administrative regulation in any area affirmatively subjected by law to state regulation or control." Section 7-1-113, MCA. A power is inconsistent with state law if it "establishes standards or requirements which are lower or less stringent than those imposed by state law or regulation." Section 7-1-113(2). Under § 7-1-113(3), "An area is affirmatively subjected to state 217 -5- control if a state agency or officer is directed to establish administrative rules governing the matter or if enforcement of standards or requirements established by statute is vested in a state officer or agency." The Montana Supreme Court addressed the prohibition on self-governing units regulating in a manner that is inconsistent with state law in a 1998 decision regarding the local regulation of alcoholic beverages. See Town Pump, Inc. v. Bd. of Adjustment of Red Lodge, 1998 MT 294, 292 Mont. 6, 971 P.2d 349 (1998). At issue in this case was a local regulation that required a conditional use permit for the on-premise consumption of alcohol instead of a special exception. Town Pump, ¶ 11. The regulation was challenged on various grounds, including preemption by state law. The Court held that the state’s regulation of alcoholic beverages did not preempt the city’s regulation of the sale of alcohol because the regulation was "consistent with but more stringent than Montana’s regulation of alcohol." Town Pump, ¶ 40. The Court relied on a statute stating that Montana could consider whether a proposed retail location for alcohol was consistent with local zoning. According to the Court, Montana law clearly contemplated that cities would impose local zoning to regulate the sale of alcohol. B. Zoning Zoning is a specific method a local government may use to regulate land use within its jurisdiction and involves the separation of uses that are determined to be incompatible with each other. Through the zoning process, a community is divided into districts that have been designated for certain uses such as residential, commercial, industrial, or agricultural. The procedures and requirements for zoning in Montana are set forth in Title 76, chapter 2, MCA. County and municipal zoning is authorized for the purpose of promoting the public’s health, safety, morals, and general welfare. Zoning at either level can be designated to (1) secure safety from fire and other dangers; (2) promote public health, public safety, and general welfare; and (3) facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements. Sections 76-2-203, 76-2-304, MCA. The procedures and requirements for zoning in unincorporated areas are set forth in Title 76, chapter 2, part 1, MCA. Under § 76-2-101, MCA, “whenever the public interest or convenience may require and upon petition of 60% of the affected real property owners in the proposed district,” the board of county commissioners may create a planning and zoning district. The board may not create a zoning district that is smaller than 40 acres or if 50% of the real property owners in the district protest the establishment of the district within 30 days of its creation. Section 76-2-101(3),(5), MCA. Once established, the planning and zoning commission is required to adopt a "development pattern for the physical and economic development of the planning and zoning district." Section 76-2-104, MCA. The development pattern, which may be accompanied by corresponding maps and charts, must show the commission’s recommendations for the development of the districts. Section 76-2-104(2), MCA. The county may take appropriate actions to enforce these zoning provisions. 218 -6- C. Interim Ordinances Interim ordinances are also authorized by Montana law. As an emergency measure, counties may establish an interim zoning district or an interim regulation to promote the public’s health, safety, morals, and general welfare if the purpose of the ordinance is to regulate those uses that constitute an emergency and the county is conducting or intends to conduct a study within a reasonable time or is holding a hearing to consider the following: (1) a growth policy; (2) a zoning regulation; or (3) a revision to a growth policy, master plan, or zoning regulation. Section 76-2-206, MCA. Any interim regulation must be limited to one (1) year but may be extended for an additional year with the approval of the board. Section 76-2-206(2), MCA. A municipality may also adopt an interim ordinance "as an urgency measure" that prohibits "any uses which may be in conflict with a contemplated zoning proposal which the legislative body is considering or studying or intends to study within a reasonable time." Section 76-2-306(1), MCA. A municipal interim ordinance is effective within the city limits and up to one (1) mile beyond the boundaries of the city. Unlike county interim ordinances, a municipal interim ordinance is effective for six (6) months from the date of adoption and may be extended, following notice and hearing, for one (1) year. No more than two extensions may be granted. Section 76-2-306(3), MCA. D. Regulating Medical Marijuana Local regulations, including zoning regulations, must be justified by a valid exercise of a government’s police powers. The police power is a sovereign’s inherent authority to establish regulations to protect the public’s health, safety, and welfare. The state can exercise its police powers by enacting legislation or by delegating that power to local governments. Local governments may exercise their police powers in a variety of ways, so long as they have the authority to act as provided by law. An example of an ordinance that regulates for the public’s health, safety, and welfare is a prohibition on the possession of wild or vicious animals within city limits. The adoption of a zoning ordinance is another example of an exercise of a local government’s police powers. Any regulation enacted pursuant to a government’s police powers must also be in accordance with procedural and substantive due process requirements. The 14th Amendment of the United States Constitution and Article II, section 17, of the Montana Constitution prohibit the government from denying a person life, liberty, or property without due process of law. Due process encompasses both procedural and substantive requirements. Procedural due process addresses the process by which an individual’s rights are protected and usually requires the government to provide adequate notice and an opportunity for a hearing. Substantive due process requires the government to have an adequate justification for its actions and asks whether the government had a reasonable justification for the interference. Under a substantive due process analysis, the goal pursued by the government must be a valid state interest and there must be a sufficient relationship between the means being used to achieve that goal and the goal itself. The Montana Supreme Court has stated that a zoning ordinance is a constitutional exercise of a government’s police power "if it has a substantial bearing upon the public health, safety, morals 219 -7- or general welfare of the community." Yurczyk v. Yellowstone County, 2004 MT 3, ¶ 28, 319 Mont. 169, 83 P.3d 266 (2004). The local regulation of medical marijuana is not expressly mentioned in or prohibited by the MMA. Further, Title 7 of the MCA (Local Government) does not expressly limit local governments from regulating the use or distribution of marijuana for medical purposes through land use and zoning regulations. Whether a particular regulation related to medical marijuana is inconsistent with state law depends on whether: (1) the specific regulatory area is affirmatively subjected to state regulation; and (2) the standards or requirements are more or less stringent than imposed by state law. Section 7-1-105, 7-1-113(2), MCA. As noted above, "An area is affirmatively subjected to state control if a state agency or officer is directed to establish administrative rules governing the matter or if enforcement of standards or requirements established by statute is vested in a state officer or agency." Section 7-1-113(3), MCA. It is unclear whether the regulation of medical marijuana is affirmatively subjected to state control. DPHHS is authorized to adopt rules to administer the MMA. The rules "must address the manner in which the department will consider application for and renewals of registry identification cards for qualifying patients and caregivers." Section 50-46-210, MCA. However, while the MMA requires DPHHS to promulgate rules to administer the Act, the rules appear to be limited to the licensing of patients and caregivers. This question would have to be clarified either through the Legislature during the next session or by the courts. However, because local governments cannot establish "standards or requirements which are lower or less stringent than those imposed by state law or regulation," a local regulation that is at least as stringent as or stricter than state law would likely be upheld. This determination would also have to be made on a case-by-case basis. However, as in the Town Pump decision, a local government would likely be allowed to enact medical marijuana regulations that are more stringent than those provided by state law. Overall, there have been very few cases in Montana that have addressed the MMA, and no cases have directly addressed a local ordinance or regulation that restricts medical marijuana. As noted above, a local government has the authority to regulate for the health, safety, and welfare of the public. However, any local restriction on medical marijuana must be reasonably related to a legitimate governmental purpose. While Montana courts have not addressed the application of a local government’s police powers to medical marijuana, courts in other states with medical marijuana laws have provided some guidance. In California, for example, a court held that a city could lawfully place restrictions on business licenses for medical marijuana dispensaries in part because nothing in California’s medical marijuana law prohibited such restrictions and because the restrictions were consistent with the city’s land use, zoning, and business laws. See City of Claremont v. Kruse, 177 Cal. App. 4th 1153 (Cal. 2009). No community in Montana appears to have enacted a ban on the personal use or consumption of marijuana for medical purposes. Because the MMA specifically allows qualifying patients to use marijuana for certain medical conditions with the authorization of a physician, a local ban on 220 6 The Montana Association of Counties raised this concern in a memo regarding the Medical Marijuana Act from May 20, 2010. -8- personal use would likely be inconsistent with state law. A more uncertain question is related to whether a community may ban commercial establishments that cultivate, grow, sell, or dispense medical marijuana. The MMA is silent on whether commercial establishments may cultivate or distribute marijuana for medical purposes to registered patients. Some communities, including Kalispell and Helena, have ordinances that prohibit the licensing of a business that does not comply with local, state, or federal law. Because any possession or use of marijuana remains illegal at the federal level, these communities may be able to argue that denying a business license to an establishment that violates federal law is reasonably related to a legitimate governmental purpose. Under § 7-21-4101, MCA, cities or towns have the power to "license by ordinance all industries, pursuits, professions, and occupations and to impose penalties for failure to comply with such license requirements". Counties, however, are more limited in terms of business licensing. Section 7-21-2101, MCA, provides that, "The board of county commissioners has jurisdiction and power, under such limitations and restrictions as are prescribed by law, to grant such licenses as are provided by law." Because a license for a commercial medical marijuana establishment is not specifically provided by law, it is not clear whether a county would have the authority to grant such a license.6 E. Options The Legislature could consider any number of options to clarify the local regulation of medical marijuana. These options range from repealing the MMA entirely, and thereby prohibiting the use of marijuana for any purpose, to revising the MMA to address specific concerns regarding the cultivation or commercial distribution of medical marijuana. Specific revisions to the MMA could include a combination of any of the following: • Specifically authorize or ban commercial establishments that distribute medical marijuana to registered patients. • Establish a centralized method of providing medical marijuana to registered patients. • Restrict the number of registered patients a caregiver may serve. • Reduce the number of plants or the amount of usable marijuana a caregiver or patient may possess. • Provide that nothing in the MMA prohibits a local government (including a county) from regulating medical marijuana through local regulations, including business licensing or zoning. • Clarify that local governments may not ban the personal use of marijuana for medical purposes. • Clarify whether commercial establishments, if authorized, would be allowed to operate as for-profit entities. • Restrict commercial establishments from operating within a certain distance of educational facilities or other areas such as parks. 221 -9- • Require commercial establishments to maintain permanent locations. • Prohibit the commercial cultivation of marijuana for medical purposes within city limits or separate cultivation from commercial distribution. • Provide minimum safety, fire, or security standards for commercial establishments. • Clarify the manner by which commercial establishments could advertise. • Clarify the use of medical marijuana by students on school property. Committee members may request a more in-depth analysis of a specific option or proposal. Unless or until the Legislature or the courts clarify the scope of the MMA in more detail, local regulations will have to be addressed within the current framework outlined above for compliance with state law. Cl0206 0153hhga. 222 50-46-101. Short title. This chapter may be cited as the "Medical Marijuana Act". 50-46-102. Definitions. As used in this chapter, the following definitions apply: (1) (a) "Caregiver" means an individual, 18 years of age or older who has agreed to undertake responsibility for managing the well-being of a person with respect to the medical use of marijuana. A qualifying patient may have only one caregiver at any one time. (b) The term does not include the qualifying patient's physician. (2) "Debilitating medical condition" means: (a) cancer, glaucoma, or positive status for human immunodeficiency virus, acquired immune deficiency syndrome, or the treatment of these conditions; (b) a chronic or debilitating disease or medical condition or its treatment that produces one or more of the following: (i) cachexia or wasting syndrome; (ii) severe or chronic pain; (iii) severe nausea; (iv) seizures, including but not limited to seizures caused by epilepsy; or (v) severe or persistent muscle spasms, including but not limited to spasms caused by multiple sclerosis or Crohn's disease; or (c) any other medical condition or treatment for a medical condition adopted by the department by rule. (3) "Department" means the department of public health and human services. (4) "Marijuana" has the meaning provided in 50-32-101. (5) "Medical use" means: (a) the acquisition, possession, cultivation, manufacture, delivery, transfer, or transportation of marijuana or paraphernalia by a qualifying patient or a caregiver relating to the consumption of marijuana to alleviate the symptoms or effects of a qualifying patient's debilitating medical condition; (b) the use of marijuana or paraphernalia by a qualifying patient to alleviate the symptoms or effects of the patient's debilitating medical condition; or (c) the use of paraphernalia by a caregiver for the cultivation, manufacture, delivery, transfer, or transportation of marijuana for use by a qualifying patient. (6) "Paraphernalia" has the meaning provided in 45-10-101. (7) "Physician" means a person who is licensed under Title 37, chapter 3. (8) "Qualifying patient" means a person who has been diagnosed by a physician as having a debilitating medical condition. (9) "Registry identification card" means a document issued by the department that identifies a 223 person as a qualifying patient or caregiver. (10) (a) "Usable marijuana" means the dried leaves and flowers of marijuana and any mixture or preparation of marijuana. (b) The term does not include the seeds, stalks, and roots of the plant. (11) "Written certification" means a qualifying patient's medical records or a statement signed by a physician stating that in the physician's professional opinion, after having completed a full assessment of the qualifying patient's medical history and current medical condition made in the course of a bona fide physician-patient relationship, the qualifying patient has a debilitating medical condition and the potential benefits of the medical use of marijuana would likely outweigh the health risks for the qualifying patient. 50-46-103. Procedures -- minors -- confidentiality -- report to legislature. (1) The department shall establish and maintain a program for the issuance of registry identification cards to persons who meet the requirements of this chapter. (2) Except as provided in subsection (3), the department shall issue a registry identification card to a qualifying patient who submits the following, in accordance with department rules: (a) written certification that the person is a qualifying patient; (b) an application or renewal fee; (c) the name, address, and date of birth of the qualifying patient; (d) the name, address, and telephone number of the qualifying patient's physician; and (e) the name, address, and date of birth of the qualifying patient's caregiver, if any. (3) The department shall issue a registry identification card to a minor if the materials required under subsection (2) are submitted and the minor's custodial parent or legal guardian with responsibility for health care decisions signs and submits a written statement that: (a) the minor's physician has explained to the minor and to the minor's custodial parent or legal guardian with responsibility for health care decisions the potential risks and benefits of the medical use of marijuana; and (b) the minor's custodial parent or legal guardian with responsibility for health care decisions: (i) consents to the medical use of marijuana by the minor; (ii) agrees to serve as the minor's caregiver; and (iii) agrees to control the acquisition of marijuana and the dosage and frequency of the medical use of marijuana by the minor. (4) (a) The department shall issue a registry identification card to the caregiver who is named in a qualifying patient's approved application if the caregiver signs a statement: (i) agreeing to provide marijuana only to qualifying patients who have named the applicant as caregiver; and (ii) acknowledging that possession of the registry identification card does not allow the caregiver to engage in the use of marijuana or to use paraphernalia for any purpose other than cultivating, manufacturing, delivering, transferring, or transporting marijuana for medical use by a qualifying patient. (b) The department may not issue a registry identification card to a proposed caregiver who has previously been convicted of a felony drug offense. 224 (c) A caregiver may receive reasonable compensation for services provided to assist with a qualifying patient's medical use of marijuana. (5) (a) The department shall verify the information contained in an application or renewal submitted pursuant to this section and shall approve or deny an application or renewal within 15 days of receipt of the application or renewal. (b) The department may deny an application or renewal only if the applicant did not provide the information required pursuant to this section, the department determines that the information was falsified, or the applicant is not qualified to receive a registry identification card under the provisions of this chapter. Rejection of an application or renewal is considered a final department action, subject to judicial review. (6) The department shall issue a registry identification card within 5 days of approving an application or renewal. Registry identification cards expire 1 year after the date of issuance. Registry identification cards must state: (a) the name, address, and date of birth of the qualifying patient; (b) the name, address, and date of birth of the qualifying patient's caregiver, if any; (c) the date of issuance and expiration date of the registry identification card; and (d) other information that the department may specify by rule. (7) A person who has been issued a registry identification card shall notify the department of any change in the qualifying patient's name, address, physician, or caregiver or change in status of the qualifying patient's debilitating medical condition within 10 days of the change. If a change occurs and is not reported to the department, the registry identification card is void. (8) The department shall maintain a confidential list of the persons to whom the department has issued registry identification cards. Individual names and other identifying information on the list must be confidential and are not subject to disclosure, except to: (a) authorized employees of the department as necessary to perform official duties of the department; or (b) authorized employees of state or local law enforcement agencies, only as necessary to verify that a person is a lawful possessor of a registry identification card. (9) The department shall report annually to the legislature the number of applications for registry identification cards, the number of qualifying patients and caregivers approved, the nature of the debilitating medical conditions of the qualifying patients, the number of registry identification cards revoked, and the number of physicians providing written certification for qualifying patients. The department may not provide any identifying information of qualifying patients, caregivers, or physicians. 50-46-201. Medical use of marijuana -- legal protections -- limits on amount -- presumption of medical use. (1) A person who possesses a registry identification card issued pursuant to 50-46- 103 may not be arrested, prosecuted, or penalized in any manner or be denied any right or privilege, including but not limited to civil penalty or disciplinary action by a professional licensing board or the department of labor and industry, if: (a) the qualifying patient or caregiver acquires, possesses, cultivates, manufactures, delivers, transfers, or transports marijuana not in excess of the amounts allowed in subsection (2); or 225 (b) the qualifying patient uses marijuana for medical use. (2) A qualifying patient and that qualifying patient's caregiver may not possess more than six marijuana plants and 1 ounce of usable marijuana each. (3) (a) A qualifying patient or caregiver is presumed to be engaged in the medical use of marijuana if the qualifying patient or caregiver: (i) is in possession of a registry identification card; and (ii) is in possession of an amount of marijuana that does not exceed the amount permitted under subsection (2). (b) The presumption may be rebutted by evidence that the possession of marijuana was not for the purpose of alleviating the symptoms or effects of a qualifying patient's debilitating medical condition. (4) A physician may not be arrested, prosecuted, or penalized in any manner or be denied any right or privilege, including but not limited to civil penalty or disciplinary action by the board of medical examiners or the department of labor and industry, for providing written certification for the medical use of marijuana to qualifying patients. (5) An interest in or right to property that is possessed, owned, or used in connection with the medical use of marijuana or acts incidental to medical use may not be forfeited under any provision of law providing for the forfeiture of property other than as a sentence imposed after conviction of a criminal offense. (6) A person may not be subject to arrest or prosecution for constructive possession, conspiracy, as provided in 45-4-102, or other provisions of law or any other offense for simply being in the presence or vicinity of the medical use of marijuana as permitted under this chapter. (7) Possession of or application for a registry identification card does not alone constitute probable cause to search the person or property of the person possessing or applying for the registry identification card or otherwise subject the person or property of the person possessing or applying for the card to inspection by any governmental agency, including a law enforcement agency. (8) A registry identification card or its equivalent issued by another state government to permit the medical use of marijuana by a qualifying patient or to permit a person to assist with a qualifying patient's medical use of marijuana has the same force and effect as a registry identification card issued by the department. 50-46-202. Disclosure of confidential information relating to medical use of marijuana -- penalty. (1) A person, including an employee or official of the department or other state or local government agency, commits the offense of disclosure of confidential information relating to medical use of marijuana if the person knowingly or purposely discloses confidential information in violation of 50-46-103. (2) A person convicted of disclosure of confidential information relating to medical use of marijuana shall be fined not to exceed $1,000 or be imprisoned in the county jail for a term not to exceed 6 months, or both. 50-46-203 through 50-46-204 reserved. 226 50-46-205. Limitations of Medical Marijuana Act. (1) This chapter does not permit: (a) any person to operate, navigate, or be in actual physical control of any motor vehicle, aircraft, or motorboat while under the influence of marijuana; (b) the use of marijuana by a caregiver; or (c) the smoking of marijuana by a qualifying patient: (i) in a school bus or other form of public transportation; (ii) on any school grounds; (iii) in any correctional facility; or (iv) at any public park, public beach, public recreation center, or youth center. (2) Nothing in this chapter may be construed to require: (a) a government medical assistance program or private health insurer to reimburse a person for costs associated with the medical use of marijuana; or (b) an employer to accommodate the medical use of marijuana in any workplace. (3) Nothing in this chapter may be construed to allow a caregiver to use marijuana or to prevent criminal prosecution of a caregiver who uses marijuana or paraphernalia for the caregiver's personal use. 50-46-206. Affirmative defense. Except as provided in 50-46-205, it is an affirmative defense to any criminal offense involving marijuana that the person charged with the offense: (1) (a) has a physician who states that or has medical records that indicate that, in the physician's professional opinion, after having completed a full assessment of the person's medical history and current medical condition made in the course of a bona fide physician-patient relationship, the potential benefits of medical marijuana would likely outweigh the health risks for the person; or (b) provides marijuana to a person described in subsection (1)(a) if the person does not provide marijuana to anyone for uses that are not medical; (2) (a) is engaged in the acquisition, possession, cultivation, manufacture, delivery, transfer, or transportation of marijuana or paraphernalia relating to the consumption of marijuana to alleviate the symptoms or effects of the medical condition of the person identified in subsection (1)(a) if the person charged with the offense is a qualifying patient or a caregiver; or (b) is engaged in the use of marijuana if the person charged with the offense is a qualifying patient; and (3) possesses marijuana only in an amount that is reasonably necessary to ensure the uninterrupted availability of marijuana for the purpose of alleviating the symptoms or effects of the medical condition of the person identified in subsection (1)(a). 50-46-207. Fraudulent representation of medical use of marijuana -- penalty. (1) A person commits the offense of fraudulent representation of medical use of marijuana if the person knowingly or purposely fabricates or misrepresents a registry identification card to a law enforcement officer. (2) A person convicted of fraudulent representation of medical use of marijuana shall be fined not to exceed $1,000 or be imprisoned in the county jail for a term not to exceed 6 months, or both. 227 50-46-208 through 50-46-209 reserved. 50-46-210. Rulemaking -- fees. The department shall adopt rules necessary for the implementation and administration of this chapter. The rules must address the manner in which the department will consider application for and renewals of registry identification cards for qualifying patients and caregivers. The department's rules must establish application and renewal fees that generate revenue sufficient to offset all expenses of implementing and administering this chapter. The department may vary the application and renewal fees along a sliding scale that accounts for a qualifying patient's income. 228 20-5-109. Nonpublic school requirements for compulsory enrollment exemption. 20-5-109. Nonpublic school requirements for compulsory enrollment exemption. To qualify its students for exemption from compulsory enrollment under 20-5- 102, a nonpublic or home school: (1) shall maintain records on pupil attendance and disease immunization and make the records available to the county superintendent of schools on request; (2) shall provide at least the minimum aggregate hours of pupil instruction in accordance with 20-1-301 and 20-1-302; (3) must be housed in a building that complies with applicable local health and safety regulations; (4) shall provide an organized course of study that includes instruction in the subjects required of public schools as a basic instructional program pursuant to 20-7-111; and (5) in the case of home schools, shall notify the county superintendent of schools of the county in which the home school is located in each school fiscal year of the student's attendance at the school. History: En. Sec. 2, Ch. 355, L. 1983; amd. Sec. 3, Ch. 498, L. 1989; amd. Sec. 9, Ch. 138, L. 2005. http://data.opi.mt.gov/bills/mca/20/5/20-5-109.htm [3/29/2010 11:23:03 AM] 229 45-9-109. Criminal distribution of dangerous drugs on or near school property -- penalty -- affirmative defense. 45-9-109. Criminal distribution of dangerous drugs on or near school property -- penalty -- affirmative defense. (1) A person commits the offense of criminal distribution of dangerous drugs on or near school property if the person violates 45-9-101 in, on, or within 1,000 feet of the real property comprising a public or private elementary or secondary school. (2) Except as provided in 46-18-222, a person convicted of criminal distribution of dangerous drugs on or near school property: (a) shall be imprisoned in the state prison for a term of not less than 3 years or more than life; and (b) may be fined an amount of not more than $50,000. (3) It is not a defense to prosecution under subsection (1) that the person did not know the distance involved. (4) It is an affirmative defense to prosecution for a violation of this section that: (a) the prohibited conduct took place entirely within a private residence; and (b) no person 17 years of age or younger was present in the private residence at any time during the commission of the offense. History: En. Sec. 1, Ch. 519, L. 1991; amd. Sec. 13, Ch. 432, L. 1999. http://data.opi.mt.gov/bills/mca/45/9/45-9-109.htm [6/9/2010 4:23:48 PM] 230 Building Division Ag Use Requirements for R and B Occupancies- Agricultural Use - “U” occupancy classification. Occupancy Separation between a U occupancy and R or B occupancies • 1 hour sprinklered. • 2 hour non-sprinklered. Note: A building permit is required to change all or part of an R or B occupancy to a U occupancy. Ventilation Mechanical Permit Required. • Minimum ventilation per IBC Chapter 12. • Approved power supply. • Listed blowers. • Approved ducting. • Approved Vent termination. Power supply Electrical Permit Required. • Electrical panel to be rated for actual use. Load calcs required. • Breakers/disconnects appropriate for load. • GFCI receptacle installation where required. • Extension cord usage in approved locations only. • Fixture installation per Electrical Codes. Irrigation System Plumbing Permit Required. • Approved water source/connection. • Approved drainage system w/trap. • Approved anti-siphon devices/check valve. Fire Safety Concerns Bozeman Fire Approval Required. • High temperature grow lamps over organic materials. • Temporary/portable vent and lighting systems. o Unsafe use of extension Cords. o Installation of “temporary” fixtures and equipment must comply with applicable codes. 231 MARCH 2009 Introduction The following guide offers a practical approach to achieving safe re-occupancy of former marijuana grow operations (MGOs) and reviews possible exposures/ hazards (tables 1 and 2). It is essential to make a clear distinction between risks associated with an “active” MGO and risks associated with a “shut down” MGO. An “active” MGO is linked to criminal activity, which in itself poses safety risks, while in a “shut down” MGO, this illegal activity is no longer a concern. This guide considers only the potential risks remaining after an MGO is dismantled, criminal activity has stopped, and all related material is removed (i.e., plants and bulk chemicals). This guide is derived, in part, from the protocol outlined in the New York City Department of Health Guidelines for mould remediation1 and from discus- sions with experts involved in mould, pesticide, and MGO investigations and remediation. Most available guidelines on mould remediation mirror the New York City guidelines and are partly based on consensus, survey information of “normal” levels in homes, and personal experience2. Although remediation professionals may use this guide as a basis for their practice, it is only meant to orient public health and municipal staff to the hazards that may need to be addressed to ensure the safety of re-occupants. This guidance document is not in- tended as a step-by-step procedure for remediation professionals and homeowners. . Recommendations for Safe Re-occupancy of Marijuana Grow Operations Potential safety concerns and remediation procedures Each MGO is different and, as a result, a site as- sessment is required to determine the presence and extent of any hazards as well as the remediation and cleanup necessary. The assessment usually consists of a walk-through to identify potential safety and health hazards1,3-5 related to structural damage or the presence of biological or chemical contaminants. An investigation by the Canada Mortgage and Housing Corporation (CMHC) included 12 former MGOs and found that safety concerns in MGOs may or may not be directly related to the presence of the grow operation3. During the walk-through of a former MGO, the initial assessor should be aware of the following: 1) hazards stemming from physical and structural changes to the building that have been made to ac- commodate the grow operation6,7; 2) hazards that originate from alterations to wiring and electric power6,7; 3) the presence of biological hazards such as mould due to excess moisture7; 1 232 4) the presence of chemical hazards3 related to chemical spills and residues from the use of pesticides, fertilizers, and solvents used for the extraction of tetrahydracannibol (THC). Additional information regarding hazards and remediation pro- cedures can be found in tables 1 and 2. Figure 1 provides a summary of the steps involved in the assessment and actions to be taken. and may be present in other residential properties as well. There- in a former MGO is no different than one that would be used in other properties with similar problems. A general cleanup of the house using detergent and water is recommended, regardless of any other remediation actions related to possible biological and chemical hazards. 1) Hazards resulting from possible physical and structural changes to the residence (Table 1) Physical and structural changes are often made to build- ings that house MGOs to accommodate the installation or may directly result from MGO-related activities. Alterations in the building structure such as cuts in walls and wood framing members can be made to provide larger growing areas or to change the ventilation3,6. Ventilation changes can include alterations to furnace and hot water vents6 and gas appliances7. An inspection for possible structural and physical changes should be conducted. Any alterations that have resulted in violation of building or other codes should be corrected. Elevated humidity and moisture problems can occur in any building and lead to mould growth and structural damage. In MGOs, elevated humidity/moisture can result from leaks or damage to the building structure and from plant growth, particularly in large-scale grow operations3. Any moisture or water damage should be identified, the underlying causes corrected, and water-damaged materials repaired or replaced. 2) Hazards resulting from possible electrical alterations (Table 1) In former MGOs, bypasses and additional wiring3,6,7 necessary to produce the extra light requirements for optimal plant growth can overload the electrical system if not repaired. The electrical system should be checked and brought into compliance with code. 3) Possible biological hazards (Table 2) Mould MGOs and can be quite common in non-MGOs homes, as shown by a survey completed in 24 North American communities8, with an overall mould/mildew occurrence of 36%. A comparable study more prevalent in MGOs, not only because of the cultivation of plants but also because older and poorly maintained homes are often used for such installation. However, all houses and build- ings have a background concentration of settled spores. These spores result in mould growth if there is suitable temperature, humidity and substrate9. As adequate temperatures and the pres- ence of nutrients are usually met in indoor environments, fungal growth usually results from a moisture problem10. An inspection for visible mould growth should be performed. Inspected areas should include forced air ducting and hidden cavities/at- tics where humid air may have vented. Any ongoing sources of humidity and moisture should be identified and corrected. Mould- contaminated materials should be cleaned, or where this cannot be done, materials should be replaced1. 4) Possible chemical hazards (Table 2) Chemical use inside homes is also common (e.g., cleaning Several studies performed in the US indicated the frequent pres- ence of a measurable low-level airborne residue of pesticides, even for urban residences11-13. Pesticide residues have also been residential apartments (Appendix 1, Table 3) with permethrin and 14. 2 233 or residues such as staining, odours, or mineral deposits. These traveled towards drains, or in bathrooms and kitchens that have served as chemical mixing rooms for THC extraction, pesticides, fertilizers, and acids and bases. there is no demonstrated relationship between environmental samples and exposure to occupants15. For this reason, routine wipe sampling for chemicals used in grow operations is not recommended. Possible chemical hazards may include: Pesticides In regular residential properties, pesticides from domestic indoor treatment have been shown to accumulate inside homes, espe- cially in carpets11,13,16 17 as well as other sorbent materials such as textiles18. Pesticides tracked indoors tend to have a longer half-life than those in an outdoor environ- ment19, and indoor residues may contribute to the exposure of infants and toddlers through dermal contact or ingestion16,20. Examples of concentrations found in regular homes in kitchen (Appendix 1). Although customers prefer organically grown marijuana21, pesticides are sometimes used to control insects, powdery mildew, and other pests. In former MGOs, the major areas of concern are bathrooms, tubs, and kitchens where chemicals were mixed. However, based on discussion with experts who investigate MGOs from a health and safety perspective, the amount of residual pesticides found is often minimal or not de- tectable via wipe sampling. Most of the time, only small amounts or where spray water has drained from the grow room to the are summarized in Table 4 (Appendix 1). These data cannot be compared to the data obtained from residential homes (Table 3) due to differences in sampling methodologies. Wipe samples were collected at suspected areas of contamination in the MGO, whereas wipe samples were collected from random locations in residential homes. However, the data still provide an idea of concentrations that may be found in both settings. Fertilizers - duction and are typical of those used in vegetable gardens or hydroponic cultures. Other chemicals that may be found on-site include solvents3 used for THC extraction like isopropyl alcohol, methyl hydrate, naphtha, or ethanol. Acids and bases can also be used to change the pH of hydroponic solutions or soil. Grow areas and chemical mixing rooms (i.e., bathrooms and kitchens) are important areas to investigate for signs of contamination. Any chemicals found in an MGO should be removed and disposed of in accordance with local and provincial regulations. The locations, volumes, and identity of chemicals, where known, should be recorded. If this information is available to professionals performing the cleanup, it may provide a guide to locations in the house where clean-up efforts should be focused. If no information is available on chemicals found on-site, interior surfaces should be cleaned with detergent and water and dried thoroughly. If visible stains, discol- oration, or residual odours can be detected on surfaces or articles after cleaning, materials can be re-covered or replaced. Evidence gaps This document is based on available evidence and expert opin- ion. To our knowledge, there are no published MGO remediation protocols based on pre- and post- remediation data, especially regarding pesticides. Additional data to verify the effectiveness of the protocols described in this document would be helpful. If in- dividuals or organizations do have additional information, please contact the National Collaborating Centre for Environmental Health at the following e-mail address: contact@ncceh.ca. 3 234 4 Figure 1. Assessment and actions to be taken (Refer to tables 1 and 2 for further detail) 1) Structural (including plumbing), physical, and electrical changes Repair according to local building/plumbing/ electrical codes Yes 2) Water damage No No action required Yes No Stop source of water and repair; look for visible mould and follow step 3 below Look for visible mould and follow step 3 3) Visible mould present (stains, discolourations, odours) Yes Porous material Replacement recommended22 Semi-porous material Non-porous material No Clean with detergent solution1 or discard Clean with detergent solution1 thoroughly No action required 4) General cleanup with detergent and water; dry thoroughly 5) Are there visible signs of chemical spills or residual odours remaining after the general cleanup with detergent and water? Yes No Re-cover or replace No further action required 4 235 1. New York City Department of Health and Mental Hygiene Guidelines on assessment and remediation of fungi in indoor environments. Bureau of Environmental and Occupational Disease Epidemiology. [Online] 2002 [cited 2008 Jun 7]; Available from: URL: http://www.nyc.gov/html/doh/html/epi/ moldrpt1.shtml 2. Rao CY, Burge HA, Chang JC. Review of quantitative standards and guidelines for fungi in indoor air. J Air and Waste Manage Assoc 1996;46:899-908. 3. CMHC.A discussion paper on indoor air quality investigations of houses used for marijuana grow operations. Research Highlight. 2007. Technical series 07-101. 4. Klitzman S, Caravanos J, Belanoff C, Rothenberg L. A multihazard, multistrategy approach to home remediation: results of a pilot study. Envir Research 2005;99:294-306. [Online] 2005 [cited 2008 Jun 7]; Available from: URL: http:// remedation-paperreprint.pdf 5. Environment Protection Agency. Mold remediation in schools and commercial buildings. EPA 402-K-01-001. [Online] 2001 [cited 2008 Jun 7]; Available from: URL: http://www.epa.gov/ mold/pdfs/moldremediation.pdf 6. Administration and Corporate Planning. A community public safety initiative: removing marijuana grow op hazards in the city of Abbotsford. 2005 [Online] [cited 2008 Jun 7]; Available from: URL: http://www.abbotsford.ca/AssetFactory. aspx?did=2570 7. Ministry of Municipal Affairs. Clandestine drug operations. Government of Alberta. Revised Mar 2007. Awareness and safety. 2007. [Online] 2002 [cited 2008 Jun 7]; Available from: URL: http://www.aema.alberta.ca/documents/ABclan-Ver3a. pdf 8. Spengler J, Neas L, Nakai S, Dockery D, Speizer F, Ware J, Raizenne M. Respiratory symptoms and housing characteristics. Indoor Air 1994;4:72-82. 9. Hung LL, Miller DJ, Dillon HK. Ed. Ecology of fungi found in building environments. In: Field guide for the determination of biological contaminants in environmental samples. 2nd ed. American Industrial Hygiene Association. 2005. p. 29-38. 10. CMHC. Clean-up procedures for mold in houses. Revised. Ottawa: Canadian Mortgage and Housing Corporation. 2003. ISBN:0-660-19227-6. 11. Whitemore RW, Immerman FW, Camann DE, Bond AE, Lewis RG, Schaum JL. Non-occupational exposures to pesticides for residents of two U.S. cities. Arch Environ Contam Toxicol 1994;26(1):47-59. 12. Clayton CA, Pellizzari ED, Whitmore RW, Quackenboss JJ, Adgate J, Sefton K. Distributions, associations, and partial aggregate exposure of pesticides and polynuclear aromatic hydrocarbons in the Minnesota children’s pesticides exposure study (MNCPES). J Expos Anal and Environ Epidemiol 2003;13:100-111. 13. Obendorf SK, Lemley AT, Hedge A, Kline AA, Tan K, Dokuchayeva T. Distribution of pesticide residues within homes in central New York State. Arch Environ Toxicol 2006;50:31-44. 14. Julien R, Adamkiewicz G, Levy JI, Bennett D, Nishioka M, Spengler JD. Pesticide loadings of select organophosphate and pyrethroid pesticides in urban public housing. J Expos Scien Environ Epidemiol 2008;18(2):167-174. 15. US Department of Housing and Urban Development. Healthy homes issues; Residential assessment. Healthy homes initiative [HHI] background information version 2. Mar 2006. 16. Lewis RG, Fortmann RC, Camann DE. Evaluation of methods for monitoring the potential exposure of small children to pesticides in the residential environment. Arch Environ Contam Toxicol 1994;26:37-46. 17. Fortune CR, Blanchard FT, Ellenson DW. Analysis of aged in-home carpeting to determine the distribution of pesticide residues between dust, carpet, and pad compartments. EPA/600/R-00 030. [Online] 2000 [cited 2008 Jun 7]; Available from: URL: http://www.epa.gov/ord/WebPubs/ carpet/600r00030.pdf 18. Gurunathan S, Robson M, Freeman N, Buckley B, Roy A, Meyer R, Bukowski J, Lioy P. Accumulation of clorpyrifos on residential surfaces and toys accessible to children. Envir Health Perspect 1998;106:9-16. 19. Bouvier G, Blanchard O, Momas I, Seta N. Environmental and biological monitoring of exposure to organophosphorus pesticides: application to occupationally and non- occupationally exposed adult populations. J Expos Scien and Environ Epidemiol 2006;16:417-426. 20. Lewis RG. Exposure to pesticides. In: Exposure analysis. Ott WR, Steinemann AC, Wallace LA, eds. CRC Press Boca Raton (Taylor & Francis Group). 2007. 347-376. 21. Wright T. Growing marijuana hydroponically. Ronin Publishing. 2000. 22. Health Canada. Fungal contamination in public buildings: health effects and investigation methods. [Online] 2004 [cited 2008 Jun 7]; Available from: URL: http://www.hc-sc.gc.ca/ ewh-semt/alt_formats/hecs-sesc/pdf/pubs/air/fungal-fongique/ fungal-fongique_e.pdf Acknowlegements We would like to thank Nelson Fok (Capital Health, Edmonton) who provided information and feedback. References 5 236 Appendix Table 1. Possible physical and electrical hazards in MGOs and associated remediation procedures Possible physical and electrical hazards Description Associated hazard Proposed remediation strategy Structural damage & physical changes Alterations in the building structure Holes and cuts in walls and ceilings to accommodate ventilation system3,6 Cuts in structural members and wall studs6 Structural damage on wood caused by moulds Fall hazards Repair according to current local building code Makeshift to ventilation system Disconnection of furnace exhaust duct to vent odour from plants6 Collection of carbon dioxide from furnace and hot water 7 Carbon monoxide poisoning of residents Repair and clean Plumbing system Possibility of chemicals, being caught in solids if discarded in the sink6 Leaks in the plumbing system Release of chemical fumes Potential cross- contamination of the water supply Elevated humidity and water damage Clean Stop leakage immediately and repair according to local plumbing code Natural gas line Makeshift sometimes added to provide natural gas supply7 Fire and explosion Repair according to applicable codes Electrical alterations Bypasses and additional wiring3,6,7 Fires and electrocution Repair in accordance to Canadian Electrical Code 6 237 Table 2. Possible biological and chemical hazards in MGOs and associated remediation procedures Possible biological and chemical hazards Description Location Proposed remediation strategy Mould Moisture/humidity generated by: plant growth or water use leaks in the plumbing system leaks stemming from damage to infrastructure Mould growth may occur in grow areas, basements3, forced air ducts, hidden cavities, and attics where water vapour is frequently vented. In addition mould growth may occur in fertilizer mixing rooms or areas of heavy water usage Immediately stop and dry any occurrence of water Repair building infrastructure so that water damage and moisture buildup does not recur If visible mould present: Porous items (eg., carpets/ padding, insulation, wallboards, material which has lost its structural integrity) – replacement recommended22 Semi-porous items (eg., wood, plaster, concrete) – Clean with detergent solution and dry thoroughly1 or discard Non-porous items (eg., metal, glass and hard plastics) – Clean with detergent solution and dry thoroughly1 Chemicals Solvents Unknown chemicals Used in tetrahydracannabinol (THC) extraction (eg., isopropyl alcohol, methyl, naphtha, and ethanol Visible residues of spills may be discovered in MGOs, but no information is available to determine the material that was spilled Spills, especially near drains due to unsafe disposal, or containers on-site Chemical mixing rooms (bathrooms, tubs, kitchens) area, chemical mixing rooms (i.e., bathrooms, kitchen) Surfaces and articles with any visible residue remaining after general cleaning with detergent and water should be re-covered or replaced Discard material 7 238 Table 2. Possible biological and chemical hazards in MGOs and associated remediation procedures (continued) Possible biological and chemical hazards Description Location Proposed remediation strategy Pesticides Fertilizers Acids/Bases May be used to control pests such as gnats, aphids, red slugs, and snails or to control powdery mildew on the plants Optimize plant growth and blooming stage or hydroponic solutions Spills or containers left on-site R esidues around where water traveled towards drains and chemical mixing rooms (i.e., bathrooms and kitchens) Containers left on-site, spills, chemical mixing rooms (i.e., bathrooms, tubs, kitchens) Spills, especially near drains due to unsafe disposal, or containers left on-site (i.e., in bathrooms, tubs, kitchens) Surfaces and articles with any visible residue remaining after general cleaning with detergent and water should be re-covered or replaced Table 3.(a) from standardized location in selected homes14 Pesticides Median (µg/m 2) Maximum (µg/m 2) Median (µg/m 2) Maximum (µg/m 2) (N=42)(N=42) Living room wipes (N=30) Living room wipes (N=30) Chlorpyrifos 0.3 19.5 0.49 7.7 Permethrin 6.8 226.5 5.97 74.6 Diazinon 0.4 556.2 0.35 16.3 Cypermethrin 3.7 330.7 3.80 63.2 Esfenvalerate 0.7 16.8 1.00 27.4 1.1 567.1 3.70 56.9 Cyhalothrin <LOD (b)4.1 1.67 7.5 Tetramethrin <LOD 5.9 8.19 8.6 Deltamethrin <LOD 45.2 3.43 4.5 Bifenthrin <LOD 0.2 <LOD 0.1 Sumithrin <LOD 2.3 <LOD 0.4 Resmethrin <LOD 0.05 <LOD 0.05 (a)According to a sampling protocol adapted from the National Human Exposure Assessment Survey in Arizona (NHEXAS-AZ) (b) LOD: limit of detection 8 239 400 East Tower 555 W 12th Avenue Vancouver, BC V5Z 3X7 Tel: 604-707-2445 Fax: 604-707-2444 contact@ncceh.ca This document was produced by the National Collaborating Centre for Environmental Health at the BC Centre for Disease Control with funding from the Public Health Agency of Canada (PHAC), March 2009. Permission is granted to reproduce this document in whole, but not in part. ISBN: 978-0-9811244-0-7 © National Collaborating Centre for Environmental Health 2009 Table 4: from suspected areas of contamination (n=131)(a) Pesticides Maximum (µg/m 2) Mean (µg/m 2) Permethrin (cis & Trans) 24.3 0.648 Carbaryl 5.4 0.0432 Imidacloprid 27 0.324 Malathion 196.56 2.052 Methoxychlor 10.26 0.108 Propoxur 2.16 0.0216 Dicofol 33.804 0.324 Chlorpyrifos 8.1 0.0648 Fenvalerate 0.54 0.00432 Cypermethrin 3.564 0.0324 Tetramethrin 7.56 0.054 Chlorothalonil 200.88 1.512 (a) According to EPA method 8081A and EPA method 8141A To provide feedback on this document, please visit www.ncceh.ca/en/document_feedback.9 www.ncceh.ca 240 planning • zoning • subdivision review • annexation • historic preservation • housing • grant administration • neighborhood coordination CITY OF BOZEMAN DEPARTMENT OF PLANNING AND COMMUNITY DEVELOPMENT Alfred M. Stiff Professional Building 20 East Olive Street P.O. Box 1230 Bozeman phone 406-582-2260 fax 406-582-2263 planning@bozeman.net www.bozeman.net , Montana 59771-1230 NOTICE OF PUBLIC MEETING REGARDING MEDICAL MARIJUANA The City of Bozeman is holding two public meetings regarding medical marijuana. Any member of the public is welcome to attend and offer their thoughts. The purpose is to provide an opportunity for citizens to consider and discuss the issue and possible amendments to the municipal code. The anticipated format for the meetings is facilitated small group discussion with city staff. The City Commission may attend but this is not a public hearing. Formal public hearings before the City Commission will be held in the future prior to official action on any code amendments. Specific subjects for discussion include, but are not limited to, locations where medical marijuana businesses may be conducted, public use, interaction of City’s ordinance with state and federal laws, and local permitting processes for medical marijuana businesses. PUBLIC MEETING Wednesday, May 5, 2010 6:00-7:30 pm City Commission Room City Hall 121 N. Rouse Avenue Bozeman, Montana PUBLIC MEETING Wednesday, April 21, 2010 6:00-7:30 pm City Commission Room City Hall 121 N. Rouse Avenue Bozeman, Montana Text and information to be discussed is available through the Department of Planning and Community Development, 20 E Olive Street, Bozeman MT 59715 and on the front page of the City’s website at www.bozeman.net. The text may be revised as the public review process proceeds. Written comments may be directed to the City of Bozeman, Department of Planning and Community Development, P. O. Box 1230, Bozeman, MT 59771-1230. For those who require accommodations for disabilities, please contact James Goehrung, City of Bozeman ADA Coordinator, 582-3232 (voice), 582-2301 (TDD). Medical Marijuana Municipal Code Amendment, #Z-10027 SUBMITTED THURSDAY, April 7, 2010 FOR SUNDAY, April 11, 2010 AND April 25, 2010 DISPLAY AD PUBLICATION. PLEASE BOLD WHERE INDICATED AND SEND AFFIDAVIT TO BOZEMAN DEPARTMENT OF PLANNING & COMMUNITY DEVELOPMENT. 241 planning • zoning • subdivision review • annexation • historic preservation • housing • grant administration • neighborhood coordination CITY OF BOZEMAN DEPARTMENT OF PLANNING AND COMMUNITY DEVELOPMENT Alfred M. Stiff Professional Building 20 East Olive Street P.O. Box 1230 Bozeman, Montana 59771-1230 phone 406-582-2260 fax 406-582-2263 planning@bozeman.net www.bozeman.net NOTICE OF PUBLIC HEARING FOR AN TEXT AMENDMENT TO THE BOZEMAN MUNICIPAL CODE NOTICE IS HEREBY GIVEN that the City of Bozeman Zoning Commission will conduct a public hearing on a proposed zoning ordinance at a public hearing to be held at 7 pm on Tuesday, June 15, 2010, in the City Commission room, City Hall, 121 N. Rouse Avenue, Bozeman, Montana. The purpose of the proposed interim zoning ordinance is to amend Title 18, Unified Development Ordinance, BMC to establish standards for medical marijuana as authorized within the scope of Title 50, Chapter 76, Montana Codes Annotated. The amendment would affect multiple districts and properties zoned which allow the uses of Agriculture, Retail, Medical Offices, and Manufacturing as defined in Title 18, Unified Development Ordinance. The proposed amendments address the location where such uses may occur and the zoning review process necessary prior to conducting them. The known affected portions of the municipal code include: Chapter 18.16, Residential Zoning Districts, Chapter 18.18, Commercial Zoning Districts, Chapter 18.19, Urban Mixed Use, Chapter 18.20 Industrial Zoning Districts, Chapter 18.22, Northeast Historic Mixed Use District, Chapter 18.40, Standards for Specific Uses, and Chapter 18.80, Definitions. Additional sections of the zoning standards may also be modified as the public review process continues. This text amendment is part of a larger set of amendments relating to medical marijuana which apply to multiple titles in the Bozeman Municipal Code. The Zoning Commission will only consider those amendments affecting Title 18, Unified Development Ordinance. Additional hearings will be held by the City Commission in the future and those hearings will be advertised separately. The City invites the public to comment in writing and to attend the public hearing. Written comments may be directed to the City of Bozeman, Department of Planning and Community Development, P. O. Box 1230, Bozeman, MT 59771-1230. The precise text of the amendments and data regarding this application may be reviewed in the City of Bozeman Department of Planning and Community Development, Alfred M. Stiff Professional Building, 20 East Olive Street, 582-2260. For those who require accommodations for disabilities, please contact James Goehrung, City of Bozeman ADA Coordinator, 582-3232 (voice), 582-2301 (TDD). Medical Marijuana Bozeman Municipal Code Amendment, #Z-10027 242 Page 2 SUBMITTED THURSDAY, 5/27/2010 FOR SUNDAY, 5/30/2010, 6/06/2010, AND 6/13/2010 LEGAL AD PUBLICATION. PLEASE PRINT BOLD WHERE INDICATED, AND SEND AFFIDAVIT TO BOZEMAN DEPARTMENT OF PLANNING & COMMUNITY DEVELOPMENT. No map goes with this notice. 243 planning • zoning • subdivision review • annexation • historic preservation • housing • grant administration • neighborhood coordination CITY OF BOZEMAN DEPARTMENT OF PLANNING AND COMMUNITY DEVELOPMENT Alfred M. Stiff Professional Building 20 East Olive Street P.O. Box 1230 Bozeman, Montana 59771-1230 phone 406-582-2260 fax 406-582-2263 planning@bozeman.net www.bozeman.net NOTICE OF PUBLIC HEARING FOR TEXT AMENDMENTS TO THE BOZEMAN MUNICIPAL CODE NOTICE IS HEREBY GIVEN that the Bozeman City Commission will conduct a public hearing on a proposed ordinance at a public hearing to be held at 6 pm on Monday, July 12, 2010, in the City Commission room, City Hall, 121 N. Rouse Avenue, Bozeman, Montana. This text amendment relates to medical marijuana and may alter multiple titles in the Bozeman Municipal Code. The purpose of the proposed ordinance is to amend Title 5, Business Taxes, Licenses, and Regulations, Title 8, Health and Safety, and Title 18, Unified Development Ordinance, BMC to establish standards for medical marijuana as authorized within the scope of Title 50, Chapter 76, Montana Codes Annotated. The amendment would affect multiple zoning districts and properties zoned which allow the uses of Agriculture, Retail, Medical Offices, and Manufacturing as defined in Title 18, Unified Development Ordinance. The proposed amendments address the location where such uses may occur and the zoning review process necessary prior to conducting them. Also included are standards and procedures for business licensing and public use of medical marijuana. The portions of the municipal code known to be affected by these amendments include: Chapter 5.02, Definitions Chapter 5.06, Medical Marijuana (new chapter) Chapter 8.52, Public Use And Display Of Medical Marijuana (new chapter) Chapter 18.16, Residential Zoning Districts, Chapter 18.18, Commercial Zoning Districts, Chapter 18.19, Urban Mixed Use, Chapter 18.20 Industrial Zoning Districts, Chapter 18.22, Northeast Historic Mixed Use District, Chapter 18.40, Standards for Specific Uses, and Chapter 18.80, Definitions. Additional sections of the zoning standards or other portions of the municipal code may also be modified as the public review process continues. The City invites the public to comment in writing and to attend the public hearing. Written comments may be directed to the City of Bozeman, Department of Planning and Community Development, P. O. Box 1230, Bozeman, MT 59771-1230. The precise text of the amendments and data regarding this application may be reviewed in the City of Bozeman Department of Planning and Community Development, Alfred M. Stiff Professional Building, 20 East Olive Street, 582-2260. For those who require accommodations for disabilities, please contact James Goehrung, City of Bozeman ADA Coordinator, 582-3232 (voice), 582-2301 (TDD). Medical Marijuana Bozeman Municipal Code Amendment, #Z-10027 244 Page 2 SUBMITTED THURSDAY, 6/17/2010 FOR SUNDAY, 6/20/2010, 6/27/2010, AND 7/04/2010 LEGAL AD PUBLICATION. PLEASE PRINT BOLD WHERE INDICATED, AND SEND AFFIDAVIT TO BOZEMAN DEPARTMENT OF PLANNING & COMMUNITY DEVELOPMENT. No map goes with this notice. 245 UDO Text Amendments for regulation of medical marijuana 1 RESOLUTION #Z-10027 RESOLUTION OF THE CITY OF BOZEMAN ZONING COMMISSION RECOMMENDING APPROVAL OF AN APPLICATION FOR A UNIFIED DEVELOPMENT ORDINANCE TEXT AMENDMENT APPLICATION THAT WOULD MODIFY TITLE 18, UNIFIED DEVELOPMENT ORDINANCE, BOZEMAN MUNICIPAL CODE TO REVISE DEVELOPMENT PROCEDURES, ESTABLISH DEFINITIONS, AND AMEND DEVELOPMENT STANDARDS FOR MEDICAL MARIJUANA. WHEREAS, the City of Bozeman has adopted zoning regulations and a zoning map and subdivision regulations through its Unified Development Ordinance pursuant to Sections 76-2- 301, 76-2-302, and 76-3-501 M.C.A.; and WHEREAS, Section 76-2-305, M.C.A. allows local governments to amend zoning regulations if a public hearing is held and official notice is provided; and WHEREAS, Section 76-2-307, M.C.A. states that the Zoning Commission must conduct a public hearing and submit a report to the City Commission for all zoning regulation amendment requests; and WHEREAS, the City of Bozeman Zoning Commission has been created by Resolution of the Bozeman City Commission as provided for in Section 76-2-307, M.C.A.; and WHEREAS, Section 76-2-306, M.C.A. authorizes the adoption of interim zoning by the City Commission to allow time to study an issue and conduct the public hearing and adoption process for related regulations; and WHEREAS, the City Commission on March 11, 2010 adopted Ordinance 1782 establishing a spacing requirement between medical marijuana related businesses and certain defined activities and directed staff to conduct research, conduct public outreach, and prepare for Commission review a possible ordinance for adoption; and WHEREAS, Chapter 18.68 of the Bozeman Unified Development Ordinance sets forth the procedures and review criteria for zoning regulation amendments; and WHEREAS, the Bozeman City Commission applied for a Unified Development Ordinance text amendment, pursuant to Chapter 18.68 of the Bozeman Unified Development Ordinance, to modify multiple sections of the Unified Development Ordinance; and 246 UDO Text Amendments for regulation of medical marijuana 2 WHEREAS, the City of Bozeman held two public forums on April 21st and May 5th, to facilitate community discussion and gain insight on the issues of concern to the public relating to medical marijuana in order to develop regulations that are responsive to needs and concerns of the citizens of Bozeman; and WHEREAS, the proposed text amendment request has been properly submitted, reviewed and advertised in accordance with the procedures set forth in the Bozeman Unified Development Ordinance and Title 76, Chapter 2, Part 3, M.C.A.; and WHEREAS, the City of Bozeman Zoning Commission held a public hearing on June 15, 2010, to formally receive and review all written and oral testimony on the proposed text amendments; and WHEREAS, no members of the public submitted written testimony on the proposed text amendments but summaries of the public forms was provided to the Zoning Commission; and WHEREAS, three members of the public gave verbal testimony on the proposed text amendments on the subjects of separation requirements, home based businesses, change in the definition of agriculture, odor control, limits on the number of plants, and the need for regulation; and WHEREAS, the Zoning Commission discussed the, forum summaries, offered comments and Staff’s suggested response, and the proposed amendments; and WHEREAS, after considering Staff’s recommendations and discussion amongst Commission members, the Zoning Commission found that the application complied with the Review Criteria; and WHEREAS, after considering staff’s recommendation and discussion amongst Commission members, the Zoning Commission recommended two modifications to the draft amendment: 1) To change the required separation distance between a property line and a forced air vent or residence in Section 18.40.220.E from 50 feet to 30 feet. 2) To include in Section 18.40.220.E an option to use mechanical filtration devices in lieu of the separation requirement. NOW, THEREFORE, BE IT RESOLVED that the City of Bozeman Zoning Commission officially recommends to the Bozeman City Commission that on a vote of 4 to 0 the City Commission adopt the recommended amendments with revisions. DATED THIS DAY OF , 2010, Resolution #Z-10027 247 3 _____________________________ ____________________________ Chris Saunders, Assistant Director JP Pomnichowski, Chairperson Dept. of Planning & Community Development Bozeman Zoning Commission 248 Zoning Commission Minutes – June 15, 2010 1 ZONING COMMISSION MINUTES TUESDAY, JUNE 15, 2010 ITEM 1. CALL TO ORDER AND ATTENDANCE Chairperson Pomnichowski called the meeting to order at 7:00 p.m. and ordered the Recording Secretary to take attendance. Members Present: Nathan Minnick JP Pomnichowski Nick Lieb Ed Sypinski City Commission Liaison Chris Mehl Members Absent: Staff Present: Chris Saunders, Interim Planning Director Greg Sullivan, City Attorney Tara Hastie, Recording Secretary Guests Present: Jim Gingery Blake Ogle Scott Krabler ITEM 2. PUBLIC COMMENT (0-15 MINUTES) {Limited to any public matter within the jurisdiction of the Zoning Commission and not scheduled on this agenda. Three-minute time limit per speaker.} Seeing there was no public comment forthcoming, Chairperson Pomnichowski closed this portion of the meeting. ITEM 3. MINUTES OF MAY 4, 2010 MOTION: Vice Chairperson Minnick moved, Mr. Lieb seconded, to approve the minutes of May 4, 2010 as presented. The motion carried 4-0. Those voting aye being Mr. Lieb, Chairperson Pomnichowski, Mr. Sypinski, and Vice Chairperson Minnick with Mr. Mehl abstaining. Those voting nay being none. 249 Zoning Commission Minutes – June 15, 2010 2 ITEM 4. PROJECT REVIEW 1. Zone Map Amendment Application #Z-10027 – (Medical Marijuana) A Zone Map Amendment requested by the applicant and representative, City of Bozeman, and requesting to amend Title 18, Unified Development Ordinance, BMC to establish standards for medical marijuana as authorized within the scope of Title 50, Chapter 76, Montana Codes Annotated. The amendment would affect multiple districts and properties zoned which allow the uses of Agriculture, Retail, Medical Offices, and Manufacturing as defined in Title 18, Unified Development Ordinance. The proposed amendments address the location where such uses may occur and the zoning review process necessary prior to conducting them. City of Bozeman, Gallatin County, Montana. (Saunders) Chairperson Pomnichowski thanked members of the public in attendance to testify at the evening’s meeting and explained the review procedures for the Zoning Commission and that their decision would be based on the 13 review criteria as set forth in the UDO. Interim Director Chris Saunders presented the Staff Report noting the subject of medical marijuana had received quite a bit of attention lately; a statewide initiative had originally been passed in 2004. He stated there were copies of the Zoning Commission packet and Staff Report available for the public at the rear of the room. He stated the initiative did not have much discussion regarding individual communities. He stated an interim ordinance had been put in place in March 2010 to allow the City time to discuss methods of dealing with medical marijuana in Bozeman. He stated the interim ordinance defined a minimum separation requirement from schools and daycares. He stated Staff had held two public meetings in order to have conversations with the community and those comments had been included in the packet materials. He stated Staff had drafted ordinance provisions and that information had been made available to the public. He stated the items included as draft text for the ordinance were specifically related to zoning while some issues were outside of the purview of the Zoning Commission; the City Commission would hold a public hearing on all of the aspects of medical marijuana. He stated the proposed amendments were largely directed specifically to something other than an individual using growing or using medical marijuana for themselves. Interim Director Saunders stated there were presently 16 business licenses issued for operations for medical marijuana within the City and those applications had been processed under the same application structure as any other new business. He stated the current proposal was to keep the same review process in place. He stated the 1,000 foot separation had been recommended to continue and there had been an amendment proposed to exclude daycare facilities from the buffer requirement unless they were offering instruction in the grades K-12; the attendance would be required to be recorded with the State. He added individuals would be exempt from the separation requirements; up to six plants for personal consumption or deliveries for personal consumption. He noted which zoning districts within the City currently allowed the growing and distribution of medical marijuana. He stated there were presently slightly over 2300 acres appropriately zoned for medical marijuana and were located outside of the buffer areas. He directed the Zoning Commission to a map of those locations and areas of separation regarding schools. He stated there was a great deal of available properties, both developed and for future 250 Zoning Commission Minutes – June 15, 2010 3 development. Interim Director Saunders stated the proposed language included a separation requirement with regard to odor controls; a preventative standard to avoid inadvertent exposure to other members of the community. He stated the State could issue the license to the individual prior to approval from the City as there were no site specifications for the State license. He stated an advisory statement had been included to make people aware that the occupancy requirements for the structure might change when commercial facilities were established as well as an advisory statement that the City’s requirements were minimums and individual landowners had the ability to require additional requirements. Interim Director Saunders stated medical offices were prohibited from operating as home based businesses; Staff had concerns based on information to date that medical marijuana may not be able to conform to the home based business standards and Staff was proposing medical marijuana not be allowed as a home based business. He stated, in order to be consistent, a revision to the definition of “agriculture” had been proposed as many people growing were growing a variety of things; the method of production would be less of a restraint and the primary characteristic is a product for sale or transfer. He stated the proposal was reviewed against the 13 review criteria and had been found to be in keeping with those criteria. He stated no public comment had been received after advertisement in the newspaper. He added the City Commission had been tentatively scheduled for July 12, 2010. Chairperson Pomnichowski stated the Staff Report had indicated the B-3 district would allow the retail sales of medical marijuana and the proposed ordinance did not allow the use in the B-3 downtown core area; she asked which was correct. Interim Director Saunders responded both entries were correct; medical office uses were not currently allowed on the main level in the B-3 core area as defined by the UDO but those uses were allowed within any of the other B-3 zoning districts within the City. He stated there were a number of medical providers within the B-3 zoning district outside of the core area; he explained the core area boundaries. Mr. Mehl asked if Staff had considered distances from parks and churches. Interim Director Saunders responded Staff had not considered those distances for two reasons; it would be very difficult to track and it was difficult to define what constitutes someone’s place of worship. He cited Belgrade as an example of a community that had originally included buffers for public parks, public buildings, and places of worship. He stated Staff had looked at a lot of options and the only thing coming forward was part of the draft text. He stated those items not included had been found to be administratively unworkable or legally difficult to do; he added if the Commission directed Staff to include churches and parks, a method to provide that information would be tackled at their direction. Mr. Mehl stated one of the alternatives included in the Staff Report was concentration of establishments and asked if the Zoning Commission would review that aspect; what if the establishments were to be either dispersed or concentrated. Interim Director Saunders responded if the City Commission believed the proposal needed adjusting and the change was significant, they could suggest the Zoning Commission review the adjustments. Mr. Mehl asked if there were any additional issues Staff had felt should be discussed by the Zoning Commission. Interim Director Saunders responded there were probably not any issues as 251 Zoning Commission Minutes – June 15, 2010 4 nothing had been identified that indicated the establishments should be either dispersed or concentrated. Chairperson Pomnichowski stated the proposal included a separation distance and the relevant state law did not establish a distance though use had been addressed. Mr. Mehl asked Attorney Sullivan how the State defined “use”. Attorney Sullivan stated the State did not prohibit the use, just the smoking of marijuana. Chairperson Pomnichowski clarified that ingestion would be allowed, not smoking. Chairperson Pomnichowski opened the public comment portion of the hearing. Jim Gingery, Montana Growers Association, complimented Interim Director Saunders and Staff for putting together a reasonable program. He stated reference to patients living in the same household had been included and asked for a total of 30 plants as defined by the State to be allowed rather than the 24 allowable proposed. He stated he would add that anyone growing should have fire, safety, and health regulation; it should be guidance for individuals and mandatory for caregivers. He stated they would prefer a buffer of 600 feet instead of the proposed 1,000 foot buffer as liquor stores were allowed a 600 foot buffer. He stated the change to the definition of agriculture would also affect those growing things for the farmers market; if no one could grow, then no one could grow. He stated a one person caregiver would not be able to comply with the separation of 50 feet; he would prefer to see an odor abatement system be required instead. He stated caregivers operated in a number of different ways and a caregiver should be allowed to operate a home based business; he suggested no home based business should be allowed when regular medical marijuana distribution was involved, but should be allowed otherwise. He suggested giving the caregivers and patients a chance to comply with the regulations as they would need time to move operations not conforming to the requirements. He stated there were many caregivers that had more than five patients and he would be amenable to the 30 plant limit however it was arranged. Scott Krabler, 4874 Brookside Dr., stated odor control was pretty easy to handle and he thought the 50 foot separation requirement was punitive. He stated if the intention of the Commission was to curb agricultural uses in residential districts, the way to do it was not to disallow home based businesses for medical marijuana. He suggested a way to manage home based businesses would be to cap the number of plants in residential zoning districts. Blake Ogle, 618 W. Griffin Dr., stated he thought the provision for daycares had been overlooked and a daycare was allowed to be opened by anyone with proper licensing; his concern was the buffer requirement for daycares. Seeing no further public comment forthcoming, the public comment portion of the item was closed. Mr. Lieb stated his understanding of a home based business was that a commercial operation could be home based. Interim Director Saunders responded personal medical marijuana use was allowed without having a home based business, but the member of the public’s concern was that 252 Zoning Commission Minutes – June 15, 2010 5 number of allowable plants would not be enough to accommodate those individuals that were caregivers for another individual; the ordinance would not apply at all to individual use but were applicable to commercial facilities. He suggested the 50 foot requirement had been proposed for commercial uses; he added the language could be amended to allow the option of odor abatement equipment or a 50 foot separation. He stated a caregiver could not grow for their own consumption without being a patient. He stated Staff did not know, to the best of their knowledge, of people operating truck farms out of their back yard to take to the farmers market; a regular activity of exchanging agricultural products would be outside of the authorization of a home based business. Mr. Lieb stated a member of the public had suggested growing for up to five patients and asked if that would be allowed with the current proposal. Interim Director Saunders responded the current proposal would not allow growing as a home based business for five patients; the member of the public had wanted it included as an option. Mr. Mehl asked Interim Director Saunders to clarify the language regarding daycares. Interim Director Saunders responded the interim ordinance included all daycares in the 1,000 foot buffer requirement while the proposed ordinance did not include daycares unless they were K-12 providers; he noted there were some daycares that had students K-12. Mr. Mehl clarified that the City would have no problem with someone bringing home work as long as it was not growing or distributing from the residence. Interim Director Saunders responded leniencies could be investigated; other forms or some aspects of the operations may be acceptable but Staff was concerned with distribution and growing operations due to traffic and building code requirements – accounting would be unlikely to cause any issues. Mr. Mehl asked if State law required a 600 foot buffer for alcohol and 1,000 feet for a schedule 1 narcotic. Interim Director Saunders responded the distances were incorrect and that Attorney Sullivan would be the best one to answer the question. Attorney Sullivan responded the buffer was 600 feet from schools for alcohol establishments on the same street; the original basis of the 1,000 feet was the buffer for dangerous drugs from school zones. Chairperson Pomnichowski stated she saw no definition of commercial growing or processing operations and asked if there was one. Interim Director Saunders responded there was no specific definition for commercial and more general definitions had been used and administered; if it is for one’s own individual use and activity it is not considered commercial activity. Mr. Sypinski asked Interim Director Saunders about the possibility of including the CUP review process and asked if it would be included in the proposed ordinance. Interim Director Saunders responded it was an option, but had not been included in the proposed final ordinance. Chairperson Pomnichowski stated the number of qualifying patients within the same dwelling was of concern to the public and asked where the number 2 had come from. Interim Director Saunders responded the two persons had been determined using the likelihood of occurrence and the number of plants potentially held on site for a caregiver for two persons and how many total plants could result. Chairperson Pomnichowski asked if there was any way to know how many patients were residing in a single dwelling. Interim Director Saunders responded there was no requirement for registration of number of patients per dwelling but language was being drafted with regard to business licensing; he added Attorney Sullivan was working on the draft language. 253 Zoning Commission Minutes – June 15, 2010 6 Attorney Sullivan responded there would be no way to know how many patients resided in a single dwelling, but upon complaint, the number of patients could be determined. Interim Director Saunders stated the City was not interested in setting up a situation where patients that were also caregivers would need to relocate due to proximity to schools which are primarily located in residential zoning districts. Attorney Sullivan added if a caregiver and three qualifying patients lived in one residence they would be allowed a total of 24 plants. Chairperson Pomnichowski stated there had also been questions of fire safety and those issues would be addressed with Building Code requirements. Interim Director Saunders responded those issues would mostly be addressed with Building Code requirements but changes in certain physical features of the residence disqualified it from being a home based business. Chairperson Pomnichowski stated the 50 foot separation requirement for commercial operations would not be feasible; instances of venting within 10 feet of a property line had previously occurred and had been required to vent not only out, but up as well. Interim Director Saunders responded it was sometimes difficult to tell what use would be adjacent; at times acceptable activities became a problem for adjacent properties – he gave an example of a restaurant use that had become offensive to adjacent residential development. He added some form of metric could be investigated by Staff to allow odor abatement equipment to be installed if necessary and a required separation setback if equipment was not required. Chairperson Pomnichowski stated many of the lot sizes would not accommodate a 50 foot separation requirement. Interim Director Saunders responded there were too many combinations of factors to determine whether or not a lot could accommodate the separation. Chairperson Pomnichowski stated some of the lots would not make the 50 feet unless nothing was constructed on the site. Chairperson Pomnichowski stated there had been concerns from the public regarding allowing enough time for people to come into compliance and noted the ordinance would not take affect for 30 days after its adoption. Attorney Sullivan added that there were instances where the City Commission could put the ordinance into immediate effect. Mr. Lieb stated he agreed with Chairperson Pomnichowski regarding the 50 foot separation distance and suggested the distance could be reduced. Chairperson Pomnichowski stated the B-1 zoning district was for neighborhood business and the 50 foot separation would most affect those sites; she suggested 30 feet would be easier to comply with. Interim Director Saunders suggested that rather than reducing the distance, the mechanical option could be included. Chairperson Pomnichowski stated everything that had been discussed must be found to comply with the 13 review criteria as set forth in the UDO. She stated she found the application to be in keeping with the review criteria. She added she had read that an interim ordinance could apply to an area of up to a mile outside City limits and the adopted ordinance would only apply to the City. Interim Director Saunders responded Chairperson Pomnichowski was correct and the area outside the City would be subject to Gallatin County regulations. Mr. Sypinski stated he agreed, to an extent, regarding compliance with the review criteria. He suggested some approaches outlined in the Staff Report could be instituted and there could be some way to cap the number of establishments licensed. He suggested the CUP review for those 254 Zoning Commission Minutes – June 15, 2010 7 establishments and inspections also had some merit. He referenced review criteria 2, 5, and 7 were questionably met. He stated his biggest concern was enforcement of the requirements. Vice Chairperson Minnick stated he was supportive of the proposal as written. He added he thought there should be discussion regarding the CUP process; if it were put in place each site could be specifically addressed. He stated he also liked the “and/or” option regarding odor abatement. Mr. Lieb stated he was not sure he agreed with growing just for people occupying the residence as some people might be growing for others. Chairperson Pomnichowski responded that was where the definition of commercial came into the discussion; she suggested the language defining commercial was squishy. Interim Director Saunders responded there were a couple of factors distinguishing individual activity from commercial activity; registering with the State the relationship between the caregiver/patient which would be on an ongoing basis and identifying occasional activity. Chairperson Pomnichowski suggested she would prefer the BOA not have to review CUP’s for medical marijuana. She stated a commercial operation was for someone growing for someone other than for him or herself. She added she thought it would be nice if a definition of commercial was included in the proposal. She stated she found the application met the review criteria as set forth in the UDO. She stated that with a minimum lot width of 50 feet in some commercial districts, it would be impossible to meet the 50 foot separation requirement. Mr. Lieb stated he liked the mechanical option. Chairperson Pomnichowski stated she had liked the mechanical option too, except she did not want to require people to install expensive mechanical equipment; she suggested a 30 foot separation requirement would be easier to comply with. MOTION: Mr. Lieb moved, Vice Chairperson Minnick seconded, to amend the proposed language to require a 30 foot separation for odor abatement instead of the proposed 50 foot separation. The motion carried 4-0. Those voting aye being Mr. Lieb, Chairperson Pomnichowski, Mr. Sypinski, and Vice Chairperson Minnick. Those voting nay being none. FINAL MOTION: Mr. Sypinski moved, Vice Chairperson Minnick seconded, to forward a recommendation of approval to the City Commission for Zone Map Amendment Application #Z- 10027 with Staff conditions of approval as amended by the Zoning Commission. Mr. Sypinski reiterated he felt the proposal met the 13 review criteria as set forth in the UDO. Chairperson Pomnichowski concurred with Mr. Sypinski. The motion carried 4-0. Those voting aye being Mr. Lieb, Chairperson Pomnichowski, Mr. Sypinski, and Vice Chairperson Minnick with Mr. Mehl abstaining. Those voting nay being none. ITEM 5. NEW BUSINESS 255 Zoning Commission Minutes – June 15, 2010 8 Chairperson Pomnichowski asked Mr. Lieb if he had contacted the person he thought might be interested in becoming a member of the Zoning Commission. He stated he would contact the individual. Chairperson Pomnichowski asked Recording Secretary Hastie if there were items scheduled for the meeting on Wednesday, July 7, 2010. Recording Secretary Hastie responded there were items scheduled on that date. Assistant Director Saunders responded the day of the meeting was a Wednesday due to the Monday 4th of July holiday that week but could be moved back to Tuesday if the items scheduled had not yet been advertised. Mr. Lieb responded he would be absent on that Tuesday. Chairperson Pomnichowski stated the Commission would meet on Wednesday, July 7, 2010 as scheduled. ITEM 6. ADJOURNMENT The Zoning Commission meeting was adjourned at 8:24 p.m. _______________________________________ _______________________________________ JP Pomnichowski, Chairperson Chris Saunders, Interim Planning Director Zoning Commission Dept. of Planning & Community Development City of Bozeman City of Bozeman 256 257 258 259 260 261 262 263 264