Court Slaps Down Local Ordinances

[AKenewell]

Sault Ste. Marie, Mich. —

Wednesday’s ruling by the Michigan Court of Appeals overturning local ordinances prohibiting the cultivation of medical marijuana should have little impact on Sault Ste. Marie residents, according to City Manager Spencer Nebel.

 

“We don’t allow dispensaries, but you can grow it,” said Nebel.

 

The Detroit News is reporting that the three-judge panel overturned an ordinance enacted by the city of Wyoming — a Grand Rapids suburb — that sought to prohibit cultivation of medical marijuana based on federal prohibitions against manufacturing and distributing cannabis.

 

“Defendant’s ordinance is void and unenforceable to the extent that it purports to sanction the medical use of marijuana in conformity with” the Michigan Medical Marihuana Act, appeals judges Joel P. Hoekstra, Douglas Shapiro and William Whitbeck wrote in an opinion handed down on Tuesday and released Wednesday, according to the Detroit News.

 

The city of Wyoming was not alone in trying to use federal law to ban the planting and cultivation of marijuana within its boundaries as other municipalities throughout the state passed similar ordinances since voters approved the use of medical marijuana in 2008. In fact, Nebel indicated the city officials had considered this avenue when crafting their ordinance before deciding to allow the practice earlier this year.

 

While medical marijuana can be grown in Sault Ste. Marie, there are still plenty of rules governing the process.

 

All cultivation, processing and distribution must comply with Michigan law and the caregiver cannot use more than 25 percent of the livable floor space within the residence for this operation. Growers must also keep their plants in a closed, locked area within the dwelling. Additional regulations prohibit signage or visible display of the product.

 

Caregivers are also subject to periodic inspections by the Building Department.

 

The Sault’s ordinance also prohibits customer traffic to the home-based business, Nebel explained, requiring the caregiver to deliver the product to the customer. This section of the ordinance was designed to curtail traffic in residential areas which could negatively impact the neighborhood.

 

The Detroit News account explained that Wednesday’s ruling does provide immunity from certain municipal zoning sanctions, but does not interfere with federal enforcement of controlled substances.

 

 

 

http://www.sooevenin...ocal-ordinances

[AKenewell]

Here's Brad Forrester's reply to this ….

 

 

 

BradForrester

4 days ago

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City Manager Spencer Nebel better have his legal people review this decision again. The Sault Ste. Marie ordinance is also unenforceable and in effect void too!

 

Page 3-4 of the COA opinion

A city ordinance that purports to prohibit what a state statute permits is void. Walsh v City of River Rouge, 385 Mich 623, 636; 189 NW2d 318 (1971). A state statute preempts regulation by an inferior government when the local regulation directly conflicts with the statute or when the statute completely occupies the regulatory field. USA Cash # 1, Inc v City of Saginaw, 285 Mich App 262, 267; 776 NW2d 346 (2009). A direct conflict exists between a local regulation and state statute when the local regulation prohibits what the statute permits. Id.

 

In its brief on appeal, defendant specifically acknowledges that the purpose of the ordinance is to regulate the growth, cultivation and distribution of medical marihuana in the City of Wyoming by reference to the federal prohibitions regarding manufacturing and distribution of marijuana. In making this argument, defendant relies on the provision of the CSA that makes it unlawful for any person knowingly or intentionally . . . to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance . . . . 21 USC 841(a)(1). Further, under 21 USC 812©(10), marijuana is a Schedule I controlled substance; thus, manufacturing or possessing marijuana is generally prohibited under federal law. Consequently, these provisions of the CSA when read together with defendants zoning ordinance, which makes any violation of federal law an unpermitted use of ones property, cause any medical use (3) of marijuana pursuant to the MMMA on any property within the city of Wyoming to be a violation of defendants zoning ordinance. Although plaintiff has not been punished for violating defendants zoning ordinance, defendants municipal code permits civil sanctions, including, without limitation, fines, damages, expenses and costs . . . for violations of the code. Wyoming Ordinance, 1-27(a). In addition, it cannot be disputed that if found in violation of Wyoming Ordinance, 90-66, plaintiff would be subject to injunctive relief that would restrict the use of his property for purposes that would otherwise be permitted under the MMMA. See MCL 125.3407.

 

In contrast, the MMMA permits medical use as defined in MCL 333.26423(e), which includes use, possession, cultivation, delivery and transfer. Further, the plain language of MCL 333.26424(a) provides immunity for qualifying patients, which plaintiff is acknowledged to be, from being subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege . . . . Under these circumstances, the question presented regarding conflict preemption between the MMMA and defendants ordinance is whether the possibility of plaintiff being subject to the civil sanctions of the Wyoming zoning ordinance if found in violation of the city ordinance for engaging in activity otherwise permitted by the MMMA constitutes a penalty in any manner prohibited by MCL 333.26424(a).

 

SSM officials CAN NOT regulate anything the Michigan Medical Marijuana Act permits, period. SSM can enact ordinances that allow for collectives, coops, and dispensaries, but they CAN NOT regulate what a licensed patient or caregiver do on their own property, or in their homes.

 

Any attempts to enforce the SSM ordinance will be met with swift and overwhelming legal action. How much money are taxpayers prepared to let officials spend to defend a position they can only lose? If anyone is cited for a violating SSM's medical cannabis ordinance, please contact me so we can address your grievance and rein-in Mr. Nebel and his errant ordinance.

 

G K (MrKind)

4 days ago

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Bravo Brad,, Nice seeing ya on here.