The City Council held a public hearing and postponed action at its meeting June 13, 2011, on an emergency ordinance to ban 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. Staff had recommended the Council's postponement of the ordinance, pending the outcome of a June 21-22 hearing in Lewis and Clark County on a preliminary injunction against the implementation of SB 423 that was filed by the Montana Cannabis Association and other plaintiffs.  A temporary restraining order was granted against the advertising prohibition sections of SB 423, and a judge in the case has promised to issue a decision on the injunction before July 1. Depending on the outcome of the judge's ruling, enforcing the emergency ordinance may be delayed. If the judge denies the preliminary injunction, the act could become effective July 1.  If the preliminary injection is granted, additional court action or a future referendum on medical marijuana may occur.

A two thirds vote of the entire City Council is required for passage of an emergency ordinance.  It could become effective July 1, 2011, along with the Montana Medical Marijuana Act.

The City Council may:

• 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;
• If the judge in the Lewis and Clark County case has not yet ruled by June 27, postpone action until the next regular Council business session on July 11, 2011, or schedule a special Council session July 1 or later to determine action; or
• Take no action, relying instead on the City's current moratorium until it needs to be renewed in November 2011. 

Approval of an emergency ordinance prohibiting storefront sales before a decision is rendered on the preliminary injunction, 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.  It additionally 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.

The Council approved an initiative directing staff to present the emergency ordinance. Section 13 of the Medical Marijuana Act 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.

Stakeholders include opponents of the sale of medical marijuana and cardholders and caregivers operating under the current emergency ordinance that placed a moratorium on additional sales of marijuana in Billings.  Speakers from both groups testified at the June 13 public hearing regarding the ban on medical marijuana storefronts.  That public hearing was closed, and no new public hearing has been scheduled for June 27.

The proposed emergency ordinance is consistent with Section 13 Local government authority to regulate of SB 423, the Montana Marijuana Act. 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 a 90-day period. 

If a permanent ban on medical marijuana storefronts is approved, the Council may consider rescinding another interim City ordinance prohibiting any new medical marijuana businesses from opening from May 11, 2010, to present. The moratorium ordinance is in effect through Nov. 11, 2011, and can be extended for an additional year.