By Michael Howell
At its last Committee of the Whole meeting on January 24, the Hamilton City Council discussed a possible temporary prohibition on issuing any new business licenses to operate a medical marijuana establishment in the city limits. The Council adopted an Interim Ordinance in March of 2010 restricting them to commercial and manufacturing/industrial zones. That ordinance has since expired.
City Attorney Karen Mahar gave the council an update on some of the legal questions surrounding the issue. She noted that a referendum to repeal the current state law passed in the 2010 legislature has been approved for placement on the November 2012 general election ballot. In the meantime, a state judge has placed an injunction on enforcement of some portions of the current law. That ruling is under appeal to the state Supreme Court and is currently being briefed and will probably proceed to oral arguments before any decision is made.
Mahar also noted that the state Department of Health and Human Services has published some revised application procedures for those businesses and a fact sheet related to the issues that can be viewed on the department’s web site.
Compounding the complexity of the issue is the fact that the possession, use and distribution of marijuana remains a federal crime and U.S. District Court Judge Donald Molloy has recently ruled that federal law trumps state law in the matter. Federal authorities have served warrants and are currently investigating several medical marijuana suppliers and storefronts in the state related to possible violation of the federal prohibitions.
Mahar said that she had reviewed a proposed draft for a permanent ordinance and she highlighted certain matters for further consideration, such as whether it is going to apply to “businesses,” “establishments” or “transactions” and whether or not and how it might apply to businesses that grow or simply deliver the product to retail establishments. Also worth considering is how it relates to current law prohibiting possession of drugs within 1,000 feet of a school. State law also currently prohibits the visibility of marijuana growing operations from the public right of way. She said the council may want to pay some attention to the questions of a buffer zone from schools and visibility of the operations from the street.
Mahar noted that typically zoning laws grandfather in existing uses, but the draft ordinance under consideration would require existing businesses to come into compliance within 90 days. There is currently only one medical marijuana establishment licensed to operate in the city. She stated that concerns about any liability due to non-conformance with federal law could be addressed by an indemnification clause in the business license itself.
Special Projects Director Dennis Stranger noted that a special use permit was also required of a medical marijuana establishment in addition to the requirement of a business license.
Mahar cautioned the council that any ordinance passed would be subject to scrutiny and require review and possibly revision following the elections and/or any Attorney General opinions, court orders, or legislative changes in the law. For now, though, under the current law the city, as a general powers government body, does have the legislative authority to enact local regulations.
Stranger noted that the ordinance under consideration does not address any individual card holder growing for their own consumption, but would only apply to establishments.
Chief of Police Ryan Oster said that his office had seen issues such as burglaries of medical marijuana establishments and growing operations that might be addressed through some sort of extra security features being required. The state’s concern with visibility of the operations is also related to the same issue, he said.
The council came to a consensus that enacting a permanent ordinance at this point in time did not make a lot of sense given all the variables that were in flux both statewide and federally.
Councilor Joe Petrusaitis suggested considering an interim or temporary ordinance placing a moratorium on any licenses, in the meantime.
Mahar said it was a possibility.
Councilor Nancy Hendrickson did not want the council to give up on the idea of a permanent ordinance regulating the businesses. She said there was a legitimate need in the community that is met by these establishments and state law allows it. All the other councilors expressed a willingness to consider a temporary moratorium.
It was generally agreed that the council would consider a temporary moratorium at its next Committee of the Whole meeting.
Ban on cell phones while driving considered
City Attorney Karen Mahar gave the council a copy of applicable laws already governing safe driving. She advised the council that if they were considering a prohibition of cell phone use while driving they should consider whether it would apply to any use, just texting, or only hand held devices. All these would be options, she said. She said some consideration should be given to the possible penalties related to the prohibition as well. She said that it is possible to make a distinction between what are called “primary” and “secondary” offenses.
Police Chief Ryan Oster told the council that, based on a review of accident reports, his office did not have evidence of a lot of accidents related to cell phone use as the cause. He said that the number of reportable accidents has remained steady over the years, peaking in 2002 and then declining until peaking again in 2005 and now dropping.
Oster said that the National Highway Traffic Safety Administration has statistics from 2009 that 5,470 fatalities occurred due to distracted driving and that 995 of those, or 18 percent, were due to cell phone use. He said that the federal government was looking at legislation that would require states to act by regulating cell phone use or face loss of federal highway funds.
Councilor Joe Petrusaitis said that he drives all day as part of his job and sees a lot of “near misses” related to cell phone use by drivers.
Oster said officers see a lot of near misses but there are many causes for a driver being distracted.
Councilor Al Mitchell said that 35 states have banned cell phone use while driving and six cities in Montana.
“Why shouldn’t we do it?” he asked, especially if a federal push was on the horizon.
“Why not be ahead of the curve and put it in place now?” he asked. He said it was obviously a distraction and akin to drunk driving.
Oster noted that the matter has been before the state legislature in the last two or three sessions and nothing has been forthcoming. He wondered how the public would be put on notice about the prohibition and said it was something to consider. He also noted that most existing ordinances and state proposals have an exemption for emergency services. He said that his office would enforce whatever the council makes law and if an exemption to emergency services is involved he will put a policy in place governing his officers’ use of cell phones and restricting it to emergency use.
Councilor Lynette Helgeland said a cell phone ban was not right for Hamilton even if it was needed in bigger cities. She said that the problem of distraction was a bigger issue that could range from cell phones to watching net flicks on the dash board to joggers with iPods and that a broad based educational program was more fitting to address the issue.
Councilor Mel Monson said that texting was the worst problem and it was something that young people were more involved in. He suggested a ban on cell phones in school zones.
Council President Jenny West said that she was guilty herself of using the cell phone while driving, but considered it reckless.
Councilor Petrusaitis said we have all been bothered by people using their cell phones at meetings, at church, and at the dinner table, “but we need to control it when people are driving a vehicle that can kill someone.”
It was decided to keep the issue in committee for further consideration.
City police may cover school-sponsored tournaments
Police Chief Ryan Oster brought the issue of city police covering high school tournaments up for discussion. He said that the current practice was for the School Resource Officer to attend the Class A tournaments for security purposes. He said that sometimes it involves using an extra officer as well. He said that many other events happen in the city such as gem shows, gun shows and car shows and in the past they have asked the sponsors of those events to pay for special security coverage. He wondered if the practice of not charging the schools was acceptable to council or not.
“I’m O.K. if we cover it,” said Oster. “I’m just looking for direction.” He estimated that the cost to the city comes to a few thousand dollars each year.
The Council agreed that there is a difference between for-profit events and the school events and generally supported a police presence at the school tournaments.
“I think the PR alone is well worth the dollars,” said Mayor Jerry Steele.
It was decided to put the matter on the agenda for the next council meeting.
Change in ward boundaries considered
The City Council is considering a change in ward boundaries to address current population disparities between the districts. City Attorney Karen Mahar told the council that state law requires that each ward must be “as nearly equal in population as possible.”
Using current population data a proposed reconfiguration of Ward boundaries has been proposed to equalize things. Under that proposal, Ward 1 population would be 1331, Ward 2 would be 1341, and Ward 3 would be 1388.
But the boundary changes would leave Ward 2 Councilor Nancy Hendrickson in residence outside her existing ward. Mahar said that according to the law, a sitting councilor whose eligibility is affected by a change in boundaries can continue to serve out their existing term. But they would have to run in the district in which they reside in any future election.
The matter was kept in committee for further consideration.