A medical marijuana provider has asked a judge to rule that his operation can't be regulated by the city of Helena, which bans medical pot businesses within its boundaries.
Paul Schmidt, owner of Sleeping Giant Caregivers, said Monday that medical marijuana businesses fall outside the city's authority and that Helena is denying medical pot users' rights and privileges under the state's medical marijuana law.
Only the Montana Department of Public Health and Human Services can regulate and control medical marijuana, he said.
"We're trying to make sure that patients have safe access (to marijuana)," Schmidt said. "The caregivers that are within the city, this action would pertain to them as well."
City attorney David Nielsen said this is the first legal challenge to Helena's medical marijuana business ban. Nielsen said he disagreed with Schmidt's interpretation of the medical marijuana law.
"He's alleging that we don't have certain local governmental powers," Nielsen said. "We're very protective of the powers we have under the constitution and state statute and we will aggressively defend those powers."
Helena bans medical marijuana businesses through a Prohibition-era ordinance that prohibits the city from licensing "any trade, business, occupation, vocation, pursuit, profession or entertainment" in anything that goes against the law of the United States.
Marijuana is an illegal substance, though the Obama administration has said it would not prosecute medical marijuana users who comply with state law.
Helena and Kalispell are the state's two largest cities that have permanent bans on medical marijuana businesses. Other cities have passed various measures in an attempt to get control over the booming industry, from temporary bans to licensing the operations like any other business.
Schmidt's request for declaratory judgment, filed Friday in state court, seeks to circumvent Helena's ban by asking a judge to rule that medical marijuana operations don't need a business license to operate because they don't fall within the city's own definition of a business.
The city's code exempts from licensure "any business which the Montana Legislature has specifically declared that cities with self-governing powers may not regulate," the complaint says.
Medical marijuana providers should be exempt because the Medical Marijuana Act places regulatory authority with the state health department, the complaint says.
Schmidt said he was cited in September with a misdemeanor for operating without a license, and that he received a cease-and-desist order from the city the month before that.
That citation violated his rights and prevents him from exercising his duties to his patients under the state's medical marijuana law, Schmidt said in his complaint.
He continues to operate his business despite the citation and the letter, he said.
There were more than 23,600 medical marijuana patients in the state as of September, served by more than 4,400 caregivers, according to the state.