The owner of Sleeping Giant Caregivers, a medical marijuana provider, has filed a complaint against the city of Helena asking a district court judge to determine that a caregiver is not a business as defined by the city’s code.

According to Paul Schmidt, he was unfairly cited for operating a business without a license in August. Schmidt argues that he is registered with the state as a caregiver and therefore cannot be regulated by the city.

Helena ordinance prohibits trade that violates federal law, including marijuana.

Schmidt filed against Helena and David Nielsen, Helena city attorney, on Friday.

Schmidt’s attorney, Chris Lindsey, said caregivers, including his client, have contacted the city in order to obtain a business license and were denied.

Lindsey said his client received a cease-and-desist letter with a short timeframe and then was soon cited.

“This is a classic gray area,” he said. “We need a judge to tell us what it means.”

Nielsen said the city is very protective of its governing powers.

“We actively and aggressively defend our right to determine who can get a business license,” he said. “We’re not telling patients they can’t grow their own marijuana, we’re saying you cannot have a business here.”

Nielsen said Schmidt, who continues to operate his dispensary, has pleaded not guilty to the citation and is awaiting trial.

Schmidt, whose storefront is on Nicole Street, is requesting a declaratory judgment saying the state Department of Public Health and Human Services is the sole regulator of medical marijuana. According to the complaint, the city violated his privileges as a caregiver awarded to him through the Medical Marijuana Act.

Schmidt said he has more than 300 patients.

“We are doing this for our patients and other patients to make sure they have safe access within the city,” he said in a phone interview Monday.

Nielsen said the city has sent out cease-and-desist letters to at least two other businesses, which complied, and no other marijuana providers have been cited.

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