HomeMy WebLinkAboutProvisional Adoption of Ordinance No. 1811, establishing permanent cap on medical marijuana storefronts.pdfStaff Report: Provisional Adoption of Ordinance 1811
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Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Greg Sullivan, City Attorney
SUBJECT: Provisional Adoption of Ordinance 1811 Related to the Number of
Medical Marijuana Storefront Businesses Authorized to Conduct Business Within the City of
Bozeman.
MEETING DATE: June 27, 2011
AGENDA ITEM TYPE: Action.
RECOMMENDATION: Provisionally adopt Ordinance 1811 establishing a permanent cap of
20 on medical marijuana storefront businesses.
BACKGROUND: When the City Commission adopted Ordinance 1786 last summer creating
municipal code provisions related to medical marijuana business licensing and use, the
Commission included a one-year cap of 20 on the number of storefront businesses authorized to
conduct business within the city of Bozeman. Under the municipal code, this cap is set to
automatically expire on August 25, 2011. I bring this ordinance before you for you to determine
whether the cap should remain, be made permanent, or, at the Commission’s discretion, be
extended for an additional year. As explained herein, my recommendation is to permanently set
the cap at 20. The Bozeman Police Department and the Department of Planning and Community
Development concur in this recommendation.
Currently, the city of Bozeman has 211 medical marijuana storefront licensees. As the city
business licenses are renewed at the beginning of the calendar year, these business licenses are
valid for one-year contingent upon continued compliance with the municipal code requirements
and state law. If one of these businesses should lose its license, go out of business, or fail to
reapply, the city will not accept an application for a storefront business license. If, however, two
or more licensees fail to maintain current status, the city will accept the next submitted
application(s) for review. The Applicant must, of course, comply with all applicable provisions
of state law including those of SB423.
1 Ordinance 1786 allowed all applications for city of Bozeman storefront business licenses submitted prior to the effective date of
the ordinance to be reviewed and approved. Thus, the number exceeded the set cap of 20.
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The proposed change in Ordinance 1811 to subsection A of 5.06.020 is to restate in this section
that all licensees must comply with the provisions of state law as stated in 5.06.010.E, BMC.
UNRESOLVED ISSUES: As you know, there are numerous unresolved issues related to the
commercial aspects of medical marijuana stemming from the 2011 Montana Legislature’s
adoption of SB423. SB423 became law on May 13, 2011 with several provisions becoming
effective at that time and the majority of the bill’s amendments to the Medical Marijuana Act to
be effective on July 1, 2011.
There are numerous changes to the Medical Marijuana Act that affect the city’s business
licensing program yet the change that perhaps most critically impacts the city’s program is
SB423’s requirement that a “provider” serve no more than three registered patients and cannot
take any financial remuneration for doing so. See SB423, Sect. 5 (effective July 1, 2011). These
requirements in SB423 remove “providers” from the city’s requirement to obtain a business
license because these city licenses are only required when a person is engaged in a “transaction
or use… for more than three (3) qualifying patients…” 5.06.020.A.1, 2, BMC.
Considering the above, at this time I recommend the city of Bozeman refrain from engaging in a
complete overhaul of the Bozeman Municipal Code provisions related to medical marijuana for
two reasons. First, there are two current attempts to overturn SB423 including litigation in
Montana district court in Lewis and Clark County and an attempt to suspend the implementation
of the law through the referendum process. (For more information on both please see the links
under the header “SB423 Monitoring: Montana Marijuana Act” at
http://leg.mt.gov/css/Committees/Interim/2011-2012/Children-Family/Meeting-
Documents/meetings.asp). The outcome of these efforts is unknown and I believe that should the
city overhaul its municipal code provisions related to medical marijuana and one of these efforts
succeed the city may find any such overhaul to conflict with the Commission’s purposes behind
initial adoption of the city’s municipal code provisions during the summer of 2010.
Second, the city’s municipal code does not provide protection from full compliance with state
law as the city’s codes currently require all businesses who have a city business license to
maintain compliance with all state laws (see 5.06.010.E, BMC). Thus, all city of Bozeman
licensees are required by state law and also by the municipal code to be in full and continuing
compliance with SB423. Failure to comply with state law can result in revocation of the business
license, civil penalties, and possible criminal prosecution.
As such, it is my recommendation to refrain from a whole scale reform of the city of Bozeman’s
municipal code provisions related to medical marijuana until the attempts at overturning SB423
have run their course.
ALTERNATIVES: Given the uncertainty of the future of medical marijuana in Montana, the
Commission may wish to consider extending the cap on medical marijuana storefronts for an
additional year (or other time period) rather than permanently limit the number at 20. Should the
Commission decide to do so I offer the following as the amendment to 5.06.020.A.1:
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1. Storefront/Retail Locations: Any person or entity that provides 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 applicant or the applicant’s
employees or agents shall prior to engaging in such transaction or use obtain a
Medical Marijuana Store Front license. As of August 25, 20110, the maximum
number of Medical Marijuana Store Front licenses shall be twenty (20). The
limitation on the maximum number of licenses under this subsection shall repeal
automatically one-year after the effective date of this ordinance.
The alternative amendment will continue the one-year limitation as it leaves the last sentence of
the above subsection in place and only replaces the effective date.
If the Commission desires to change the length of time for which the cap will be in place, the
Commission will need to amend the reference to the phrase “one-year” as that phrase occurs in
the last sentence of the subsection.
FISCAL EFFECTS: None directly related to the adoption of this ordinance. Considerable staff
time continues to be spent on monitoring medical marijuana use in the community and following
changes to state law. After July 1, 2011 additional staff time will be spent monitoring
compliance with the changes to state law.
Attachments:
· Ordinance 1811 for Provisional Adoption
· Finally adopted Ordinance 1786 (signed version).
· Senate Bill 423
Report compiled on: June 14, 2011
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Provisional Adoption ORDINANCE NO. 1811 Regarding Medical Marijuana
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ORDINANCE NO. 1811
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN,
MONTANA. AMENDING SECTION 5.06.020, BOZEMAN MUNICIPAL CODE RELATED
TO THE NUMBER OF MEDICAL MARIJUANA STOREFRONT BUSINESSES
AUTHORIZED TO CONDUCT BUSINESS WITHIN THE CITY OF BOZEMAN.
NOW, THEREFORE, BE IT ORDAINED by the City Commission of the City of Bozeman,
Montana, that:
Section 1
That Section 5.06.020, BMC, shall be amended to read as follows:
5.06.020 License - Application - Fee – Change - Confidentiality.
A. Business Licenses. In addition to complying with the requirements of Title 50, Chpt. 46, MCA,
and 5.06.010.E Aany individual or entity desiring to conduct any transaction, use, or business
regarding Medical Marijuana 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
fee(s) for such license(s) as established by this Title. An activity where a duly licensed medical
doctor engages in the review of a person’s medical condition for purposes of recommending
medical marijuana and who does not provide medical marijuana to a qualifying patient is not
subject to these licensing requirements but may be subject to other requirements of this code.
There shall be the following types of business licenses related to Medical Marijuana activities
conducted in the City regardless of whether the Medical Marijuana is sold, bartered, exchanged, or
gifted:
1. Storefront/Retail Locations: Any person or entity that provides 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 applicant or the applicant’s employees or agents shall prior to
engaging in such transaction or use obtain a Medical Marijuana Store Front license. As of
August 25, 2010, t The maximum number of Medical Marijuana Store Front licenses shall
be twenty (20). The limitation on the maximum number of licenses under this subsection
shall repeal automatically one-year after the effective date of this ordinance.
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2. Delivery: Any person or entity that delivers Medical Marijuana within the City to more than
three (3) qualifying patients 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 purpose of
growing 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 entity 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, Chpt. 46, MCA, and are duly 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 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;
4. A statement addressing how the applicant will comply with the security requirement
provisions of 5.06.040; and
5. Each applicant for a business license shall provide a detailed statement regarding 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: (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 shall
be cause for revocation of the license pursuant to 5.04.170 and 5.04.180.
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D. An application for business license under this chapter is a public document except that the
names of all agents, employees and/or contractors and the number of qualifying patients
provided to the city in fulfillment of the requirements of this chapter are to be kept on a
separate form and are to be considered confidential by the City unless disclosure is required by
law. Nothing herein shall prevent a duly authorized agent of the city of Bozeman from sharing
the information described in this section with other authorized city employees or other state or
local law enforcement as necessary to perform official duties.
E. 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-year 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
apply.
Section 2
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 3
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 4
Codification Instruction.
The provisions of Sections 1 shall be codified as appropriate in Titles 5 of the Bozeman
Municipal Code, as amended.
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Section 5
Effective Date.
The effective date of this ordinance is 30 days after passage on final reading.
INITIALLY PASSED by the City Commission of the City of Bozeman, Montana, on first reading at a
regular session held on the 27th day of June, 2011.
______________________________
JEFFREY K. KRAUSS
Mayor
ATTEST:
_____________________________________
STACY ULMEN, CMC
City Clerk
APPROVED AS TO FORM:
______________________________
GREG SULLIVAN
City Attorney
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FINALLY PASSED by the City Commission of the City of Bozeman, Montana, on initial reading at a
regular session held on the ____ day of July, 2011.
______________________________
JEFFREY K. KRAUSS
Mayor
ATTEST:
_____________________________________
STACY ULMEN, CMC
City Clerk
APPROVED AS TO FORM:
______________________________
GREG SULLIVAN
City Attorney
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62nd Legislature SB0423
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AN ACT ESTABLISHING THE MONTANA MARIJUANA ACT AND REVISING LAWS RELATING TO THE USE
OF MARIJUANA; CREATING A REGISTRY PROGRAM FOR THE CULTIVATION, MANUFACTURE,
TRANSPORTATION, AND TRANSFER OF MARIJUANA BY CERTAIN INDIVIDUALS; REQUIRING
REPORTING; ALLOWING INSPECTIONS; REQUIRING LEGISLATIVE MONITORING; PROVIDING
DEFINITIONS; PROVIDING RULEMAKING AUTHORITY; ESTABLISHING A TRANSITION PROCESS;
AMENDING SECTIONS 37-1-316, 37-3-343, 37-3-347, 41-5-216, 45-9-203, 46-18-202, 50-46-201, 50-46-202,
AND 61-11-101, MCA; REPEALING SECTIONS 50-46-101, 50-46-102, 50-46-103, 50-46-201, 50-46-202,
50-46-205, 50-46-206, 50-46-207, AND 50-46-210, MCA; AND PROVIDING EFFECTIVE DATES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Short title -- purpose. (1) [Sections 1 through 23] may be cited as the "Montana Marijuana
Act".
(2) The purpose of [sections 1 through 23] is to:
(a) provide legal protections to persons with debilitating medical conditions who engage in the use of
marijuana to alleviate the symptoms of the debilitating medical condition;
(b) allow for the limited cultivation, manufacture, delivery, and possession of marijuana as permitted by
[sections 1 through 23] by persons who obtain registry identification cards;
(c) allow individuals to assist a limited number of registered cardholders with the cultivation and
manufacture of marijuana or marijuana-infused products;
(d) establish reporting requirements for production of marijuana and marijuana-infused products and
inspection requirements for premises; and
(e) give local governments a role in establishing standards for the cultivation, manufacture, and use of
marijuana that protect the public health, safety, and welfare of residents within their jurisdictions.
Section 2. Definitions. As used in [sections 1 through 23], the following definitions apply:
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(1) "Correctional facility or program" means a facility or program that is described in 53-1-202 and to
which a person may be ordered by any court of competent jurisdiction.
(2) "Debilitating medical condition" means:
(a) cancer, glaucoma, positive status for human immunodeficiency virus, or acquired immune deficiency
syndrome when the condition or disease results in symptoms that seriously and adversely affect the patient's
health status;
(b) cachexia or wasting syndrome;
(c) severe chronic pain that is persistent pain of severe intensity that significantly interferes with daily
activities as documented by the patient's treating physician and by:
(i) objective proof of the etiology of the pain, including relevant and necessary diagnostic tests that may
include but are not limited to the results of an x-ray, computerized tomography scan, or magnetic resonance
imaging; or
(ii) confirmation of that diagnosis from a second physician who is independent of the treating physician
and who conducts a physical examination;
(d) intractable nausea or vomiting;
(e) epilepsy or an intractable seizure disorder;
(f) multiple sclerosis;
(g) Crohn's disease;
(h) painful peripheral neuropathy;
(i) a central nervous system disorder resulting in chronic, painful spasticity or muscle spasms;
(j) admittance into hospice care in accordance with rules adopted by the department; or
(k) any other medical condition or treatment for a medical condition approved by the legislature.
(3) "Department" means the department of public health and human services provided for in 2-15-2201.
(4) "Local government" means a county, a consolidated government, or an incorporated city or town.
(5) "Marijuana" has the meaning provided in 50-32-101.
(6) (a) "Marijuana-infused product" means a product that contains marijuana and is intended for use by
a registered cardholder by a means other than smoking.
(b) The term includes but is not limited to edible products, ointments, and tinctures.
(7) (a) "Marijuana-infused products provider" means a Montana resident who meets the requirements
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of [sections 1 through 23] and who has applied for and received a registry identification card to manufacture and
provide marijuana-infused products for a registered cardholder.
(b) The term does not include the cardholder's treating or referral physician.
(8) "Mature marijuana plant" means a harvestable female marijuana plant that is flowering.
(9) "Paraphernalia" has the meaning provided in 45-10-101.
(10) (a) "Provider" means a Montana resident 18 years of age or older who is authorized by the
department to assist a registered cardholder as allowed under [sections 1 through 23].
(b) The term does not include the cardholder's treating physician or referral physician.
(11) "Referral physician" means a person who:
(a) is licensed under Title 37, chapter 3;
(b) has an established office in Montana; and
(c) is the physician to whom a patient's treating physician has referred the patient for physical
examination and medical assessment.
(12) "Registered cardholder" or "cardholder" means a Montana resident with a debilitating medical
condition who has received and maintains a valid registry identification card.
(13) "Registered premises" means the location at which a provider or marijuana-infused products provider
has indicated the person will cultivate or manufacture marijuana for a registered cardholder.
(14) "Registry identification card" means a document issued by the department pursuant to [section 3]
that identifies a person as a registered cardholder, provider, or marijuana-infused products provider.
(15) (a) "Resident" means an individual who meets the requirements of 1-1-215.
(b) An individual is not considered a resident for the purposes of [sections 1 through 23] if the individual:
(i) claims residence in another state or country for any purpose; or
(ii) is an absentee property owner paying property tax on property in Montana.
(16) "Second degree of kinship by blood or marriage" means a mother, father, brother, sister, son,
daughter, spouse, grandparent, grandchild, mother-in-law, father-in-law, brother-in-law, sister-in-law, son-in-law,
daughter-in-law, grandparent-in-law, grandchild-in-law, stepfather, stepmother, stepbrother, stepsister, stepson,
stepdaughter, stepgrandparent, or stepgrandchild.
(17) "Seedling" means a marijuana plant that has no flowers and is less than 12 inches in height and 12
inches in diameter.
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(18) "Standard of care" means, at a minimum, the following activities when undertaken by a patient's
treating physician or referral physician if the treating physician or referral physician is providing written certification
for a patient with a debilitating medical condition:
(a) obtaining the patient's medical history;
(b) performing a relevant and necessary physical examination;
(c) reviewing prior treatment and treatment response for the debilitating medical condition;
(d) obtaining and reviewing any relevant and necessary diagnostic test results related to the debilitating
medical condition;
(e) discussing with the patient and ensuring that the patient understands the advantages, disadvantages,
alternatives, potential adverse effects, and expected response to the recommended treatment;
(f) monitoring the response to treatment and possible adverse effects; and
(g) creating and maintaining patient records that remain with the physician.
(19) "Treating physician" means a person who:
(a) is licensed under Title 37, chapter 3;
(b) has an established office in Montana; and
(c) has a bona fide professional relationship with the person applying to be a registered cardholder.
(20) (a) "Usable marijuana" means the dried leaves and flowers of the marijuana plant and any mixtures
or preparations of the dried leaves and flowers that are appropriate for the use of marijuana by a person with a
debilitating medical condition.
(b) The term does not include the seeds, stalks, and roots of the plant.
(21) "Written certification" means a statement signed by a treating physician or referral physician that
meets the requirements of [section 7] and is provided in a manner that meets the standard of care.
Section 3. Department responsibilities -- issuance of cards -- confidentiality -- reports. (1) (a) The
department shall establish and maintain a program for the issuance of registry identification cards to Montana
residents who:
(i) have debilitating medical conditions and who submit applications meeting the requirements of
[sections 1 through 23]; and
(ii) are named as providers or marijuana-infused products providers by persons who obtain registry
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identification cards for their debilitating medical conditions.
(b) Persons who obtain registry identification cards are authorized to cultivate, manufacture, possess,
and transport marijuana as allowed by [sections 1 through 23].
(2) The department shall conduct criminal history background checks as required by [sections 4 and 5]
before issuing a registry identification card for a person named as a provider or marijuana-infused products
provider.
(3) Registry identification cards issued pursuant to [sections 1 through 23] must:
(a) be laminated and produced on a material capable of lasting for the duration of the time period for
which the card is valid;
(b) state the name, address, and date of birth of the registered cardholder and of the cardholder's
provider or marijuana-infused products provider, if any;
(c) state the date of issuance and the expiration date of the registry identification card;
(d) contain a unique identification number;
(e) easily identify whether the card is for a person with a debilitating medical condition, a provider, or a
marijuana-infused products provider; and
(f) contain other information that the department may specify by rule.
(4) (a) The department shall review the information contained in an application or renewal submitted
pursuant to [sections 1 through 23] and shall approve or deny an application or renewal within 30 days of
receiving the application or renewal and all related application materials.
(b) The department shall issue a registry identification card within 5 days of approving an application or
renewal.
(5) Rejection of an application or renewal is considered a final department action, subject to judicial
review.
(6) (a) Registry identification cards expire 1 year after the date of issuance unless:
(i) a physician has provided a written certification stating that a card is valid for a shorter period of time;
or
(ii) a registered cardholder changes providers or marijuana-infused products providers.
(b) A provider's or marijuana-infused products provider's registry identification card expires at the time
the department issues a card to a new provider or new marijuana-infused products providers named by a
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registered cardholder.
(7) A registered cardholder shall notify the department of any change in the cardholder's name, address,
physician, provider, or marijuana-infused products providers or change in the status of the cardholder's
debilitating medical condition within 10 days of the change. If a change occurs and is not reported to the
department, the registry identification card is void.
(8) The department shall maintain a confidential list of persons to whom the department has issued
registry identification cards. Except as provided in subsection (9), individual names and other identifying
information on the list must be confidential and are not subject to disclosure, except to:
(a) authorized employees of the department as necessary to perform the official duties of the department;
and
(b) authorized employees of state or local government agencies, including law enforcement agencies,
only as necessary to verify that an individual is a lawful possessor of a registry identification card.
(9) The department shall provide the names of providers and marijuana-infused products providers to
the local law enforcement agency having jurisdiction in the area in which the providers or marijuana-infused
products providers are located. The law enforcement agency and its employees are subject to the confidentiality
requirements of [section 17].
(10) (a) The department shall provide the board of medical examiners with the name of any physician
who provides written certification for 25 or more patients within a 12-month period. The board of medical
examiners shall review the physician's practices in order to determine whether the practices meet the standard
of care.
(b) The physician whose practices are under review shall pay the costs of the board's review activities.
(11) The department shall report biannually to the legislature the number of applications for registry
identification cards, the number of registered cardholders approved, the nature of the debilitating medical
conditions of the cardholders, the number of providers and marijuana-infused products providers approved, the
number of registry identification cards revoked, the number of physicians providing written certification for
registered cardholders, and the number of written certifications each physician has provided. The report may not
provide any identifying information of cardholders, physicians, providers, or marijuana-infused products providers.
(12) The board of medical examiners shall report annually to the legislature on:
(a) the number and types of complaints the board has received involving physician practices in providing
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written certification for the use of marijuana, pursuant to 37-3-203; and
(b) the number of physicians whose names were provided to the board by the department as required
under subsection (10). The report must include information on whether a physician whose practices were
reviewed by the board pursuant to subsection (10) met the standard of care when providing written certifications.
Section 4. Persons with debilitating medical conditions -- requirements -- minors -- limitations.
(1) Except as provided in subsections (2) through (4), the department shall issue a registry identification card to
a person with a debilitating medical condition who submits the following, in accordance with department rules:
(a) an application on a form prescribed by the department;
(b) an application fee or a renewal fee;
(c) the person's name, street address, and date of birth;
(d) proof of Montana residency;
(e) a statement that the person will be cultivating and manufacturing marijuana for the person's use or
will be obtaining marijuana from a provider or a marijuana-infused products provider;
(f) a statement, on a form prescribed by the department, that the person will not divert to any other
person the marijuana that the person cultivates, manufactures, or obtains for the person's debilitating medical
condition;
(g) the name of the person's treating physician or referral physician and the street address and telephone
number of the physician's office;
(h) the street address where the person is cultivating or manufacturing marijuana if the person is
cultivating or manufacturing marijuana for the person's own use;
(i) the name, date of birth, and street address of the individual the person has selected as a provider or
marijuana-infused products provider, if any; and
(j) the written certification and accompanying statements from the person's treating physician or referral
physician as required pursuant to [section 7].
(2) The department shall issue a registry identification card to a minor if the materials required under
subsection (1) are submitted and the minor's custodial parent or legal guardian with responsibility for health care
decisions:
(a) provides proof of legal guardianship and responsibility for health care decisions if the person is
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submitting an application as the minor's legal guardian with responsibility for health care decisions; and
(b) signs and submits a written statement that:
(i) the minor's treating physician or referral physician has explained to the minor and to the minor's
custodial parent or legal guardian with responsibility for health care decisions the potential risks and benefits of
the use of marijuana; and
(ii) the minor's custodial parent or legal guardian with responsibility for health care decisions:
(A) consents to the use of marijuana by the minor;
(B) agrees to serve as the minor's marijuana-infused products provider;
(C) agrees to control the acquisition of marijuana and the dosage and frequency of the use of marijuana
by the minor;
(D) agrees that the minor will use only marijuana-infused products and will not smoke marijuana;
(c) submits fingerprints to facilitate a fingerprint and background check by the department of justice and
federal bureau of investigation. The parent or legal guardian shall pay the costs of the background check and may
not obtain a registry identification card as a marijuana-infused products provider if the parent or legal guardian
does not meet the requirements of [section 5].
(d) pledges, on a form prescribed by the department, not to divert to any person any marijuana cultivated
or manufactured for the minor's use in a marijuana-infused product.
(3) An application for a registry identification card for a minor must be accompanied by the written
certification and accompanying statements required pursuant to [section 7] from a second physician in addition
to the minor's treating physician or referral physician.
(4) A person may not be a registered cardholder if the person is in the custody of or under the
supervision of the department of corrections or a youth court.
(5) A registered cardholder who elects to obtain marijuana from a provider or marijuana-infused products
provider may not cultivate or manufacture marijuana for the cardholder's use unless the registered cardholder
is the provider or marijuana-infused products provider.
(6) A registered cardholder may cultivate or manufacture marijuana as allowed under [section 10] only:
(a) at a property that is owned by the cardholder; or
(b) with written permission of the landlord, at a property that is rented or leased by the cardholder.
(7) No portion of the property used for cultivation and manufacture of marijuana for use by the registered
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cardholder may be shared with or rented or leased to a provider, a marijuana-infused products provider, or a
registered cardholder unless the property is owned, rented, or leased by cardholders who are related to each
other by the second degree of kinship by blood or marriage.
Section 5. Provider types -- requirements -- limitations -- activities. (1) The department shall issue
a registry identification card to or renew a card for the person who is named as a provider or marijuana-infused
products provider in a registered cardholder's approved application if the person submits to the department:
(a) the person's name, date of birth, and street address on a form prescribed by the department;
(b) proof that the person is a Montana resident;
(c) fingerprints to facilitate a fingerprint and background check by the department of justice and the
federal bureau of investigation;
(d) a written agreement signed by the registered cardholder that indicates whether the person will act
as the cardholder's provider or marijuana-infused products provider;
(e) a statement, on a form prescribed by the department, that the person will not divert to any other
person the marijuana that the person cultivates or manufactures for a registered cardholder;
(f) a statement acknowledging that the person will cultivate and manufacture marijuana for the registered
cardholder at only one location as provided in subsection (7). The location must be identified by street address.
(g) a fee as determined by the department to cover the costs of the fingerprint and background check
and associated administrative costs of processing the registration.
(2) The department may not register a person under this section if the person:
(a) has a felony conviction or a conviction for a drug offense;
(b) is in the custody of or under the supervision of the department of corrections or a youth court;
(c) has been convicted of a violation under [section 16];
(d) has failed to:
(i) pay any taxes, interest, penalties, or judgments due to a government agency;
(ii) stay out of default on a government-issued student loan;
(iii) pay child support; or
(iv) remedy an outstanding delinquency for child support or for taxes or judgments owed to a government
agency; or
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(e) is a registered cardholder who has designated a provider or marijuana-infused products provider in
the person's application for a card issued under [section 4].
(3) (a) (i) A provider or marijuana-infused products provider may assist a maximum of three registered
cardholders.
(ii) A person who is registered as both a provider and a marijuana-infused products provider may assist
no more than three registered cardholders.
(b) If the provider or marijuana-infused products provider is a registered cardholder, the provider or
marijuana-infused products provider may assist a maximum of two registered cardholders other than the provider
or marijuana-infused products provider.
(4) A provider or marijuana-infused products provider may accept reimbursement from a cardholder only
for the provider's application or renewal fee for a registry identification card issued under this section.
(5) Marijuana for use pursuant to [sections 1 through 23] must be cultivated and manufactured in
Montana.
(6) A provider or marijuana-infused products provider may not:
(a) accept anything of value, including monetary remuneration, for any services or products provided to
a registered cardholder;
(b) buy or sell mature marijuana plants, seedlings, cuttings, clones, usable marijuana, or
marijuana-infused products; or
(c) use marijuana unless the person is also a registered cardholder.
(7) (a) A person registered under this section may cultivate and manufacture marijuana for use by a
registered cardholder only at one of the following locations:
(i) a property that is owned by the provider or marijuana-infused products provider;
(ii) with written permission of the landlord, a property that is rented or leased by the provider or
marijuana-infused products provider; or
(iii) a property owned, leased, or rented by the registered cardholder pursuant to the provisions of [section
4].
(b) No portion of the property used for cultivation and manufacture of marijuana may be shared with or
rented or leased to another provider or marijuana-infused products provider or another registered cardholder.
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Section 6. Marijuana-infused products provider -- requirements -- allowable activities. (1) An
individual registered as a marijuana-infused products provider shall:
(a) prepare marijuana-infused products at a premises registered with the department that is used for the
manufacture and preparation of marijuana-infused products; and
(b) use equipment that is used exclusively for the manufacture and preparation of marijuana-infused
products.
(2) A marijuana-infused products provider:
(a) may cultivate marijuana only for the purpose of making marijuana-infused products; and
(b) may not provide a cardholder with marijuana in a form that may be used for smoking unless the
marijuana-infused products provider is also a registered provider and is providing the marijuana to a registered
cardholder who has selected the person as the person's registered provider.
(3) All registered premises on which marijuana-infused products are manufactured must meet any
applicable standards set by a local board of health for a food service establishment as defined in 50-50-102.
(4) Marijuana-infused products may not be considered a food or drug for the purposes of Title 50,
chapter 31.
Section 7. Written certification -- accompanying statements. (1) The written certification provided
by a physician must be made on a form prescribed by the department and signed and dated by the physician.
The written certification must:
(a) include the physician's name, license number, and office address and telephone number on file with
the board of medical examiners and the physician's business e-mail address, if any; and
(b) the name, date of birth, and debilitating medical condition of the person for whom the physician is
providing written certification.
(2) A treating physician or referral physician who is providing written certification for a patient shall
provide a statement initialed by the physician that must:
(a) confirm that the physician is:
(i) the person's treating physician and that the person has been under the physician's ongoing medical
care as part of a bona fide professional relationship with the person; or
(ii) the person's referral physician;
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(b) confirm that the person suffers from a debilitating medical condition;
(c) describe the debilitating medical condition, why the condition is debilitating, and the extent to which
it is debilitating;
(d) confirm that the physician has assumed primary responsibility for providing management and routine
care of the person's debilitating medical condition after obtaining a comprehensive medical history and conducting
a physical examination that included a personal review of any medical records maintained by other physicians
and that may have included the person's reaction and response to conventional medical therapies;
(e) describe the medications, procedures, and other medical options used to treat the condition;
(f) state that the medications, procedures, or other medical options have not been effective;
(g) confirm that the physician has reviewed all prescription and nonprescription medications and
supplements used by the person and has considered the potential drug interaction with marijuana;
(h) state that the physician has a reasonable degree of certainty that the person's debilitating medical
condition would be alleviated by the use of marijuana and that, as a result, the patient would be likely to benefit
from the use of marijuana;
(i) confirm that the physician has explained the potential risks and benefits of the use of marijuana to the
person;
(j) list restrictions on the person's activities due to the use of marijuana;
(k) specify the time period for which the use of marijuana would be appropriate, up to a maximum of 1
year;
(l) state that the physician will:
(i) continue to serve as the person's treating physician or referral physician; and
(ii) monitor the person's response to the use of marijuana and evaluate the efficacy of the treatment; and
(m) contain an attestation that the information provided in the written certification and accompanying
statements is true and correct.
(3) A physician who is the second physician recommending marijuana for use by a minor shall submit:
(a) a statement initialed by the physician that the physician conducted a comprehensive review of the
minor's medical records as maintained by the treating physician or referral physician;
(b) a statement that in the physician's professional opinion, the potential benefits of the use of marijuana
would likely outweigh the health risks for the minor; and
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(c) an attestation that the information provided in the written certification and accompanying statements
is true and correct.
(4) If the written certification states that marijuana should be used for less than 1 year, the department
shall issue a registry identification card that is valid for the period specified in the written certification.
Section 8. Registry card to be carried and exhibited on demand -- photo identification required.
A registered cardholder, provider, or marijuana-infused products provider shall keep the person's registry
identification card in the person's immediate possession at all times. The person shall display the registry
identification card and a valid photo identification upon demand of a law enforcement officer, justice of the peace,
or city or municipal judge.
Section 9. Health care facility procedures for patients with marijuana for use. (1) (a) Except for
hospices and residential care facilities that allow the use of marijuana as provided in [section 11], a health care
facility as defined in 50-5-101 shall take the following measures when a patient who is a registered cardholder
has marijuana in the patient's possession upon admission to the health care facility:
(i) require the patient to remove the marijuana from the premises before the patient is admitted if the
patient is able to do so; or
(ii) make a reasonable effort to contact the patient's provider, marijuana-infused products provider,
court-appointed guardian, or person with a power of attorney, if any.
(b) If a patient is unable to remove the marijuana or the health care facility is unable to contact an
individual as provided in subsection (1)(a), the facility shall contact the local law enforcement agency having
jurisdiction in the area where the facility is located.
(2) A provider, marijuana-infused products provider, court-appointed guardian, or person with a power
of attorney, if any, contacted by a health care facility shall remove the marijuana and deliver it to the patient's
residence.
(3) A law enforcement agency contacted by a health care facility shall respond by removing and
destroying the marijuana.
(4) A health care facility may not be charged for costs related to removal of the marijuana from the
facility's premises.
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Section 10. Legal protections -- allowable amounts. (1) (a) A registered cardholder may possess up
to 4 mature plants, 12 seedlings, and 1 ounce of usable marijuana.
(b) A provider or marijuana-infused products provider may possess 4 mature plants, 12 seedlings, and
1 ounce of usable marijuana for each registered cardholder who has named the person as the registered
cardholder's provider.
(2) Except as provided in [section 11] and subject to the provisions of subsection (7), an individual who
possesses a registry identification card issued pursuant to [sections 1 through 23] may not be arrested,
prosecuted, or penalized in any manner or be denied any right or privilege, including but not limited to civil penalty
or disciplinary action by a professional licensing board or the department of labor and industry, solely because:
(a) the individual cultivates, manufactures, possesses, or transports marijuana in the amounts allowed
under this section; or
(b) the registered cardholder acquires or uses marijuana.
(3) A physician may not be arrested, prosecuted, or penalized in any manner or be denied any right or
privilege, including but not limited to civil penalty or disciplinary action by the board of medical examiners or the
department of labor and industry, solely for providing written certification for a patient with a debilitating medical
condition.
(4) Nothing in this section prevents the imposition of a civil penalty or a disciplinary action by a
professional licensing board or the department of labor and industry if:
(a) a registered cardholder's use of marijuana impairs the cardholder's job-related performance; or
(b) a physician violates the standard of care or other requirements of [sections 1 through 23].
(5) (a) An individual may not be arrested or prosecuted for constructive possession, conspiracy as
provided in 45-4-102, or other provisions of law or any other offense solely for being in the presence or vicinity
of the use of marijuana as permitted under [sections 1 through 23].
(b) This subsection (5) does not prevent the arrest or prosecution of an individual who is in the vicinity
of a registered cardholder's use of marijuana if the individual is in possession of or is using marijuana and is not
a registered cardholder.
(6) Except as provided in [section 14], possession of or application for a registry identification card does
not alone constitute probable cause to search the individual or the property of the individual possessing or
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applying for the registry identification card or otherwise subject the individual or property of the individual
possessing or applying for the card to inspection by any governmental agency, including a law enforcement
agency.
(7) The provisions of this section relating to protection from arrest or prosecution do not apply to an
individual unless the individual has obtained a registry identification card prior to an arrest or the filing of a criminal
charge. It is not a defense to a criminal charge that an individual obtains a registry identification card after an
arrest or the filing of a criminal charge.
(8) (a) A registered cardholder, a provider, or a marijuana-infused products provider is presumed to be
engaged in the use of marijuana as allowed by [sections 1 through 23] if the person:
(i) is in possession of a valid registry identification card; and
(ii) is in possession of an amount of marijuana that does not exceed the amount permitted under [sections
1 through 23].
(b) The presumption may be rebutted by evidence that the possession of marijuana was not for the
purpose of alleviating the symptoms or effects of a registered cardholder's debilitating medical condition.
Section 11. Limitations of the act. (1) [Sections 1 through 23] do not permit:
(a) any person, including a registered cardholder, to operate, navigate, or be in actual physical control
of a motor vehicle, aircraft, or motorboat while under the influence of marijuana; or
(b) except as provided in subsection (3), the use of marijuana by a registered cardholder:
(i) in a health care facility as defined in 50-5-101;
(ii) in a school or a postsecondary school as defined in 20-5-402;
(iii) on or in any property owned by a school district or a postsecondary school;
(iv) on or in any property leased by a school district or a postsecondary school when the property is being
used for school-related purposes;
(v) in a school bus or other form of public transportation;
(vi) when ordered by any court of competent jurisdiction into a correctional facility or program;
(vii) if a court has imposed restrictions on the cardholder's use pursuant to 46-18-202;
(viii) at a public park, public beach, public recreation center, or youth center;
(ix) in or on the property of any church, synagogue, or other place of worship;
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(x) in plain view of or in a place open to the general public; or
(xi) where exposure to the marijuana smoke significantly adversely affects the health, safety, or welfare
of children.
(2) A registered cardholder, provider, or marijuana-infused products provider may not cultivate or
manufacture marijuana for use by a registered cardholder in a manner that is visible from the street or other public
area.
(3) A hospice or residential care facility licensed under Title 50, chapter 5, may adopt a policy that allows
use of marijuana by a registered cardholder.
(4) Nothing in [sections 1 through 23] may be construed to require:
(a) a government medical assistance program, a group benefit plan that is covered by the provisions of
Title 2, chapter 18, an insurer covered by the provisions of Title 33, or an insurer as defined in 39-71-116 to
reimburse a person for costs associated with the use of marijuana by a registered cardholder;
(b) an employer to accommodate the use of marijuana by a registered cardholder;
(c) a school or postsecondary school to allow a registered cardholder to participate in extracurricular
activities; or
(d) a landlord to allow a tenant who is a registered cardholder, provider, or marijuana-infused products
provider to cultivate or manufacture marijuana or to allow a registered cardholder to use marijuana.
(5) Nothing in [sections 1 through 23] may be construed to:
(a) prohibit an employer from including in any contract a provision prohibiting the use of marijuana for
a debilitating medical condition; or
(b) permit a cause of action against an employer for wrongful discharge pursuant to 39-2-904 or
discrimination pursuant to 49-1-102.
(6) Nothing in [sections 1 through 23] may be construed to allow a provider or marijuana-infused
products provider to use marijuana or to prevent criminal prosecution of a provider or marijuana-infused products
provider who uses marijuana or paraphernalia for personal use.
(7) (a) A law enforcement officer who has reasonable cause to believe that a person with a valid registry
identification card is driving under the influence of marijuana may apply for a search warrant to require the person
to provide a sample of the person's blood for testing pursuant to the provisions of 61-8-405. A person with a
tetrahydrocannabinol (THC) level of 5 ng/ml may be charged with a violation of 61-8-401.
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(b) A registered cardholder, provider, or marijuana-infused products provider who violates subsection
(1)(a) is subject to revocation of the person's registry identification card if the individual is convicted of or pleads
guilty to any offense related to driving under the influence of alcohol or drugs when the initial offense with which
the individual was charged was a violation of 61-8-401, 61-8-406, or 61-8-410. A revocation under this section
must be for the period of suspension or revocation set forth:
(i) in 61-5-208 for a violation of 61-8-401 or 61-8-406; or
(ii) in 61-8-410 for a violation of 61-8-410.
(c) If a person's registry identification card is subject to renewal during the revocation period, the person
may not renew the card until the full revocation period has elapsed. The card may be renewed only if the person
submits all materials required for renewal.
Section 12. Prohibitions on physician affiliation with providers and marijuana-infused products
providers -- sanctions. (1) (a) A physician who provides written certifications may not:
(i) accept or solicit anything of value, including monetary remuneration, from a provider or
marijuana-infused products provider;
(ii) offer a discount or any other thing of value to a person who uses or agrees to use a particular provider
or marijuana-infused products provider; or
(iii) examine a patient for the purposes of diagnosing a debilitating medical condition at a location where
medical marijuana is cultivated or manufactured or where marijuana-infused products are made.
(b) Subsection (1)(a) does not prevent a physician from accepting a fee for providing medical care to
a provider or marijuana-infused products provider if the physician charges the person the same fee that the
physician charges other patients for providing a similar level of medical care.
(2) If the department has cause to believe that a physician has violated this section, has violated a
provision of rules adopted pursuant to this chapter, or has not met the standard of care required under this
chapter, the department may refer the matter to the board of medical examiners provided for in 2-15-1731 for
review pursuant to 37-1-308.
(3) A violation of this section constitutes unprofessional conduct under 37-1-316. If the board of medical
examiners finds that a physician has violated this section, the board shall restrict the physician's authority to
provide written certification for the use of marijuana. The board of medical examiners shall notify the department
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of the sanction.
(4) If the board of medical examiners believes a physician's practices may harm the public health, safety,
or welfare, the board may summarily restrict a physician's authority to provide written certification for the medical
use of marijuana.
Section 13. Local government authority to regulate. (1) To protect the public health, safety, or
welfare, a local government may by ordinance or resolution regulate a provider or marijuana-infused products
provider that operates within the local government's jurisdictional area. The regulations may include but are not
limited to inspections of locations where marijuana is cultivated or manufactured in order to ensure compliance
with any public health, safety, and welfare requirements established by the department or the local government.
(2) A local government may adopt an ordinance or resolution prohibiting providers and marijuana-infused
products providers from operating as storefront businesses.
Section 14. Inspection procedures. (1) The department and state or local law enforcement agencies
may conduct unannounced inspections of registered premises.
(2) (a) Each provider and marijuana-infused products provider shall keep a complete set of records
necessary to show all transactions with registered cardholders. The records must be open for inspection by the
department and state or local law enforcement agencies during normal business hours.
(b) The department may require a provider or marijuana-infused products provider to furnish information
that the department considers necessary for the proper administration of [sections 1 through 23].
(3) (a) A registered premises, including any places of storage, where marijuana is cultivated,
manufactured, or stored is subject to entry by the department or state or local law enforcement agencies for the
purpose of inspection or investigation during normal business hours.
(b) If any part of the registered premises consists of a locked area, the provider or marijuana-infused
products provider shall make the area available for inspection without delay upon request of the department or
state or local law enforcement officials.
(4) A provider or marijuana-infused products provider shall maintain records showing the names and
registry identification numbers of registered cardholders to whom mature plants, seedlings, usable marijuana,
or marijuana-infused products were transferred and the quantities transferred to each cardholder.
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Section 15. Unlawful conduct by cardholders -- penalties. (1) The department shall revoke and may
not reissue the registry identification card of a person who:
(a) is convicted of a drug offense;
(b) allows another person to be in possession of the person's:
(i) registry identification card; or
(ii) mature marijuana plants, seedlings, usable marijuana, or marijuana-infused products; or
(c) fails to cooperate with the department concerning an investigation or inspection if the person is
registered and cultivating or manufacturing marijuana.
(2) A registered cardholder, provider, or marijuana-infused products provider who violates [sections 1
through 23] is punishable by a fine not to exceed $500 or by imprisonment in a county jail for a term not to exceed
6 months, or both, unless otherwise provided in [sections 1 through 23] or unless the violation would constitute
a violation of Title 45. An offense constituting a violation of Title 45 must be charged and prosecuted pursuant
to the provisions of Title 45.
Section 16. Fraudulent representation -- penalties. (1) In addition to any other penalties provided by
law, a person who fraudulently represents to a law enforcement official that the person is a registered cardholder,
provider, or marijuana-infused products provider is guilty of a misdemeanor punishable by imprisonment in a
county jail for a term not to exceed 1 year or a fine not to exceed $1,000, or both.
(2) A physician who purposely and knowingly misrepresents any information required under [section 7]
is guilty of a misdemeanor punishable by imprisonment in a county jail for a term not to exceed 1 year or a fine
not to exceed $1,000, or both.
(3) A person convicted under this section may not be registered as a provider or marijuana-infused
products provider under [section 5].
Section 17. Confidentiality of registry information -- penalty. (1) Except as provided in 37-3-203, a
person, including an employee or official of the department of public health and human services, commits the
offense of disclosure of confidential information related to registry information if the person knowingly or purposely
discloses confidential information in violation of [sections 1 through 23].
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(2) A person convicted of a violation of this section shall be fined not to exceed $1,000 or imprisoned
in the county jail for a term not to exceed 6 months, or both.
Section 18. Law enforcement authority. Nothing in this chapter may be construed to limit a law
enforcement agency's ability to investigate unlawful activity in relation to a person with a registry identification
card.
Section 19. Forfeiture. (1) Marijuana, paraphernalia relating to marijuana, or other property seized by
a law enforcement official from a person claiming the protections of [sections 1 through 23] in connection with
the cultivation, manufacture, possession, transportation, distribution, or use of marijuana must be returned to the
person immediately upon a determination that the person is in compliance with the provisions of [sections 1
through 23].
(2) A law enforcement agency in possession of mature marijuana plants or seedlings seized as evidence
is not responsible for the care and maintenance of the plants or seedlings.
Section 20. Advertising prohibited. Persons with valid registry identification cards may not advertise
marijuana or marijuana-related products in any medium, including electronic media.
Section 21. Hotline. (1) The department shall create and maintain a hotline to receive reports of
suspected abuse of the provisions of [sections 1 through 23].
(2) The department may:
(a) investigate reports of suspected abuse of the provisions of [sections 1 through 23]; or
(b) refer reports of suspected abuse to the law enforcement agency having jurisdiction in the area where
the suspected abuse is occurring.
Section 22. Legislative monitoring. (1) The children, families, health, and human services interim
committee shall provide oversight of the department's activities related to registering individuals pursuant to
[sections 1 through 23] and of issues related to the cultivation, manufacture, and use of marijuana pursuant to
[sections 1 through 23].
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(2) The committee shall identify issues likely to require future legislative attention and develop legislation
to present to the next regular session of the legislature.
Section 23. Rulemaking authority -- fees. (1) The department shall adopt rules necessary for the
implementation and administration of [sections 1 through 23]. The rules must include but are not limited to:
(a) the manner in which the department will consider applications for registry identification cards for
providers and marijuana-infused products providers and for persons with debilitating medical conditions and
renewal of registry identification cards;
(b) the acceptable forms of proof of Montana residency;
(c) the procedures for obtaining fingerprints for the fingerprint and background check required under
[sections 4 and 5];
(d) other rules necessary to implement the purposes of [sections 1 through 23].
(2) The department's rules must establish application and renewal fees that generate revenue sufficient
to offset all expenses of implementing and administering [sections 1 through 23].
Section 24. Section 37-1-316, MCA, is amended to read:
"37-1-316. Unprofessional conduct. The following is unprofessional conduct for a licensee or license
applicant governed by this part:
(1) conviction, including conviction following a plea of nolo contendere, of a crime relating to or
committed during the course of the person's practice or involving violence, use or sale of drugs, fraud, deceit, or
theft, whether or not an appeal is pending;
(2) permitting, aiding, abetting, or conspiring with a person to violate or circumvent a law relating to
licensure or certification;
(3) fraud, misrepresentation, deception, or concealment of a material fact in applying for or assisting in
securing a license or license renewal or in taking an examination required for licensure;
(4) signing or issuing, in the licensee's professional capacity, a document or statement that the licensee
knows or reasonably ought to know contains a false or misleading statement;
(5) a misleading, deceptive, false, or fraudulent advertisement or other representation in the conduct of
the profession or occupation;
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(6) offering, giving, or promising anything of value or benefit to a federal, state, or local government
employee or official for the purpose of influencing the employee or official to circumvent a federal, state, or local
law, rule, or ordinance governing the licensee's profession or occupation;
(7) denial, suspension, revocation, probation, fine, or other license restriction or discipline against a
licensee by a state, province, territory, or Indian tribal government or the federal government if the action is not
on appeal, under judicial review, or has been satisfied;
(8) failure to comply with a term, condition, or limitation of a license by final order of a board;
(9) revealing confidential information obtained as the result of a professional relationship without the prior
consent of the recipient of services, except as authorized or required by law;
(10) use of alcohol, a habit-forming drug, or a controlled substance as defined in Title 50, chapter 32, to
the extent that the use impairs the user physically or mentally in the performance of licensed professional duties;
(11) having a physical or mental disability that renders the licensee or license applicant unable to practice
the profession or occupation with reasonable skill and safety;
(12) engaging in conduct in the course of one's practice while suffering from a contagious or infectious
disease involving serious risk to public health or without taking adequate precautions, including but not limited
to informed consent, protective gear, or cessation of practice;
(13) misappropriating property or funds from a client or workplace or failing to comply with a board rule
regarding the accounting and distribution of a client's property or funds;
(14) interference with an investigation or disciplinary proceeding by willful misrepresentation of facts, by
the use of threats or harassment against or inducement to a client or witness to prevent them from providing
evidence in a disciplinary proceeding or other legal action, or by use of threats or harassment against or
inducement to a person to prevent or attempt to prevent a disciplinary proceeding or other legal action from being
filed, prosecuted, or completed;
(15) assisting in the unlicensed practice of a profession or occupation or allowing another person or
organization to practice or offer to practice by use of the licensee's license;
(16) failing to report the institution of or final action on a malpractice action, including a final decision on
appeal, against the licensee or of an action against the licensee by a:
(a) peer review committee;
(b) professional association; or
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(c) local, state, federal, territorial, provincial, or Indian tribal government;
(17) failure of a health care provider, as defined in 27-6-103, to comply with a policy or practice
implementing 28-10-103(3)(a);
(18) conduct that does not meet the generally accepted standards of practice. A certified copy of a
malpractice judgment against the licensee or license applicant or of a tort judgment in an action involving an act
or omission occurring during the scope and course of the practice is conclusive evidence of but is not needed
to prove conduct that does not meet generally accepted standards;
(19) the sole use of any electronic means, including teleconferencing, to obtain the information required
for the written certification and accompanying statements used to apply for a registry identification card pursuant
to [sections 1 through 23]."
Section 25. Section 37-3-343, MCA, is amended to read:
"37-3-343. Practice of telemedicine prohibited without license -- scope of practice limitations --
violations and penalty. (1) A physician may not practice telemedicine in this state without a telemedicine license
issued pursuant to 37-3-301, 37-3-341 through 37-3-345, and 37-3-347 through 37-3-349.
(2) A telemedicine license authorizes an out-of-state physician to practice telemedicine only with respect
to the specialty in which the physician is board-certified or meets the current requirements to take the examination
to become board-certified and on which the physician bases the physician's application for a telemedicine license
pursuant to 37-3-345(2).
(3) A telemedicine license authorizes an out-of-state physician to practice only telemedicine. A
telemedicine license does not authorize the physician to engage in the practice of medicine while physically
present within the state.
(4) A telemedicine license may not be used by a physician as a means to obtain the information required
for the written certification and accompanying statements used to apply for a registry identification card pursuant
to [sections 1 through 23].
(4)(5) A physician who practices telemedicine in this state without a telemedicine license issued pursuant
to 37-3-301, 37-3-341 through 37-3-345, and 37-3-347 through 37-3-349, in violation of the terms or conditions
of that license, in violation of the scope of practice allowed by the license, or without a physician's license issued
pursuant to 37-3-301, is guilty of a misdemeanor and on conviction shall be sentenced as provided in 37-3-325."
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Section 26. Section 37-3-347, MCA, is amended to read:
"37-3-347. Reasons for denial of license -- alternative route to licensed practice. (1) The board may
deny an application for a telemedicine license if the applicant:
(a) fails to demonstrate that the applicant possesses the qualifications for a license required by 37-3-341
through 37-3-345 and 37-3-347 through 37-3-349 and the rules of the board;
(b) plans to use telemedicine as a means to obtain the information required for the written certification
and accompanying statements used to apply for a registry identification card pursuant to [sections 1 through 23];
(b)(c) fails to pay a required fee;
(c)(d) does not possess the qualifications or character required by this chapter; or
(d)(e) has committed unprofessional conduct.
(2) A physician who does not meet the qualifications for a telemedicine license provided in 37-3-345 may
apply for a physician's license in order to practice medicine in Montana."
Section 27. Section 41-5-216, MCA, is amended to read:
"41-5-216. Disposition of youth court, law enforcement, and department records -- sharing and
access to records. (1) Formal youth court records, law enforcement records, and department records that are
not exempt from sealing under subsections (4) and (6) and that pertain to a youth covered by this chapter must
be physically sealed on the youth's 18th birthday. In those cases in which jurisdiction of the court or any agency
is extended beyond the youth's 18th birthday, the records must be physically sealed upon termination of the
extended jurisdiction.
(2) Except as provided in subsection (6), when the records pertaining to a youth pursuant to this section
are sealed, an agency, other than the department, that has in its possession copies of the sealed records shall
destroy the copies of the records. Anyone violating the provisions of this subsection is subject to contempt of
court.
(3) Except as provided in subsection (6), this section does not prohibit the destruction of records with
the consent of the youth court judge or county attorney after 10 years from the date of sealing.
(4) The requirements for sealed records in this section do not apply to medical records, fingerprints, DNA
records, photographs, youth traffic records, records in any case in which the youth did not fulfill all requirements
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of the court's judgment or disposition, records referred to in 42-3-203, reports referred to in 45-5-624(7), or the
information referred to in 46-23-508, in any instance in which the youth was required to register as a sexual
offender pursuant to Title 46, chapter 23, part 5.
(5) After formal youth court records, law enforcement records, and department records are sealed, they
are not open to inspection except, upon order of the youth court, for good cause, including when a youth commits
a new offense, to:
(a) those persons and agencies listed in 41-5-215(2); and
(b) adult probation professional staff preparing a presentence report on a youth who has reached the
age of majority.
(6) (a) When formal youth court records, law enforcement records, and department records are sealed
under subsection (1), the electronic records of the management information system maintained by the department
of public health and human services and by the department relating to the youth whose records are being sealed
must be preserved for the express purpose of research and program evaluation as provided in subsection (6)(b).
(b) The department of public health and human services and the department shall disassociate the
offense and disposition information from the name of the youth in the respective management information system.
The offense and disposition information must be maintained separately and may be used only:
(i) for research and program evaluation authorized by the department of public health and human
services or by the department and subject to any applicable laws; and
(ii) as provided in Title 5, chapter 13.
(7) (a) Informal youth court records for a youth for whom formal proceedings have been filed must be
physically sealed on the youth's 18th birthday or, in those cases in which jurisdiction of the court or any agency
is extended beyond the youth's 18th birthday, upon termination of the extended jurisdiction and may be inspected
only pursuant to subsection (5).
(b) The informal youth court records may be maintained and inspected only by youth court personnel
upon a new offense prior to the youth's 18th birthday.
(c) Except as provided in subsection (7)(a), when a youth becomes 18 years of age or when extended
supervision ends and the youth was involved only in informal proceedings, informal youth court records that are
in hard-copy form must be destroyed and any electronic records in the youth court management information
system must disassociate the offense and disposition information from the name of the youth and may be used
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only for the following purposes:
(i) for research and program evaluation authorized by the office of the court administrator and subject
to any applicable laws; and
(ii) as provided in Title 5, chapter 13.
(8) Nothing in this section prohibits the intra-agency use or information sharing of formal or informal youth
court records within the juvenile probation management information system. Electronic records of the youth court
may not be shared except as provided in 41-5-1524. If a person authorized under 41-5-215 is in need of a copy
of a record that is in electronic form, the juvenile probation officer shall make only a physical copy of the record
that is authorized and the person receiving the record shall destroy the record after it has fulfilled its purpose or
as provided in subsection (2) of this section.
(9) This section does not prohibit the intra-agency use or information sharing of formal or informal youth
court records within the department's youth management information system. Electronic records of the
department's youth management information system may not be shared except as provided in subsection (5).
If a person authorized under 41-5-215 is in need of a copy of a record that is in electronic form, the department
shall make only a physical copy of the record that is authorized and the person receiving the record shall destroy
the record after it has fulfilled its purpose or as provided in subsection (2) of this section.
(10) This section does not prohibit the sharing of formal or informal youth court records with a short-term
detention center, a youth care facility, a youth assessment center, or a youth detention facility upon placement
of a youth within the facility.
(11) This section does not prohibit access to formal or informal youth court records, including electronic
records, for purposes of conducting evaluations as required by 41-5-2003.
(12) This section does not prohibit the office of court administrator, upon written request from the
department of public health and human services, from confirming whether a person applying for a registry
identification card pursuant to [section 4 or 5] is currently under youth court supervision."
Section 28. Section 45-9-203, MCA, is amended to read:
"45-9-203. Surrender of license. (1) If a court suspends or revokes a driver's license under
45-9-202(2)(e), the defendant shall, at the time of sentencing, surrender the license to the court. The court shall
forward the license and a copy of the sentencing order to the department of justice. The defendant may apply
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to the department for issuance of a probationary license under 61-2-302.
(2) If a person with a registry identification card issued pursuant to [section 4 or 5] is convicted of an
offense under this chapter, the court shall:
(a) at the time of sentencing, require the person to surrender the registry identification card; and
(b) notify the department of public health and human services of the conviction in order for the
department to carry out its duties under [section 15]."
Section 29. Section 46-18-202, MCA, is amended to read:
"46-18-202. Additional restrictions on sentence. (1) The sentencing judge may also impose any of
the following restrictions or conditions on the sentence provided for in 46-18-201 that the judge considers
necessary to obtain the objectives of rehabilitation and the protection of the victim and society:
(a) prohibition of the offender's holding public office;
(b) prohibition of the offender's owning or carrying a dangerous weapon;
(c) restrictions on the offender's freedom of association;
(d) restrictions on the offender's freedom of movement;
(e) a requirement that the defendant provide a biological sample for DNA testing for purposes of Title
44, chapter 6, part 1, if an agreement to do so is part of the plea bargain;
(f) a requirement that the offender surrender any registry identification card issued under [section 3];
(f)(g) any other limitation reasonably related to the objectives of rehabilitation and the protection of the
victim and society.
(2) Whenever the sentencing judge imposes a sentence of imprisonment in a state prison for a term
exceeding 1 year, the sentencing judge may also impose the restriction that the offender is ineligible for parole
and participation in the supervised release program while serving that term. If the restriction is to be imposed,
the sentencing judge shall state the reasons for it in writing. If the sentencing judge finds that the restriction is
necessary for the protection of society, the judge shall impose the restriction as part of the sentence and the
judgment must contain a statement of the reasons for the restriction.
(3) If a sentencing judge requires an offender to surrender a registry identification card issued under
[section 3], the court shall return the card to the department of public health and human services and provide the
department with information on the offender's sentence. The department shall revoke the card for the duration
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of the sentence and shall return the card if the offender successfully completes the terms of the sentence before
the expiration date listed on the card."
Section 30. Section 50-46-201, MCA, is amended to read:
"50-46-201. Medical use of marijuana -- legal protections -- limits on amount -- presumption of
medical use. (1) A person who possesses a registry identification card issued pursuant to 50-46-103 before [the
effective date of this section] may not be arrested, prosecuted, or penalized in any manner or be denied any right
or privilege, including but not limited to civil penalty or disciplinary action by a professional licensing board or the
department of labor and industry, if:
(a) the qualifying patient or caregiver acquires, possesses, cultivates, manufactures, delivers, transfers,
or transports marijuana not in excess of the amounts allowed in subsection (2); or
(b) the qualifying patient uses marijuana for medical use.
(2) A qualifying patient and that qualifying patient's caregiver may not possess more than six marijuana
plants and 1 ounce of usable marijuana each.
(3) (a) A qualifying patient or caregiver is presumed to be engaged in the medical use of marijuana if the
qualifying patient or caregiver:
(i) is in possession of a registry identification card; and
(ii) is in possession of an amount of marijuana that does not exceed the amount permitted under
subsection (2).
(b) The presumption may be rebutted by evidence that the possession of marijuana was not for the
purpose of alleviating the symptoms or effects of a qualifying patient's debilitating medical condition.
(4) A physician may not be arrested, prosecuted, or penalized in any manner or be denied any right or
privilege, including but not limited to civil penalty or disciplinary action by the board of medical examiners or the
department of labor and industry, for providing written certification for the medical use of marijuana to qualifying
patients.
(5) An interest in or right to property that is possessed, owned, or used in connection with the medical
use of marijuana or acts incidental to medical use may not be forfeited under any provision of law providing for
the forfeiture of property other than as a sentence imposed after conviction of a criminal offense.
(6) A person may not be subject to arrest or prosecution for constructive possession, conspiracy, as
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provided in 45-4-102, or other provisions of law or any other offense for simply being in the presence or vicinity
of the medical use of marijuana as permitted under this chapter.
(7) Possession of or application for a registry identification card does not alone constitute probable cause
to search the person or property of the person possessing or applying for the registry identification card or
otherwise subject the person or property of the person possessing or applying for the card to inspection by any
governmental agency, including a law enforcement agency.
(8) A registry identification card or its equivalent issued by another state government to permit the
medical use of marijuana by a qualifying patient or to permit a person to assist with a qualifying patient's medical
use of marijuana has the same force and effect as a registry identification card issued by the department."
Section 31. Section 50-46-202, MCA, is amended to read:
"50-46-202. Disclosure of confidential information relating to medical use of marijuana -- penalty.
(1) The department shall maintain a confidential list of the persons to whom the department has issued registry
identification cards. Individual names and other identifying information on the list must be confidential and are not
subject to disclosure except to:
(a) authorized employees of the department as necessary to perform official duties of the department;
or
(b) state or local law enforcement agencies only as necessary to verify that a person is a lawful
possessor of a registry identification card.
(1)(2) A person, including an employee or official of the department or other state or local government
agency, commits the offense of disclosure of confidential information relating to medical use of marijuana if the
person knowingly or purposely discloses confidential information in violation of 50-46-103 this section.
(2)(3) A person convicted of disclosure of confidential information relating to medical use of marijuana
shall be fined not to exceed $1,000 or be imprisoned in the county jail for a term not to exceed 6 months, or both."
Section 32. Section 61-11-101, MCA, is amended to read:
"61-11-101. Report of convictions and suspension or revocation of driver's licenses -- surrender
of licenses. (1) If a person is convicted of an offense for which chapter 5 or chapter 8, part 8, makes mandatory
the suspension or revocation of the driver's license or commercial driver's license of the person by the
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department, the court in which the conviction occurs shall require the surrender to it of all driver's licenses then
held by the convicted person. The court shall, within 5 days after the conviction becomes final, forward the license
and a record of the conviction to the department. If the person does not possess a driver's license, the court shall
indicate that fact in its report to the department.
(2) A court having jurisdiction over offenses committed under a statute of this state or a municipal
ordinance regulating the operation of motor vehicles on highways, except for standing or parking statutes or
ordinances, shall forward a record of the conviction, as defined in 61-5-213, to the department within 5 days after
the conviction becomes final. The court may recommend that the department issue a restricted probationary
license on the condition that the individual comply with the requirement that the person attend and complete a
chemical dependency education course, treatment, or both, as ordered by the court under 61-8-732.
(3) A court or other agency of this state or of a subdivision of the state that has jurisdiction to take any
action suspending, revoking, or otherwise limiting a license to drive shall report an action and the adjudication
upon which it is based to the department within 5 days on forms furnished by the department.
(4) A conviction becomes final for the purposes of this part upon the later of:
(a) expiration of the time for appeal of the court's judgment or sentence to the next highest court;
(b) forfeiture of bail that is not vacated; or
(c) imposition of a fine or court cost as a condition of a deferred imposition of a sentence or a suspended
execution of a sentence.
(5) (a) On a conviction referred to in subsection (1) of a person who holds a commercial driver's license
or who is required to hold a commercial driver's license, a court may not take any action, including deferring
imposition of judgment, that would prevent a conviction for any violation of a state or local traffic control law or
ordinance, except a parking law or ordinance, in any type of motor vehicle, from appearing on the person's driving
record. The provisions of this subsection (5)(a) apply only to the conviction of a person who holds a commercial
driver's license or who is required to hold a commercial driver's license and do not apply to the conviction of a
person who holds any other type of driver's license.
(b) For purposes of this subsection (5), "who is required to hold a commercial driver's license" refers to
a person who did not have a commercial driver's license but who was operating a commercial motor vehicle at
the time of a violation of a state or local traffic control law or ordinance resulting in a conviction referred to in
subsection (1).
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(6) (a) If a person who holds a valid registry identification card issued pursuant to [section 4 or 5] is
convicted of or pleads guilty to any offense related to driving under the influence of alcohol or drugs when the
initial offense with which the person was charged was a violation of 61-8-401, 61-8-406, or 61-8-410, the court
in which the conviction occurs shall require the person to surrender the registry identification card.
(b) Within 5 days after the conviction becomes final, the court shall forward the registry identification card
and a copy of the conviction to the department of public health and human services."
Section 33. Emergency rulemaking. The department of public health and human services shall adopt
emergency rules as provided in 2-4-303 to allow for issuance of registry identification cards in accordance with
the provisions of [sections 1 through 23] beginning June 1, 2011.
Section 34. Repealer. The following sections of the Montana Code Annotated are repealed:
50-46-101. Short title.
50-46-102. Definitions.
50-46-103. Procedures -- minors -- confidentiality -- report to legislature.
50-46-201. Medical use of marijuana -- legal protections -- limits on amount -- presumption of medical use.
50-46-202. Disclosure of confidential information relating to medical use of marijuana -- penalty.
50-46-205. Limitations of Medical Marijuana Act.
50-46-206. Affirmative defense.
50-46-207. Fraudulent representation of medical use of marijuana -- penalty.
50-46-210. Rulemaking -- fees.
Section 35. Transition. (1) Registry identification cards issued to persons with debilitating medical
conditions prior to [the effective date of this section] are valid until the expiration date listed on the card.
(2) (a) The department of public health and human services may issue registry identification cards to
persons with debilitating medical conditions and to the persons named as providers or marijuana-infused products
providers beginning June 1, 2011, under emergency rules adopted pursuant to [section 33].
(b) Until October 1, 2011, the department may issue cards to persons applying as providers or
marijuana-infused products providers before the department has obtained the results of the fingerprint and
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background check required under [sections 4 and 5].
(c) A person who obtains a registry identification card as a provider or marijuana-infused products
provider before October 1, 2011, shall submit fingerprints as required by [sections 4 and 5] no later than October
1, 2011.
(3) (a) The department shall revoke the registry identification card issued to a provider or
marijuana-infused products provider under subsection (2) if:
(i) the person fails to submit fingerprints by October 1, 2011; or
(ii) the results of a fingerprint and background check conducted after issuance of the card shows that the
person is ineligible for the card.
(b) The department shall notify the provider or marijuana-infused products provider and the registered
cardholder who named the provider or marijuana-infused products provider that the person may no longer assist
the registered cardholder with the use of marijuana to alleviate the symptoms of the cardholder's debilitating
medical condition.
(4) A person who obtained a registry identification card as a caregiver pursuant to 50-46-103 before [the
effective date of this section] may not be in possession of mature marijuana plants, seedlings, cuttings, clones,
usable marijuana, or marijuana-related products on July 1, 2011, if the person has not obtained a registry
identification card pursuant to the provisions of [sections 1 through 23] as provided for in subsection (2). Before
July 1, 2011, a caregiver who has not obtained a registry identification card pursuant to [sections 1 through 23]
shall take any mature marijuana plants, seedlings, cuttings, clones, usable marijuana, or marijuana-related
products still in the caregiver's possession to the law enforcement agency having jurisdiction in the caregiver's
area. The law enforcement agency shall destroy the items.
Section 36. Codification instruction. [Sections 1 through 23] are intended to be codified as an integral
part of Title 50, chapter 46, and the provisions of Title 50, chapter 46, apply to [sections 1 through 23].
Section 37. Coordination instruction. If both House Bill No. 175 and [this act] are passed and
approved and [this act] repeals 50-46-101, 50-46-102, 50-46-103, 50-46-201, 50-46-202, 50-46-205, 50-46-206,
50-46-207, and 50-46-210, then House Bill No. 175 is void.
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Section 38. Instructions to code commissioner. (1) Wherever a reference to "medical use of
marijuana" or "medical marijuana" appears in legislation enacted by the 2011 legislature, the code commissioner
is directed to change the reference to "use of marijuana for a debilitating medical condition".
(2) Wherever a reference to 50-46-102 appears in legislation enacted by the 2011 legislature, the
reference must be replaced with a reference to [section 2 of Senate Bill No. 423], if appropriate.
(3) Wherever a reference to 50-46-205 appears in legislation enacted by the 2011 legislature, the
reference must be replaced with a reference to [section 11 of Senate Bill No. 423].
Section 39. Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid
part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in
all valid applications that are severable from the invalid applications.
Section 40. Effective dates. (1) Except as provided in subsection (2), [this act] is effective July 1, 2011.
(2) [Sections 20, 30, 31, 33, the repeal of 50-46-103 provided for in section 34, and sections 35 and 38],
and this section are effective on passage and approval.
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I hereby certify that the within bill,
SB 0423, originated in the Senate.
Secretary of the Senate
President of the Senate
Signed this day
of , 2011.
Speaker of the House
Signed this day
of , 2011.
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SENATE BILL NO. 423
INTRODUCED BY J. ESSMANN
BY REQUEST OF THE SENATE JUDICIARY STANDING COMMITTEE
AN ACT ESTABLISHING THE MONTANA MARIJUANA ACT AND REVISING LAWS RELATING TO THE USE
OF MARIJUANA; CREATING A REGISTRY PROGRAM FOR THE CULTIVATION, MANUFACTURE,
TRANSPORTATION, AND TRANSFER OF MARIJUANA BY CERTAIN INDIVIDUALS; REQUIRING
REPORTING; ALLOWING INSPECTIONS; REQUIRING LEGISLATIVE MONITORING; PROVIDING
DEFINITIONS; PROVIDING RULEMAKING AUTHORITY; ESTABLISHING A TRANSITION PROCESS;
AMENDING SECTIONS 37-1-316, 37-3-343, 37-3-347, 41-5-216, 45-9-203, 46-18-202, 50-46-201, 50-46-202,
AND 61-11-101, MCA; REPEALING SECTIONS 50-46-101, 50-46-102, 50-46-103, 50-46-201, 50-46-202,
50-46-205, 50-46-206, 50-46-207, AND 50-46-210, MCA; AND PROVIDING EFFECTIVE DATES.
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