The City Council held a public hearing at its meeting June 27, 2011, on an emergency ordinance to ban the sale of medical marijuana in storefronts in the City of Billings and postponed action for the second time.  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.

Judge James P. Reynolds of the Lewis and Clark County District Court issued a preliminary injunction June 30, 2011, preventing the State of Montana from enforcing sections of the statute that prohibited advertising; allowing unannounced inspections of marijuana businesses; requiring the Board of Medical Examiners  to be notified of the name of any physician who certified 25 or more patients in 12 months; and limiting caregivers on the number of clients they could serve, preventing them from selling or being paid for marijuana-related products, or using marijuana products.  The Judge's ruling said remaining provisions of the statute, including Section 13, could go into effect as scheduled on July 1, 2011.

Staff had recommended the Council's postponement of the ordinance, pending the outcome of the Lewis and Clark County case.  Since the injunction did not prohibit enforcement of Section 13, it appears the Council may proceed with adoption of an emergency ordinance prohibiting providers of marijuana or marijuana-infused products from operating as storefront businesses. 

A two thirds vote of the entire City Council is required for passage of an emergency ordinance.  It could become effective upon passage.

The City Council may:

• Approve an emergency ordinance banning marijuana and marijuana-infused products providers from operating as storefront businesses in Billings;
• Take no action, relying instead on the City's current moratorium until it needs to be renewed in November 2011; or 
• Postpone action to another time.

Enforcement of SB 423 will likely have an impact on law enforcement, although the exact costs cannot be defined.

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. 

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 a public hearing June 13 regarding the ban on medical marijuana storefronts.  That public hearing was closed, and no new public hearing has been scheduled for July 5.

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.