Policy Change in Missoula Set to Limit Medical Marijuana Businesses

By CFS

In case you missed the short story over at the Indy, OPG staff and city attorney Jim Nugent have established a new zoning policy that restricts the establishment of medical marijuana businesses within a 1000 ft buffer of any schools. As stated in the article, the move is based on Montana State law 45-9-109. That statute makes the distribution of dangerous drugs within 1000 ft of a school a felony offense. The above map is the restricted areas around Missoula schools – I must say I find this map fairly amusing since OPG staff didn’t even feel the need to add a legend or explanation of the data being mapped, they felt it was sufficient to just place a giant marijuana leaf on the map and call it good.

Anyway… for your reading pleasure here is Mntana Code Annotated;

(1) A person commits the offense of criminal distribution of dangerous drugs on or near school property if the person violates 45-9-101 in, on, or within 1,000 feet of the real property comprising a public or private elementary or secondary school.
(2) Except as provided in 46-18-222, a person convicted of criminal distribution of dangerous drugs on or near school property:
(a) shall be imprisoned in the state prison for a term of not less than 3 years or more than life; and
(b) may be fined an amount of not more than $50,000.
(3) It is not a defense to prosecution under subsection (1) that the person did not know the distance involved.
(4) It is an affirmative defense to prosecution for a violation of this section that:
(a) the prohibited conduct took place entirely within a private residence; and
(b) no person 17 years of age or younger was present in the private residence at any time during the commission of the offense.

I understand the need to refine and better regulate an industry that has become ever more chaotic since it’s rapid growth started only a few years ago. But to me the application of a criminal statute to regulate zoning of a legal business is not the right measure to be taken, nor is it anywhere near a permanent fix to what many people see as an increasingly important problem that needs to be tackled. I wonder if such thinking would apply to the establishment of a pharmacy within 1000 ft of a school since a pharmacy distributes equally “dangerous” drugs if not used in a responsible manner?

The manner in which Missoula is beginning to regulate our burgeoning new industry is also of concern. While many other cities and counties are openly discussing what should be done about the medical marijuana business in their own communities within city council chambers and in local news paper op-ed sections there has been little open discussion in a public setting in Missoula. (please correct me if anyone knows if this has come up in any committee meetings). Maybe it’s just not a big deal here in Missoula that needs urgent action. We are after all fairly used to the marijuana business here – legal or otherwise – unlike more conservative Montana towns that see the marijuana as an unacceptable public nuisance even for legitimate medical purposes.

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  1. Matthew Frank

    In regards to the map’s lack of a legend or explanation of the data, OPG made clear to me when one of its staffers emailed me the PDF that it was only a draft. I mentioned that in my blog post on the topic: http://missoulanews.bigskypress.com/IndyBlog/archives/2010/07/08/missoula-restricts-cannabusinesses-around-schools

    • carfreestupidity

      Thanks for the clarification… I read the story but not your follow up blog post with the map in it… I just grabbed the map from your post.

  2. klemz

    My memory is apparently horrible. I forgot the part of high school where kids failed to acquire drugs because it was more than 1,000 feet away.

    “Hey man, DeShawn up the street is selling X.”
    “That’s like 1,112 feet from the school and my house is the other way. I’m a teenager; not a camel.”

    I don’t recall that happening. Of course, I should be able to remember considering any drugs capable of impairing my memory were more than 1,000 feet away. It’s not like anyone would go to the ghetto or anything to get drugs. I mean, let’s not be silly.

    How much of adulthood must pass under the bridge before your average person completely loses any reconnection of how teenagers function? When it comes to sex, booze and drugs, no barrier is sufficient. Kids will storm the Maginot Line if they have to.

  3. The person who makes the maps obviously has a sense of humor.

  4. On the Montana NORML Facebook Page, one commenter pointed out that if you really want to protect kids from long term harm, put in a 1000′ ban on fast food near schools. ;)

    If you want to keep kids and cannabis apart from each other, one of the worst strategies you could implement is the one we have chosen: Prohibition.

    I mean, if pot isn’t for kids, shouldn’t there be an age limit in the law?

  5. Pogo Possum

    Looks like you all are on to something here. Let’s test it out.

    Encourage Dennis McDonald (and other Democrats as well) to publicly support the right of all the 5,000+ licensed dealers to locate their medical marijuana shops across the street from any grade school or kindergarten in the state.

    While you are at it, to be fair, have him advocate for the right to locate bars and X rated adult shops across the street from school yards too. I will help you distribute the campaign posters. That should help lock up the election.

    • goof houlihan

      My question for those objecting is, “why do you want pot shops closer to schools”?

      • carfreestupidity

        I don’t want “pot shops” closer to schools… I would jut like regulation of the medical marijuana industry to be openly discussed and not be arbitrary and contradictory as this new regulation seems to be.

        Medical marijuana businesses are legitimate businesses that are licensed, pay taxes, and contribute to the Montana economy and create jobs. So their regulation should be based on a discussion between business owners, industry stakeholders, government regulators and representatives, and concerned citizens.

        It doesn’t bother anyone else that the city is attempting to regulate a legal set of businesses with a statute meant to criminalize already criminal behavior? The city seems to still think medical marijuana should be treated as if it were an illegal substance. This is the type of contradiction that needs to be clarified at the state level and until then its seems the city is simply grasping in the dark for an easy and readily available solution. A solution that if challenged in court would force some pretty amazing legal acrobatics to defend and probably wouldn’t stand up thus wasting tax payer dollars.

        And since when did a zoning violation suddenly become on the level of a felony? Most instances of zoning non-compliance are a matter of a small fine and not Subject to three years of jail time.

        Finally, it’s a regulation that isn’t going to fulfill it’s gloss of “protect the children” mentality. Can someone under 18 qualify for a medical marijuana card? Didn’t think so… High schoolers will just have to buy it off their friends like they already do.

        I would like to see all the controversy surrounding medical marijuana die down. One way to do that is to help it become a mature and socially responsible industry in this state through better regulations, but that can only come about through open public debate and not the arbitrary application of criminal law.

        • goof houlihan

          Medical marijuana is an illegal substance according to Federal law, and the 1000 feet prohibition is MCA as surely as is the MM law. Both are the law. Most laws are arbitrary. Why is the speed limit around schools 15mph and not 10 or 20?

          The problem with MM right now is that there are silly people acting as if pot has been legalized. A guy meets with the legislators and then goes out and smokes on the steps of the capitol; the cannabis caravan hands out cards like candy after desultory physicals. People are drinking, then smoking dope in bars and claiming it’s medicine and causing a scene.

          Marijuana is against federal law. The state law controls the substance, within 1000 feet without regard to “medical” or not. Including the law into zoning for providers is wise. It shouldn’t affect the person with a card who grows for him or herself.

          If you don’t want pot shops closer to schools, and you want MEDICAL marijuana to succeed, then the rule shouldn’t be objectionable.

          One of the best anecdotes I heard in support of medical marijuana was from a 17 year old . After a year of debilitation from the opiates he was prescribed, he switched to mm and now has a scholarship to a prestigious school. It’s that kind of use, not the stupid in your face dope smoking across from the school, that we need to protect, otherwise we invite a backlash from voters who will take it all away.

          I might need it someday. I want medical marijuana to work. Missoula can hit the sweet spot with a responsible law, recognizing there will be some bumps in the road, and join with cities that are trying to make the expressed will of the voters work. There are cities, and universities, just banning it outright without even making the attempt. That’s just civic laziness, the easy way out.

          “Can someone under 18 qualify for a medical marijuana card? Didn’t think so… High schoolers will just have to buy it off their friends like they already do.”

          Just flat wrong, there, carefreestupidity. here is the correct answer: “Patients, if under 18, must additionally have the consent of their parent or guardian responsible for medical decisions. The parent or guardian must be the registered caregiver of the minor patient.”

          Lots of montana high schoolers with cards, right now.

          • Lizard

            great comment goof.

            i just want to touch on the anecdote you shared and highlight this:

            “the opiates he was prescribed

            pills are nearly outshining meth as the most alluring, destructive, addictive force out there. and we’re talking about legal, supposedly regulated, medically prescribed controlled substances.

            the fear hype surrounding medical mary jane right now is just another stupid chapter in the campaign against cannabis.

            legalize and tax. c’mon baby boomers, you’ve been medicating your children with bullshit drugs for years.

            • goof houlihan

              Prescription drugs are hugely abused. One of my favorite answers to, “people are abusing the medical marijuana law”. yep, they are, just like they’re stealing pills out of medicine cabinets and selling them.

              I’ve worked in offices where every single person in the office was on prescribed mood altering drugs. It’s a large part of the cost of insurance right now.

              Running for the shelter of mother’s little helper.

  6. klemz’ comment is excellent, above.

    I read today’s story in the Missoulian and I don’t think they are quite doing it through zoning – but they are seemingly using the zoning office to enforce it.

    OPG should be approving or denying these things based on what the zoning regulations say for home-based businesses. They don’t exist to enforce Title 45 of Montana Code Annotated. If anyone should be denying these based on MCA, it should be the police.

    Someone, though, initiated this. Pushing that blame on OPG is wrong. Did Nugent initiate it? Does he have that power? I really don’t think so.

    Someone directed OPG to make that map…and someone put this issue before Nugent to put into his already heavy work load.

    Since Nugent isn’t an elected official, I’d be looking for who initiated this whole thing.

    Was it our Mayor? Councilperson Jaffe has every right to ask.

    I’m curious. I hope someone works through that smokescreen there and finds out where this all started.

    • I should add – OPG has every right to enforce valid zoning laws. If that’s what someone wants to do, they should be doing it through the appropriate legal procedures.

  7. The Indy blog clarified yesterday that the city will not be enforcing this policy in any way — they are simply recommending that caregivers not locate within 1000′ of schools.

    Also, while minors may get cards with parental consent, there are not lots. Actually 45 total, out of some 20,000 patients.
    http://www.dphhs.mt.gov/medicalmarijuana/mmphistoricaldata.shtml




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