The City Council has approved an initiative directing staff to present an emergency ordinance at the Council's June 13, 2011, meeting that bans the sale of medical marijuana in storefronts in the City of Billings.  Such a ban is permitted by Section 13 Local government authority to regulate of Senate Bill 423, the Montana Marijuana Act, which was adopted by the Legislature in its 2011 session.  The sections states "A local government may adopt an ordinance or resolution prohibiting providers and marijuana-infused product providers from operating as storefront businesses."  It also allows local governments to regulate a provider or marijuana-infused products provider who operates within its jurisdiction to ensure compliance with public health, safety and welfare requirements established by the Montana Department of Public Health and Human Services, or the local government. The act becomes effective July 1, 2011. 

Montana Code Annotated 7-5-104 and BMCC 2-235, Emergency ordinance, allow the Council to adopt an emergency ordinance that is effective for no more than 90 days, after the Council outlines the reasons for an emergency.  The Council also may waive the second reading of an emergency ordinance, putting it into place immediately.  

The City Attorney has been in touch with Montana's other large cities, and it appears Billings would be the first community to adopt such an ordinance.  A request for a preliminary injunction against the implementation of SB 423 has been filed in Lewis and Clark County by the Montana Cannabis Industry Association and other plaintiffs.  The judge in the case already has issued a temporary restraining order against the advertising prohibition sections of SB 423, and is expected to set a hearing on the preliminary injunction for the week of June 13, and to issue a decision before July 1. 

Depending on the outcome of the judge's ruling, enforcing the emergency ordinance may be delayed.  If an emergency ordinance is adopted and the Council wishes to create a permanent storefront ban , it would have to adopt a permanent ordinance within the 90-day period.  The Council also will have to determine whether to continue its current Interim City ordinance prohibiting any new medical marijuana business licenses from operating from May 11, 2010, to present.  The interim ordinance is in effect through Nov. 11, 2011, and can be extended for an additional year.

 A two thirds vote of the entire City Council is required for passage of an emergency ordinance and would become effective July 1, 2011.

• Approve an emergency ordinance banning marijuana and marijuana-infused products providers from operating as storefront businesses in Billings, which may open the City to litigation;
• Join other communities in delaying approval of an emergency ordinance until after the District Judge in Lewis and Clark County rules on the preliminary injunction in the Montana Cannabis Industry Association case;
• Take no action, relying on the City's current interim ordinance.

Approval of an emergency ordinance prohibiting storefront sales, especially if Billings is the only city in the state to do so, may result in litigation that has the potential to ultimately cost the City additional money in terms of Montana Municipal Interlocal Agency (MMIA) charges in future years.

SB 423 also requires the City to accept and destroy any marijuana plants, unusable marijuana or marijuana-related products in a caregiver's possession at the time the bill becomes effective July 1 and requires law enforcement agencies contacted by health care facilities to remove and destroy marijuana found in a registered card holder's possession upon admittance to a health care facility.  These are unfunded State mandates that have not previously been required of local government.