Legal concerns still surround medical marijuana
June 06, 2014 | Kris Hermes
Ben Baird, Ypsilanti Courier
Although voters approved the Michigan Medical Marijuana Act nearly six years ago and in many areas residents are able to seek treatments in compliance with the law, some legal concerns still remain.
One area of concern is for medical marijuana dispensaries, which authorities have said are not addressed in the law.
Jamie Lowell, the director of the 3rd Coast Compassion Center in Ypsilanti, said he feels the language of the state law is pretty clear, but it depends on who is looking at it.
His dispensary, 19 N. Hamilton St., is one of the first to open in the state in January 2010. He is also the chair of the Michigan chapter of the Americans for Safe Access, a national organization that promotes safe and legal access to cannabis for therapeutic use and research.
The law can be interpreted based on its intent, said Lowell. He said the essence of the law is to find new ways to help people.
“People’s lives are being saved, people’s quality of life is being improved,” Lowell said. “That should really be appreciated and celebrated.”
However, he said he feels opposition to medical marijuana has been making an effort to create gray areas. Some decisions out of state courts, particularly the Michigan Court of Appeals, have made the law more prohibitive, he said.
Michael Komorn, president of the Michigan Medical Marijuana Association, is an outspoken proponent of medical marijuana. He has called medical marijuana prosecutions a crusade of Michigan Attorney General Bill Schuette.
“Bill Schuette has caused more challenges to the implementation of the Medical Marijuana Act than anybody,” Komorn said. “It’s not even based in rational thought.
“He is literally obsessed with blocking implementation.”
Schuette, for his part, has called the ballot proposal approved by voters in 2008 “a sketchy statute.”
“You saw a sketchy statute, and one that had more holes in it, some say, than Swiss cheese,” Schuette said nearly a year ago. His position hadn’t changed in a recent interview with Digital First Media: “The fact is nowhere in that statute were there provisions for dispensaries.”
Something that could implement change is House Bill 4271, which would update the law’s language to include dispensaries. It has passed the Michigan House of Representatives and has now gone to the senate. There has been one hearing on the bill with another hearing and possible vote still pending.
If approved, Lowell said this bill would clear up some of the issues with the opposition to medical marijuana.
Prosecutions and court cases continue to define Michigan’s medical marijuana law, five-and-a-half years after voters overwhelmingly approved it, leaving some in limbo and some with criminal records.
Lowell said he doesn’t understand why adults moving around small amounts of cannabis for legal medical benefit should be of any concern for law enforcement and prosecutors, especially when there are violent crimes going on to deal with.
One raid conducted locally on July 30, 2013, by the Drug Enforcement Administration, targeted The Shop dispensary, located at 513 W. Cross St. in Ypsilanti.
The Shop’s license was subsequently suspended for six months due to evidence that marijuana may have been smoked on the premises, which is prohibited by city ordinance, although it wasn’t proven this actually occurred. The Shop settled on the suspension, but did not admit any wrongdoing.
The Shop is back in business, having reopened in late 2013 after the suspension was lifted.
The Medical Marijuana Act does not protect users, caregivers or owners of properties on which medical marijuana use is occurring from federal prosecution or from having property seized by federal authorities under the Federal Controlled Substances Act, according to the city of Ypsilanti.
Two recent Oakland County cases, People vs Tuttle and People vs Hartwick, both deal with medical marijuana’s Section 8 defense and are in various stages of appeal to higher courts.
Section 8 provides a defense for medical marijuana caregivers if they exceed the marijuana limits specified in Section 4 of the law. The Michigan Court of Appeals, in particular, has ruled against Section 8 defenses in most cases.
Lowell said he interprets the rulings on People vs Tuttle and People vs Hartwick as being about denying residents their benefits, creating burdensome barriers to what the Michigan Medical Marijuana Act offers.
While legal in Michigan for medicinal purposes, marijuana use is prohibited by federal law, although many states have local law that goes beyond what the federal law allows. Twenty-one states total, in addition to Washington D.C., have laws legalizing marijuana to some degree. Two states, Colorado and Washington, have even legalized marijuana for recreational use.
Despite the legality of marijuana dispensaries being in question, these businesses remain open to offer their services in many areas. In Washtenaw County, multiple dispensaries are located in the cities of Ypsilanti and Ann Arbor.
Ypsilanti defines a medical marijuana dispensary as a facility or membership club where primary caregivers can lawfully assist their qualifying patients, according to a city planning and development fact sheet.
Dispensaries are central locations where activity can occur between licensed patients and caregivers, Lowell said. It is also where patients can learn about what treatments can work for them, he said.
Teresa Gillotti, community development director in Ypsilanti’s Planning and Development Department, said when Ypsilanti’s medical marijuana ordinance was adopted, the city tried to do its best to put order to the state law, which officials felt was very loose.
Since the Michigan Medical Marijuana Act passed, she said some additional case law has been developing, and those who have licenses and permits have had to make sure they keep up to stay in compliance with state law.
The act defines patients and caregivers, but Gillotti said it does not clearly define dispensaries.
“It’s still a little bit in the gray area,” she said.
It hasn’t been easy to keep up with some of the interpretations of the law, Lowell said, but the important thing is the caregivers and patients working with his 3rd Coast Compassion Center are sincere about the law and their services are designed around helping people with their conditions.
If the state law is further defined or changed, Gillotti said the city may eventually need to revisit the ordinance.
Ypsilanti does annual inspections of medical marijuana dispensaries, which the city asks to comply with its ordinance in addition to state law.
Gillotti said at this point she feels dispensaries have been complying well with the city ordinance. The city does monitor if police need to do any calls to these locations, but she said there have not really been any problems.
When the ordinance was being created, she said there was a concern from some that this type of facility would attract criminal activity. Fortunately, she said that has not been the case.
Lowell said they have had a transparent relationship with local administrators and authorities.
Beyond Ypsilanti, many communities are still finding the right way to comply with the still changing law.
Todd Campbell, Saline’s city manager, said the city of Saline currently has a moratorium on issuing permits or licenses for the sale or dispense of medical marijuana, which was initially put in place in October 2013.
In 2010, the city adopted the “Livonia Model,” which stated if marijuana use is prohibited by both state and federal law than it was also prohibited in the city. At that time, there was little information available to communities regarding court rulings.
Campbell said a court ruling determined this type of policy was not valid, so the city has to do something else instead.
Saline is currently in the process of drafting and revising a new ordinance that would regulate medical marijuana caregivers and patients, he said, but would not allow dispensaries. He said it will regulate the legal use allowed under the Michigan Medical Marijuana Act.
It was presented to the Saline Planning Commission and it’s hoped it will be put before an ordinance review taskforce recently put in place, the city manager said, before eventually going back to the Saline City Council for possible authorization.
“Hopefully that should be moving forward,” Campbell said.
He hopes the city will be able to have an ordinance in place within the next three or four months, he said.
Milan Mayor Michael Armitage said the city of Milan, which also has a moratorium and pending ordinance, has been delayed due to the legal challenges and legislative updates regarding the Medical Marijuana Act.
Milan put a moratorium, which does not affect residents who need to use marijuana for medical reasons, in place on any business that seeks to dispense or distribute medical marijuana. There has been no recent action on one proposed ordinance that would direct the city’s Planning Commission to develop rules regulating where dispensaries could be located.
The Michigan Medical Marijuana Act was approved by 63 percent in the Nov. 4, 2008, general election, with just over 3 million votes in favor, according to the Michigan Secretary of State.
More than 80 percent of Ypsilanti residents supported the Medical Marijuana Act in 2008, Lowell said. He said he believes the act would pass by an even higher margin by state voters today, based on current polling data, and it had already been a landslide win before.
“There is no doubt we are headed in the right direction,” he said.