HomeMy WebLinkAboutFinal Adoption of Ordinance No. 1786, Regulating the Use of Medical Marijuana.pdfStaff Report: Final Adoption of Ordinance 1786 regulating the use of medical marijuana within the city of Bozeman.
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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: Final Adoption of Ordinance 1786 Regulating the Use of Medical
Marijuana within the city of Bozeman.
MEETING DATE: July 29, 2010
AGENDA ITEM TYPE: Action.
RECOMMENDATION: Incorporate findings from the July 12, 2010 hearing on provisional
adoption including all zoning related findings and finally adopt Ordinance 1786 as amended by
the Commission during the provisional adoption on July 12, 2010.
BACKGROUND: On July 12, 2010 you provisionally adopted Ordinance 1786. At that
hearing you made amendments which are reflected in the attached version for final adoption.
These amendments are highlighted on the ordinance in yellow. Please note that changes staff
suggested after the first draft of this ordinance was released to the public on June 23, 2010 and
prior to the version released for your consideration at here at final adoption and are not
highlighted. Only the amendments you made during provisional adoption are highlighted.
The amendments made during provisional adoption include:
1. Amend Section 3 of the Ordinance at 5.05.010 to increase the Special Services and
Regulatory Inspection Fee from $75 to $125 for a total fee of $150.00.
2. Amend Section 4 of the Ordinance at 5.06.020 to add provision setting a maximum
number of business licenses of thirty-two (32). This provision also recognizes it will
automatically repeal one year after the effective date.
3. Amend Section 4 of the Ordinance at 5.06.020.D to reduce the time period for reporting a
change in the number of qualifying patients from 10 days to 90 days and to reduce the
time period for reporting a change in the employees, principles, agents, etc. from 10 days
to 30 days.
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4. Amend what is now Section 6 of the Ordinance to allow agriculture as a permitted use in
the M-2 zoning district. This change would allow ALL agricultural uses as a permitted
use in M-2 and as such is not limited to just the cultivation of medical marijuana.
5. Amend what is now Section 8 of the Ordinance to include kindergartens in the distance
separation.
6. Amend what is now Section 8 of the Ordinance to reduce the distance separation for a
mechanical force air discharge from medical marijuana grow operation from 50 feet to 30
feet.
We also added a recital to reflect your provisional adoption of this ordinance.
We attached to this report the Commission memorandum from July 12, 2010 as background
information.
UNRESOLVED ISSUES: None identified. Staff will need to create specific administrative
processes to implement the ordinance.
ALTERNATIVES: None identified. Alternatives suggested by the Commission may be
considered and acted upon at final read.
FISCAL EFFECTS: The following has been included in all memorandums related to medical
marijuana and will be repeated here. 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 for Final Adoption
· Staff Memorandum from July 12, 2010 Meeting without the Zoning Report and its
numerous attachments including the Zoning Commission minutes and report (these
documents are available at www.bozeman.net).
Report compiled on: July 21, 2010
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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 18.20.020 (Table 20-1), 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
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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
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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
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the spirit of the Act in that the Act currently lists numerous locations where the smoking of medical
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
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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
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 Commission made certain amendments to this ordinance at the hearing on
July 12, 2010 including establishing a maximum number of allowable business licenses to be issued
under Title 5, BMC, for the purpose of regulating commercial activity related to medical marijuana in
the city of Bozeman and also stating that absent additional Commission action this limitation on the
number of business licenses shall automatically expire one (1) year from the effective date of this
ordinance allowing additional licenses to be issued; 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.
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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
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 ($125.00 75.00); and Total Fee ($150.00 100).
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.
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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).
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 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. As of the effective date of this ordinance the maximum number of business licenses authorized to
be issued under this chapter shall be thirty-two (32). This subsection shall repeal automatically
one-year after the effective date of this ordinance.
B. 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.
C. 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;
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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.
iv. A statement addressing how the applicant will comply with the security requirement
provisions of 5.06.040.
D. An individual or entity licensed under this chapter to conduct a transaction, use, or business related
to Medical Marijuana must, within the time period described below, inform the Director of Finance
within ten (10) days of the occurrence of the following: (i) every 90 days, 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) every 30 days, 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 the time periods described above ten (10) days of the
change shall be cause for revocation of the license pursuant to 5.04.170 and 5.04.180.
E. 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.
F. 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.
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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.
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.
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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.
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 Table 20-1 in 18.20.020 (Authorized Uses) of the Bozeman Municipal Code shall be amended to
add Agriculture as a permitted use in the M-2 zoning district as follows:
Table 20-1
Table of Industrial Uses Permitted Uses
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BP M-1 M-2
Agriculture - - P
All other provisions in 18.20.020 shall remain unchanged.
Section 7
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.
Section 8 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
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2. All private schools, not including home schools, whether located inside or outside the
city limits, which provide instruction in the class range from Kindergarten 1st to 12th
grade and which are either subject to Section 20-5-109, MCA, or listed as a
Kindergarten provider by the Gallatin County Superintendent of Schools.
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 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
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 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 30 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.
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Page 13 of 14
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 9 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 10 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
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 11 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 12 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.
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Final Adoption ORDINANCE NO. 1786 Regarding Medical Marijuana
Page 14 of 14
Section 13 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.
Absent adoption of a subsequent ordinance, 5.06.020.A, as created pursuant to Section 4 of this
Ordinance, shall repeal automatically one (1) year after the effective date of this ordinance.
Section 14 13
Effective Date.
The effective date of this ordinance is 30 days after passage on final reading.
FINALLY PASSED by the City Commission of the City of Bozeman, Montana, on first reading at a
regular session held on the 26th day of July, 2010.
______________________________
JEFFREY K. KRAUSS
Mayor
ATTEST:
_____________________________________
STACY ULMEN, CMC
City Clerk
APPROVED AS TO FORM:
______________________________
GREG SULLIVAN
City Attorney
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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;
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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
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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
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;
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;
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.
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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
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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”.
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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.
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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
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