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HomeMy WebLinkAboutProvisional Adoption of Ordinance 1869, Medical Marijuana related to number of storefronts_6Staff Report: Provisional Adoption of Ordinance XXXX Page 1 of 2 Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Ron Price, Chief of Police SUBJECT: Provisional Adoption of Ordinance 1869 Amending Bozeman Municipal Code (BMC) Chapter 16, Article 8 (Medical Marijuana) Relating to the Number of Licensed Medical Marijuana Storefront Businesses and Other General Amendments. MEETING DATE: July 8, 2013 AGENDA ITEM TYPE: Action. RECOMMENDATION: Provisionally adopt Ordinance 1869 establishing a cap of twenty (20) on medical marijuana storefront businesses, removing the automatic annual repeal for the number of storefront licenses, and generally amending municipal code to comply with the enacted changes to the Montana Marijuana Act. 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. On July 23, 2012, the City Commission adopted Ordinance 1834 again extending the expiration of the cap to August 22, 2013. 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. Additionally, this ordinance requests amendments to the code to align it with changes in definition and codification within the Montana Marijuana Act. Currently, the city of Bozeman has four 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. 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. 37 Staff Report: Provisional Adoption of Ordinance XXXX Page 2 of 2 UNRESOLVED ISSUES: As you know, there are some unresolved issues related to the commercial aspects of medical marijuana stemming from the 2011 Montana Legislature’s adoption of SB423, now codified as the Montana Marijuana Act (MCA 50-46-301 et seq.). There are numerous changes to the Montana Marijuana Act that affect the city’s business licensing program. The change that perhaps most critically impacts the city’s program is the requirement that a “provider” (formerly “caregiver”) serve no more than three “registered cardholders” (formerly “qualifying patients”) and cannot take any financial remuneration for doing so. See MCA 50-46-308(3) - number of registered cardholders a provider may assist, (4) - provider may accept reimbursement from a cardholder only for the provider's application or renewal fee, (6)(a) -provider may not accept anything of value for services or products, (6)(b) - provider may not buy/sell marijuana or marijuana products. In January 2013, by district court order, the State of Montana was preliminarily enjoined from enforcing section 50-46-308(3), (4), (6)(a) and (6)(b), MCA. Other aspects of the Montana Marijuana Act remain law and the proposed amendments to our municipal code reflect those changes, primarily definitions and re-codification. 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 and federal 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 the Montana Marijuana Act. Failure to comply with state law can result in revocation of the business license, civil penalties, and possible criminal prosecution. 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 sections of the Montana Marijuana Act have run their course. I also recommend that the Commission remove the extension language and permanently limit the number of storefront licenses to 20 and make the noted amendments to address definitions and re-codification. ALTERNATIVES: With continuing uncertainty regarding medical marijuana in Montana, the Commission may wish to consider retaining the existing extension language and readdress the issue in Summer 2014. 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 1869 for Provisional Adoption Report compiled on: June 13, 2013 38 ORDINANCE NO. 1869 Page 1 of 7 ORDINANCE NO. 1869 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA AMENDING CHAPTER 16, ARTICLE 8, BOZEMAN MUNICIPAL CODE RELATED TO THE NUMBER OF MEDICAL MARIJUANA STOREFRONT BUSINESSES AND OTHER GENERAL AMENDMENTS. NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA: Section 1 That Division 2 (Sales) of Chapter 16, Article 8, BMC, shall be amended to read as follows: Sec. 16.08.150. Applicability; failure to maintain state authorization. A. For purposes of this division, the definitions, words, phrases, and expressions as set forth in this division are to be construed the same as those set forth in the Montana Medical Marijuana Act (MCA 50-46-101 301 et seq.). B. Any individual or entity licensed under this division to conduct any transaction, use or business involving medical marijuana, in addition to the requirements of this division, is subject to all other requirements of this Code, and the Montana Medical Marijuana Act and any limits on possession, clean air, etc. and any applicable administrative rules established by the State. Should such rules or laws change, any person or entity licensed under this division shall immediately come into compliance with any newly adopted rules. C. Notwithstanding the above, nothing in this Code shall be construed to authorize any person or entity to perform any act or conduct any enterprise not in conformance with state or federal law. D. Compliance with this Code does not shield any person, corporation, or other legal entity from the requirements of, or enforcement by, other governing entities, or from civil liabilities. E. Each individual or entity issued a license under this division shall at all times maintain authorization from the State of Montana under the Montana Medical Marijuana Act to 39 ORDINANCE NO. 1869 Page 2 of 7 acquire, possess, cultivate, manufacture, deliver, transfer, or transport medical marijuana. Failure to maintain authorization under the Medical Montana Marijuana Act shall be cause for immediate suspension of a license issued under this division and may be cause for revocation or cause for criminal prosecution as provided by law. 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 the use of 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 administrative services 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 under the Montana Marijuana Act and who does not provide medical marijuana to a qualifying patient registered cardholder, as defined in the Montana Marijuana Act, 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 pursuant to the Montana Marijuana Act 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 registered cardholder where a transaction or use related to medical marijuana is engaged in for more than three qualifying patients cardholders 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. b. Delivery. Any person or entity that delivers medical marijuana within the city to more than three qualifying patients registered cardholders 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 as authorized under the Montana Marijuana Act shall prior to engaging in such activity obtain a medical marijuana grow license. 40 ORDINANCE NO. 1869 Page 3 of 7 A person or entity desiring to engage in an activity related to medical marijuana pursuant to the Montana Marijuana Act 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. B. Application information. An application under this division, in addition to the requirements of Chapter 12 of this code, section 12.02.060, 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 are registered with the state under the Montana Medical Marijuana Act (MCA 50-46-101 301 et seq.), 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 registered cardholders which name the applicant and any other owner/principal, agent, contractor, or employee of the applicant as the qualifying patient's cardholder’s caregiver provider. The number of qualifying patients registered cardholders to be included in the sworn statement shall include all patients cardholders who may be registered with a caregiver provider acting as an agent, contractor, employee or owner/principal of the applicant; 4. A statement addressing how the applicant will comply with the security requirement provisions of section 16.08.180; 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 for which an application is being submitted. C. Duty to inform. An individual or entity licensed under this division to conduct a transaction, use, or business related to medical marijuana must, within the time period described below, inform the director of administrative services of the occurrence of the following: 1. Every 90 days, any change to the licensed individual or entity's number of registered qualifying patients cardholders (including those of a principal/owner, agent, contractor, or employee); and/or 2. 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 subsection B.3 of this section is required. Failure to inform the director of administrative services of the changes listed herein within the time periods described above shall be cause for revocation of the license pursuant to sections 12.02.170 and 12.02.180. 41 ORDINANCE NO. 1869 Page 4 of 7 D. Public document. An application for business license under this division is a public document except that the names of all agents, employees and/or contractors and the number of qualifying patients registered cardholders provided to the city in fulfillment of the requirements of this division 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 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. Nontransferable. A license issued under this division is not transferable and the provisions of section 12.02.080 shall not apply. Sec. 16.08.170. Inspection. In addition to the authorization to inspect under section 12.02.150, as a condition of receiving a business license under this division, a city employee, including city law enforcement, may without notice during normal business hours inspect any premises under license pursuant to this division to determine whether the licensee is in compliance with the Montana Medical Marijuana Act (MCA 50-46-101 301 et seq.), or any other state or local regulation, and may inspect the number of plants or amount of marijuana or usable marijuana on the premises or in control of the licensee to determine whether these amounts correspond to the amounts established by the Montana Medical Marijuana Act, which the licensee is authorized to lawfully possess. Sec. 16.08.180. Security requirements. Prior to issuance of a license under this division, a medical marijuana commercial business where any amount of marijuana or usable marijuana is stored on the premises beyond normal business hours or where marijuana is grown in any amount shall be secured at all times by a physical barrier with suitable locks and also by an electronic barrier or alarm that is designed to detect entry by unauthorized persons at any time. In addition, any marijuana or usable marijuana grown or stored on the premises after normal business hours shall be kept in a security safe incorporated into the building's structure or securely attached thereto. Section 2 That Division 3 (Public Use and Display) of Chapter 16, Article 8, BMC, shall be amended to read as follows: Sec. 16.08.300. Purpose and intent. A. The purpose of this division is to identify acts regarding the medical use of marijuana as authorized in Title 50, Chapter 46, MCA within the city that are not authorized to be 42 ORDINANCE NO. 1869 Page 5 of 7 conducted in a manner open or visible to the general public. In addition, the purpose of this division is to identify that acts related to smoking, consuming, or displaying medical marijuana in certain public areas are to be punished as criminal acts and as such shall be subject to criminal penalties. The purpose of establishing these acts where the use is further limited by the city as criminal is to protect the public's health, safety, and general welfare. B. It is the intent of this division that the visible or open display, smoking, or consumption of medical marijuana by registered cardholders is to be confined to private property where that property or portions thereof are not adapted and fitted for public travel or are not in common use by the public. Sec. 16.08.310. Definitions. A. The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1. "Marijuana" has the meaning provided in MCA 50-32-101. 2. "Medical marijuana" means the uses of marijuana described in MCA 50-46-102(5). Other phrases herein such as the "use of medical marijuana" or "the medical use of marijuana" shall have the same meaning and include the term "usable marijuana." 3 2. "Ways of the city open to the public" means any highway, road, driveway, alley, lane, parking area, sidewalk, park, trail, or other public or private place within the city that is adapted and fitted for the use of the public and that is in common use by the public. Sec. 16.08.320. Public display, smoking, or consumption of medical marijuana prohibited. No person authorized by the Montana Medical Marijuana Act (MCA 50-46-101 301 et seq.) to acquire, possess, cultivate, manufacture, deliver, transfer, or transport medical marijuana, may, on the ways of the city open to the public, display, smoke, or consume medical marijuana in an open or visible manner. A violation of this section is an absolute liability offense. Sec. 16.08.330. State law superseded and applicable. The provisions of this division shall supersede by the Montana Medical Marijuana Act (MCA 50-46-101 301 et seq.), only in so far as this division expands the limitations on the use of medical marijuana authorized under the Montana Marijuana Act. All other provisions of state law related to medical marijuana or M marijuana shall be applicable. Sec. 16.08.340. Violation and penalty. A violation of section 16.08.320 is a misdemeanor and upon conviction a person shall be fined not more than $500.00 or imprisoned in the Gallatin County Detention Center for a period 43 ORDINANCE NO. 1869 Page 6 of 7 not to exceed six months or both such fine and imprisonment. A person so convicted shall also be required to pay all costs and expenses of prosecution and the courts as authorized by law. Sec. 16.08.350. No private right of action. Nothing in this division shall be construed to create a private right of action regarding the acquisition, possession, cultivation, manufacture, delivery, transfer, or transport of either marijuana or medical marijuana. Section 3 Repealer. All provisions of the ordinances of the City of Bozeman in conflict with the provisions of this ordinance are, and the same are hereby, repealed and all other provisions of the ordinances of the City of Bozeman not in conflict with the provisions of this ordinance shall remain in full force and effect. Section 4 Savings Provision. This ordinance does not affect the rights and duties that matured, penalties that were incurred or proceedings that were begun before the effective date of this ordinance. All other provisions of the Bozeman Municipal Code not amended by this Ordinance shall remain in full force and effect. Section 5 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 6 Codification. This Ordinance shall be codified as indicated in Section 1 – 2. 44 ORDINANCE NO. 1869 Page 7 of 7 Section 7 Effective Date. This ordinance shall be in full force and effect thirty (30) days after final adoption. PROVISIONALLY PASSED by the City Commission of the City of Bozeman, Montana, on first reading at a regular session held on the 24th day of June, 2013. ____________________________________ Mayor ATTEST: ____________________________________ STACY ULMEN, CMC City Clerk FINALLY PASSED, ADOPTED AND APPROVED by the City Commission of the City of Bozeman, Montana on second reading at a regular session thereof held on the ___ of ____________________, 201_. The effective date of this ordinance is __________, __, 2011. _________________________________ Sean Becker Mayor ATTEST: _______________________________ STACY ULMEN, CMC City Clerk APPROVED AS TO FORM: _________________________________ GREG SULLIVAN City Attorney 45