Council Votes to Prohibit Medical Marijuana Businesses in Kalispell

By Beacon Staff

In a raucous meeting Monday colored by a recent murder authorities linked to medical marijuana, the Kalispell City Council voted 7-1 to ban any new medical marijuana businesses within city limits. The specific wording of the zoning ordinance prohibits the establishment of any business that conflicts with federal law, under which medical marijuana remains an illegal drug.

The impact of the new zoning ordinance will be that, other than those medical marijuana dispensaries “grandfathered” in because they began operating prior to Kalispell’s February moratorium, no new medical marijuana caregivers will be able to set up shop, and those existing dispensaries cannot move from their current locations.

Medical marijuana users and caregivers filled the council chambers to implore the city not to infringe on the rights granted them under a 2004 state initiative legalizing medical marijuana that passed overwhelmingly.

“This would be a violation of our rights as voters,” George Williams said. “The businesses in Kalispell have already profited from the legalization of medical marijuana.”

“There’s a huge economic benefit to the state of people moving here, because they can get their medicine,” he added. “We don’t want to have to be afraid to take our medicine; we don’t want to have to be afraid to provide it.”

The council’s main reason for not designating medical marijuana as a land use within city limits was that doing so, according to a legal memo by City Attorney Charlie Harball, could jeopardize federal funding Kalispell relies upon in the form of grants and loans where compliance with federal laws is a requirement. Though the Obama Administration has declared it will not prosecute medical marijuana violations in states where it is legal, a future administration with a different policy could potentially penalize Kalispell.

“Council should therefore consider whether or not risking the loss of federal funding in any way compromises the public health, safety and general welfare of the citizens of Kalispell,” Harball wrote.

But Barry Vance argued the idea that the federal government would somehow withhold funds from Kalispell when more than a dozen states across the country, among them California, have also legalized medical marijuana was “ludicrous.”

“It’s absurd to think that we would ever face the possibility of federal funds being withheld from this city or the state,” Vance said. “It’s a canard, and I think everyone here understands that.”

On Sunday, the Kalispell Police announced they were investigating the murder of 49-year-old Wesley Collins, in a statement alleging medical marijuana was at the center of an incident leading to his death. But at the meeting, Robert Cates disputed how Kalispell Police characterized the crime.

“Wesley Collins was my very good friend and patient,” Cates said. “He had a problem with Xanax; he had problems with the products described by his doctor.”

“By no means was it about pot plants,” Cates added. “He was murdered over pain medicine.”

Another woman, who identified herself as living in the apartment complex where Collins was killed, described her attempt to explain the incident to her child.

“I still don’t have answers to my daughter’s questions,” she said. “Why did someone have to die for something that is considered illegal federally?”

As the council discussed the decision, members emphasized the zoning ordinance, which carries a civil penalty for violations of up to $500 per day, does not prohibit card-carrying medical marijuana users from growing or consuming it within state law, in the same way that residents can grow their own tomatoes. Nor would a caregiver be prevented from traveling to a patient’s home to sell them marijuana. But when a caregiver is selling medical marijuana out of their home, making the building a land use no longer strictly residential, the city’s new ordinance prohibits it.

“We are not saying that people cannot legally use medical marijuana,” Councilman Wayne Saverud said. “What we are saying is that it can’t be a business operation within the city of Kalispell. I think that’s a reasonable compromise.”

Councilman Duane Larson agreed.

“Someone mentioned that we’re imposing a death sentence,” Larson said. “I don’t know of very many people in this day and age that can’t drive outside the city limits to get it. That’s not really a valid argument.”

“Any business helps the economy of the city, and a few businesses producing medical marijuana are not going to create an economic boom for the city of Kalispell,” he added.

Councilman Bob Hafferman, who cast the sole dissenting vote on the decision, said medical marijuana was protected under state law and the 10th Amendment of the U.S. Constitution, which reserves to the states powers not designated to the federal government.

“My concern is a very costly lawsuit can result if we simply tried to ban a product legal in Montana law and not against the U.S. Constitution,” Hafferman said. “I’ve got to vote no because it’s a useless ordinance that’s only going to cause nothing more than more and more trouble.”

He introduced an amendment that would have allowed zoning in areas where pharmacies were permitted, except along U.S. Highway 93 and U.S. Highway 2; would have limited the hours of the dispensaries’ operations and limited who could enter such establishments to licensed patients or providers. He also suggested sending a draft of the amendment to the Northwest Drug Task Force for its input.

Hafferman’s amendment received no support and failed.

Mayor Tammi Fisher, calling the question the toughest she has faced in her time holding the office, said the zoning ordinance addressed how the city can regulate the distribution of marijuana, but doesn’t affect anyone’s right to provide or consume it – and when the Legislature issues new guidance on how to regulate medical marijuana dispensaries, as it is likely to do next year, Kalispell can change its zoning regulations to be consistent with the rest of the state.

“This particular regulation, as proposed, does not ban the use of medical marijuana, and that would be my concern, because we cannot ban a use that the voters have supported,” Fisher said. “Until we have better regulations for the distribution I am not prepared to say we’ll have it in these zones or those zones.”

As the council voted and its outcome grew clear, Williams shouted at the council, “You’re prepared to go against our rights,” and was then escorted out by Kalispell Police Chief Roger Nasset. Another man held his middle finger out to council members as the crowd exited the room following the vote.