Marijuana: Light Manufacturing or Commercial Retail?

By Beacon Staff

To see the medical marijuana issue through Dave Taylor’s eyes is to see it through a planning director’s eyes. It’s a question of zoning.

If a new business in Whitefish wants to legally dispense pot to registered patients of the state’s medical marijuana program, shouldn’t it be treated as basic commercial retail? But if the business is going to grow it and make other products like lip balm, should the zoning require a conditional use permit for light manufacturing?

Taylor, Whitefish’s planning and building director, faced these questions when people began approaching him about opening medical marijuana dispensaries in the city. Some wanted to grow it too. One hoped to open up near the junior high school.

To Taylor, the answer to these questions was clear.

“We told them yeah, it’s all retail,” Taylor said. “We basically said we don’t regulate it, really.”

Whitefish, like other Montana towns, has no laws governing medical marijuana. The city has a certain zoning district for casinos, and most towns have regulations that distance drinking establishments from churches and schools. But medical marijuana, which became legal after the Montana Medical Marijuana Act passed in 2004 with a 62 percent vote, is new territory for city officials.

Like many business ideas, Whitefish’s medical marijuana proposals never came to fruition and Taylor ultimately didn’t have to make any final decisions. But he brought the issue to the city council’s attention, making it clear that without a new ordinance on the books, medical marijuana businesses are free to set up shop in Whitefish without any special regulations.

So at a public meeting on Dec. 7 at 7:10 p.m., the council will vote on an urgency ordinance that would ban all medical marijuana businesses within the city limits – and in a one-mile radius outside of it – until a permanent ordinance can be drafted. City Attorney John Phelps, who is drafting the urgency ordinance, said a permanent one could take three to four months.

But, upon Taylor’s recommendation, Phelps is also drafting a backup urgency law that will allow the businesses in town if granted a conditional use permit. The law may factor in proximity to schools, daycares and other places when considering a permit. If people from the public protest total prohibition, Phelps said “the council might enjoy having a fallback position.”

Phelps pointed out that urgency ordinances often stir the pot, as they are enforced rapidly without much time for public process.

“They’re controversial because whenever government works that fast it upsets people,” Phelps said.

As of Nov. 6, there were 4,571 medical marijuana patients registered with the Montana Department of Health and Human Services, according to Roy Kemp, deputy administrator of the department’s quality insurance division. Flathead County has the second-most patients with 604, behind Gallatin County’s 667. Kemp said the two counties flip-flop almost weekly. Missoula County had 582 as of Nov. 6.

According to state law, a patient must be diagnosed with a “debilitating medical condition,” including glaucoma, cancer, severe nausea, chronic pain, seizures and HIV. After a doctor writes a recommendation, the patient submits it to Kemp’s office, which issues medical marijuana licenses as well as a host of other types of licenses.

Barring an incomplete application, Kemp’s office certifies the patient with the state’s medical marijuana registry. The patient pays an initial $25 fee and then a $10 renewal fee each year.

“If the doctor says they recommend it, then (the patient’s) on the registry,” Kemp said.

Kemp’s agency does the same with caregivers, who are given licenses to legally distribute marijuana to the patients. Kemp said he can deny a caregiver with a felony drug record. As of Nov. 6, there were 1,414 caregivers registered with the state. Kemp said 221 physicians have participated in the program to date.

There was a four-and-a-half-year lull after voters first approved the medical marijuana initiative, Kemp said, when his office saw very few applications. But once they began coming in, they seemed to set off a domino effect, perhaps due to increased public awareness, he said. He estimates that about 3,000 of the 4,571 registrations have occurred in the past 10 months.

Recently, Kemp has received as many as 521 applications in a single week.

“The public is more aware that it’s been in existence,” Kemp said.

Phelps called Kemp before drafting the urgency ordinance. Though it appears more Montana towns are going to have to address the issue of regulating medical marijuana operations, few have yet. Kemp said he hasn’t heard from many city officials other than Phelps.

Phelps and Taylor said they know of only one other city in Montana – Billings –that has taken similar measures to Whitefish. Officials there drafted an urgency ordinance to define where medical marijuana business could go, prohibiting close proximity to schools, churches, parks and daycare centers, among other restrictions.

But after medical marijuana proponents testified at a November public meeting, with some threatening lawsuits, the council voted to table the motion. Council said it would direct staff to develop a revised ordinance for later consideration. But without an urgency ordinance in place, businesses are free to open up in the meantime, Phelps said to illustrate the importance of Whitefish taking action sooner rather than later.

“Once it’s opened, it’s grandfathered in and you might have to deal with it being in a bad location forever,” he said.

Whitefish doesn’t have specific codes regulating pharmacies or distinguishing medical districts, Taylor said, which rules out grouping medical marijuana with other medicinal outlets. The city’s business district along U.S. Highway 93 on the town’s south end could be an option, he said.

But those decisions will come later. For now, Taylor favors the backup urgency ordinance over outright prohibition.

“From my perspective,” Taylor said, “rather than ban them, require a public process so the public can weigh in about the proximity to schools and all of that. It’s a tricky issue and I just don’t know enough about it.”