City puts lid on marijuana businesses

The Kalispell City Council voted 8-1 Tuesday night for a 90-day moratorium on new medical marijuana businesses in the city.

With the council’s vote to enact the moratorium, the issue will go to the Kalispell Planning Board to craft zoning regulations dealing with medical marijuana caregivers and outlets, bringing it back to council for a vote.

The dissenting vote came from Bob Hafferman, who said that, if given a choice by his doctor between manufactured drugs in pill form and medical marijuana, a natural product, he would choose marijuana.

Noting that the 2004 Montana law allowing medical marijuana “did not sneak up on us,” Hafferman objected to calling it an emergency ordinance. But primarily he wanted language in the law specifying that no existing businesses would be shut down.

Mayor Tammi Fisher rebutted his proposed amendment that would have inserted the language. She said the ordinance itself would be unenforceable if it took away vested property rights, so the amendment was unnecessary.

The amendment failed 7-2.

Throughout the evening’s discussion, attended by some 30 people who appeared to be overwhelmingly in support of allowing medical marijuana and many of whom identified themselves as “caregivers,” the council seemed troubled by the state law’s vagueness.

City Attorney Charles Harball set the stage: In 2004 Montana voters approved the medical use of marijuana in a vaguely worded law. It’s still a federal offense, but late last year the Obama administration announced it would not enforce marijuana laws.

Locally, it’s no more clear.

City zoning code makes no mention of marijuana businesses, so they’re assumed to be permissible in any zone. If a caregiver already is growing or dispensing marijuana as a business when the ordinance takes effect, Harball said, the business is grandfathered in.

But how much investment constitutes “in business” — $1? More? At what point is the city willing to pay the proprietor’s investment in the interest of shutting it down until a comprehensive law is in place?

“This is a slowdown,” Harball said of the moratorium. “Ninety days should give us enough time to hear what’s out there.”

The ordinance was brought to the fore when neighbors were surprised to see a marijuana leaf painted over The Golden Leaf business name in a window of the former Kay’s Bridal Boutique. Josh Fox is setting up the dispensary in the building near Woodland Montessori School and Woodland Park.

One speaker Tuesday said that probably 200 medical marijuana caregivers already are in business across the city. None, however, has the same visibility Fox took on a few weeks ago with the sign in his window.

“I’m a patient myself and I have 10 cards” for others who get their marijuana from him, he said. He opted for the storefront business, he added, because he didn’t want the appearance of being illegal.

“I wanted it to look like a safe place for a patient to medicate,” Fox said.

Later, council member Kari Gabriel focused on that point.

“Are people going there to purchase medical marijuana or to use it?” she asked. Harball answered that some caregivers allow on-site use, others don’t. “It is not outlawed,” he said.

But what about those who may use the marijuana on-site, then drive away under the influence, she pressed. “Isn’t that reckless?” she asked.

“It remains illegal to drive impaired,” Harball answered. “Hopefully there will be some common sense.”

Hafferman was concerned about sources for the marijuana. Will it be grown locally or come from out of state? In the case of a minor, will the single caregiver allowed per patient be the child’s parent and, if so, where will the parent get the marijuana if he does not grow it himself or herself?

“Can a caregiver buy from a caregiver?” Hafferman asked.

“It’s not clear to me,” Harball answered. “Probably.”

Council members seemed reluctant to cut off opportunities for this potentially lucrative business during a time when many Kalispell residents are looking for ways to replace income lost to layoffs. Yet they were hesitant about the potential for abuse.

City Manager Jane Howington added another twist. She suggested the council may want to reinstate a citywide requirement for business permits.

Council member Jeff Zauner was nonplussed. “Don’t I need a business license to do business in the city?” he asked.

“We would love to open that discussion with you in the future,” Harball said, but an earlier council did away with the requirement for business permits in an attempt to be business-friendly.

Howington added that “not knowing what’s inside a building is a dangerous situation” when emergency responders have to make decisions about fighting fires containing unknown materials. A business permit would give a better idea.

Council member Jim Atkinson had another concern.

“The city has no right to eliminate this industry?” he asked, suggesting that would be his preference.

Harball said the council could add a preamble to the zoning code requiring compliance with all federal, state and local laws, effectively prohibiting medical marijuana establishments here.

It’s a broad-brush approach, he admitted, but not doing so could jeopardize federal funding in the future. Obama’s decision not to enforce the law did not change the law; future administrations could reinstate enforcement. Under that scenario, Harball said, it’s possible future administrations could demand the city repay federal funds.

Members of the public spoke freely of their support for medical marijuana.

Raymond Miguel Harris, recently arrested for drug and paraphernalia possession because of what he said was a paperwork snafu with his medical marijuana card transferring from California, asked the council to “have some heart … I just kind of feel I’ve done the best that I could to be lawful.”

Jason Everett of Kalispell and Michael Lee of Columbia Falls both spoke as caregivers.

Everett said he requires people be of age and have a valid medical marijuana card to enter his business, with the goal of providing a safe place to buy and sell marijuana. Lee said he lives on Wildcat Lane within 50 feet of Ruder Elementary School and does not grow marijuana in his home because of the school’s proximity.

“But if something doesn’t happen,” he said. “I might have to.”

Several others argued for clarity in Kalispell’s law on medical-marijuana businesses, with most saying they wanted a safe place for their customers to do business. One woman said she was negotiating to buy a business in downtown Kalispell for her dispensary and a moratorium would make it difficult to seal a deal.

Rebecca Sturdevant said she is not a caregiver in the sense that had been used by others throughout the evening.

“Medical marijuana has nothing to do with medicine,” she said. “It’s political.”

She outlined national efforts in which proponents spent $6 million to have it listed as a medical alternative as a means to decriminalization, she said, not legalization in which it would be subject to taxes and regulation.

“But it is not medicine … it is bad for you,” Sturdevant said. “Marijuana — not medicine, not legal, not in my town.”

Sara Welder, an administrator with Woodland Montessori School, pointed out the discrepancy between her school’s move into the neighborhood and the opening of The Golden Leaf.

“When we started a school and child care we had to notify all the neighbors, and they got to decide whether we could be there or not,” Welder said. “I find it interesting that does not apply to other businesses.”

In council discussion following public comments, Fisher said she is not happy with Montana’s Medical Marijuana Act.

“There are a lot of gray areas,” she said. “I’m not sure how we can look at dispensaries as other than a pharmacy.”

She asked Harball to come back to the council with a “rock-solid legal memo on what the city can do about dispensaries.”

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