Pubdate: Fri, 01 Oct 2010
Source: Great Falls Tribune (MT)
Copyright: 2010 Great Falls Tribune
Contact: http://www.greatfallstribune.com/customerservice/contactus.html
Website: http://www.greatfallstribune.com/
Details: http://www.mapinc.org/media/2502
Author: Kimball Bennion

MAN SUES TOWN OF CASCADE OVER MARIJUANA BAN

The second Cascade County medical marijuana suit in as many days was
taken under advisement Thursday as a new issue -- whether a caregiver
can also be a patient -- will be heard in six weeks.

Leon Tirums, a resident of Cascade and a state-licensed medical
marijuana caregiver, filed a suit against the town after it revoked
his business license in June.

The hearing was originally filed as a petition for Judge Thomas
McKittrick to rule on the legality of a Cascade ordinance that enacted
a moratorium on new medical marijuana businesses in the town.
Ordinance 571 was passed on June 9, shortly before the license for
Tirums' business, Montana Homegrown, was revoked by the town council
in a closed-door meeting. Tirums applied for the license, which was
accepted, in January.

Tirums has licenses for three other medical marijuana businesses that
weren't revoked in June because the town council wasn't aware of them.
He continues to operate those businesses, said he does so out of his
car and outside of city limits, which is inconvenience to him and his
patients.

On the witness stand, Tirums said he was mostly confused about why his
license was revoked after he "had followed everything to the letter of
the law."

"Why is everybody badgering people that are already sick and are just
trying to make it through the day?" he asked.

Tirums' attorney, Mark Frisbie, said that the revocation of one of
Tirums' business licenses was inconsistent with a provision in
Ordinance 571 that let existing businesses continue to operate.

Curt Drake, an attorney representing Cascade, said the town council
did not revoke Tirums' license on the grounds of the barely passed
moratorium, but did so because he was in violation of state law by
being a licensed caregiver who also uses medical marijuana.

A provision in the state's Medical Marijuana Act states that "the use
of marijuana by a caregiver" is prohibited.

Drake's witness, Cascade City Attorney Ned Jennings, said that Tirums
violated that provision.

"Had Mr. Tirums been lawfully registered ... he would have been able
to continue," Jennings said.

Jennings said that since Tirums' business was formed before the
ordinance took effect, it technically was grandfathered in, provided
he didn't use the marijuana he provides for patients. Jennings also
said Tirums is still able to legally grow marijuana for his own use as
a patient, as long as he doesn't provide it to others.

Frisbie argued that Tirums is legally able to sell marijuana as a
caregiver and legally able to use it as a patient. Tirums suffers from
chronic back pain and muscle spasms, and was prescribed marijuana by a
physician, Frisbie said. He also has a state-issued card that allows
him to legally sell the drug for use as medicine.

Frisbie said the Medical Marijuana Act defines medical use of
marijuana, which means there is a difference between illegal
recreational use and legal medicinal use.

Tirums' attorney also brought up that the website of the state
Department of Public Health and Human Services contains a
frequently-asked-questions section that he said helps clear up the
issue. Question 33 on the site asks, "Does possession of a caregiver
card allow the caregiver to legally consume medical marijuana?"

The answer states: "No, unless the caregiver is also an approved
patient."

Drake disputed whether there was any legal basis for the answer on the
state's web page.

"They're not official," he said. "They're just somebody putting
something up on a website."

Drake said the issue of whether Tirums could act as a caregiver while
also being a patient is worth further discussion, but said there was
no reason to attack the town's ordinance since it wasn't the reason
Tirums' license was revoked.

"Most of what we've done today was completely unnecessary," Drake
said.

However, Frisbie still argued against the ordinance, saying that it
was an unconstitutional law aimed solely at Tirums, who was the only
person operating a medical marijuana business in Cascade at the time
it was passed.

"He was the only caregiver and everybody knew it," Frisbie
said.

He also said the ordinance isn't legal because municipalities can only
pass a moratorium if they can demonstrate an urgent need to do so.
Frisbie said that Tirums' business was never visited by the police,
and that a bar approximately 200 yards away was a bigger public
nuisance than Tirums' business.

Frisbie and Tirums both expressed confusion after Jennings claimed
that Tirums' business could be grandfathered in, claiming council
members made no mention of that at the meeting where Tirums' license
was revoked.

"He's very confused, and when you read through the minutes (of the
meeting), I think you'll be confused as well," Frisbie said to McKittrick.

McKittrick said he would take the case under advisement, giving
Frisbie four weeks to file a new petition regarding whether Tirums
could be a caregiver and patient at the same time. The judge also gave
Drake two weeks to file a response.
- ---
MAP posted-by: Matt