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Royal Oak Sued Again Today


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A medical marijuana patient sues the city of Royal Oak. Represented by two Marijuana Patients Organization board members and attorneys, Neil Rockind and Paul Tylenda, this marks the second such suit filed since recent zoning ordinances passed to ban cultivation in the city.

 

 

COMPLAINT FOR DECLARATORY JUDGMENT

 

 

INTRODUCTORY STATEMENT

 

 

 

1. This is a declaratory judgment action against the City of Royal Oak, a municipal corporation that passed and enacted an ordinance in direct violation and conflict with the Michigan Medical Marijuana Act (“MMMA”).

 

2. The Plaintiff, Christopher Frizzo, lives in Royal Oak, Michigan and suffers from a debilitating medical condition, multiple sclerosis. He suffers from severe and persistent muscle spasms, extraordinary pain and his condition has at times robbed him of sight in his right eye. Marijuana brings Frizzo relief from these painful symptoms.

 

3. Frizzo is a qualifying patient under the Michigan Medical Marijuana Act and is registered as such with the state. Frizzo’s ability to possess no more than 2.5 ounces of useable marijuana and opportunity to manufacture, cultivate and grow up to twelve (12) marijuana plants from which to harvest his own medicine is protected by the Michigan Medical Marijuana Act.

 

4. Although protected by the Michigan Medical Marijuana Act, Frizzo’s ability to use medical marijuana and to possess medical marijuana is threatened by the ordinances passed by the City of Royal Oak. Frizzo has no designated caregiver, is of limited financial means and is not ambulatory. In order to possess and use marijuana, Frizzo wants the opportunity to grow, manufacture and cultivate his own medicine pursuant to 333.26424(a).

 

5. Royal Oak has enacted an ordinance that threatens Frizzo’s ability, protected by the Michigan Medical Marijuana Act, to grow, cultivate and manufacture his own medical marijuana plants. Specifically, Royal Oak Ordinance 2010-3 prohibits Frizzo from cultivating, manufacturing or growing his own marijuana plants. (See Royal Oak Ordinance 2010-3 Attached As Exhibit 1).

 

6. In this lawsuit, Frizzo seeks a declaratory judgment that the Royal Oak ordinances are pre-empted by the Michigan Medical Marijuana Act and thus invalid and unenforceable against him. Frizzo’s ability and/or opprotunity to grow, manufacture, cultivate, harvest and possess up to twelve (12) marijuana plants is protected by the Michigan Medical Marijuana Act and the city of Royal Oak does not have the power to override state law.

 

PARTIES

 

7. Plaintiff, Christopher Frizzo is a citizen of the State of Michigan and resides in City of Royal Oak. He is a registered, qualifying medical marijuana patient under the Michigan Medical Marijuana Act. He is legally permitted to both possess marijuana pursuant to the MMMA but he also is legally permitted to grow, manufacture, cultivate and harvest up to twelve (12) plants. MCL 333.26424. He wishes to have the opportunity to grow medical marijuana at his home.

 

8. Defendant City of Royal Oak is a municipality organized under the laws of the State of Michigan. The City of Royal Oak is located within Oakland County.

 

JURISDICTION AND VENUE

 

9. This Court has jurisdiction because this is a civil action for a declaratory judgment under MCR 2.605, no other court has exclusive jurisdiction over this action and no law denies the circuit courts jurisdiction over this action.

 

10. This Court has venue under MCL 600.615, as all parties to this lawsuit reside in Royal Oak, Oakland County, Michigan.

 

FACTS

 

11. In 2008, the people of the state of Michigan enacted the Michigan Medical Marihuana Act (“MMMA”) by voter initiative. See Initiated Law 1 of 2008, MCL 333.26421, et seq.

 

12. The measure passed with approximately 63% of the vote - including approximately 72% of the voters in Royal Oak.

 

13. The first two stated purposes of the Michigan Medical Marihuana Act are “to allow under state law the medical use of marijuana” and “to provide for the medical use of marijuana.”

 

14. In Section 2 of the Act, the people of the State of Michigan found and declared that “modern medical research, including as found by the National Academy of Sciences’ Institute of Medicine in a March 1999 report, has discovered beneficial uses for marijuana in treading or alleviating the pain, nausea, and other symptoms associated with a variety of debilitating medical conditions.”

 

15. In the Act, the People of the State of Michigan further found and declared that “although federal law currently prohibits any use of marijuana 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 laws of Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, New York, Oregon, Vermont, Rhode Island, and Washington do not penalize the medical use and cultivation of marijuana. Michigan joins in this effort for the health and welfare of its citizens.”

 

16. The Michigan Medical Marihuana Act decriminalized the medical use of marihuana for “debilitating medical conditions”.

 

17. The “medical use” of marijuana is defined by the MMMA to include, among other things, “the acquisition, possession, cultivation, manufacture . . . use and transportation of marijuana relating to the administration of marijuana to treat or alleviate a registered patient’s debilitating medical condition.” MCLA 333.26423(e).

 

18. The MMMA provides protections for qualifying patients, registered as such with the State of Michigan based on a written certification from their physician, that they “shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty” for the medical use of marijuana. MCL 333.26424(a).

 

19. Some politicians and local municipal/township attorneys have undertaken a concerted effort to obstruct, frustrate or impede the purposes of the MMMA. Even more evident is their determination to sabotage and undermine the MMMA. Cities and municipalities are feverishly amending ordinances and codes in an effort to attempt to expressly ban the medical use of marijuana or to create other restrictions that effectively ban the medical use of marijuana by making the medical use of marijuana impractical, difficult, costly, burdensome or illegal.

 

20. Defendant is attempting to do so under the guise of a zoning ordinance: since the passage and enactment of the MMMA, Defendant has amended its Zoning Ordinance, Ordinance. No. 2010-3, in direct conflict with the MMMA. Specifically, the amendment purports to prohibit any “use” or “purpose” that is contrary to local, state and/or federal laws or ordinances. (See Ordinance as Attached as Exhibit 1).

 

21. The Amended Ordinance is written as follows: “Conflicts with Other Laws, Regulations and Agreements is amended to add a third paragraph ©, which shall read as follows:

 

“C. Uses for enterprises or purposes that are contrary to local, state and/or federal laws or ordinances are prohibited. The prohibition shall not apply to the following:

 

 

 

(1) A qualifying patient engaged in the possession or use of marihuana in the patients home in accordance with the Michigan Medical Marihuana Act.

 

 

 

(2) A primary caregiver assisting a qualifying patient with whom he or she is connected through the Michigan Department of Community Health’s registration process with the possession or use of marihuana in the patient’s home in accordance with the Michigan Medical Marihuana Act. (See Ordinance Attached as Exhibit 2).

 

 

 

22. This ordinance prohibits activities that are protected by the MMMA, e.g., a qualifying patient’s right to grow, manufacture, cultivate and possess plants from which he/she will harvest medicine. Defendant’s ordinance accomplishes this task by attempting to generally refer to other codes, e.g., federal[1] and state[2], and then prohibiting all that is prohibited in those codes; thus creating a “quilt” of sewn-together provisions and prohibitions.

 

23. The only activity that Defendant’s ordinance allows is the use and possession of the medicine by qualifying patients. (See Royal Oak Ordinance 770-5©(1)). The ordinance strips away the other activities that the MMMA protects, i.e., the acquisition, transfer, delivery, manufacture, cultivation and transportation of medical marijuana.

 

24. This interpretation is not the product of Plaintiff’s imagination -- Defendant and its representatives admitted as much: “[t]his new ordinance . . . prohibits the growing or distribution of marijuana”, explained Charles Semchena, City Commissioner.

 

25. Because the cultivation and manufacture of marijuana remains “illegal under federal law”, Ordinance No. 2010-3 operates as a complete ban on all medical marijuana manufacture and cultivation in the City of Royal Oak.

 

26. Thus, although the MMMA defines the cultivation and manufacture of marijuana plants as a part of the “medical use of marijuana” and that registered patients and their caregivers “shall not be subject to arrest, prosecution or penalty in any manner” for the medical use of marijuana, including the cultivation of up to 12 plants per registered patient, the use of land or buildings by a registered patient to grow up to 12 plants per patients is “illegal” within the City of Royal Oak.

 

27. Plaintiff, like all registered patients and caregivers, is entitled to cultivate and manufacture his own medicinal marijuana in accordance with the MMMA without being subject to arrest, prosecution or penalty in any manner by the Defendant.

 

28. Pursuant to Ordinance 2010-3, residents of Royal Oak must find locations outside of the City at which they can cultivate and manufacture their medicinal marijuana. Unfortunately for patients who have limited funds, limited botanical knowledge, are of limited mobility or otherwise desire to cultivate marijuana inside of their own homes, Ordinance 2010-3 severely restricts access to medical marijuana by forcing Plaintiff and others to travel a greater distance than necessary, necessarily spending more money, in order to obtain their medicine.

 

29. This ordinance is in direct conflict with the MMMA and cities or townships in Michigan may not adopt ordinances in direct conflict with a state statute. Such ordinances are preempted by Michigan State law and therefore void.

 

30. Christopher Frizzo is 46 years old. Frizzo suffers from multiple sclerosis, a debilitating disease in which the body’s immune system eats away at the protective sheath that covers nerves. There is no known cure for multiple sclerosis. Rather, patients are left to attempt to alleviate their symptoms, which are often debilitating, disabling and overwhelming. These symptoms include numbness or weakness in one or more limbs, partial or complete loss of vision usually in one eye at a time, often with pain during eye movement, electric shock sensations that occur with certain head movements, tremors, fatigue, dizziness and seizures.

 

31. Frizzo’s disease severely cripples his movement and freedom of movement. He suffers from multiple and varying symptoms of this disease and requires assistance and support with simple tasks, including walking or moving about. He uses a walker, wheelchair or cane for support.

 

32. Frizzo wishes to have the opportunity to cultivate and grow his medical marijuana at his home in Royal Oak in order to treat his debilitating medical condition.

 

DEMAND FOR RELIEF

 

THEREFORE, for all the above reasons Plaintiff requests that this Court:

 

A. Assert jurisdiction over this matter;

 

B. Declare as follws:

 

1. That Royal Oak’s Ordinance number 2011-3 is pre-empted by the Michigan Medical Marijuana Act to the extent it prohibits the medical use of marijuana as allowed under the Michgian Medical Marijuana Act. It is thus void and unenforceable against Plaintiff for his use and/or cultivation of up to twelve (12) marijuana plants as a registered patient in an enclosed, locked facility in Royal Oak;

 

 

 

C. Enter a declaratory judgment in favor Plaintiff and against Defendant;

 

D. Grant any other relief this court deems just and proper.

 

 

 

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[1] Federal law prohibits the cultivation and manufacture of marijuana, see. e.g., 21 USC 841)(a).

 

[2] Michigan law prohibits the maintaining of a drug house, i.e., maintain a dwelling for the purpose of using controlled substances or that is used for keeping or selling controlled substances, e.g., 333.7405(1)(d).

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Seems odd that Royal Oak commissioners would ban activities that a majority of their citizens voted to allow, knowingly starting multiple legal battles, wasting tax payer money and resources.

I guess when it comes to the Culture Wars they will spare no expense.

Standard practice would dictate that the legal funds will have to be diverted from the weakest of their citizens; look for further cut backs in city funded child and senior services.

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