Half baked 

City backtracks on medical marijuana ban near schools

Montana's medical marijuana law is unclear enough, but officials in Missoula have muddied the bong water a little more.

This week the Missoula City-County Office of Planning and Grants (OPG) reversed a policy it enacted in April prohibiting medical marijuana businesses near schools, citing a miscommunication between OPG and City Attorney Jim Nugent.

The Indy first reported on the back-door prohibition last week, and quoted OPG's interim director Mike Barton as saying Nugent directed the department to ban "cannabusinesses" within 1,000 feet of Missoula's roughly 30 elementary and primary schools. At Nugent's instruction, OPG created a map blotched with about 3,000 acres worth of green circles representing where pot shops are off limits.

Barton said the policy was based on a state law (Mont. Code Ann. § 45-9-109) that codified a federal law. Both prohibit the distribution of dangerous drugs on or near school property, and come with severe penalties.

click to enlarge A miscommunication between City Attorney Jim Nugent and the Office of Planning and Grants led to a prohibition of medical marijuana businesses within 1,000 feet of schools. The city reversed the policy this week. - PHOTO BY CHAD HARDER
  • Photo by Chad Harder
  • A miscommunication between City Attorney Jim Nugent and the Office of Planning and Grants led to a prohibition of medical marijuana businesses within 1,000 feet of schools. The city reversed the policy this week.

The policy came as news to members of the Missoula City Council, which so far has refrained from imposing limitations or bans on medical marijuana businesses as many other Montana cities have done.

On Friday, a day after the story was published, Councilman Bob Jaffe, chair of the Plat, Annexation and Zoning Committee, blasted OPG and the city attorney's office, saying on the MissoulaGov listserv that the council was inexplicably left out of the conversation.

"It's a little disappointing that the staff and administration chose to leave the council in the dark as this was evolving," Jaffe wrote. "Unfortunately, I can't say it is surprising."

But it turns out Nugent never intended for OPG to ban cannabusinesses near schools. Barton learned that Tuesday morning. He drafted a letter to controversial marijuana advocate Jason Christ, founder of Montana Caregivers Network, explaining why Christ's application for a business license near a school had been rejected, and then forwarded it to Nugent, who told Barton that the application shouldn't have been rejected after all.

"I had misinterpreted [Nugent's] indication that the Medical Marijuana Act did not exempt caregivers from the safe schools legislation to mean that they could not operate within 1,000 feet of elementary or secondary schools...," Barton says. "As a result of the clarification, OPG will not be restricting medical marijuana operations based on proximity to schools."

Nugent says his directive was only intended to caution caregivers about the legal risks of establishing cannabusinesses near schools.

"The [state] statute doesn't actually have any exception in it [for medical marijuana], and we don't know how it's going to be enforced," Nugent says. "There are no court rulings yet. There's no formal opinion from the attorney general yet. It's an ambiguous area, and so we've just been cautioning people. 'Be aware that there's some ambiguity here. You might not want to be exposed. You might want to stay outside the 1,000-foot radius.'"

The penalty for selling dangerous drugs—which, per state law, includes marijuana—near schools is harsh. The law mandates imprisonment for at least three years and a fine of as much as $50,000.

Such a stiff punishment has prompted private attorneys to recommend caregivers all over the state heed Nugent's advice, even if a city prohibition isn't on the books. Great Falls-based attorney Carl Jensen, who specializes in medical marijuana and has lectured at clinics operated by Montana Caregivers Network, says caregivers would be wise to not test the law.

"I would advise a client to stay out of those zones, simply because when you're in those zones you're taking a risk, no matter what," Jensen says.

In addition to the school buffer zones, OPG also sought to regulate medical marijuana businesses operating out of homes. OPG issued a zoning officer opinion on June 25 stating that residence-based medical marijuana business can serve no more than three patients. That policy, too, is being reversed. Barton now says it's "unnecessary."

The confusion over the policies would have been avoided, Jaffe says, had the issue been debated by City Council, not between only OPG and the city attorney's office.

"When something is brought to the council, it's basically the same thing as being brought to the public," he says.

More than that, Jaffe wonders why OPG finds itself tackling the sticky issue of medical marijuana at all. He says the short-lived policy on medical marijuana businesses as home occupations, for example, conflicts with the city's recent zoning ordinance rewrite.

"We tried really hard," Jaffe says of the rewrite, "not to get into the very specifics of this business or that business, but set up guidelines that would work across the board as to make sure business activity in peoples' homes wasn't negatively impacting the neighborhood. And I think it applies to [medical marijuana] businesses just like any other."

Nugent echoes Jaffe. He says OPG's rules, taken together, would have likely proven unenforceable and added even more ambiguity to a law already void of clarity.

"They don't require that people who have several apple trees have a home occupation [license] to grow them," Nugent says. "And if [caregivers] claim they're just growing and no sales are occurring on their premises, I don't know if they have anything different than the people raising agricultural products for the farmers' markets."

Marijuana advocates are, of course, pleased with the city's reversal.

"We need to remember that 45-9-109 was put into place to protect children from illegal drug dealers, which we are not," says Tayln Lang, director of the Missoula chapter of the Montana Medical Growers Association and general manager of Zoo Mountain Natural Care. "There needs to be a distinction that's made there."

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