Recreational marijuana county and city opt-out votes have no end in sight

Kendrick Richmond moved from South Carolina to Philipsburg to start work at his friend’s dispensary when it opened in June 2021 and had no interest in getting involved in local politics.

As a long-time medical marijuana user himself, Richmond came to help people find products that fit their needs and was delighted when recreational sales became reality in Granite County on Jan. 1.

He said Top Shelf Botanicals, the sole dispensary in Granite County, sees upwards of 80 percent of its customer base come in without green cards, but almost all are seeking relief for medical issues.

“If they don’t have green cards they’re alienated to a degree, and now they can come in regardless,” Richmond said. “I’m basically a car salesman. I’m just here to put you in the right model with the right strain based on what you’re telling me.”

Legalization meant the business could help more people, but he never expected it would put Top Shelf Botanicals in a precarious state.

Montana first passed medical marijuana in 2004. Then, a bill in 2011 squashed most access to medical pot until a ballot initiative approved by 58 percent of voters revamped it in 2016.

Four years later, Montanans said yes to recreational marijuana with nearly 57 percent of the vote. Initiative 190 legalized adult-use cannabis by default in the counties that voted for it; it meant voters in the other counties would have to bring the matter to the ballot again for legalization in their jurisdictions.

In 2021, with as much as $52 million projected to fill state coffers annually through new tax revenue, the Montana Legislature hammered out implementation of recreational weed in House Bill 701. One provision allows counties and municipalities to vote to opt out of legalization.

This year, the state has pulled in $18.7 million in new revenue so far, but the opt-out provision has uprooted Richmond’s sense of stability in the new recreational market for small dispensaries like Top Shelf Botanicals.

Now, cannabis businesses and advocates see no end in sight for counties re-voting on the issue. Kate Cholewa, government affairs lobbyist with the Cannabis Industry Association, said the upending of the recreational market through opt-out votes is not fair for dispensaries.

“The opt-out provision is very problematic, and I think it’s more problematic than people recognized at the time. What other business would people accept being in the position of potentially losing their business every two years?” Cholewa said. “That’s the position they’ve all been put in. They’ve put it in local governments’ hands to destroy millions of dollars in investment. The provision is just patently unfair.”

TOP SHELF Botanicals expanded to recreational sales when legalization took effect on Jan. 1, and Richmond was disappointed when not even six months later, Granite County opted out of adult-use cannabis sales on June 7. Voters there had approved I-190 by nearly 55 percent, and he said he feels frustrated that his dispensary’s non-medical sales will end on Sept. 4, just months after beginning.

In response, Richmond drafted a new initiative within two days of the primary and is now using the same provision in HB 701 to collect petition signatures to get the recreational question back on the ballot. If successful, the measure could make Granite County the first in Montana to opt out and then opt back into adult-use cannabis after the initial 2020 vote.

As of the beginning of July he had fewer than 100 signatures of the roughly 375 needed, or 15 percent of the county’s population, by Aug. 8 to get it on the November ballot.

“With gas prices and crazy inflation, telling people that have a need for this after September 4 that they need to go to another city is just disheartening,” Richmond said. “With a new vote, we can hopefully move on and realize it doesn’t harm children or deplete resources when regulated correctly. Prohibition doesn’t solve anything.”

Meanwhile, according to Steve Zabawa, founder of anti-recreational weed coalition Safe Montana, petitioning efforts are underway in Cascade County, Carbon County, Ravalli County, and Flathead County, among others, to opt out of adult-use cannabis legalization.

“Thank the Lord that in House Bill 701, there’s an opt-out provision for counties and municipalities that did not like the way it ended up.” Zabawa said. “It’s not up to county commissioners to decide. It’s up to voters now that everything has settled down, and we know exactly where the money is going and what the effects are.”

Since the I-190 vote in 2020, Dawson County has been the only county to opt into adult-use cannabis regulation after turning it down by 53.6 percent. Granite County has been the only one to opt out, so half of Montana’s 56 counties have recreational sales bans in place because their voters turned down the initiative.

SOME MAJOR municipalities also have special restrictions, like Billings opting out within city limits in a 2021 ballot initiative. Other cities have heavy recreational sale zoning limits, like Kalispell restricting dispensaries only to industrial zones within city limits, and Great Falls zoning adult-use cannabis sales out of city limits entirely.

A dispensary-owning couple is suing Great Falls for the city council’s ban on sales within the city without prior ballot initiative approval, and an initiative solidifying the ban is on the ballot in November.

Rep. Lola Sheldon-Galloway, R-Great Falls, is in support of an official ban in the city and Cascade County partially due to concerns of people driving under the influence of marijuana on the highway next to her home. She also did not approve of how the tax revenue allocation changed between the structure voters approved of in I-190 and the finalized version in HB 701, a criticism Zabawa shares.

“I believe people voted for it, for the funding and where it was going, not really for the recreational marijuana. We want a true vote where we’re asking about marijuana and only marijuana,” Sheldon-Galloway said. “It never should have made it to the ballot with the wording that it had on it because it falsified where the money went.”

Zabawa advocated for the opt-out provision in HB 701 but still brought the funding structure in I-190 to court. His group dropped the lawsuit after the bill’s passage allowed for strict state control over the industry’s regulation and created the main mechanism he is using to overturn legalization in individual counties.

Zabawa, a Billings native, focused the bulk of his efforts since I-190’s passage on campaigning with Safe Montana in Yellowstone County, where voters have seen marijuana measures on Election Day three years in a row. Although Billings opted out of adult-use cannabis sales in 2021 and Yellowstone County narrowly approved of I-190 in 2020, Zabawa’s efforts for Yellowstone County to opt out were unsuccessful on June 7, with 55 percent voting in favor of keeping recreational sales.

Zabawa claims the 2022 ballot text reading “non-medical marijuana” instead of “adult-use cannabis” in the 2021 Billings ballot confused some voters on June 7 and may have influenced the vote outcome.

“If you use the word ‘medical’ it sways about 10 percent of people because they vote in favor even though it has nothing to do with medical marijuana. Nobody knows what non-medical marijuana is,” Zabawa said. “In 2020, there was big money behind the effort. If there’s no money involved and it’s simply ‘yes’ or ‘no’ on recreational, it fails.”

However, Zach Schopp, president of cannabis advocacy group Better for Montana, said the Yellowstone County vote had nothing to do with misinterpretation over the ballot text and was successful because of popular support for legalization.

“Our opposition is grasping at straws, and we could unite against a common enemy in this election. When they took it to the county issue and threatened our livelihoods, we took it personally and had to activate voters, there was no other option,” Schopp said. “If you tell me 7,000 people didn’t know what they were voting for, you must really think we’re stupid. No matter the wording, it’s clear the people want weed.”

It’s not only his opponents who are quibbling about problematic language, though. Richmond also said the confusing ballot text in Granite County may have influenced its result to overturn recreational use.

ZABAWA'S PLANS to work toward banning recreational sales in more parts of the state do not end in his home county. Along with the petitions in counties that saw close margins in the I-190 vote, he has aspirations to get the proposed recreational ban on the ballot in Gallatin County, which voted 65.6 percent in favor of legalization in 2020.

And Safe Montana’s efforts do not end with using HB 701’s opt out provisions. Zabawa said he is looking into employing alternative legal routes, such as modeling legislation off a failed Idaho rule that would make ballot initiative efforts more difficult by raising signature requirements. Opponents of the Idaho legislation, according to US News, said the law would have protected people with “less popular political opinions.”

“Safe Montana is going to use every legal avenue to eliminate recreational marijuana out of the state of Montana and out of the United States,” Zabawa said. “There’s nothing good about dope for our families, that’s why I’m committed to these efforts. People get stoned immediately when they get it, so do we want more stoners? Because that’s what happens when you legalize it.”

So far, Great Falls has the only confirmed adult-use cannabis re-vote on a municipal ballot, but with Safe Montana planning to continue opt-out efforts even past the November election cycle, Richmond hopes Granite County’s possible re-legalization through his initiative will show other opted-out counties that their marijuana policies are not permanent.

“I’ve never had anybody arrested with my products or around town causing problems, so although there’s so much stigma around this little plant in the ground, it gives people so many different reliefs,” Richmond said. “There’s plenty of other things that could be focused on besides this one little pot shop that could barely fit a Volkswagen bug inside of it, and I hope we can move on with this vote.”

The Daily Montanan is a nonprofit newsroom. To read the article as originally published, click here.