Council votes for ban on pot 'pharmacies'

A Kalispell City Council vote to ban any new medical marijuana businesses in the city prompted grumblings of “the government’s about the government,” and “we’ll take our money elsewhere” as a crowd of some 50 supporters abruptly left Monday night’s council meeting.

Medical marijuana proponents had shown up in force to speak against the first reading of the new zoning ordinance. Many told stories of health problems alleviated by marijuana use when all other medications failed.

If adopted on second reading, the law will prevent the city from issuing permits for any land to be used in violation of federal, state or local law. Federal authorities still consider marijuana a Schedule 1 drug that has no legal use.

Although legal in Montana for medical use, marijuana’s federal status means the zoning regulation bans any new dispensaries or commercial grow operations in Kalispell. Only businesses established before the Feb. 16 moratorium are grandfathered in, and those businesses cannot move from their present locations.

The council’s 7-1 vote, with Bob Hafferman the sole dissenter and Randy Kenyon absent, followed on the weekend discovery that Kalispell resident Wesley Collins, 49, had been murdered in an incident that authorities linked initially to medical marijuana. Several speakers referenced the tragedy, noting that it had nothing to do with marijuana but instead was motivated by other factors.

Just before the council vote, Mayor Tammi Fisher attempted to bring perspective to the decision.

“When we take federal money we promise to follow federal law. We have done that for years. I don’t know how we can have zoning and not comply” with federal statutes, Fisher said.

She reminded those gathered that it was a zoning vote, not a vote on marijuana, and said she takes seriously the 63 percent voter approval in 2004’s state referendum on medical marijuana.

“But 63 percent of the voters did not decide how medical marijuana would be distributed. That is our concern,” she said. Legislators “have gone a long way to close the gap” in a vaguely worded law, but “the state has not given us regulations for distribution.”

City Attorney Charles Harball said he proposed the wording in the zoning code as a way to resolve conflicting federal and state laws and preserve federal funding to the city.

“We can use it in the city but we can’t authorize land use for it,” Harball said. “It’s a little bit of splitting the baby but it’s the best way of protecting the city.”

He cited the state’s adoption of the 55-mph speed limit in order to safeguard federal highway money, and the current fight to keep federal regulation out of Montana-made and Montana-sold firearms as other examples of an ongoing struggle between the state and the feds.

The prospect of losing federal money over the marijuana issue doesn’t hold water, Barry Vance told the council during the public comment period.

“If Montana were the only state, that would be legitimate, but there are 14 states” that have approved medical marijuana, Vance said.

“Federal money is appropriated by our representatives in Washington, D.C., so it’s unlikely they would withhold funds for that reason … It’s ludicrous,” he said. “The council shouldn’t prevent legal commerce in the city that the people of Montana have already condoned.”

Another speaker, George Williams, said he feared “these sanctions will violate our rights as voters in Montana.” He said they contradict President Obama’s directive against enforcing federal marijuana laws in states that have approved its medical use, and asserted that Montana’s legalization of medical marijuana already has helped Kalispell’s business community profit.

“We don’t want to have to be afraid to take our medicine,” he added. “We don’t want to have to be afraid to provide it.”

Several speakers pointed to the economic boost from $25 annual fees paid by the 12,000-plus medical marijuana card holders in Montana, the taxes, utilities and other expenses paid by caregivers in the business of providing the drug, and the tourists who would visit and new residents who would relocate because medical marijuana is readily available here.

Robert Cates, who said he was Wesley Collins’ caregiver before his death last week, discounted the fears of increased criminal activity from allowing marijuana businesses in the city.

“He was murdered over pain medication,” Cates said. Medical marijuana, on the other hand, “provides income for families. You should not limit the ability for patients to obtain their medicine.”

Dane Clark, a Democrat candidate for House District 8, cautioned that the city was making itself “very business unfriendly” and called the ordinance “totally ridiculous in every aspect.”

“If you do this,” Clark said, “rather than having local rule we are just rubber-stamping what comes down from the feds … It’s federal blackmail.”

During council discussion, Hafferman offered an amendment rewording the ordinance, replacing the ban on land use that violates federal, state or local law with a requirement to “follow the federal Constitution and the laws of the state of Montana.” He pointed to the 10th Amendment to the U.S. Constitution, which reserves to the states all powers not delegated to the federal government.

“It is a law in the sovereign state of Montana,” Hafferman said. “My concern is a costly lawsuit for going against Montana law.”

He also would have amended the ordinance by placing dispensaries in zones that allow pharmacies, regulating hours of operation, limiting who may be inside the businesses, regulating home marijuana sales and restricting marijuana use to the home or an approved facility.

Hafferman’s amendments drew no support from the rest of the council.

“We’re not impeding anyone’s rights or ability to get their medicine,” Kari Gabriel said, taking issue with Hafferman’s contention. “We don’t want to prevent them from getting their medications. We’re following federal law by addressing the zoning.”

Wayne Saverud agreed, citing a University of Montana law professor’s opinion that medical marijuana laws cannot override federal law. He said Kalispell’s approach that doesn’t prevent marijuana use, only its business component in the city, is a “reasonable compromise.”

Duane Larson dismissed one speaker’s allegation that the city is “passing a death sentence” on patients.

“That’s not valid,” Larson said. “I don’t know of very many people in this day and age that can’t drive out to the city limits to get it.”

Nor did Larson buy the argument that medical marijuana businesses would foster an economic boom in the city. “Any business helps the economy of the city,” he said.

Later, when the council voted for the ban, audience member Williams stood up to loudly object to what he called an infringement on voters’ rights. Fisher unsuccessfully tried to silence him, then ordered him out of the room. Williams said he would “gladly leave this place” as Police Chief Roger Nasset quietly escorted him out of the council chambers, followed en masse by the remainder of the supporters.

The zoning code ordinance now goes up for a second reading before the council. If it passes, it takes effect 30 days after that reading.

Reporter Nancy Kimball can be reached at 758-4483 or by e-mail at nkimball@dailyinterlake.com