Loading...
HomeMy WebLinkAboutOrdinance 10- 1786 FINAL, Signed 7-28-10, Regulating the Use of Medical MarijuanaORDINANCE 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, 1.8.40.220, 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, lacy, 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WHEREAS, Section 7 -1 -105, MCA, states, "All state statutes shall be applicable to self - government local units until superseded by ordinance or resolution in the manner provided in chapter 5, part 1 and subject to the limitations provided in this part : - and WHEREAS, Section 7 -1 -106,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 hatter or if enforcement of standards or requirements established by statute is vested in a state officer or agency;" and finally Adopted ORDINANCE NO. 1786 Regarding Medical Marijuana Page 1 of 16 WHEREAS, Title 7, Chpt. 5, fart 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 inedicinal 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 Finally .Adopted ORDINANCE No. 1 7$6 Regardbig Medical Marijuana Page 2 of 16 WHEREAS, immediately after adoption of Ordinance 17$2, 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 ft - om 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 Fiaally Adopted ORDINANCE NO, 1786 Regarding Medical Marijuana Page 3 of 16 use of marijuana is specifically prohibited and a prohibition on the open public display, smoking, or consumption of medical marijuana uana 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 fi 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 I 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 arnend the Unified Development Ordinance (Title 18, Bozeman Municipal Code); and Finally Adopted ORDINANCE NO. 1786 Regarding Medical Marijuana Page 4 of 16 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 Iicenses 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, fart 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 Bozernan Municipal Code: 5.02.100. Mariivana /Usable Marijuana. ' " and "Usable Marijuana`" Have the meanings as defined in 50 -46 -102, MBA. 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 rneanin All other definitions in Chapter 5.02 shall remain in effect and shall be sequentially renumbered in alphabetical order. Finally Adopted ORDINANCE NO. 1786 Regarding Medical Nlarijuana Page 5 of 16 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 qpply 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 'S25.00 Special Services and Ref4ulator Inspection Fee ($125.00); and Total Fee ($150.00). Section 4 The following chapter shall be added to Title 5 of the Bozeman Municipal Code: Ch apter 5.06 MEDICAL MARIJUANA Sections: 5.06.010 Applicability — Failure to Maintain State Authorization 5.06.020 License - Application — Fee — Chan 2e - Confidentialit 5.06.030 Inspection. 5.06.040 Security Requirements. 5.06.010 Applicability — Failure to Maintain State Authorization. Finally Adopted ORDINANCE NQ. 1786 Regarding; Medical Marijuana Page 6 of 16 A. For vurposes of this chapter, the definitions words phrases and cx ressions 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. Anv individual or enjity licensed under this chapter to conduct any transaction use or business involving Medical Marijuana in addition to the requirements of this cha ter 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 b 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 p erson or entity to perforrn any act or conduct any ente rise 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 req uirements of or enforcement by other governing entities or from civil liabilities. E. Each individual or entity issued a license under this chanter shall at all times maintain authorization from the State of Montana under Title 50 Ch t. 46 MCA to ac uire 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. 5.0 6.020 License - Application - Fee — Change - Confidentiali A. Business Licenses. Any individual or entity desiring to conduct any transaction" use, or business regarding Medical Maiiii ana within the city of Bozeman must first submit and obtain approval for an application for a business license under this chapter from the Director of Finance and pay the fees for such licenses as established by this Title. An activity where a duly licensed medical doctor engag in the review of a person's medical condition for ur oses of recommending medical mariivana and who does not provide medical mari to a aualif,r�ngpatient is not subject to these licensin g re uirements but may be subject to other requirements of this code. There shall be the following typ of business licenses related to Medical Marijuana activities conducted in the City regardless of whether the Medical Marijuana is sold bartered exchanged or gifted: Storefront /Retail Locations. Any person or entity that rovides a location other than the residence of the person's or entity's qualifying patient(s) where a transaction or use related to Medical Marijuana is engaged in for more than three (3)_qualifying patients registered by the State of Montana to the a lcant or the a licant "s employees or agents shall prior to enga in such transaction or use obtain a Medical Marijuana Store Front license. As of August 25 2010 the maximum number of Medical Marijuana Store Front licenses shall be Finally Adopted ORDINANCE NO. 1786 Regarding; Medical Marijuana Page 7 of 16 twenty (20). The limitation on the maximum number of licenses under this subsection shall repeal automatically one- after the effective date of this ordinance. 2. Dcliver : Any person or entit y that delivers Medical Marijuana within the City to more than three 3 qualifying atients or another entity regardless of whether the Medical Marijuana is sold, bartered, exchanged, or gifted shall prior to engaging in such activity obtain a Medical Marijuana Delivery license. 3. Growing and /or Processing: Any person or entity that operates a facility for the puU2ose of g rowing and /or processing medical marijuana shall prior to engaging in such activity obtain a Medical Marijuana. Grow License. A person or entity desiring to engage in an activity related to medical marijuana must obtain a separate license for each activity described above except a person or eqfty obtaining a Medical Marijuana Store Front license may also under said license deliver medical marijuana from that location without obtaining a separate Medical Marijuana Delivery license. B. An application under this chapter, in addition to the requirements of 5.04.060.B, shall include the following. 1. The name of all owners/principals of the business as Applicable and the name of all agents, contractors or employees, if any; 2. 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 Ch t. 46 MCA and are dul authorized by state law to acquire possess cultivate manufacture, deliver, transfer, or transport Medical Marijuana; 3. A sworn statement signed by the applicant verifying the number of ualif `n r atients whieb name the applicant and an other° owner/ rinci pal agent contractor or employee of the L 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 gppl cant 4. A statement addressing }low the a ) alicant will comply with the security requirement provisions of 5.06.040; and 5. Each applicant for a business license shall provide a detailed statement re larding the nature of activities related to Medical Marijuana for which the applicant is engaged in and the specific license(s) for which an application is being submitted. C. 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 of the occurrence of the following: G) every 90 days, any change to the licensed individual or entity's number of rg istered qualifyigg patients (including those of a principal/owner, agent, contractor or employee); and/or (ii) evpKy 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 Finally, Adopted ORDINANCE N4, 1786 Regarding Medical Marijuana Page 8 of 16 Director of Finance of the changes listed herein within the time periods described above 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 cha ter is a public document excep that the names of all agents em to ees and /or contractors and the number of ualif in atients p rovided to the city in fulfillment of the requirements of this chapter are to be kg pt on a separate form and are to be considered confidential by the City unless disclosure is re wired b law. Nothing herein shall prevent a duly authorized agent of the city of Bozeman from sharing t� _. the information described in this section with other authorized city emplo, ees or other state or local law enforcement as necessary to perform official duties. E. An application for a business license under this chapter_ submitted prior to but not approved before August 25 2010 shall not be subject to the limitation on the maximum number of licenses but shall be subject to ,all other provisions of this Title Any-application for a license submitted hereunder after August 25 2010 . shall be subject to the maximum allowable licenses and all other provisions of this Title. This chapter shall repeal automatically one- ear after the effective date of this ordinance. F. A license issued under this chapter is not transferable and the provisions of 5.04.080 shall not �7 ?� 1- 5.06.030 Tnspection. 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 enforce rient without notice during normal business hours inspect any premise under license pursuant to this chapter to rletel °mine whether the licensee is in compliance with the Montana Medical Marijuana Act or any other state or local regulation, and lnay inspect the number of plants or amount of marijuana or usable marijuana on the premises or in control of the licensee to detennine whether these amounts corresponds to the amounts established by Title 50 Ch t. 46 MCA which the licensee is authorized to lawfull possess. 5.06.040 Securi , Requirements. Prior to issuance of a license under this cha ter a Medical Marijuana commercial business where an amount of Marijuana or usable marijuana is stored on the premises be and nonnal 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 entr y 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. Finally Adopted ORDINANCE NO. 1786 Regarding Medical Marijuana Page 9 of 16 Section 5 That a new chapter of the Bozeman Municipal Code, Chapter 8.52, shall be created to read as fellows: 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 andap plicable. 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 identif y acts regarding the medical use ofmari "uana 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 pun),ose 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 ppalose of establishing these acts where the use is further limited by the City as criminal is to protect the p ublic'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 marfluana" shall have the same meaning and includes the term "usable marijuana." C. "Ways of the City Open to the Public means any highway, highwqy, road driveway, alley, lane parkin area sidewalk park trail or other public or private ... lace 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 Was of the City Open to the Public dis la Flnallr Adopted ORDINANCE ND. 1786 Regarding Medical Mar _ittana Page 10 of 16 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 fora period not to exceed six (6) months or both such tine 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 Primate Right of Action. Nothing in this chapter shall be construed to create „a private light of actionjegarding 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 BP NI -1 NI -2 Agriculture _ _ P All other provisions in 18.20.020 shall remain unchanged, Finally Adopted ORDINANCE NO. 1786 Regarding. Medical Marijuana Page 11 of 1 6 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 lobe services painting of vehicles, trailers or boats; private schools with organized classes radio or television repair; and upholstering. Section 8 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 faci lity 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 the may relate to zoning, ..... business licensing, or other municipal programs. Compliance with City of Bozeman zoning regulations does not shield any person, coMoration, 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 prg o entitV 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. I 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 Kindergarten to grade and which are either subject to Section 20-5-109, MCA, or listed as a Kindergarten - provider by the Gallatin County Spperintendent of Schools. 3. For purposes of this section, specified distances will be measured in a straight line, without reg and . ,to intervening structures from the property line of a school as stated in subsections I and 2. above re I i ga.,rdless of whether those schools are located within the Finally Adopted ORDINANCE NO. 1786 Regarding Medical Marijuana Page 12 of 16 jurisdictional limits of the city of Bozeman, to the psops of the business providing Medical Marijuana. B. Any activities meeting the definition ofAgrriculture, Manufacturinz, Office or Retail as established in Chapter 18.80 which is for the ur ose of g rowing, T)rocessing, 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 Tolicy designation, or within the core area of the B -3 district as defined in 18.18.010.0, BMC, C. The requirements of subsections A and B do not apply to: 1. An individual registered calif in atient who assesses marl uana in accordance with the limits and requirements of Title S(} Cha ter 46 MCA solelv for that q ualifying patient's oven use; or 2. To a caregiver providing care to not more than two gualffying patients who reside within the same dwelln as the caregiver. The caregiver and calif f ying 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 occUancy 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. Air Discharge Control: Any Medical Marijuana „growing or processing perati.on that contains twenty four (24) or more marijuana plants at any one time shall provide a forced air vent discharge point that is: Located no chaser than 30 feet from an adt'acent property line or a residence: or Provides a mechanical filtration system to control discharges of_Rail culates and odors. The ventilation filtrations stem shall be desig 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 bound ary, and noise produced by the system shall be controlled and minimized. F. Any p erson making as lication for a zoning approval for a Medical Marijuana business shall provide evidence of DPHHS approval as a caret~iver at the time of application and shall maintain such DPHHS approval at all times. Failure to maintain approval Immediately suspends zoning approval tooperate a Medical Marijuana business in the City of Bozeman. G. These regulations are for review of applications to the City and do not restrict owners from establishing more stringent standards for their properties, Fivall� Adopted ORDINANCE NO. 1786 Regarding Medical Marijuana Page 13 of 16 Section 9 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 growin 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 1.0 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 whale. Section 11 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 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 13 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 Finally Adopted ORDINANCE NO. 1786 Regarding Medical Marijuana Page 14 of 16 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 Effective Date. The effective date of this ordinance is 30 days after passage on final reading. PROVISIONALLY PASSED AND ADOPTED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the 12 day of July, 2010, 4 'K. KRAUSS Mayor ATTE, T:, ,,,, B 0 Z All � d M� S' A Y U E1�1, „"C City,Cler, u; GREG SULLIVAN City Attorney Finalh Adopted ORDINANCE NO. 1786 Regarding Medical Marijuana Page 15 of 16 FINALLY PASSED by the City Commission of the City of Bozeman, Montana, on second reading at a regular session held on the 26"' day of July, 2010. Z VF E . K USS ayor ATTEST :, >< y� , . y r� �D4 m Cftv v . 0 - APPROVED AS TO FORM: GRLG SULLIVAN" City Attorney Finally Adapted ORDINANCE NO. 17136 Regarding Medical Marijuana Page 16 of'16