Open Letter To City Officials Regarding Mmj Regulation

[+kurt klaas]

The Holland Compassionate Care Community

Hollandccc.org

Executive Director: Kurt

(A resident of the City of Holland. The last name is not reported nor a personal address for privacy and security reasons)

 

Mission Statement of the HollandCCC

 

The goal of the Holland Compassionate Care Community is to be an organized group of individuals who, regardless of our diversity, strive to accept and transcend our differences. We strive to communicate openly but with civility and deep regard for one another’s dignity. As a result, we feel an unusual sense of safety amongst ourselves and are able to engage in effective discussions and act together productively toward our common mission: to educate Michigan residents and doctors about the science and medical value of cannabis; to fight injustice, as we are able, against medical marijuana patients and to work at expanding their rights; to offer support, help, care and camaraderie to each other and to anyone interested in participating with us but especially to persons in our midst whose health well-being is enhanced through the lawful, safe and efficacious use of cannabis.

 

 

Note: As the executive director of our local club, I am representing the HollandCCC in an official capacity. After extensive club discussion, the views I present generally represent the majority views of the club, which is comprised of about 25 members so far.

 

OPEN LETTER TO THE CITY COUNCIL OF HOLLAND, MICHIGAN

 

With special thanks to

Michael Komorn Law

3000 Town Center, Suite, 1800

Southfield, MI 48075

248-351-2200

 

Review of the history of medical marijuana in Michigan

 

How did we get in the mess we are in today? That’s right, mess, I think most would agree.

 

The ultimate answer concerns the refusal of the federal government to reclassify marijuana (mj) as a bona fide medicine, which scientific research has already concluded—conclusively. The vast majority of problems medical marijuana (mmj) creates for our state will finally be resolved when the FDA regulates mj in the same way that the manufacture and distribution of all other medicines are.

 

The proximate answer differs. In 2008, voters approved a ballot initiative called “the Michigan Medical Marijuana Act (MMMA) that decriminalizes the use of marijuana for medical purposes. It passed by a large margin of 63% of all voters. Currently, there are more than 22,000 registered patients and 9,000 registered caregivers. These numbers are expected to surge into the near future.

 

Passage of the MMMA, however, has led to unforeseen consequences. Regrettably, incomplete regulatory language in the MMMA has resulted in what some observers have described as nothing less than a nightmare for local governments and law enforcement. Municipalities are forced to sort out additional regulations for responsible local oversight. But thereby they enter uncharted legal waters.

 

Ordinances adopted by various municipalities cover the entire spectrum of approaches that reflect the full range of political persuasions. Not a few have actually banned the use of all mmj, but on unsustainable legal grounds. Local governments cannot deny its citizens rights granted by the state. It is only a matter of time before courts overturn overly restrictive regulations. In the interest of brevity, we refrain from rebutting all the bad arguments against the use of marijuana for medical purposes, such as the sly argument that wrongly lumps the harm of mj with abused drugs that have far more serious consequences, such as alcohol, cigarettes, crack cocaine and the like. Scientific research has clearly shown that in relation to other common drugs, the potential harms associated with mj are quite mild. In the vast majority of cases, its medicinal benefits far outweigh the adverse risks.

 

Regarding the other extreme approach, some local governments and law enforcement agencies tolerate just about anything, which includes very mild penalties for the recreational use of marijuana, such as in Ann Arbor.

 

Regardless of a particular city’s approach, local officials should not be surprised that the vast majority of persons in the mmj community strongly resist the imposition of additional local regulatory burdens, especially when they perceive that a particular regulation denies rights already granted to them by superceding state law.

 

The City of Holland has the surprising distinction of being the second happiest city in the country. What a wonderful surprise it would also be if the City Council demonstrated an ability to adopt a politically neutral and enlightened ordinance that promoted the health well-being and dignity of its citizenry while at the same time ensuring that mmj related activities do not create problems for the public.

 

Due to the conservative nature of the local electorate, many persons in the local mmj community are highly skeptical that the city will deal with this issue in an enlightened manner. I do not share their pessimism. At the recent Planning Commission meeting for the moratorium, I witnessed city officials listening to the pleas of persons from the mmj community and actually changing the wording of the moratorium in response! You listened to us. We want to listen to you as well. I look forward to the crafting of an ordinance that can serve as nothing less than a balanced, well-thought out model for the rest of the state to follow.

 

Thoughts on an ordinance for regulating medical marijuana

related businesses in the city of Holland

 

The goals we have for any ordinance adopted by the City Council for regulating all medical marijuana related businesses is that it ensures the following: 1) Marijuana grown for medical purposes by state approved persons remains secure and does not end up in the hands of persons not authorized by the state to consume it. 2) Protects the interests and security of the general public regarding potential problems or nuisances associated with the cultivation, distribution and consumption of medical marijuana but not at the expense of undermining or restricting any state rights granted to every patient and caregiver by the MMMA. 3) Clarifies the city’s approach to mmj related business activities not directly addressed in the MMMA of 2008 (specifically, dispensaries, cooperative and collectives), enacting regulations that ensures the orderly oversight of such businesses.

 

There are at least 5 different kinds of parties involved in medical marijuana, each being in a distinct class:

 

1) Patients, who grow their own medicine, usually in their home

2) Caregivers who grow for patients, (who could be a patient growing for themselves and up to 5 other patients). Caregivers are individuals engaged in a business that is generally home based and is not visible to the public—because most caregivers do not want it to be and the MMMA protects their privacy.

3) Dispensaries. Some ordinances drafted by cities use the word “dispense” or “dispensary” in a way that it refers to caregivers. However, this introduces new language that the Act itself does not contain, creating confusion when it’s not recognized that new language has been introduced. Specifically, throughout the country, the common use of the word “dispensary” refers to a for profit business that dispenses mmj to any card holding patient. Yet many ordinances use the closely associated word “dispense” to describe activities in which caregivers engage, wrongly suggesting they are dispensaries. The word “dispense” ought only to be used in relation to dispensaries and nothing else. Caregivers should be referred to as “individual persons who provide medical marijuana services to a limited number of particular patients”, or the like, which covers far more than just “dispensing” medicine to patients.

4) Cooperatives and collectives that are not for profit businesses that limit services strictly to their own, screened members, both patients and caregivers. Everything stays strictly in-house. Cooperative and collectives are a group of patients and caregivers that have formally banded together to engage in communal activities at a central location they are not trying to keep hidden from public view. The MMMA is silent about dispensaries and coops. However, we expect future state legislation that modifies the MMMA of 2008 to grant coops and collectives explicit statutory protections, as has happened in other states.

5) Compassion clubs. Things get complicated here because so many different models of operation exist. Many clubs are strictly educational organizations. They only hold public meetings and disseminate information. No need to be concerned about that. But many other clubs offer additional, strictly private activities for state registered patients and caregivers. These activities may involve hosting events where paraphernalia, seeds, clones, medicine and sometimes the consumption of mmj are available. In other words, some clubs engage in activities that overlap with the services that a cooperative might offer. We know of no clubs that offer a facility to their members for a collective garden grow. A few mmj businesses do offer such facilities, which the City may want to regulate.

 

The Holland Compassion Club, at this time, is an educational support organization. However, when the club is able to secure an appropriate facility where private events can be held discreetly, we hope to do so. For example, on a Saturday morning there might be a canna-market where members bring grow equipment they might sell to other members, seeds or clones to trade or sell, or offer various kinds of medicinal edibles. A few clubs provide a medication tent or room for use. Sorting out the exact details of what kinds of activities a club may engage in will be difficult.

 

The issues surrounding mmj may be some of the most thorny and contentious city officials have ever had to sort out on behalf of its citizenry.

 

Private, Home Based Operations: Patients and Caregivers

 

It might be helpful to suggest an image for the overall goal we in the mmj community hold out for--SAFE HAVENS. By federal decree, marijuana is classified as an illegal drug because it has been deemed very dangerous and has no medical benefits whatsoever. Unbiased scientific research, however, has completely shattered that designation. Our state law seeks to correct the federal government’s erroneous classification of mj by decriminalizing its use for medical purposes. In sum, our state law essentially seeks to create SAFE HAVENS for its availability, consumption and cultivation. Our goal seeks to advance this concept and its practical implementation so that the mmj community receives all the services it needs while at the same time protecting the public from possible nuisances.

 

Regulations we could not support

 

1. We would vehemently object to any regulation that would require patients or caregivers to apply for a special license or permit from the city that would require them to disclose their identity or location, if that information is available to the public or law enforcement or is subject to release through a Freedom of Information request. We expect future court cases to uphold the privacy rights of patients and caregivers.

 

Grounds

 

The MMMA protects the privacy of patients and caregivers by making it a crime for the Michigan Department of Community Health, which administers the medical marijuana program, to disclose the names and addresses of patient and caregivers, except in very limited law enforcement circumstances, particularly when police need to validate the authenticity of cards. So that the security of patients and caregivers is protected, the public has no access to the state’s list. The Freedom of Information Act does not apply to personal health care related information.

 

The MMMA states (MCL 333.26426.h.), The following confidentiality rules shall apply:

(1) Applications and supporting information submitted by qualifying patients, including information regarding their primary caregivers and physicians, are confidential.

(2) The department shall maintain a confidential list of the persons to whom the department has issued registry identification cards. Individual names and other identifying information on the list is confidential and is exempt from disclosure under the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246

 

Patients who grow for themselves and caregivers who grow for patients are very concerned to keep knowledge of their activities and location from law enforcement and the public so that they do not become the target of discrimination, police harassment, thieves or other criminal activity. The concept of SAFE HAVENS must not be undermined in any way.

 

We predict that fear of the possible consequences, if personal information is available to the public or law enforcement, will cause most patients and caregivers to ignore such a licensing requirement. They will decide between the lesser of two risks: the risk involved in violating a city ordinance or the risk involved in compromising their security. We predict the majority will opt for the former until their operation becomes subject to city enforcement action.

 

Grand Rapids passed an ordinance requiring patients and caregivers to obtain a business license from the city and to live in designated areas. But the ACLU of Michigan has denounced passage of these regulations for violating the rights guaranteed to patients and their caregivers by the MMMA. Very likely, a court case or lawsuit backed by the ACLU will eventually overturn requirements that patients or caregivers obtain a business license from the city, when it is shown that such a requirement compromises rights and protections afforded by the MMMA. Home-based medical marijuana businesses in residential districts may be undesirable in the eyes of some, but that is the very thing the MMMA allows and protects.

 

2. On the grounds of the security and privacy rights granted by the MMMA, we vehemently object to any inspections of grow areas or gardens by any governmental agency. The MMMA specifically prohibits inspections by law enforcement and all other agencies. MCL 333.26426.g. states,

 

Possession of, or application for, a registry identification card shall not constitute probable cause or reasonable suspicion, nor shall it be used to support the search of the person or property of the person possessing or applying for the registry identification card, or otherwise subject the person or property of the person to inspection by any local, county or state governmental agency.

 

This language is unambiguous—no mandatory inspections by anyone! Despite the fact that setting up an indoor garden often calls for electrical work, the law already requires homeowners to report such work and obtain permits for its inspection. We would vehemently object to any mandatory inspections by any local governmental agency, including compulsory inspections of electrical wiring.

 

3. We would vehemently reject any requirement limiting the locations at which patients or caregivers could engage in medical marijuana related activity. Some cities, like Grand Rapids, are copying the federal drug free school zone rule that increases the penalties for drug crimes within 1,000 feet of a school. These cities ban all medical marijuana related activities within 1,000 feet of schools, effectively denying the rights granted by the state through the MMMA to some of those who qualify under its program. Some cities add even more facilities, such as playgrounds, day cares, churches and more. Any geographic limitation eliminates some persons from engaging in medical marijuana related activities that are granted to them by the MMMA. We expect a future high court case to strike down all such regulations. Local laws may not preempt state law.

 

Cities that have enacted a geographic limit ground such a regulation on federal law. However, the federal drug free school zone law is based on a view of marijuana that rules it out as having any medical value and criminalizes all use. In contrast, the state of Michigan has decriminalized the use of marijuana for health benefits. Therefore, regulations for mmj should not be modeled after federal laws that criminalize its growth and use. To do so is to treat medical marijuana as an illegal drug. Furthermore, the Obama administration has ordered federal agencies not to target persons living in states that allow marijuana to be used as medicine, so long as they stay within state guidelines. The federal 1,000-foot rule has not been exempted by this order. In addition, the MMMA states,

 

333.26422 Findings, declaration.

 

© Although federal law currently prohibits any use of marihuana except under very limited circumstances, states are not required to enforce federal law or prosecute people for engaging in activities prohibited by federal law. . . .

 

The exact opposite is stated, blatantly, in some city ordinances that essentially prohibit the use of all medical marijuana with declarations such as, “all businesses must adhere to federal, state and local laws.” Such cities ground their ordinance on the fact that mmj is still illegal under federal law and ground their ordinance on the mistaken notion that federal law takes absolute precedence. But consider how egregious it is for a handful of city officials to subvert the will of the majority of citizens, tens of thousands of them, who voted in a ballot initiative (the subject of which is irrelevant) that represents a keystone democratic process and right!

 

We are convinced that future court cases will strike down such ordinances on the grounds that a municipality cannot block a state law. In addition, we are astonished at how unashamedly such ordinances ignore the clear language of the MMMA that “states are not required to enforce federal law or prosecute people for engaging in activities prohibited by federal law.”

 

Sometimes law enforcement authorities argue that federal law trumps state law. But this argument ignores a ground breaking court ruling that declared state law enforcement agencies are not required to enforce federal drug laws.

 

By the way, we object to allowing law enforcement agencies determine the regulations in any ordinance. It is well-known that the vast majority of these agencies unsympathetically opposed passage of the MMMA of 2008, which indicates a bias that calls into question their objectivity in these matters. Furthermore, law enforcement agencies, for a variety of reasons, generally interpret the MMMA in the narrowest sense possible—and not infrequently in overly strict terms—not caring about the intent or spirit of the law that would compassionately extend allowable services for the mmj community that would shore up the concept of SAFE HAVENS.

 

For just one example, some law enforcement agencies—including the Holland Police department, according to what interim Police Chief Matt Messer has stated—follow a protocol in which they arrest a person who has proper paperwork but has not yet received a registry card from the state (perhaps also confiscating all their plants and medicine and destroying all their grow equipment to boot). Police do so despite the fact that the MMMA clearly declares that a copy of the paperwork submitted to the state provides the same legal protection, also from arrest, as the card! Police just figure a prosecutor or judge will sort it all out later—but not without putting the victim through a horrible legal nightmare and its accompanying emotional shock. Such obvious disregard of the law by those sworn to uphold it further contributes to the widespread mistrust of law enforcement among persons in the mmj community. Persons in the mmj community ask, what good is a law designed to protect someone from arrest when it does not do so, when the police can simply ignore the law with impunity? True, it isn’t easy for officers to verify a person’s paperwork. On the other hand, it has to be acknowledged that police make little effort to adapt their ingrained procedures and attitudes.

 

The protocol currently followed is an example of how many in law enforcement continue to treat all mj as if it is illegal, when that is no longer the case. Officers who despise the new law find it hard to reform their personal attitude. They assume wrongdoing until a person is proven innocent. What a colossal mess.

 

With the loudest language possible, we object to any regulation that treats medical marijuana in any fashion as if it continues to be an illegal drug! After all, if the federal 1,000-foot rule is adopted, then why should other restrictive rules not be adopted that are modeled after federal law that treats marijuana as an illegal drug in all instances? There are no reasonable grounds for a regulation that geographically limits where persons may engage in medical marijuana related activities. Furthermore, such a regulation takes away the rights of some persons granted to them by state law. We will never concede the rights of any patient or caregiver, no matter where they live. We expect that future court cases or lawsuits will vindicate this stance.

 

Someone may object, are we not right to shield innocent, vulnerable children from the harms that the abuse of dangerous drugs inflicts upon them? Do we not send children a double message that they cannot sort out properly, as adults can, when on the one hand they are taught that mj is illegal and harmful but on the other hand its OK to use as medicine? Is it not prudent for the sake of children to require that the use of mmj be geographically restricted?

 

We acknowledge that mmj raises difficult societal issues, which we are as concerned to address as our opponents are. Nevertheless, regarding mmj—which is properly evaluated only when it is viewed in a class that does not include illegal or dangerous drugs—proposing geographic restrictions is the wrong solution for the problem. Indeed, it does not identify the problem correctly. The problem is the abuse of illegal drugs. Medical marijuana is not an illegal drug. True, medical marijuana can and is abused, just as many doctor prescribed drugs are. However, we point out that no laws have been crafted to deal with the abuse of prescription drugs by creating geographic limits on their use. State law decriminalizes medical marijuana. It should not suffer an exceptional geographic burden no other medicinal drug suffers.

 

To be sure, as responsible citizens, we want to do whatever we can to accommodate the protections that the law affords children. Therefore, we are willing to make a concession. This would apply to patients and caregivers who live within 500 feet of a school. Flowering marijuana gives off very strong odors. We would concede a regulation stipulating that no detectable odors would be allowed at neighboring properties from a flowering garden. This can be readily accomplished by exhaust air scrubbers, which often employ a charcoal filter system.

 

Given the fact that almost all patients and caregivers seek to keep their activities hidden from the public to begin with, such a regulation would make their operation invisible to children who come and go to a school. We could support such a regulation because it furthers the concept of a SAFE HAVEN for all concerned.

 

Commercially Based Operations: Dispensaries, Cooperative and Collectives

 

We define dispensaries as for profit businesses that transact with any card holding person. The MMMA states persons may not “sell” medical marijuana or make a profit over and above costs for compensation. Therefore, we would support a ban on all such California style dispensaries.

 

We define cooperatives or collectives as not for profit businesses that facilitate the transfer of mmj “in house,” with screened members only. Cooperatives have been springing up throughout the state, perhaps 30 to date. Regarding cooperatives, three key questions need to be discussed: 1) Why are they springing up? 2) Are coops lawful entities? 3) By what regulations and business practices should they operate?

 

First, why are cooperatives springing up throughout the state?

 

This is a key question, because the answer is crucial for developing a proper approach to the question of cooperatives. Cooperatives are springing up throughout the state because coops provide a variety of key supplemental mmj services that are in very strong demand by patients. Simple as that.

 

You see, marijuana used as medicine is affected by a unique set of circumstances that characterize no other medication. The unusual state of affairs that characterizes medical marijuana also explains why so many compassion clubs and many cooperatives are springing up throughout the state. These organizations aid patients and caregivers in all manner of key ways. They offer critical forms of support not required for any other medicine.

 

Specifically, the primary dynamic that sets medical marijuana apart that contributes to the demand for the additional services that cooperatives provide concerns its inconsistent and limited forms of supply. Everyone in the mmj community knows that the patient/caregiver system provided for by the MMMA does not eliminate all problems associated with creating a constant, reliable, diverse supply of medicine for patients. Coops fill in the supply gaps by providing wide strain choices (there are hundreds of mj strains, many of which can have slightly different medicinal effects). Cooperatives also provide a wide variety of forms in which mmj can be administered (which again have different medicinal effects), such as edibles, tinctures and lotions. Coops also meet a variety of other basic needs patients and caregivers have that the MMMA does not provide for. The MMMA, for example, does not create a way to buy seeds legally to start plants, another example of the MMMA’s many shortcomings. A coop is a SAFE HAVEN where, among other things, members can supply seeds and clones to each other to start plants, seeds and clones that are produced by members.

 

Second, are coops lawful entities? What are the grounds for them in the law?

 

This brings us to the crux of the matter: What are the grounds in the law for the activities in which coops engage? The answer can be argued from two different perspectives that lead to a sharp parting of the ways. One view holds, advocated by many in law enforcement, that the clear intention of the MMMA is for caregivers to grow plants only for a limited number of specific, assigned patients. This view holds, correctly, that the MMMA never specifically addresses cooperatives or dispensaries and that, incorrectly, because the MMMA does not specifically sanction the activities that occur in coops, they are illegal. Consequently, there is nothing to discuss or debate regarding coops. They are ruled out. This view holds, in addition, that cities have no authority to override state law.

 

The other view holds, state government has failed to address persistent key issues that have arisen since passage of the Act, and local municipalities in some instances have authority and some room to determine their own implementation of state laws. Indeed, municipalities not only have authority to establish local regulations and ordinances but more importantly have lawful grounds, in this instance, to establish cooperatives BECAUSE THE MMMA PROTECTS THE ACTIVITIES OCCURRING IN COOPS, ESPECIALLY UNDER THE EXCEPTIONAL AFFIRMATIVE DEFENSE (AD) SECTION OF THE LAW.

 

In order for a cooperative to function, it obviously needs a supply of mmj products. Member patients and caregivers provide the supply of medicine. Now the question is, does the MMMA protect patients and caregivers when they transfer mmj to persons they are not directly connected to through the MMMP? We answer, yes it does. The ground for this view of the law is found in the unique section called the Affirmative Defense, which applies to both patients and caregivers who are connected to each other through the MMMP and to those who are not (the text alternating between the articles “a” and “the” preceding the words “patient” and “caregiver”). The scope of the AD is very broad. Indeed, the AD covers persons who may not even be officially registered with the state yet. According to the AD (333.26428 Defenses. 8. Affirmative Defense and Dismissal for Medical Marihuana) a patient or a caregiver is protected when,

 

(3) The patient and the patient's primary caregiver, if any, were engaged in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or paraphernalia relating to the use of marihuana to treat or alleviate the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition.

Thus, a definition of a “medical marijuana cooperative” could be “a use where mmj is aquired, possessed . . . and transferred pursuant to the MMMA, MCL 333.26421 et seq, as Traverse City’s ordinance states.

 

A cooperative recieves mmj only from state registered patients or caregivers who are screened members of the coop. The coop then transfers the mmj to any patient who is a member (but never to non-members). All a cooperative does is facilitate or coordinate transactions between member patients and caregivers.

 

Not unexpectedly, many persons in law enforcement frown on expanding the availability of mmj and reject the idea of transfers. Lapeer County Prosecuting Attorney Byron Konschuh views patient-to-patient transfers “akin to a patient giving or selling a prescribed drug like Vicodin to another patient,” which is illegal. Sounds plausible. Yet, that analogy falls apart upon informed inspection. Notice that this argument assumes Vicodin and mmj are comparable in some key ways, for example, that the supply of each is stable, constant and readily available to all persons allowed to use it. But anyone involved with medical marijuana knows this state of affairs stands far from the truth. As mentioned, despite the intent of the MMMA to make marijuana available to those who qualify, the fact remains that their supply is often insufficiently diverse and prone to disruption, due to a variety of reasons we will not delve into here.

 

The key to constructing a fair approach to medical marijuana is understanding that it’s a unique medicinal drug unlike any other. For instance, understanding the history of marijuana and its medicinal use in the USA opens a person’s eyes to how different this history is from all other drugs used for health purposes. No other medicine has endured the tortured, irrational, biased fate of mj. In addition, the means by which the supply of medical marijuana is generated has no relation whatsoever to any other drug regulated by the FDA, like Vicodin, that is mass-produced by large pharmaceutical companies. Lacking proper understanding that marijuana is a medicinal drug in a unique category all its own fails to produce an unbiased basis for the concept of SAFE HAVEN COOPEERATIVES for those who benefit from the use of mmj. To deny patients needed, supplemental mmj services is to diminish their health well-being and human dignity.

 

Previously, the Michigan State Police held the position that patient-to-patient transfers were illegal. However, not long ago, MSP officer Greg Zarotney, who is responsible for providing information on enforcement policy to state police posts was asked, “Does your interpretation of the MMMA allow for patient-to-patient transfers of marijuana?” He answered, “The definition of ‘medical use’ is straightforward [in the MMMA] in that it clearly allows for the acquisition, possession, delivery and transfer of marijuana . . . Sixty three percent of the people passed this law, and law enforcement must accept the fact that the law is here to stay, and we have to work within the law’s confines” (the Midwest Cultivator, summer issue, 2010, p 3.).

 

We now explore another question of law. The AD, as mentioned, does not directly address or envision cooperatives. To be honest and play no games, not all the activities that occur in such businesses can be referenced in the AD. In particular, compensation for transfers is not addressed. Lacking direct sanction, a strict legalistic interpretation of the law rules out compensation for transfers, which consequently rules out cooperatives, making them financially unviable businesses. As a result, some cooperatives operate by accepting donations from members for the services they provide, a more palatable term. Frankly, we don’t care wether the word donation or compensation is used because it comes down to the same thing: either makes a cooperative financially viable as a business venture (though donations are far more prone to fuzzy business records than compensation). If an official needs a reason to reject the notion of cooperatives, he or she could argue that there’s no direct reference in the AD for allowing either donations or compensation for transfers.

 

On the other hand, a full reading of the MMMA in terms of its intent and spirit indicates that extending compensation for transfers isn’t novel and immediately evil. The intent of the MMMA is to create SAFE HAVENS for growers where the services they provide are financially viable and free of criminal penalty. The MMMA clearly allows caregivers to be compensated for their services with the qualifications that they may not sell medical marijuana or profit from it over and above the cost of its production [333.26424, sec. 4, (e)]. Cooperatives are non-profit businesses. All income generated by the coop goes back into providing services for its members. The owners of a coop do not personally receive any profit for their work, only compensation, or if a person prefers, donations.

 

Regarding the proper approach to the interpretation of the MMMA, we note the following comments by Attorney General Mike Cox in response to a question from the Michigan Department of Community Health asking for clarification about the statute. He stated, after conducting an inquiry into ballot initiatives, “The Michigan Court of Appeals has explained that initiatives should be ‘liberally construed to effectuate their purposes’” [Welch Foods v Attorney General, 213 Mich. App. 459, 461; 540 NW2d 693 (1995)]. “To the extent that the initiative contains any ambiguity, it must be construed in light of the purpose of the initiative.” Id. at 462. In our view, the overriding purpose of the MMMA is to create SAFE HAVENS so that persons who are helped by mmj can get the medicine they need. The idea of cooperatives aligns with that intent.

 

To digress briefly, think about this: if medical marijuana cooperatives were banned in the city of Holland, the business they would attract will simply end up going to outlying municipalities, as currently. Alternatively, the services that a coop provides would go underground, where regulations will hold little sway and monitoring is impossible. Such alternatives might appeal to some who prefer that mmj would simply go away all together.

 

Yet officials should not fail to ask themselves the question, Will banning cooperatives actually result in the eradication of activities that go on in such places? To answer this question, we hold up the historic example of Prohibition. The ten-year policy in the 1930’s of banning the production and sale of all alcohol (a time when mj products were available in every pharmacy throughout the country) was finally repealed after it became clear that the policy simply did not align itself with reality. The widespread demand for alcohol was simply impossible to eradicate. Furthermore, prohibition itself created huge secondary law enforcement and social problems. John McKay, Seattle’s former U.S. attorney, has boldly come out and stated what many, who are not in law enforcement, have been arguing for a long long time: current drug policy regarding marijuana has shamefully failed, and officials need to get realistic about it. Marijuana prohibition has failed to eradicate the widespread demand for it and has, instead, created huge secondary law enforcement problems. Therefore, he advocates reforming current laws (The Seattle Times, September 3, 2010, p. 3).

 

We take no pride in pointing out the unpleasant fact that banning cooperatives will have very little effect on curbing the actual demand for the medical marijuana services they provide. Often law enforcement officials argue that as mmj becomes more available, abuse and crime increases too. Do not forget, on the other hand, what persons who make such arguments never ever state: the very fact that mj is needlessly and futility criminalized to the extent that it is itself creates far more crime than anything done to expand the availability of mmj. Similarly, banning coops will utterly fail to depress the demand for the services they provide. Actually, we dislike this argument. But it is reality. Isn’t it far better to allow for coops that are out in the open where they can be monitored than stick one’s head in the proverbial sand?

 

By approving cooperatives, the city of Holland would not be setting a lone precedent. We offer the ordinance adopted by Traverse City as one of several balanced, compassionate models, which states in part:

 

Uses allowed . . . a Medical Marijuana Collective meeting the following requirements: Use and transfer of Medical Marijuana shall comply at all times with the Medical Marijuana Act . . . Transfer of Medical Marijuana shall be only allowed to a Qualifying Patient by his or her Registered Primary Caregiver or by another Qualifying Patient as allowed by the MMMA . . .

 

Someone may object that permitting the establishment of cooperatives is a very radical departure from the status quo. We beg to differ. It represents a middle-of-the road approach. When viewing the full spectrum of developments throughout the country, cooperatives are mainstream ventures compared to the establishment of numerous rouge for profit dispensaries in some states, notably California and Colorado.

 

Some law enforcement officers, like former Police Chief Mike Kitchen of Ferndale, MI, argue that the use of mmj spells disaster for cities, and that dispensaries and cooperatives will only add more fuel to the fire. He has stated, “The bulk of products [going into a dispensary or cooperative] is not going to patients. It’s going right out the back door.” What a reckless, unfair judgment! To be sure, we do not deny there are lawbreakers among caregivers, just as there are lawbreakers in every profession—as we have witnessed in recent years in Holland too. Tragically, a police officer murdered his estranged wife, and an assistant prosecutor committed serious crimes right within the courthouse complex. Not only is mmj law a mess, our entire world is a mess. Let’s not single out mmj.

 

The truth is that the vast majority of persons in the mmj community are as committed to preventing abuse and crime as anyone else. Please do not let a few stupid, blatant lawbreakers ruin it for everyone else in the mmj community. Previously, our club took a very strong stance regarding an individual whose contemporary public reputation and past criminal history indicated questionable compliance with mmj law. We informed this person that, for the sake of the broader mmj community and its interests, we wanted him to stop providing all mmj related business services immediately. Furthermore, we support action by law enforcement against those who clearly violate the MMMA, such as selling mmj to persons not registered with the state. We are not a bunch of want-to-be criminal potheads, as the Chief seems to think. Reactions such as those of the Chief are alarmist, overblown and unfair, though very common among law enforcement. Such statements appeal to fear. In contrast, we appeal to calm and careful deliberation, compassion and the intent of the law to create SAFE HAVENS for persons whose health is improved by mmj.

 

The subject of mmj often ends up turning primarily into a discussion about the potential for abuse and law enforcement issues, an emphasis that wrongly skews the debate. Medical marijuana is first of all and should always remain primarily a question regarding the physical health and well being of humans, a question of human dignity and rights. It is not first a law enforcement issue but a medical rights issue. Every person has the right to the best health care access available, to safe environments for the purchase and use of medicine and protection from discrimination by those who disapprove of particular medical treatments. Although our discussion of medical rights is very short, these rights are actually at the base of all health care ethics, which extends to mmj and the MMMA. Cooperatives justly extend the rights of patients to access the medicine they need for their health well being. No one can mount a successful moral argument against that right.

 

The attitude of the Chief, further, calls into question the competency of a city’s official to craft a balanced ordinance that creates SAFE HAVENS in which mmj related activity is clearly defined and meaningfully regulated. And it calls into question a city’s ability to meaningfully enforce its ordinances or adapt them later on. We harbor no such doubts. We are convinced that medical marijuana cooperatives can be regulated in a way that assures such stores are no less desirable, respectable and law abiding than any other business in our city.

 

In summary, extending the concept of SAFE HAVENS to cooperatives is needful, reasonable and justifiable, when based on a reading of the law’s clear intent to create SAFE HAVENS for the growth and use of marijuana as medicine. In the absence of state action modifying the MMMA of 2008, municipalities are forced to address its shortcomings. The decriminalization of mj for medical use has spawned a storm of controversy blowing across the state. We ask city officials charged with responding to this storm to suspend any knee jerk reactions, instead carefully considering appropriate actions to deal with this storm. It may be that city officials will be criticized by some in our community, if cooperatives are approved. We ask that such possible reactions be ignored and that the decisions of our city officials are based solely on judging the validity and weight of the various arguments for and against cooperatives.

 

In summary, coops offer crucial, supplementary services to mmj patients and caregivers, which clearly accords with human medical rights, the intent of the law and to some extent, with the letter of the law. The concept of SAFE HAVENS needs to be extended to protect both the local mmj community and broader public from unwanted and unwarranted damage that the current storm could inflict. As discussed, all that a cooperative does is facilitate transfers on behalf of patients and caregivers. Cooperatives facilitate the intent of the MMMA. What’s so wrong with that? In our opinion, far far less than the good they will serve.

 

Let our city be known, among other things, for an enlightened, middle of the road approach to the question of cooperatives in a way that benefits its citizens’ health well-being with great dignity while at the same time protecting the broader community from potential problems.

 

Third, by what specific regulations and business practices should coops operate so that essential supplementary services are provided to the mmj community while at the same time protecting the interests of the broader public? When it comes to specific regulations, keeping it simple as possible seems the best approach, we have been advised. The following is a too long of a list of suggestions that may or may not be incorporated into an ordinance.

 

Coops will be nonprofit. They will operate by standard city business practices, procuring required licenses/seller’s permits and paying city fees and sales taxes. Medical marijuana transactions are subject to sales tax. Potential members complete a written membership application, which the coop will verify. Applicants must present both a MI picture ID and a mmj card or a copy of the paperwork submitted to the state with proof of cashed check or money order at least 20 days old. The MMMA states that paperwork serves as a valid temporary substitute for the card 20 days after a person’s check has been cashed. All members will be issued a durable identification card, with the expiration date of the state’s ID card included. Copies will be made of the state’s MMMP identification cards. The coop application will have the individual agree not to distribute marijuana to non-members and not to use the marijuana for other than medical purposes. The coop will maintain membership records and have them reasonably available for inspection. The coop will track when members’ medical marijuana recommendation and/or identification cards expire. Coops will enforce its rules by disciplining or expelling any member whose card has expired or are breaking other rules. Collectives will acquire marijuana only from their constituent members. The cooperative may transfer mmj to other member patients but not to persons who are only caregivers. Each member’s contributions or purchases will be recorded. Members may reimburse the collective for the medicine transferred to them. Compensation that members provide the collective should be limited to an amount necessary to cover overhead costs and business operating expenses. Medicine will be provided free to persons who demonstrate financial hardship but will not exceed 5% of all members.

 

Additional regulations for coops that we could support that ensures vigilance against the diversion of marijuana to the illegal market, respect for neighboring businesses and a public, low, safe profile. (Some of these may already be covered by existing laws)

 

A cooperative or collective must obtain a special business license from the city for a fee of $300.00 per year.

 

A cooperative or collective can only be located anywhere in any commercial or industrial zoned district but not in the central, downtown business area. Names and signs may only be on the storefront itself.

 

Cooperatives must submit a detailed security plan for the facility, which must include 24-hour video surveillance, robust lighting, substantial locking mechanisms for all entry doors and visible presentation of cards every time members enter the store.

 

Storage of all seeds, clones, plants or forms of medicine must be inside a closet or room with robust walls, locks and an alarm system accessible only to staff, all of whom must be a caregiver or patient. A person who has been convicted of any felony drug related charge may not own a cooperative.

 

The facility may contain a “medicating room” which would be off limits to all persons except patients, with a sign indicating such. All odors from this room must be filtered so that no odors are detectable anywhere else in the facility or outside it. Additional SAFE HAVENS for persons to medicate—other than in the privacy of their home—is another significant need. There would be no medicating or transactions of any kind outside of the building or on any property or parking lot nearby.

 

Driving any motor vehicle while under the immediate intoxicating effects of marijuana is illegal. Although scientific research has clearly demonstrated that marijuana impairs driving performance very little, unlike alcohol—to which it is often unfairly compared—we want to be good citizens and protect the public from harm. Therefore, a coop or collectives will ensure, by keeping time logs and monitoring patients, that no one drives a vehicle for two hours after medicating, after which the peak intoxicating effects will have worn off.

 

All consumption of alcohol is prohibited outside or inside the facility. No weapons are allowed on the premises, either outside or inside the facility.

 

The number of coops would be limited to 4 within the city limits.

 

Members who break the cooperative’s rules will be disciplined—and expelled, if violations continue. The exact protocol will be left up to the coop but published in a membership handbook that contains all relevant membership rules, relevant state statutes and city regulations.

 

No marijuana may be grown on the premises, except for clones shorter than 8 inches, measured from the top of the soil to the top of the plant. A member who is only a caregiver may not purchase medicine of any kind.

 

A city code enforcement official may make 1 inspection of the facility every year giving at least one full day prior notice so that business operations are not disrupted unexpectedly. Once a year, the city may review the cooperative’s financial records.

 

 

Sincerely,

 

 

Kurt.

[LITLJON]

No marijuana may be grown on the premises, except for clones shorter than 8 inches, measured from the top of the soil to the top of the plant. A member who is only a caregiver may not purchase medicine of any kind.

 

I'll have to read this again before additional comments can be made by me. You obviously put a cooperative thought process into this. But as a patient that can not travel easily I have a problem with the underlined above. I count on my caregiver to acquire for me.

[wolfman]

The Holland Compassionate Care Community

Hollandccc.org

Executive Director: Kurt

(A resident of the City of Holland. The last name is not reported nor a personal address for privacy and security reasons)

 

Mission Statement of the HollandCCC

 

The goal of the Holland Compassionate Care Community is to be an organized group of individuals who, regardless of our diversity, strive to accept and transcend our differences. We strive to communicate openly but with civility and deep regard for one another’s dignity. As a result, we feel an unusual sense of safety amongst ourselves and are able to engage in effective discussions and act together productively toward our common mission: to educate Michigan residents and doctors about the science and medical value of cannabis; to fight injustice, as we are able, against medical marijuana patients and to work at expanding their rights; to offer support, help, care and camaraderie to each other and to anyone interested in participating with us but especially to persons in our midst whose health well-being is enhanced through the lawful, safe and efficacious use of cannabis.

 

 

Note: As the executive director of our local club, I am representing the HollandCCC in an official capacity. After extensive club discussion, the views I present generally represent the majority views of the club, which is comprised of about 25 members so far.

 

OPEN LETTER TO THE CITY COUNCIL OF HOLLAND, MICHIGAN

 

With special thanks to

Michael Komorn Law

3000 Town Center, Suite, 1800

Southfield, MI 48075

248-351-2200

 

Review of the history of medical marijuana in Michigan

 

How did we get in the mess we are in today? That’s right, mess, I think most would agree.

 

The ultimate answer concerns the refusal of the federal government to reclassify marijuana (mj) as a bona fide medicine, which scientific research has already concluded—conclusively. The vast majority of problems medical marijuana (mmj) creates for our state will finally be resolved when the FDA regulates mj in the same way that the manufacture and distribution of all other medicines are.

 

The proximate answer differs. In 2008, voters approved a ballot initiative called “the Michigan Medical Marijuana Act (MMMA) that decriminalizes the use of marijuana for medical purposes. It passed by a large margin of 63% of all voters. Currently, there are more than 22,000 registered patients and 9,000 registered caregivers. These numbers are expected to surge into the near future.

 

Passage of the MMMA, however, has led to unforeseen consequences. Regrettably, incomplete regulatory language in the MMMA has resulted in what some observers have described as nothing less than a nightmare for local governments and law enforcement. Municipalities are forced to sort out additional regulations for responsible local oversight. But thereby they enter uncharted legal waters.

 

Ordinances adopted by various municipalities cover the entire spectrum of approaches that reflect the full range of political persuasions. Not a few have actually banned the use of all mmj, but on unsustainable legal grounds. Local governments cannot deny its citizens rights granted by the state. It is only a matter of time before courts overturn overly restrictive regulations. In the interest of brevity, we refrain from rebutting all the bad arguments against the use of marijuana for medical purposes, such as the sly argument that wrongly lumps the harm of mj with abused drugs that have far more serious consequences, such as alcohol, cigarettes, crack cocaine and the like. Scientific research has clearly shown that in relation to other common drugs, the potential harms associated with mj are quite mild. In the vast majority of cases, its medicinal benefits far outweigh the adverse risks.

 

Regarding the other extreme approach, some local governments and law enforcement agencies tolerate just about anything, which includes very mild penalties for the recreational use of marijuana, such as in Ann Arbor.

 

Regardless of a particular city’s approach, local officials should not be surprised that the vast majority of persons in the mmj community strongly resist the imposition of additional local regulatory burdens, especially when they perceive that a particular regulation denies rights already granted to them by superceding state law.

 

The City of Holland has the surprising distinction of being the second happiest city in the country. What a wonderful surprise it would also be if the City Council demonstrated an ability to adopt a politically neutral and enlightened ordinance that promoted the health well-being and dignity of its citizenry while at the same time ensuring that mmj related activities do not create problems for the public.

 

Due to the conservative nature of the local electorate, many persons in the local mmj community are highly skeptical that the city will deal with this issue in an enlightened manner. I do not share their pessimism. At the recent Planning Commission meeting for the moratorium, I witnessed city officials listening to the pleas of persons from the mmj community and actually changing the wording of the moratorium in response! You listened to us. We want to listen to you as well. I look forward to the crafting of an ordinance that can serve as nothing less than a balanced, well-thought out model for the rest of the state to follow.

 

Thoughts on an ordinance for regulating medical marijuana

related businesses in the city of Holland

 

The goals we have for any ordinance adopted by the City Council for regulating all medical marijuana related businesses is that it ensures the following: 1) Marijuana grown for medical purposes by state approved persons remains secure and does not end up in the hands of persons not authorized by the state to consume it. 2) Protects the interests and security of the general public regarding potential problems or nuisances associated with the cultivation, distribution and consumption of medical marijuana but not at the expense of undermining or restricting any state rights granted to every patient and caregiver by the MMMA. 3) Clarifies the city’s approach to mmj related business activities not directly addressed in the MMMA of 2008 (specifically, dispensaries, cooperative and collectives), enacting regulations that ensures the orderly oversight of such businesses.

 

There are at least 5 different kinds of parties involved in medical marijuana, each being in a distinct class:

 

1) Patients, who grow their own medicine, usually in their home

2) Caregivers who grow for patients, (who could be a patient growing for themselves and up to 5 other patients). Caregivers are individuals engaged in a business that is generally home based and is not visible to the public—because most caregivers do not want it to be and the MMMA protects their privacy.

3) Dispensaries. Some ordinances drafted by cities use the word “dispense” or “dispensary” in a way that it refers to caregivers. However, this introduces new language that the Act itself does not contain, creating confusion when it’s not recognized that new language has been introduced. Specifically, throughout the country, the common use of the word “dispensary” refers to a for profit business that dispenses mmj to any card holding patient. Yet many ordinances use the closely associated word “dispense” to describe activities in which caregivers engage, wrongly suggesting they are dispensaries. The word “dispense” ought only to be used in relation to dispensaries and nothing else. Caregivers should be referred to as “individual persons who provide medical marijuana services to a limited number of particular patients”, or the like, which covers far more than just “dispensing” medicine to patients.

4) Cooperatives and collectives that are not for profit businesses that limit services strictly to their own, screened members, both patients and caregivers. Everything stays strictly in-house. Cooperative and collectives are a group of patients and caregivers that have formally banded together to engage in communal activities at a central location they are not trying to keep hidden from public view. The MMMA is silent about dispensaries and coops. However, we expect future state legislation that modifies the MMMA of 2008 to grant coops and collectives explicit statutory protections, as has happened in other states.

5) Compassion clubs. Things get complicated here because so many different models of operation exist. Many clubs are strictly educational organizations. They only hold public meetings and disseminate information. No need to be concerned about that. But many other clubs offer additional, strictly private activities for state registered patients and caregivers. These activities may involve hosting events where paraphernalia, seeds, clones, medicine and sometimes the consumption of mmj are available. In other words, some clubs engage in activities that overlap with the services that a cooperative might offer. We know of no clubs that offer a facility to their members for a collective garden grow. A few mmj businesses do offer such facilities, which the City may want to regulate.

 

The Holland Compassion Club, at this time, is an educational support organization. However, when the club is able to secure an appropriate facility where private events can be held discreetly, we hope to do so. For example, on a Saturday morning there might be a canna-market where members bring grow equipment they might sell to other members, seeds or clones to trade or sell, or offer various kinds of medicinal edibles. A few clubs provide a medication tent or room for use. Sorting out the exact details of what kinds of activities a club may engage in will be difficult.

 

The issues surrounding mmj may be some of the most thorny and contentious city officials have ever had to sort out on behalf of its citizenry.

 

Private, Home Based Operations: Patients and Caregivers

 

It might be helpful to suggest an image for the overall goal we in the mmj community hold out for--SAFE HAVENS. By federal decree, marijuana is classified as an illegal drug because it has been deemed very dangerous and has no medical benefits whatsoever. Unbiased scientific research, however, has completely shattered that designation. Our state law seeks to correct the federal government’s erroneous classification of mj by decriminalizing its use for medical purposes. In sum, our state law essentially seeks to create SAFE HAVENS for its availability, consumption and cultivation. Our goal seeks to advance this concept and its practical implementation so that the mmj community receives all the services it needs while at the same time protecting the public from possible nuisances.

 

Regulations we could not support

 

1. We would vehemently object to any regulation that would require patients or caregivers to apply for a special license or permit from the city that would require them to disclose their identity or location, if that information is available to the public or law enforcement or is subject to release through a Freedom of Information request. We expect future court cases to uphold the privacy rights of patients and caregivers.

 

Grounds

 

The MMMA protects the privacy of patients and caregivers by making it a crime for the Michigan Department of Community Health, which administers the medical marijuana program, to disclose the names and addresses of patient and caregivers, except in very limited law enforcement circumstances, particularly when police need to validate the authenticity of cards. So that the security of patients and caregivers is protected, the public has no access to the state’s list. The Freedom of Information Act does not apply to personal health care related information.

 

The MMMA states (MCL 333.26426.h.), The following confidentiality rules shall apply:

(1) Applications and supporting information submitted by qualifying patients, including information regarding their primary caregivers and physicians, are confidential.

(2) The department shall maintain a confidential list of the persons to whom the department has issued registry identification cards. Individual names and other identifying information on the list is confidential and is exempt from disclosure under the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246

 

Patients who grow for themselves and caregivers who grow for patients are very concerned to keep knowledge of their activities and location from law enforcement and the public so that they do not become the target of discrimination, police harassment, thieves or other criminal activity. The concept of SAFE HAVENS must not be undermined in any way.

 

We predict that fear of the possible consequences, if personal information is available to the public or law enforcement, will cause most patients and caregivers to ignore such a licensing requirement. They will decide between the lesser of two risks: the risk involved in violating a city ordinance or the risk involved in compromising their security. We predict the majority will opt for the former until their operation becomes subject to city enforcement action.

 

Grand Rapids passed an ordinance requiring patients and caregivers to obtain a business license from the city and to live in designated areas. But the ACLU of Michigan has denounced passage of these regulations for violating the rights guaranteed to patients and their caregivers by the MMMA. Very likely, a court case or lawsuit backed by the ACLU will eventually overturn requirements that patients or caregivers obtain a business license from the city, when it is shown that such a requirement compromises rights and protections afforded by the MMMA. Home-based medical marijuana businesses in residential districts may be undesirable in the eyes of some, but that is the very thing the MMMA allows and protects.

 

2. On the grounds of the security and privacy rights granted by the MMMA, we vehemently object to any inspections of grow areas or gardens by any governmental agency. The MMMA specifically prohibits inspections by law enforcement and all other agencies. MCL 333.26426.g. states,

 

Possession of, or application for, a registry identification card shall not constitute probable cause or reasonable suspicion, nor shall it be used to support the search of the person or property of the person possessing or applying for the registry identification card, or otherwise subject the person or property of the person to inspection by any local, county or state governmental agency.

 

This language is unambiguous—no mandatory inspections by anyone! Despite the fact that setting up an indoor garden often calls for electrical work, the law already requires homeowners to report such work and obtain permits for its inspection. We would vehemently object to any mandatory inspections by any local governmental agency, including compulsory inspections of electrical wiring.

 

3. We would vehemently reject any requirement limiting the locations at which patients or caregivers could engage in medical marijuana related activity. Some cities, like Grand Rapids, are copying the federal drug free school zone rule that increases the penalties for drug crimes within 1,000 feet of a school. These cities ban all medical marijuana related activities within 1,000 feet of schools, effectively denying the rights granted by the state through the MMMA to some of those who qualify under its program. Some cities add even more facilities, such as playgrounds, day cares, churches and more. Any geographic limitation eliminates some persons from engaging in medical marijuana related activities that are granted to them by the MMMA. We expect a future high court case to strike down all such regulations. Local laws may not preempt state law.

 

Cities that have enacted a geographic limit ground such a regulation on federal law. However, the federal drug free school zone law is based on a view of marijuana that rules it out as having any medical value and criminalizes all use. In contrast, the state of Michigan has decriminalized the use of marijuana for health benefits. Therefore, regulations for mmj should not be modeled after federal laws that criminalize its growth and use. To do so is to treat medical marijuana as an illegal drug. Furthermore, the Obama administration has ordered federal agencies not to target persons living in states that allow marijuana to be used as medicine, so long as they stay within state guidelines. The federal 1,000-foot rule has not been exempted by this order. In addition, the MMMA states,

 

333.26422 Findings, declaration.

 

© Although federal law currently prohibits any use of marihuana except under very limited circumstances, states are not required to enforce federal law or prosecute people for engaging in activities prohibited by federal law. . . .

 

The exact opposite is stated, blatantly, in some city ordinances that essentially prohibit the use of all medical marijuana with declarations such as, “all businesses must adhere to federal, state and local laws.” Such cities ground their ordinance on the fact that mmj is still illegal under federal law and ground their ordinance on the mistaken notion that federal law takes absolute precedence. But consider how egregious it is for a handful of city officials to subvert the will of the majority of citizens, tens of thousands of them, who voted in a ballot initiative (the subject of which is irrelevant) that represents a keystone democratic process and right!

 

We are convinced that future court cases will strike down such ordinances on the grounds that a municipality cannot block a state law. In addition, we are astonished at how unashamedly such ordinances ignore the clear language of the MMMA that “states are not required to enforce federal law or prosecute people for engaging in activities prohibited by federal law.”

 

Sometimes law enforcement authorities argue that federal law trumps state law. But this argument ignores a ground breaking court ruling that declared state law enforcement agencies are not required to enforce federal drug laws.

 

By the way, we object to allowing law enforcement agencies determine the regulations in any ordinance. It is well-known that the vast majority of these agencies unsympathetically opposed passage of the MMMA of 2008, which indicates a bias that calls into question their objectivity in these matters. Furthermore, law enforcement agencies, for a variety of reasons, generally interpret the MMMA in the narrowest sense possible—and not infrequently in overly strict terms—not caring about the intent or spirit of the law that would compassionately extend allowable services for the mmj community that would shore up the concept of SAFE HAVENS.

 

For just one example, some law enforcement agencies—including the Holland Police department, according to what interim Police Chief Matt Messer has stated—follow a protocol in which they arrest a person who has proper paperwork but has not yet received a registry card from the state (perhaps also confiscating all their plants and medicine and destroying all their grow equipment to boot). Police do so despite the fact that the MMMA clearly declares that a copy of the paperwork submitted to the state provides the same legal protection, also from arrest, as the card! Police just figure a prosecutor or judge will sort it all out later—but not without putting the victim through a horrible legal nightmare and its accompanying emotional shock. Such obvious disregard of the law by those sworn to uphold it further contributes to the widespread mistrust of law enforcement among persons in the mmj community. Persons in the mmj community ask, what good is a law designed to protect someone from arrest when it does not do so, when the police can simply ignore the law with impunity? True, it isn’t easy for officers to verify a person’s paperwork. On the other hand, it has to be acknowledged that police make little effort to adapt their ingrained procedures and attitudes.

 

The protocol currently followed is an example of how many in law enforcement continue to treat all mj as if it is illegal, when that is no longer the case. Officers who despise the new law find it hard to reform their personal attitude. They assume wrongdoing until a person is proven innocent. What a colossal mess.

 

With the loudest language possible, we object to any regulation that treats medical marijuana in any fashion as if it continues to be an illegal drug! After all, if the federal 1,000-foot rule is adopted, then why should other restrictive rules not be adopted that are modeled after federal law that treats marijuana as an illegal drug in all instances? There are no reasonable grounds for a regulation that geographically limits where persons may engage in medical marijuana related activities. Furthermore, such a regulation takes away the rights of some persons granted to them by state law. We will never concede the rights of any patient or caregiver, no matter where they live. We expect that future court cases or lawsuits will vindicate this stance.

 

Someone may object, are we not right to shield innocent, vulnerable children from the harms that the abuse of dangerous drugs inflicts upon them? Do we not send children a double message that they cannot sort out properly, as adults can, when on the one hand they are taught that mj is illegal and harmful but on the other hand its OK to use as medicine? Is it not prudent for the sake of children to require that the use of mmj be geographically restricted?

 

We acknowledge that mmj raises difficult societal issues, which we are as concerned to address as our opponents are. Nevertheless, regarding mmj—which is properly evaluated only when it is viewed in a class that does not include illegal or dangerous drugs—proposing geographic restrictions is the wrong solution for the problem. Indeed, it does not identify the problem correctly. The problem is the abuse of illegal drugs. Medical marijuana is not an illegal drug. True, medical marijuana can and is abused, just as many doctor prescribed drugs are. However, we point out that no laws have been crafted to deal with the abuse of prescription drugs by creating geographic limits on their use. State law decriminalizes medical marijuana. It should not suffer an exceptional geographic burden no other medicinal drug suffers.

 

To be sure, as responsible citizens, we want to do whatever we can to accommodate the protections that the law affords children. Therefore, we are willing to make a concession. This would apply to patients and caregivers who live within 500 feet of a school. Flowering marijuana gives off very strong odors. We would concede a regulation stipulating that no detectable odors would be allowed at neighboring properties from a flowering garden. This can be readily accomplished by exhaust air scrubbers, which often employ a charcoal filter system.

 

Given the fact that almost all patients and caregivers seek to keep their activities hidden from the public to begin with, such a regulation would make their operation invisible to children who come and go to a school. We could support such a regulation because it furthers the concept of a SAFE HAVEN for all concerned.

 

Commercially Based Operations: Dispensaries, Cooperative and Collectives

 

We define dispensaries as for profit businesses that transact with any card holding person. The MMMA states persons may not “sell” medical marijuana or make a profit over and above costs for compensation. Therefore, we would support a ban on all such California style dispensaries.

 

We define cooperatives or collectives as not for profit businesses that facilitate the transfer of mmj “in house,” with screened members only. Cooperatives have been springing up throughout the state, perhaps 30 to date. Regarding cooperatives, three key questions need to be discussed: 1) Why are they springing up? 2) Are coops lawful entities? 3) By what regulations and business practices should they operate?

 

First, why are cooperatives springing up throughout the state?

 

This is a key question, because the answer is crucial for developing a proper approach to the question of cooperatives. Cooperatives are springing up throughout the state because coops provide a variety of key supplemental mmj services that are in very strong demand by patients. Simple as that.

 

You see, marijuana used as medicine is affected by a unique set of circumstances that characterize no other medication. The unusual state of affairs that characterizes medical marijuana also explains why so many compassion clubs and many cooperatives are springing up throughout the state. These organizations aid patients and caregivers in all manner of key ways. They offer critical forms of support not required for any other medicine.

 

Specifically, the primary dynamic that sets medical marijuana apart that contributes to the demand for the additional services that cooperatives provide concerns its inconsistent and limited forms of supply. Everyone in the mmj community knows that the patient/caregiver system provided for by the MMMA does not eliminate all problems associated with creating a constant, reliable, diverse supply of medicine for patients. Coops fill in the supply gaps by providing wide strain choices (there are hundreds of mj strains, many of which can have slightly different medicinal effects). Cooperatives also provide a wide variety of forms in which mmj can be administered (which again have different medicinal effects), such as edibles, tinctures and lotions. Coops also meet a variety of other basic needs patients and caregivers have that the MMMA does not provide for. The MMMA, for example, does not create a way to buy seeds legally to start plants, another example of the MMMA’s many shortcomings. A coop is a SAFE HAVEN where, among other things, members can supply seeds and clones to each other to start plants, seeds and clones that are produced by members.

 

Second, are coops lawful entities? What are the grounds for them in the law?

 

This brings us to the crux of the matter: What are the grounds in the law for the activities in which coops engage? The answer can be argued from two different perspectives that lead to a sharp parting of the ways. One view holds, advocated by many in law enforcement, that the clear intention of the MMMA is for caregivers to grow plants only for a limited number of specific, assigned patients. This view holds, correctly, that the MMMA never specifically addresses cooperatives or dispensaries and that, incorrectly, because the MMMA does not specifically sanction the activities that occur in coops, they are illegal. Consequently, there is nothing to discuss or debate regarding coops. They are ruled out. This view holds, in addition, that cities have no authority to override state law.

 

The other view holds, state government has failed to address persistent key issues that have arisen since passage of the Act, and local municipalities in some instances have authority and some room to determine their own implementation of state laws. Indeed, municipalities not only have authority to establish local regulations and ordinances but more importantly have lawful grounds, in this instance, to establish cooperatives BECAUSE THE MMMA PROTECTS THE ACTIVITIES OCCURRING IN COOPS, ESPECIALLY UNDER THE EXCEPTIONAL AFFIRMATIVE DEFENSE (AD) SECTION OF THE LAW.

 

In order for a cooperative to function, it obviously needs a supply of mmj products. Member patients and caregivers provide the supply of medicine. Now the question is, does the MMMA protect patients and caregivers when they transfer mmj to persons they are not directly connected to through the MMMP? We answer, yes it does. The ground for this view of the law is found in the unique section called the Affirmative Defense, which applies to both patients and caregivers who are connected to each other through the MMMP and to those who are not (the text alternating between the articles “a” and “the” preceding the words “patient” and “caregiver”). The scope of the AD is very broad. Indeed, the AD covers persons who may not even be officially registered with the state yet. According to the AD (333.26428 Defenses. 8. Affirmative Defense and Dismissal for Medical Marihuana) a patient or a caregiver is protected when,

 

(3) The patient and the patient's primary caregiver, if any, were engaged in the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marihuana or paraphernalia relating to the use of marihuana to treat or alleviate the patient's serious or debilitating medical condition or symptoms of the patient's serious or debilitating medical condition.

Thus, a definition of a “medical marijuana cooperative” could be “a use where mmj is aquired, possessed . . . and transferred pursuant to the MMMA, MCL 333.26421 et seq, as Traverse City’s ordinance states.

 

A cooperative recieves mmj only from state registered patients or caregivers who are screened members of the coop. The coop then transfers the mmj to any patient who is a member (but never to non-members). All a cooperative does is facilitate or coordinate transactions between member patients and caregivers.

 

Not unexpectedly, many persons in law enforcement frown on expanding the availability of mmj and reject the idea of transfers. Lapeer County Prosecuting Attorney Byron Konschuh views patient-to-patient transfers “akin to a patient giving or selling a prescribed drug like Vicodin to another patient,” which is illegal. Sounds plausible. Yet, that analogy falls apart upon informed inspection. Notice that this argument assumes Vicodin and mmj are comparable in some key ways, for example, that the supply of each is stable, constant and readily available to all persons allowed to use it. But anyone involved with medical marijuana knows this state of affairs stands far from the truth. As mentioned, despite the intent of the MMMA to make marijuana available to those who qualify, the fact remains that their supply is often insufficiently diverse and prone to disruption, due to a variety of reasons we will not delve into here.

 

The key to constructing a fair approach to medical marijuana is understanding that it’s a unique medicinal drug unlike any other. For instance, understanding the history of marijuana and its medicinal use in the USA opens a person’s eyes to how different this history is from all other drugs used for health purposes. No other medicine has endured the tortured, irrational, biased fate of mj. In addition, the means by which the supply of medical marijuana is generated has no relation whatsoever to any other drug regulated by the FDA, like Vicodin, that is mass-produced by large pharmaceutical companies. Lacking proper understanding that marijuana is a medicinal drug in a unique category all its own fails to produce an unbiased basis for the concept of SAFE HAVEN COOPEERATIVES for those who benefit from the use of mmj. To deny patients needed, supplemental mmj services is to diminish their health well-being and human dignity.

 

Previously, the Michigan State Police held the position that patient-to-patient transfers were illegal. However, not long ago, MSP officer Greg Zarotney, who is responsible for providing information on enforcement policy to state police posts was asked, “Does your interpretation of the MMMA allow for patient-to-patient transfers of marijuana?” He answered, “The definition of ‘medical use’ is straightforward [in the MMMA] in that it clearly allows for the acquisition, possession, delivery and transfer of marijuana . . . Sixty three percent of the people passed this law, and law enforcement must accept the fact that the law is here to stay, and we have to work within the law’s confines” (the Midwest Cultivator, summer issue, 2010, p 3.).

 

We now explore another question of law. The AD, as mentioned, does not directly address or envision cooperatives. To be honest and play no games, not all the activities that occur in such businesses can be referenced in the AD. In particular, compensation for transfers is not addressed. Lacking direct sanction, a strict legalistic interpretation of the law rules out compensation for transfers, which consequently rules out cooperatives, making them financially unviable businesses. As a result, some cooperatives operate by accepting donations from members for the services they provide, a more palatable term. Frankly, we don’t care wether the word donation or compensation is used because it comes down to the same thing: either makes a cooperative financially viable as a business venture (though donations are far more prone to fuzzy business records than compensation). If an official needs a reason to reject the notion of cooperatives, he or she could argue that there’s no direct reference in the AD for allowing either donations or compensation for transfers.

 

On the other hand, a full reading of the MMMA in terms of its intent and spirit indicates that extending compensation for transfers isn’t novel and immediately evil. The intent of the MMMA is to create SAFE HAVENS for growers where the services they provide are financially viable and free of criminal penalty. The MMMA clearly allows caregivers to be compensated for their services with the qualifications that they may not sell medical marijuana or profit from it over and above the cost of its production [333.26424, sec. 4, (e)]. Cooperatives are non-profit businesses. All income generated by the coop goes back into providing services for its members. The owners of a coop do not personally receive any profit for their work, only compensation, or if a person prefers, donations.

 

Regarding the proper approach to the interpretation of the MMMA, we note the following comments by Attorney General Mike Cox in response to a question from the Michigan Department of Community Health asking for clarification about the statute. He stated, after conducting an inquiry into ballot initiatives, “The Michigan Court of Appeals has explained that initiatives should be ‘liberally construed to effectuate their purposes’” [Welch Foods v Attorney General, 213 Mich. App. 459, 461; 540 NW2d 693 (1995)]. “To the extent that the initiative contains any ambiguity, it must be construed in light of the purpose of the initiative.” Id. at 462. In our view, the overriding purpose of the MMMA is to create SAFE HAVENS so that persons who are helped by mmj can get the medicine they need. The idea of cooperatives aligns with that intent.

 

To digress briefly, think about this: if medical marijuana cooperatives were banned in the city of Holland, the business they would attract will simply end up going to outlying municipalities, as currently. Alternatively, the services that a coop provides would go underground, where regulations will hold little sway and monitoring is impossible. Such alternatives might appeal to some who prefer that mmj would simply go away all together.

 

Yet officials should not fail to ask themselves the question, Will banning cooperatives actually result in the eradication of activities that go on in such places? To answer this question, we hold up the historic example of Prohibition. The ten-year policy in the 1930’s of banning the production and sale of all alcohol (a time when mj products were available in every pharmacy throughout the country) was finally repealed after it became clear that the policy simply did not align itself with reality. The widespread demand for alcohol was simply impossible to eradicate. Furthermore, prohibition itself created huge secondary law enforcement and social problems. John McKay, Seattle’s former U.S. attorney, has boldly come out and stated what many, who are not in law enforcement, have been arguing for a long long time: current drug policy regarding marijuana has shamefully failed, and officials need to get realistic about it. Marijuana prohibition has failed to eradicate the widespread demand for it and has, instead, created huge secondary law enforcement problems. Therefore, he advocates reforming current laws (The Seattle Times, September 3, 2010, p. 3).

 

We take no pride in pointing out the unpleasant fact that banning cooperatives will have very little effect on curbing the actual demand for the medical marijuana services they provide. Often law enforcement officials argue that as mmj becomes more available, abuse and crime increases too. Do not forget, on the other hand, what persons who make such arguments never ever state: the very fact that mj is needlessly and futility criminalized to the extent that it is itself creates far more crime than anything done to expand the availability of mmj. Similarly, banning coops will utterly fail to depress the demand for the services they provide. Actually, we dislike this argument. But it is reality. Isn’t it far better to allow for coops that are out in the open where they can be monitored than stick one’s head in the proverbial sand?

 

By approving cooperatives, the city of Holland would not be setting a lone precedent. We offer the ordinance adopted by Traverse City as one of several balanced, compassionate models, which states in part:

 

Uses allowed . . . a Medical Marijuana Collective meeting the following requirements: Use and transfer of Medical Marijuana shall comply at all times with the Medical Marijuana Act . . . Transfer of Medical Marijuana shall be only allowed to a Qualifying Patient by his or her Registered Primary Caregiver or by another Qualifying Patient as allowed by the MMMA . . .

 

Someone may object that permitting the establishment of cooperatives is a very radical departure from the status quo. We beg to differ. It represents a middle-of-the road approach. When viewing the full spectrum of developments throughout the country, cooperatives are mainstream ventures compared to the establishment of numerous rouge for profit dispensaries in some states, notably California and Colorado.

 

Some law enforcement officers, like former Police Chief Mike Kitchen of Ferndale, MI, argue that the use of mmj spells disaster for cities, and that dispensaries and cooperatives will only add more fuel to the fire. He has stated, “The bulk of products [going into a dispensary or cooperative] is not going to patients. It’s going right out the back door.” What a reckless, unfair judgment! To be sure, we do not deny there are lawbreakers among caregivers, just as there are lawbreakers in every profession—as we have witnessed in recent years in Holland too. Tragically, a police officer murdered his estranged wife, and an assistant prosecutor committed serious crimes right within the courthouse complex. Not only is mmj law a mess, our entire world is a mess. Let’s not single out mmj.

 

The truth is that the vast majority of persons in the mmj community are as committed to preventing abuse and crime as anyone else. Please do not let a few stupid, blatant lawbreakers ruin it for everyone else in the mmj community. Previously, our club took a very strong stance regarding an individual whose contemporary public reputation and past criminal history indicated questionable compliance with mmj law. We informed this person that, for the sake of the broader mmj community and its interests, we wanted him to stop providing all mmj related business services immediately. Furthermore, we support action by law enforcement against those who clearly violate the MMMA, such as selling mmj to persons not registered with the state. We are not a bunch of want-to-be criminal potheads, as the Chief seems to think. Reactions such as those of the Chief are alarmist, overblown and unfair, though very common among law enforcement. Such statements appeal to fear. In contrast, we appeal to calm and careful deliberation, compassion and the intent of the law to create SAFE HAVENS for persons whose health is improved by mmj.

 

The subject of mmj often ends up turning primarily into a discussion about the potential for abuse and law enforcement issues, an emphasis that wrongly skews the debate. Medical marijuana is first of all and should always remain primarily a question regarding the physical health and well being of humans, a question of human dignity and rights. It is not first a law enforcement issue but a medical rights issue. Every person has the right to the best health care access available, to safe environments for the purchase and use of medicine and protection from discrimination by those who disapprove of particular medical treatments. Although our discussion of medical rights is very short, these rights are actually at the base of all health care ethics, which extends to mmj and the MMMA. Cooperatives justly extend the rights of patients to access the medicine they need for their health well being. No one can mount a successful moral argument against that right.

 

The attitude of the Chief, further, calls into question the competency of a city’s official to craft a balanced ordinance that creates SAFE HAVENS in which mmj related activity is clearly defined and meaningfully regulated. And it calls into question a city’s ability to meaningfully enforce its ordinances or adapt them later on. We harbor no such doubts. We are convinced that medical marijuana cooperatives can be regulated in a way that assures such stores are no less desirable, respectable and law abiding than any other business in our city.

 

In summary, extending the concept of SAFE HAVENS to cooperatives is needful, reasonable and justifiable, when based on a reading of the law’s clear intent to create SAFE HAVENS for the growth and use of marijuana as medicine. In the absence of state action modifying the MMMA of 2008, municipalities are forced to address its shortcomings. The decriminalization of mj for medical use has spawned a storm of controversy blowing across the state. We ask city officials charged with responding to this storm to suspend any knee jerk reactions, instead carefully considering appropriate actions to deal with this storm. It may be that city officials will be criticized by some in our community, if cooperatives are approved. We ask that such possible reactions be ignored and that the decisions of our city officials are based solely on judging the validity and weight of the various arguments for and against cooperatives.

 

In summary, coops offer crucial, supplementary services to mmj patients and caregivers, which clearly accords with human medical rights, the intent of the law and to some extent, with the letter of the law. The concept of SAFE HAVENS needs to be extended to protect both the local mmj community and broader public from unwanted and unwarranted damage that the current storm could inflict. As discussed, all that a cooperative does is facilitate transfers on behalf of patients and caregivers. Cooperatives facilitate the intent of the MMMA. What’s so wrong with that? In our opinion, far far less than the good they will serve.

 

Let our city be known, among other things, for an enlightened, middle of the road approach to the question of cooperatives in a way that benefits its citizens’ health well-being with great dignity while at the same time protecting the broader community from potential problems.

 

Third, by what specific regulations and business practices should coops operate so that essential supplementary services are provided to the mmj community while at the same time protecting the interests of the broader public? When it comes to specific regulations, keeping it simple as possible seems the best approach, we have been advised. The following is a too long of a list of suggestions that may or may not be incorporated into an ordinance.

 

Coops will be nonprofit. They will operate by standard city business practices, procuring required licenses/seller’s permits and paying city fees and sales taxes. Medical marijuana transactions are subject to sales tax. Potential members complete a written membership application, which the coop will verify. Applicants must present both a MI picture ID and a mmj card or a copy of the paperwork submitted to the state with proof of cashed check or money order at least 20 days old. The MMMA states that paperwork serves as a valid temporary substitute for the card 20 days after a person’s check has been cashed. All members will be issued a durable identification card, with the expiration date of the state’s ID card included. Copies will be made of the state’s MMMP identification cards. The coop application will have the individual agree not to distribute marijuana to non-members and not to use the marijuana for other than medical purposes. The coop will maintain membership records and have them reasonably available for inspection. The coop will track when members’ medical marijuana recommendation and/or identification cards expire. Coops will enforce its rules by disciplining or expelling any member whose card has expired or are breaking other rules. Collectives will acquire marijuana only from their constituent members. The cooperative may transfer mmj to other member patients but not to persons who are only caregivers. Each member’s contributions or purchases will be recorded. Members may reimburse the collective for the medicine transferred to them. Compensation that members provide the collective should be limited to an amount necessary to cover overhead costs and business operating expenses. Medicine will be provided free to persons who demonstrate financial hardship but will not exceed 5% of all members.

 

Additional regulations for coops that we could support that ensures vigilance against the diversion of marijuana to the illegal market, respect for neighboring businesses and a public, low, safe profile. (Some of these may already be covered by existing laws)

 

A cooperative or collective must obtain a special business license from the city for a fee of $300.00 per year.

 

A cooperative or collective can only be located anywhere in any commercial or industrial zoned district but not in the central, downtown business area. Names and signs may only be on the storefront itself.

 

Cooperatives must submit a detailed security plan for the facility, which must include 24-hour video surveillance, robust lighting, substantial locking mechanisms for all entry doors and visible presentation of cards every time members enter the store.

 

Storage of all seeds, clones, plants or forms of medicine must be inside a closet or room with robust walls, locks and an alarm system accessible only to staff, all of whom must be a caregiver or patient. A person who has been convicted of any felony drug related charge may not own a cooperative.

 

The facility may contain a “medicating room” which would be off limits to all persons except patients, with a sign indicating such. All odors from this room must be filtered so that no odors are detectable anywhere else in the facility or outside it. Additional SAFE HAVENS for persons to medicate—other than in the privacy of their home—is another significant need. There would be no medicating or transactions of any kind outside of the building or on any property or parking lot nearby.

 

Driving any motor vehicle while under the immediate intoxicating effects of marijuana is illegal. Although scientific research has clearly demonstrated that marijuana impairs driving performance very little, unlike alcohol—to which it is often unfairly compared—we want to be good citizens and protect the public from harm. Therefore, a coop or collectives will ensure, by keeping time logs and monitoring patients, that no one drives a vehicle for two hours after medicating, after which the peak intoxicating effects will have worn off.

 

All consumption of alcohol is prohibited outside or inside the facility. No weapons are allowed on the premises, either outside or inside the facility.

 

The number of coops would be limited to 4 within the city limits.

 

Members who break the cooperative’s rules will be disciplined—and expelled, if violations continue. The exact protocol will be left up to the coop but published in a membership handbook that contains all relevant membership rules, relevant state statutes and city regulations.

 

No marijuana may be grown on the premises, except for clones shorter than 8 inches, measured from the top of the soil to the top of the plant. A member who is only a caregiver may not purchase medicine of any kind.

 

A city code enforcement official may make 1 inspection of the facility every year giving at least one full day prior notice so that business operations are not disrupted unexpectedly. Once a year, the city may review the cooperative’s financial records.

 

 

Sincerely,

 

Sounds great I run A compassion club and we have been visited by leos.It all wen't well we were following the law.They seem to have a problem with transfers of any kind though, except specific caregiver to patient

hope all goes well wolfman