HomeMy WebLinkAboutFinally Adopt Ordinance No. 1811, establishing a cap of 21 on Medical Marijuana Storefronts.pdfStaff Report: Final 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: July 11, 2011
AGENDA ITEM TYPE: Consent.
RECOMMENDATION: Finally adopt Ordinance 1811 establishing a cap of twenty one (21) on
medical marijuana storefront businesses.
BACKGROUND: On June 27, 2011, the City Commission preliminarily adopted Ordinance
1811 as suggested by staff but with two important changes: the cap on businesses would be set at
the current number of approved storefront business licensee (21) and the cap would be continued
for another year. The attached ordinance for final adoption reflects these changes. I attached the
staff report from the June 27, 2011 meeting as additional background.
UNRESOLVED ISSUES: None other than those identified in the June 27, 2011 memorandum.
ALTERNATIVES: As suggested by the Commission. I have no suggested alternatives.
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 Final Adoption (showing changes from provisional adoption in
yellow highlights).
· Staff memorandum from June 27, 2011 hearing on provisional adoption.
Report compiled on: June 30, 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, 20110, t The maximum number of Medical Marijuana Store Front licenses shall
be twenty one (210). 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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Provisional Adoption ORDINANCE NO. 1811 Regarding Medical Marijuana
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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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Provisional Adoption ORDINANCE NO. 1811 Regarding Medical Marijuana
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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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Provisional Adoption ORDINANCE NO. 1811 Regarding Medical Marijuana
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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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Provisional Adoption ORDINANCE NO. 1811 Regarding Medical Marijuana
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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 11th 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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Staff 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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Staff Report: Provisional Adoption of Ordinance 1811
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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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Staff Report: Provisional Adoption of Ordinance 1811
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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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