ORDINANCE
No. ___150___
AN ORDINANCE BY THE TOWN COUNCIL OF TOWN OF NASHUA
DECLARING THE SALE AND PUBLIC USE OF MEDICAL
MARIJUANA TO BE A NUISANCE IN THE TOWN OF NASHUA, MONTANA
WHEREAS, marijuana is a controlled substance in Montana, and is defined as “all plant material from the genus cannabis containing tetrahydrocannabinol (THC), or seeds of the genus capable of germination” in Section 50-32-101(17), MCA.
WHEREAS, tetrahydrocannabinol is a hallucinogenic substance listed as a Schedule I dangerous drug under federal law at § 21 USC 812 and under state law at § 50-32-222, MCA.
WHEREAS, as defined by § 50-32-221, MCA, a Schedule I dangerous drug is one which: 1) has a high potential for abuse; and 2) has no accepted medical use in treatment in the
United States, or lacks accepted safety for use in treatment under medical supervision.
WHEREAS, Initiative 148 was passed by Montana voters on November 2, 2004, and has been codified at Section 50-46-101, MCA, et seq., as the Medical Marijuana Act (the Act).
WHEREAS, since codification of the Medical Marijuana Act, the state legislature has inadequately addressed a multitude of issues of local concern surrounding the application of the
Act in communities, and the parameters under which a local government has authority to regulate it effects.
WHEREAS, these local issues include, but are not limited to commercial operation, public safety, law enforcement, transportation, cultivation, manufacture, delivery, transfer, sale, landlord/tenant relations, public health, quality control, second-hand smoke, indoor air quality, and others.
WHEREAS, neither the text of Initiative 148, nor the Medical Marijuana Act, by their language, contemplate that registered caregivers would be allowed to open for-profit, commercial enterprises, unfettered from local regulation, taxation, inspection, or other normal business oversight.
WHEREAS, neither the text of Initiative 148, nor the Medical Marijuana Act, authorized the commercial sale of marijuana under any circumstance.
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WHEREAS, the Nashua Town Council has determined that the licensing, opening, or operation of any establishments that grow, sell, or distribute medical marijuana or paraphernalia within the Town of Nashua could be immediately detrimental to, harmful to, and a threat to the peace, property, health, safety, and welfare of the Town and its inhabitants.
WHEREAS, there has been a rapid and unexpected increase in interest in the growing, production, processing, dispensing, and sale of medical marijuana for profit in the Town of
Nashua.
WHEREAS, in the absence of any state guidance to local governing bodies regarding implementation and enforcement of the Medical Marijuana Act, the Nashua Town Council has determined it is in the best interest of the Town of Nashua to adopt and enforce this Ordinance governing the commercial sale and public use of marijuana in the Town of Nashua, and
WHEREAS, the Nashua Town Council has the authority to declare a public nuisance pursuant to Section 27-30-101, MCA, and Section 45-8-111, MCA.
WHEREAS, violation of this ordinance is a misdemeanor punishable by incarceration and/or fines,
NOW, THEREFORE, BE IT HEREBY ORDERED, by the Nashua Town Council that the following acts be declared a public nuisance, and violation of this ordinance shall be punishable under Section 7-5-109, MCA.
AN ORDINANCE DECLARING THE COMMERCIAL
SALE AND PUBLIC USE OF MEDICAL MARIJUANA A PUBLIC NUISANCE
SECTION 1. DEFINITIONS
1.1
The terms “sell” and “sale” mean to sell marijuana for profit.
1.2 The term “commerce” means to exchange, buy, sell, barter, trade, or otherwise exchange medical marijuana as a commodity, or to transport medical marijuana in furtherance of commercial activity.
1.3
The term “reasonable compensation” means a caregivers’ actual cost to acquire, cultivate, manufacture, deliver, transfer, transport, and provide a legal amount of medical marijuana to a qualifying patient.
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SECTION 2. SALE AND COMMERCE PROHIBITED
2.1 The sale or commerce of medical marijuana is deemed a public nuisance in the Town of
Nashua.
2.2 No person shall sell marijuana for any purpose within the boundary of the Town of
Nashua.
2.3 No person shall open a storefront business for the purpose of engaging in the sale or commerce of medical marijuana.
2.4 No person shall engage in the sale or commerce of medical marijuana for profit from a home business operation or from a vehicular business operation.
2.5 No person shall set up an itinerant business for the purpose of selling medical marijuana or engaging in the commerce of medical marijuana.
2.6 No person shall transport medical marijuana from outside of Nashua into Nashua in order to engage in the sale or commerce of medical marijuana for profit. This section does not prohibit a caregiver from transferring or transporting legally acquired medical marijuana through the Town of Nashua for use by a qualifying patient.
2.7 No person shall market, advertise for, or promote medical marijuana for sale or commerce in the Town of Nashua.
2.8 No person shall open an internet or e-commerce business in the Town of Nashua for the purpose of selling medical marijuana or engaging in the commerce of medical marijuana.
2.9 Nothing in this section prohibits a caregiver from collecting reasonable compensation from a patient for services provided to assist with a qualifying patient’s medical use of marijuana.
SECTION 3. PUBLIC USE PROHIBITED
3.1 The public use of medical marijuana is deemed a public nuisance in the Town of Nashua.
3.2 Smoking or otherwise inhaling vapors of medical marijuana, consuming medical marijuana as some portion of an edible food product, or otherwise ingesting medical marijuana is prohibited in all public places in the Town of Nashua.
3.3 All use of medical marijuana is restricted to the qualifying patient’s home, the caregiver’s home, or any other private place reasonably suited to the administration of medical care.
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3.4 A private business or other entity may provide a place for an employee or person to selfadministrate medical marijuana, but it must be a private place out of the area in which the public is generally invited to visit, and must conform to the requirements of the Montana
Clean Indoor Air Act.
3.5 No person may operate, navigate, or be in actual physical control of any motor vehicle, aircraft, watercraft, or other wheeled mode of transportation while under the influence of medical marijuana.
3.6 No symbols, signs, or other graphic representations of marijuana leaves, plants, joints or other cigarette, paraphernalia, or other marijuana-related symbology shall be placed in a public location to identify or locate a medical marijuana caregiver’s growing or production location.
3.7 The second-hand effects of inhaling marijuana smoke or vapors can have serious deleterious effects on family members, including children. Patients must make all reasonable efforts to consume medical marijuana outside the presence of children and other family members or household guests.
SECTION 4. PENALTIES
4.1 Violation of this ordinance shall constitute a misdemeanor, and is punishable by a fine of not less than $100.00 or more than $500.00, and/or is punishable by 6 months confinement.
4.2 This ordinance may also be enforced by an injunction or other appropriate action at law or in equity.
4.3 All criminal and civil violations of this Ordinance will be turned over to the Nashua City
Attorney for prosecution.
SECTION 5. FEDERAL LAW
5.1 Understanding that the State of Montana and the United States of America currently have conflicting laws governing marijuana, nothing in this Ordinance is presumed to be enacted pursuant to federal law.
5.2 No person will be prosecuted under this ordinance for any allegation of violation of federal dangerous drug laws.
Passed and adopted on first reading on the _______ day of , 2010.
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Passed and adopted on second reading on the _______ day of and effective 30 days thereafter.
, 2010,
____________________________
Patricia Hallett
Mayor of the Town of Nashua
Attest:
_________________________________
Stephanie Viste, Town Clerk
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