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Michigan Medical Marihuana Act Pros And Cons

Dizledot

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in Michigan Legislature

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Dizledot Advanced Member

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Michigan Medical Marihuana Act Pros and Cons [Commentary]

By Catherine Mullhaupt, Director of MTA Member Information Services

 

This is an editorial response to a general question, and it is not a legal opinion. Any township considering its options regarding the Michigan Medical Marihuana Act should consult with the legal counsel that handles its ordinance enforcement, and may also wish to consult with the county prosecutor’s office, local law enforcement and neighboring local governments. This is a developing area of the law in

 

Michigan, and these comments are simply one individual’s opinion.

 

The Michigan Townships Association does not currently have an official position or recommendation on specific ordinance provisions regarding the Michigan Medical Marihuana Act, because we emphasize the local authority of each community to decide what it will do or not do regarding medical marihuana.

 

But here are some thoughts to help promote a productive dialogue. You may want to review the White Paper sponsored by the MTA and MML for a thorough discussion of many of the options local units have.

 

1) First, I have never subscribed to the idea that you can legitimately ban all medical marihuana use. The feds do not intend to enforce on individual marihuana users, and they do not intend to enforce on medical marihuana users except for illicit use that is not in compliance with the state statute. I do not think the courts will uphold the “federal ban” approach, so I don’t recommend it because it could subject the township to legal action.

 

2) I subscribe to the approach that views the Act as authorizing a patient and caregiver to obtain, use and administer medical marihuana in a one-on-one, confidential relationship that is not subject to any penalty. I don’t believe that courts will ultimately uphold restrictions on that relationship, so I don’t recommend requiring patients and caregivers to register with law enforcement or any restrictions on where that individual interaction can occur. I believe that a township could require a caregiver who functions out of his/her residence to comply with the township’s home occupation requirements, but only if you have home occupation requirements that apply to any and all similar home occupations—in other words, you can require “Mary J” to get a home occupation approval if you also require Mary Kay to do so!

 

do not believe a township could require a patient or caregiver to conduct that one-on-one interaction outside of their residences or outside of a residential zone. They cannot be required to go to a commercial or other district. But I want to stress that I’m talking about the situation where a caregiver is serving the lawful number of patients (up to 5), and each of those patients has specifically listed that individual caregiver as his/her caregiver, and the caregiver has no other patients or clients to whom he/she provides medical marihuana.

 

The MMMA does prohibit driving under the influence, so that is subject to enforcement.

 

 

 

Michigan Medical Marihuana Act Pros and Cons [Commentary] By Catherine Mullhaupt, Director of MTA Member Information Services, January 2011

 

Page 1

I do believe that legitimate growing operations—where a caregiver is growing plants for his/her clients—could be regulated for safety and construction code purposes, although they should not be regulated any more than any similarly situated use. For example, if I’m a hobbyist orchid grower or growing hydroponic vegetables for my own use in my own residence, and the township has residential construction code or fire safety code requirements that would apply to me, then the township can apply those requirements to an individual caregiver who is growing plants in his/her home. And vice versa—if the township wants to apply those requirements to individual caregivers or patients in their own homes, then it must do so to other similar uses such as the examples I gave.

 

I understand that these plants can be quite large—similar to Christmas trees in some cases!—and with a maximum of 60 lawful plants, it can be a large operation, involving lots of electricity, humidity, and chemicals. So I do believe that a township could also have some sort of formula that requires growing operations of a certain size (or involving plants of a certain size) to be subject to minimum square footage requirements, for example.

 

3) Now, when it comes to dispensaries or cooperatives, etc., I take a much stricter view. The people of Michigan voted to create a compassionate hardship exception, not legalize a lifestyle.

 

Some other states actually include provisions for dispensaries or coops in their statutes, but the MMMA does not mention or authorize them at all. In my view, only the individual relationship I described above is lawful and authorized. The key is to look at what people are suggesting when they say “dispensary,” or “cooperative” or “compassion club,” etc., because the lawfulness or illicit nature of what they are proposing will depend on exactly what will take place. The terms are often used interchangeably, but I do make some distinctions (don’t know if a court would make these same distinctions, but no one can say I’m wrong until a court does!). Some proposals include more than one or all of the uses below in one facility.

 

a) Compassion club/smoking room/etc.: If patients and caregivers want to conduct their one-on-one relationship in a social setting with other patients and caregivers, I guess I can buy that. There is no limit in the MMMA on how many lawful patients and caregivers may be in the same place at the same time. Note that the MMMA allows persons who are not a patient or caregiver to assist them and provides the same protections for them.

 

But I believe that a township could regulate the location through zoning, as it would with any other social club, to avoid parking, hours of operation, noise, or other typical zoning requirements.

 

I also believe that the argument can be made that a township could choose to take a similar approach to regulating adult entertainment uses and either concentrate the uses or require a certain minimum distance between them to disperse them, based on the adverse secondary effects doctrine (the idea that the presence of an otherwise illegal drug attracts non-MMMA drug users and crime).

 

These clubs are one of the approaches that law enforcement don’t like because of the potential for confusion as to who is a patient, caregiver and who owns what marihuana onsite or in use.

 

b) Cooperatives: I consider this to be a place, like a food growing coop, where persons can join or buy into the ability to share growing space, equipment or chores. So, lawful patients and caregivers could share the costs and space and labor to grow the plants—but still no more than the maximum amount of

 

 

 

Michigan Medical Marihuana Act Pros and Cons [Commentary] By Catherine Mullhaupt, Director of MTA Member Information Services, January 2011

Page 2

 

plants or harvested material or marihuana for those specific patients and caregivers. For example, a caregiver could not lawfully grow 60 plants in anticipation of having 5 patients if the caregiver only had one or two patients at that time. I believe that this would be subject to the same zoning, code enforcement and/or business regulation that the township applied to other types of coops, and that the concentration or dispersal approaches based on adverse secondary effects could be applied here.

 

c) Dispensaries: There are many things people label “dispensaries,” but the common theme seems to be a place where people can go for one or more of the aspects of medical marihuana use. Some of this may be lawful under the Act, but some of it will be unlawful, if not done properly.

 

I believe this is the approach that persons seeking to legalize marihuana (or conduct illegal drug sales under cover of the MMMA) are pushing because it is the arrangement that is the most difficult for law enforcement to sort out. I believe it is the approach farthest away from what I believe the voters anticipated—the confidential, individual one-on-one relationship between a patient and caregiver—and it is the approach I believe is the most susceptible to adverse secondary effects and abuse. This is also the approach that I think law enforcement are the most adamant about regulating—and I really can’t blame them.

 

The dispensary concept is based on “fuzzy” math—made fuzzy on purpose in some cases, because it suits persons who are trying to circumvent the Act. If they stay within the lawful options of the Act, they’re fine, subject to the regulation that I’ve described for the other approaches here. But most of the ones I’ve heard of do not intend to stay within the lawful options of the Act. They tend to propose to solicit persons to sign up to be caregivers (without a specific patient naming them as a caregiver), and to pay them to grow marihuana, which they then turn over to the dispensary, which sells the marihuana to patients (who may or may not have registered a specific individual caregiver with the state to supply them). There is little or no control over the number of plants per caregiver or which patients are registered with which caregivers.

 

Note that the attached federal advisory states that the federal government will enforce when certain characteristics are present, because the conduct will not be in clear and unambiguous compliance with applicable state law and may indicate illegal drug trafficking activity of potential federal interest. Dispensaries are highly susceptible to those characteristics, which is why law enforcement has concerns. I believe that township regulations or law enforcement actions aimed at limiting or preventing those characteristics would be upheld in court.

 

I don’t personally subscribe to the theory that a township would be liable for allowing a dispensary if the feds do decide to enforce.

 

d) Storage/growing facility: There is at least one business model being proposed to provide rental space in warehouses or storage facilities for growing operations. The entity/person providing the space would not necessarily be a patient or caregiver, but they would lease space, and provide sufficient electrical, water, and safety services, along with security. I believe this is legitimate under the MMMA, as long as everyone complies with the requirements of the Act. I believe that this would be subject to the same zoning, code enforcement and/or business regulation that the township applied to other similar types of storage or warehouse or commercial rental uses. I also believe that the concentration or dispersal approaches based on adverse secondary effects could be applied here.

 

Michigan Medical Marihuana Act Pros and Cons [Commentary] By Catherine Mullhaupt, Director of MTA Member Information Services, January 2011

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Dizledot Advanced Member

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Very resaonable guidance for the most part. Do you have a link to this? Thanks in advance.

 

 

I'm sorry, even if I provided the link it wouldn't work. What I've posted is information only registered township officials can get access to. I wanted to share this with the community and will continue to as they post more.

 

Dizz

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Dizledot Advanced Member

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Great educational post on the MTA's thoughts . I live in a township but so far have not heard if they have even discussed the issue . I try to look at their agenda when I can but they get allot done without me :-) . Thank you for the post .

 

Most municipalities quietly adopted the federal law when MM was passed in 2008. You usually won't hear anything until someone opens a dispensary or applies to open a dispensary or warehouse type business that is MM related.

 

Dizz

 

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greenbuddha Advanced Member

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Most municipalities quietly adopted the federal law when MM was passed in 2008. You usually won't hear anything until someone opens a dispensary or applies to open a dispensary or warehouse type business that is MM related.

 

Dizz

 

 

Diz, I'd vote for you anytime!

 

Thanks a bunch.

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peanutbutter Advanced Member

peanutbutter

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Good cooking, Dizz!

 

I have a pet peeve about government.

 

That is when standards are set to be used against the people and the people don't have access to those standards.

 

The people only find out AFTER they are in the legal system. Meanwhile, law enforcement is watching you to commit the new crime ..

 

We have no idea what they are watching for .. none at all. We just know they will put us in a cell.

 

Whenever they feel like it.

 

Citizens are not allowed to understand where the lines are. We are only allowed to fall victim to them.

 

"Ignorance of the law is no excuse." they say .. then refuse to let us know what those laws are.

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Silverblue Advanced Member

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Pb you put it right exactly as it is. It's like having a game where one side knows the rules but the other side doesn't. They may give us a few rules, but keep others secret; they have many "unwritten rules," but we're still expected to know and follow them. What twisted thinking! They're inventing rules as they go along! They know they couldn't win otherwise, so they are dishonest, they disguise themselves and their agendas, make us look bad, so they look good.. IF they played fair, it'd be to their advantage as well, but they're unable to see that.

 

Sb

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Guest finallyfree09

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I think I like the opinions stated here for the most part. It seems to be a level headed aproach to something that is not a problem for the majority of michigan voters.

 

The biggest thing is for our officials in govt and law enforcement to realize that we aren't criminals and we shouldn't be legislated back into the closet. We are not a threat.

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Silverblue Advanced Member

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IF they'd give us a chance, we could prove we're not a threat. That's why issues like driving are so important for us to get the statistics out about. There could be thousands of testimonials from people who know someone who uses MM, who also knows the truth.

 

Sb

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Timmahh Advanced Member

Timmahh

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That memo from the Dept of Justice, should be printed out and provide at any city/county meetings, where they want to go to the Federal Law on the issue of Marihuana, Medical use or otherwise! its a clear sign, those states that legalized Medical Use, have to make their own way, without federal intvervention, unless it still involves a federal situation, like bringing in lbs of mexican marihuana, or meth ect...

 

it clearly says, the states, thus the countys in those states run on State law first on this matter. so their is no need to waist time discussing the Federal stand, as they are subverting to the states stand where MMJ is concerned.

 

 

should clear things up for those areas, putting on moritoriums and mention fear of federal laws on it.

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Dizledot Advanced Member

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Good cooking, Dizz!

 

I have a pet peeve about government.

 

That is when standards are set to be used against the people and the people don't have access to those standards.

 

The people only find out AFTER they are in the legal system. Meanwhile, law enforcement is watching you to commit the new crime ..

 

We have no idea what they are watching for .. none at all. We just know they will put us in a cell.

 

Whenever they feel like it.

 

Citizens are not allowed to understand where the lines are. We are only allowed to fall victim to them.

 

"Ignorance of the law is no excuse." they say .. then refuse to let us know what those laws are.

 

My feelings exactly. I find this going on all the time in my community. There is supposed to be transparency in government, period! Always getting my donkey raked over the coals for performing my due diligence and bringing all the facts to the table in public meetings. All I see this year is a bunch of yes 'men' who go along with plan...god forbid should they have a different opinion and express it in public. The rest of the good old boys might not play nice with them anymore. We have very few politicians who stand up for the citizens. To many of them are worried about being re elected. It's sad to see what's happened to our country. It's all about who can pay the most to the campaign coffers.

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Dizledot Advanced Member

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Good cooking, Dizz!

 

I have a pet peeve about government.

 

That is when standards are set to be used against the people and the people don't have access to those standards.

 

The people only find out AFTER they are in the legal system. Meanwhile, law enforcement is watching you to commit the new crime ..

 

We have no idea what they are watching for .. none at all. We just know they will put us in a cell.

 

Whenever they feel like it.

 

Citizens are not allowed to understand where the lines are. We are only allowed to fall victim to them.

 

"Ignorance of the law is no excuse." they say .. then refuse to let us know what those laws are.

 

I'm embarrassed to even admit that I am a politician at times because of this practice!!!!! This is nothing new and it's been going on for years.

 

I can't even tell you guys how many times I've had my donkey raked over the hot coals for doing my due diligence and discussing all 42 sides of an issue or request....I've lost count. What happened to transparency in government? I go in to my office and find out the day of my meetings that someone made changes to contracts or amended my budget etc. These things are to be done during a meeting and I'm the darn boss, the witch with the gavel for heavens sake!!!! I am so sick and tired of all the back room good old boys club manipulation going on. I can't believe how many spineless politicians are out there. If you can't take the heat then stay out of politics. Its become nothing more than an easy income for these guys with lot's of perks. I don't even want to go into the crap that goes on in my township....I will deal with them at the next election. Things will not change unless we can get people out to vote for every election and that includes the primaries.

 

Sorry, I'm venting today and as you see I have a meeting soon where I will be that "bad" guy again and have to be the voice of reason when it comes to spending the tax dollars that our residents expect us to spend responsibly.

 

 

Ugh!!! Off to my meeting...to try to reason with the mindless idiots today.

 

Dizz

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