WATERVILLE — The City Council could prohibit medical marijuana dispensaries and care-giving operations downtown, but the city can not restrict them from the city, the city attorney told the Planning Board Monday.

City Attorney Bill Lee was at the meeting to answer questions about legal issues surrounding medical marijuana-related businesses and operations because the Planning Board was asked by the City Council to recommend where such operations should be located and what restrictions should apply. The Planning Board has been working with Lee to hone the language in a proposed ordinance governing medical marijuana-related operations.

The council will make the final decision on the ordinance and decide what locations and restrictions there should be.

Monday’s meeting included debate between Lee and Planning Board member David Geller, who also is a lawyer, on laws regarding medical marijuana. Lee said communities do have home rule and are entitled to regulate facilities. How much a community wants to regulate is a policy question and he stays out of policy making, he said.

Geller said the city’s proposed ordinance says violators are subject to civil penalties, but a board can not arrest or prosecute someone — police or a district attorney does that, he said. Geller asked what happens if someone opens a medical marijuana-related facility in a place where it is prohibited.

“They’d be prosecuted, as anybody would be,” Lee said.

At one point early in the discussion, Planning Board Chairman Nick Champagne sought to keep Geller, the former chairman, from continuing to debate legal language as it relates to marijuana and medical marijuana.

Geller said a board can not arrest or prosecute, but the way the state statute and proposed ordinance are written, they imply a board would do so.

“I’m asking this only because I don’t want to set the city up for problems,” he said.

Champagne said he wanted the discussion to move along, that he wanted to get a better understanding of the proposed ordinance.

But Geller said his question was related to the ordinance.

“You’re getting into legal opinion,” Champagne said.

“No, I am not,” Geller answered.

“Let’s move on,” Champagne said.

“But I haven’t asked my question yet,” Geller retorted.

“David, enough!” Champagne said.

The draft ordinance says a medical marijuana-related facility shall be at least 500 feet from schools, playgrounds, a library and other public places. It also says odors from such facilities may not have a significant detrimental effect on the use and peaceful enjoyment of abutting property.

Lee said that the odor language is vague. He researched the odor issue and learned that Colorado has detailed odor control statutes and ordinances.

“They actually have nasal inspectors. They have something called ‘nasal radar,'” he said.

Geller said he thought the city’s nuisance ordinance addresses odors. City Planner Ann Beverage confirmed that it does.

Planning Board member Paul Lussier said he thought the city could regulate dispensaries but not other medical marijuana-related activities. Lee disagreed, saying, “I wouldn’t bet on that.”

He said the state Legislature could do a better job with its language on that issue.

“I’m not going to say we’re pre-empted from regulating caregiver operations,” he said.

Since marijuana is illegal federally, the money gleaned from medical marijuana operations can not be kept in banks, as banks are federal, according to Lee. He said he heard on the radio that some places hire armed guards for medical marijuana facilities because people are carrying large amounts of money. Geller had asked if it made more sense to allow dispensaries, which are retail operations, in areas that are more visible in a community and thus less apt to be targets of crime.

The home occupation section of the city’s zoning ordinance prohibits the owner to sell something the patron can take away with him, and so the city’s medical marijuana ordinance would have to be subject to the home occupation section, according to Beverage.

Medical marijuana-related facilities cited in the proposed city ordinance include dispensaries, cultivation operations and storage. Cultivation of medical marijuana for personal use is exempted in the proposed ordinance draft.

Lee explained the difference between the various operations.

At the ground level is the marijuana patient, he said. A patient is allowed to grow up to five or six plants for individual use and consumption and must suffer from a condition that is on a list of stated conditions and have seen a doctor, according to Lee.

“At that level, if you’re trying to regulate that, I think you have a huge problem because that’s for their own use,” he said. “There’s no commercial aspect to it; it’s not a business.”

Champagne asked if the patient can grow medical marijuana in his back yard so neighbors can see it.

Lee said the law requires the growing area be locked up where children can not access it. Locking it also makes theft more difficult, he said.

The next level up is the caregiver who is licensed and authorized to grow marijuana — up to six plants per person — and he can have five medical marijuana users he grows it for, Lee said.

“A caregiver can grow up to 30 plants for the sale to five individuals and they are entitled in making a profit to do this,” he said.

He said more than one person — a couple for instance — could work together and have 10 patients and grow up to 60 plants.

Champagne asked if there is a limit to the number of caregivers that can be under one roof. Lee said that issue is creating a lot of buzz. He said a number of caregivers may be in the same area and share electrical and other expenses, but they may not physically assist each other in the marijuana operations.

City Council Chairman John O’Donnell, D-Ward 5, who attended the meeting, said he had read about patients who have a contract with a caregiver, stand in line and get the marijuana, and then they tear up their contract and others are waiting in line, so the caregiver actually has more than five individual patients.

Lee said that is not what the state Legislature intended. A caregiver is to have only five patients at a time, he said. “Will the Legislature address that?” Lee said. “I don’t know.”

The higher level is a dispensary and the state allows there to be eight in Maine. They are considered retail operations.

Meanwhile, Champagne noted that there is a state-wide November referendum on whether marijuana should be regulated for recreational use.

“If the referendum passes in November to legalize recreational marijuana, where does that put the city?” he asked Lee.

Lee said the city would amend its ordinance based on what the new law would say.

“Just because a referendum passes, that’s not the end of it. Then you have regulations that have to be adopted pursuant to it,” Lee said.

Champagne asked if it were possible to extend the city’s current 180-day moratorium on considering requests or permits for marijuana-related facilities until after the referendum. Lee said the city could request an extension if it needs more time to adopt appropriate regulations and must show it has been working on that.

Geller noted that caregivers are not defined as running a retail operation, but a dispensary is considered a retail operation. So caregivers are more a service and that is allowed in a residential area, he said. But Beverage said anyone selling medical marijuana out of a home would be in violation of the home occupation ordinance.

“It’s not a service if you’re taking it away with you,” she said of a product.

Lee said the city could make it simple and just say no caregivers or dispensaries would be allowed in the downtown area.

“You’ve got several choices,” he said. “If you tell me what it is you want, I’ll write it.”

Amy Calder — 861-9247

acalder@centralmaine.com

Twitter: @AmyCalder17

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