Ron Strider
Well-Known Member
On Sept. 11, the owners of Montana Advanced Caregivers received a letter saying their business license renewal had been rejected.
The company didn't apply for a renewal, and the license for the Billings medical marijuana business was months from expiring.
The letter was intended as a retroactive rejection of the business license granted previously in January. In it, the City-County Planning Division indicated the license was granted by mistake.
What worried owners Rich Abromeit and Jason Smith was that it arrived on the same day that the Billings City Council was scheduled to consider an ordinance that would force them out of town.
It was as if the city just found out about the dispensary and moved to shut it down.
"I think there was a time where the city didn't realize that was what they were doing," Billings City Attorney Brent Brooks said Thursday.
But Montana Advanced Caregivers never worked in secret or operated as anything other than a medical marijuana dispensary. They had worked for years just down the road from a Billings Police Department motor pool yard.
The only tangible policy threats came from the Capitol in Helena, not City Hall.
Their initial application in 2010 listed the business as a "medical marijuana caregiver," and the city had been renewing its business license each year since, collecting $90 each time.
So the Montana Advanced Caregivers owners sued, claiming that the new ordinances before the city council would unfairly push them out of town. Their first business license was granted before the city passed any ordinance related to the industry.
If passed, the council's new ordinances would be the latest in a number of caregiver business prohibitions that have been on the city books since 2010.
Just like regulation at the state level, medical marijuana laws at the city level have undergone many changes, resulting in mixed signals for businesses. And this lawsuit against Billings could test the local government powers in the state's latest medical marijuana law.
Case filed
"I think there's serious, serious constitutional issues if they're going to try to do that at this point in time, having allowed it this long," said Steve Mackey, the attorney representing Montana Advanced Caregivers.
The lawsuit was filed on Sept. 21 by the company, Abromeit, and one registered patient named Nancy Moore. Their argument is that Billings can't kick a business out of town, particularly one that's been granted a license despite past prohibitions.
Attorneys for the city of Billings filed an answer to the lawsuit on Oct. 24. They asserted their ability to pass prohibition laws, which is part of the Montana Medical Marijuana Act passed earlier this year by state lawmakers.
"The most recent Montana Legislature amended the state law to expressly authorize Montana cities and towns to pass ordinances banning these businesses from operating within the city limits," said Andy Forsythe, an attorney representing the city of Billings.
Granting local government power isn't new to Montana medical marijuana regulation, but in 2017 an amendment added the ability for cities to prohibit dispensaries in addition to storefronts. The distinction is that a storefront is open to the public, while a dispensary only allows registered patients to enter.
The ordinances being considered by the Billings City Council would incorporate the dispensary ban.
Attorneys on both sides of that lawsuit said the small addition was a key change. Mackey said that this unfairly limits access for patients and the ability for a legitimate business to operate.
Forsythe said the addition of "dispensary" to the city's ability to regulate doesn't alter the constitutionality. In a court brief, he wrote that Billings has a legal right to enforce a code that could, in effect, deny a business license to a medical marijuana provider.
One issue is that the city hasn't enforced this in the past.
Bark but no bite
Montana cities regulate medical marijuana businesses in different ways. Great Falls and Kalispell, for example, have city codes that say all licensed businesses or permitted land uses must comply with federal law. In effect, that ousts medical marijuana, which remains illegal under federal drug scheduling.
Cities can also restrict medical marijuana to certain land-use zones. Missoula and Bozeman issue special business licenses to companies in that industry.
Billings has taken multiple strategies to regulation. In May 2010, the Billings City Council passed a stopgap zoning ban on any new medical marijuana business.
By that time, Montana Advanced Caregivers had received its first business license from the city. Billings doesn't offer a special medical marijuana license.
The city council passed a storefront ban in November 2011 after the Montana Legislature passed its own regulatory law. This allowed providers to do business directly with registered patients but not to the general public.
Then in October 2012, the council passed another ordinance, saying that licensed businesses must comply with federal law. That should have banned all medical marijuana business from the city. The ordinance included a two-year grace period for businesses to comply.
A city council memo from September reaffirmed that stance.
" ... Since the distribution of marijuana in any context is a violation of federal law, business licenses have not been issued for operation of dispensaries or storefronts within city limits," a memo said.
While the prohibitions remained on the books for years, the city continued to grant license renewals to Montana Advanced Caregivers. Those renewals were based on the original application identifying it as a medical marijuana dispensary.
Brooks said this was an oversight by the city and that renewals aren't as thorough as initial applications. Compliance is based on whether the city receives complaints.
"We have to assume that they are in compliance with the city ordinance like any other business," he said.
According to Brooks, it was an anonymous complaint in May that led the city to realize that Montana Advanced Caregivers was, in fact, operating as a medical marijuana caregiver.
No hearing has been set in the lawsuit. The city council had delayed a final vote on its new zoning restrictions until Nov. 13, but it's unclear if it will revisit the restrictions at that time because a restraining order prevents enforcement while the lawsuit is ongoing.
A judge's ruling in this case could test the limits of a city's ability to curtail the state's legal medical marijuana trade.
"I just think the court needs to be aware that this is an issue that doesn't just affect my clients," Mackey said.
News Moderator: Ron Strider 420 MAGAZINE ®
Full Article: Medical marijuana dispensary files lawsuit claiming Billings can't kick their business out of town | Local | billingsgazette.com
Author: MATT HUDSON
Contact: Contact Us | billingsgazette.com
Photo Credit: Getty Images
Website: billingsgazette.com | A Lee Enterprises Newspaper
The company didn't apply for a renewal, and the license for the Billings medical marijuana business was months from expiring.
The letter was intended as a retroactive rejection of the business license granted previously in January. In it, the City-County Planning Division indicated the license was granted by mistake.
What worried owners Rich Abromeit and Jason Smith was that it arrived on the same day that the Billings City Council was scheduled to consider an ordinance that would force them out of town.
It was as if the city just found out about the dispensary and moved to shut it down.
"I think there was a time where the city didn't realize that was what they were doing," Billings City Attorney Brent Brooks said Thursday.
But Montana Advanced Caregivers never worked in secret or operated as anything other than a medical marijuana dispensary. They had worked for years just down the road from a Billings Police Department motor pool yard.
The only tangible policy threats came from the Capitol in Helena, not City Hall.
Their initial application in 2010 listed the business as a "medical marijuana caregiver," and the city had been renewing its business license each year since, collecting $90 each time.
So the Montana Advanced Caregivers owners sued, claiming that the new ordinances before the city council would unfairly push them out of town. Their first business license was granted before the city passed any ordinance related to the industry.
If passed, the council's new ordinances would be the latest in a number of caregiver business prohibitions that have been on the city books since 2010.
Just like regulation at the state level, medical marijuana laws at the city level have undergone many changes, resulting in mixed signals for businesses. And this lawsuit against Billings could test the local government powers in the state's latest medical marijuana law.
Case filed
"I think there's serious, serious constitutional issues if they're going to try to do that at this point in time, having allowed it this long," said Steve Mackey, the attorney representing Montana Advanced Caregivers.
The lawsuit was filed on Sept. 21 by the company, Abromeit, and one registered patient named Nancy Moore. Their argument is that Billings can't kick a business out of town, particularly one that's been granted a license despite past prohibitions.
Attorneys for the city of Billings filed an answer to the lawsuit on Oct. 24. They asserted their ability to pass prohibition laws, which is part of the Montana Medical Marijuana Act passed earlier this year by state lawmakers.
"The most recent Montana Legislature amended the state law to expressly authorize Montana cities and towns to pass ordinances banning these businesses from operating within the city limits," said Andy Forsythe, an attorney representing the city of Billings.
Granting local government power isn't new to Montana medical marijuana regulation, but in 2017 an amendment added the ability for cities to prohibit dispensaries in addition to storefronts. The distinction is that a storefront is open to the public, while a dispensary only allows registered patients to enter.
The ordinances being considered by the Billings City Council would incorporate the dispensary ban.
Attorneys on both sides of that lawsuit said the small addition was a key change. Mackey said that this unfairly limits access for patients and the ability for a legitimate business to operate.
Forsythe said the addition of "dispensary" to the city's ability to regulate doesn't alter the constitutionality. In a court brief, he wrote that Billings has a legal right to enforce a code that could, in effect, deny a business license to a medical marijuana provider.
One issue is that the city hasn't enforced this in the past.
Bark but no bite
Montana cities regulate medical marijuana businesses in different ways. Great Falls and Kalispell, for example, have city codes that say all licensed businesses or permitted land uses must comply with federal law. In effect, that ousts medical marijuana, which remains illegal under federal drug scheduling.
Cities can also restrict medical marijuana to certain land-use zones. Missoula and Bozeman issue special business licenses to companies in that industry.
Billings has taken multiple strategies to regulation. In May 2010, the Billings City Council passed a stopgap zoning ban on any new medical marijuana business.
By that time, Montana Advanced Caregivers had received its first business license from the city. Billings doesn't offer a special medical marijuana license.
The city council passed a storefront ban in November 2011 after the Montana Legislature passed its own regulatory law. This allowed providers to do business directly with registered patients but not to the general public.
Then in October 2012, the council passed another ordinance, saying that licensed businesses must comply with federal law. That should have banned all medical marijuana business from the city. The ordinance included a two-year grace period for businesses to comply.
A city council memo from September reaffirmed that stance.
" ... Since the distribution of marijuana in any context is a violation of federal law, business licenses have not been issued for operation of dispensaries or storefronts within city limits," a memo said.
While the prohibitions remained on the books for years, the city continued to grant license renewals to Montana Advanced Caregivers. Those renewals were based on the original application identifying it as a medical marijuana dispensary.
Brooks said this was an oversight by the city and that renewals aren't as thorough as initial applications. Compliance is based on whether the city receives complaints.
"We have to assume that they are in compliance with the city ordinance like any other business," he said.
According to Brooks, it was an anonymous complaint in May that led the city to realize that Montana Advanced Caregivers was, in fact, operating as a medical marijuana caregiver.
No hearing has been set in the lawsuit. The city council had delayed a final vote on its new zoning restrictions until Nov. 13, but it's unclear if it will revisit the restrictions at that time because a restraining order prevents enforcement while the lawsuit is ongoing.
A judge's ruling in this case could test the limits of a city's ability to curtail the state's legal medical marijuana trade.
"I just think the court needs to be aware that this is an issue that doesn't just affect my clients," Mackey said.
News Moderator: Ron Strider 420 MAGAZINE ®
Full Article: Medical marijuana dispensary files lawsuit claiming Billings can't kick their business out of town | Local | billingsgazette.com
Author: MATT HUDSON
Contact: Contact Us | billingsgazette.com
Photo Credit: Getty Images
Website: billingsgazette.com | A Lee Enterprises Newspaper
