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HomeMy WebLinkAboutJuly 9, 2012_Provisional adoption of Ordinance No_ 1834 Related_10.pdfStaff Report: Provisional Adoption of Ordinance 1811 Page 1 of 3 Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Ron Price, Chief of Police SUBJECT: Provisional Adoption of Ordinance 1834 Related to the Number of Medical Marijuana Storefront Businesses Authorized to Conduct Business Within the City of Bozeman. MEETING DATE: July 9, 2012 AGENDA ITEM TYPE: Action. RECOMMENDATION: Provisionally adopt Ordinance 1834 establishing a cap of twenty (20) on medical marijuana storefront businesses. BACKGROUND: In August 2010, the City Commission adopted Ordinance 1786 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 was set to automatically expire on August 25, 2011. On July 11, 2011, the City Commission adopted Ordinance 1811 setting the cap at 211 and extending the expiration as August 25, 2012. I bring this ordinance before 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 extend the originally identified cap for one year. The City Attorney’s Office concurs with this recommendation. Currently, the city of Bozeman has 5 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. The Applicant must, of course, comply with state law and all applicable administrative rules. 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 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 originally set cap of 20. 249 Staff Report: Provisional Adoption of Ordinance 1811 Page 2 of 3 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 becoming effective on July 1, 2011. There are numerous changes to the Medical Marijuana Act that affect the city’s business licensing program. 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. 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…” 16.08.160.A.1, 2, BMC. Considering the above, 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 Supreme Court and an attempt to suspend the implementation of the law through the referendum process. The outcome of these efforts is obviously 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 that have a city business license to maintain compliance with all state laws (see 16.08.150, 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: Even with the uncertainty of the future of medical marijuana in Montana, the Commission may wish to consider removing the extension language and permanently limit the number at 20. Should the Commission decide to do so, I offer the following as the amendment to 16.08.160.A.2, BMC: a. Storefront/Retail Locations: Any person or entity that provides a location other than the residence of the person’s or entity’s qualifying patient where a transaction or use related to Medical Marijuana is engaged in for more than three (3) qualifying patients registered by the state 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, 20112012, the maximum number of Medical Marijuana Store Front licenses shall be 21twenty (20). The limitation on the maximum number 250 Staff Report: Provisional Adoption of Ordinance 1811 Page 3 of 3 of licenses under this subsection shall repeal automatically one-year after the effective date of this ordinance. The alternative amendment will replace the effective date and remove the language regarding the one-year limitation. As a second option, the Commission may desire to change the length of time for which the cap will be in place. If so, the Commission will need to amend the reference to the phrase “one- year” as that phrase occurs in the last sentence of the subsection 16.08.160.A.2.a, BMC. FISCAL EFFECTS: None directly related to the adoption of this ordinance. Attachments: • Ordinance 1834 for Provisional Adoption • Finally adopted Ordinance 1811 (signed version). • Senate Bill 423 Report compiled on: June 25, 2012 251 Provisional Adoption ORDINANCE NO. 1834 Regarding Medical Marijuana Page 1 of 4 ORDINANCE NO. 1834 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA AMENDING SECTION 16.08.160, 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 16.08.160.A.2, BMC, shall be amended to read as follows: Sec. 16.08.160. - License; application; fee; change; confidentiality. A. Business licenses. 1. In addition to complying with the requirements of MCA tit. 50, ch. 46, and section 16.08.150.E, any 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 Code. 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. 2. 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: a. Storefront/retail locations. Any person or entity that provides a location other than the residence of the person's or entity's qualifying patient where a transaction or use related to medical marijuana is engaged in for more than three qualifying patients registered by the state to the applicant or the applicant's employees or agents shall, prior to engaging in such transaction or use, obtain a medical marijuana storefront license. As of August 25, 2012, the maximum number of medical marijuana storefront licenses shall be 20. The limitation on the maximum number of licenses under this subsection shall repeal automatically one year after the effective date of the ordinance from which this division is derived. 252 Provisional Adoption ORDINANCE NO. 1834 Regarding Medical Marijuana Page 2 of 4 b. Delivery. Any person or entity that delivers medical marijuana within the city to more than three 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. c. 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 in this subsection A.2 except a person or entity obtaining a medical marijuana storefront license may also under said license deliver medical marijuana from that location without obtaining a separate medical marijuana delivery license. 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 Chapter 16, Article 8 of the Bozeman Municipal Code, as amended. Section 5 253 Provisional Adoption ORDINANCE NO. 1834 Regarding Medical Marijuana Page 3 of 4 Effective Date. The effective date of this ordinance is 30 days after passage on final reading. PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman, Montana, on first reading at a regular session held on the 9th day of July, 2012. ______________________________ SEAN A. BECKER Mayor ATTEST: _____________________________________ STACY ULMEN, CMC City Clerk APPROVED AS TO FORM: ______________________________ GREG SULLIVAN City Attorney 254 Provisional Adoption ORDINANCE NO. 1834 Regarding Medical Marijuana Page 4 of 4 FINALLY ADOPTED by the City Commission of the City of Bozeman, Montana, on initial reading at a regular session held on the 23rd day of July, 2012. ______________________________ SEAN A. BECKER Mayor ATTEST: _____________________________________ STACY ULMEN, CMC City Clerk APPROVED AS TO FORM: ______________________________ GREG SULLIVAN City Attorney 255