Fixing an Ambiguous Medical Marijuana Law

By Kellyn Brown

Problems with Montana’s medical marijuana law will only escalate from here. What’s odd is that it took five years from the time voters overwhelmingly approved legalizing the drug for medicinal purposes to reach this point.

In Whitefish, after people began approaching the planning director about “caregivers” opening medical marijuana dispensaries within city limits, the first question to arise was whether such a business would be zoned light manufacturing, commercial retail or something else entirely. The issue only scratches the surface of problems with a law many attorneys argue is too vague and includes too many loopholes.

Billings faces a similar dilemma. Unsure where to allow medical marijuana businesses, the council there considered restricting their proximity to residential zones, such as schools, churches and daycares. After marijuana advocates threatened to sue the city, the council tabled the motion. A similar situation could unfold in Whitefish.

The problem with Montana’s medical marijuana is that even if well intentioned, it is clearly incomplete. Whether one supports the use of pot as medicine, more agree that it shouldn’t be sold across the street from an elementary school. But as Initiative 148 was written, state law is “silent on where (marijuana) grow sites can be located,” according to Montana’s Department of Public Health and Human Services.

State law is also “silent” on a number of other issues: whether a landlord can evict you if you start a legal growing operation; whether an employer can fire you even if you have a prescription to use marijuana; and where you can smoke pot – there are limits on school grounds, prisons and public parks, but that’s about it.

Last month, during a medical marijuana clinic in Great Falls, patients caused a stir after they were seen openly smoking weed in public, including on the steps of the Great Falls Civic Center. While not illegal, it certainly didn’t paint the group who sponsored the clinic, Missoula-based Montana Caregivers Network, in a good light. It also amplified some divisions among medical marijuana supporters.

Tom Daubert, one of the authors of the Montana Medical Marijuana Act and a caregiver himself, criticized parts of the Great Falls event and argued that the law is often misrepresented. Another caregiver, Mike Smith, while also critical of patients smoking in public, disagrees with Daubert about whether patients can legally buy pot before receiving a medical marijuana card from the state health department. Smith contends all it takes is a physician’s recommendation, even if the official paperwork isn’t completed. Daubert disagrees.

All these discrepancies in how to follow the law have only served to confuse patients, municipalities and law enforcement. And it’s bound to get worse. After a four-and-a-half year lull, when very few people took advantage of Initiative 148, the number of users has increased substantially. Montana’s DPHHS now counts almost 5,000 registrants in the state and more than 600 in Flathead County. At the Billings meeting on whether to restrict marijuana dispensaries’ locations, one activist said that there were 44,000 potential medical marijuana patients in that area alone. That’s an absurdly high number, but even if it’s 25 percent true, the law needs to be modified.

Montanans resoundingly (with 62 percent of the vote) supported the initiative to allow medical marijuana use. But as Whitefish and Billings begin grappling with how to deal with these potential new businesses, and as more follow suit, it will only hurt proponents of the initiative if they are toking up in public or fighting any and all zoning restrictions tooth and nail. If these are legitimate enterprises, they should be treated as such, which means they must adhere to equitable zoning regulations.

Hopefully, municipalities and caregivers will agree on an interim plan until 2011, when the state Legislature can iron out ambiguities in an otherwise popular law.

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