1. Medical Marijuana: What’s Legal, What’s Not, and What Can We Do?
Laura J. Genovich
1700 E Beltline NE – Suite 200
Grand Rapids MI 49525

2. Medical Marijuana: A Controversial & Local Issue

3. Overview Medical Marijuana Legalization Nationwide
History of the Medical Marihuana Act in Mich.
What is legal?
What is illegal?
Effects of the new Medical Marihuana Facilities Licensing Act
What does your municipality need to do?
Quick Tips for Controversial Issues

4. National Overview

5. National Overview
28 states, plus the District of Columbia, Guam, and Puerto Rico, now have “comprehensive” medical marijuana programs under which qualifying use of medical marijuana is legal.
“Comprehensive” = protection from criminal penalties; access to marijuana through home cultivation or dispensaries; variety of strains permitted; and allows smoking or other products.
89% of U.S. adults favor legalization of medical marijuana. (Quinnipiac University Poll, June 2016).
57% of U.S. adults say that medical and recreational use of marijuana should be legal. (Pew Research Center, Oct. 2016)
Michigan is among the majority of states allowing and regulating medical marijuana.

6. History
Michigan voters approved Proposal 1 in 2008, permitting the use and cultivation of medical marijuana.
Proposal 1 received majority support in every Michigan county and was approved by 63% of voters statewide.
Proposal 1 became the Michigan Medical Marihuana Act, MCL et seq. (the “Act”).

7. Intent of the Act
The Act was drafted by a medical marijuana activism group – so usual reports of legislative history and intent are not available.
Presumably, the purposes include:
Creating a registration process for patients and caregivers, and
Creating a procedure for patients to obtain treatment for various medical conditions.

8. Patients
“Qualifying patient” with an ID card can possess up to 2.5 ounces of marijuana. MCL (a).
If the patient has not specified a “caregiver,” then the patient may keep up to 12 marijuana plants in an enclosed, locked facility. MCL (a).

9. Patients
“Qualifying patient” means a person who has been diagnosed by a physician as having a debilitating medical condition, including cancer, glaucoma, HIV/AIDS, hepatitis C, Crohn’s disease, Alzheimer’s, diseases that cause severe pain or nausea, and other conditions identified by the Act or approved by the Department of Community Health.

10. Administration of the Act
The Department of Community Health is charged with promulgating rules.
Rules online:
Rules govern contents of application, verification of information, fees, registration approval and denial, complaints, revocation, and petition to add qualifying diseases. About 10 pages.
Applications:
128,908 original and renewal applications received since April 6,
71,356 patient registrations issued.
13,504 applications denied.
Unknown number of caregiver applications approved.

11. Requirements: Written Certification from Physician
To obtain an ID card, a patient must have a “written certification” from a physician identifying the patient’s debilitating medical condition and stating that patient will receive therapeutic or palliative benefit from the use of medical marijuana.

12. Other Requirements Prospective patients also must provide:
An application or renewal fee;
The name, address, and birth date of the qualifying patient;
The name, address, and telephone number of the qualifying patient's physician;
The name, address, and birth date of the qualifying patient's caregiver.

13. Caregiver Registry ID Cards
Caregivers must be 21 years or older.
“The department shall issue a registry identification card to the primary caregiver, if any, who is named in a qualifying patient's approved application; provided that each qualifying patient can have no more than 1 primary caregiver, and a primary caregiver may assist no more than 5 qualifying patients with their medical use of marihuana.”

14. Confidentiality Applications are confidential.
The Department maintains a confidential list of persons to whom ID cards have been issued, which is not subject to FOIA.
Disclosure of confidential information – including by a local government official or employee – is a misdemeanor.

15. Limits on Possession and Use of Medical Marijuana
Even with an ID card, can’t possess or use:
On a school bus;
On the grounds of any preschool or primary or secondary school;
In any correctional facility.
Can’t smoke marijuana in any public place or on any form of public transportation.

16. Limits on Possession and Use of Medical Marijuana
Cannot operate, navigate, or be in actual physical control of any motor vehicle, aircraft, or motorboat while under the influence of marijuana.

17. Affirmative Defense
The medical use of marijuana is an affirmative defense to a prosecution involving marijuana if:
Physician issued written certification;
Quantity was not more than “reasonably necessary” to ensure availability; and
Medical use was involved.

18. Protections Afforded by Act
A qualifying patient with an ID card and a lawful quantity of marijuana “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 or disciplinary action by a business or occupational or professional licensing board or bureau[.]”
Same for caregiver with ID card.

19. Pre-2016 Case Law
State v McQueen, 493 Mich 135; 828 NW2d 644 (Feb 8, 2013): Held that medical marijuana dispensaries were illegal because the “medical use” of marijuana does not include sale.
Before the 2016 legislation.
Ter Beek v City of Wyoming, 495 Mich 1; 846 NW2d 521 (2014): Local ordinances that attempt to prohibit the use of medical marihuana by prohibiting uses that are contrary to federal law are preempted by the Michigan Medical Marihuana Act.

20. What About Dispensaries?
The 2008 Act Did NOT legalize marijuana or marijuana dispensaries.
Prohibited prosecuting or penalizing qualified patients and registered caregivers to use marijuana for specified medical conditions.
The 2008 Act did not include “dispensaries” or authorize third-parties who are not caregivers to sell marijuana to patients.

21. Medical Marihuana Facilities Licensing Act, PA 281 of 2016, MCL 333
Medical Marihuana Facilities Licensing Act, PA 281 of 2016, MCL et seq. (“MMFLA”)
Major Legislative Action: Medical Marihuana Facilities Licensing Act, PA 281 of 2016, MCL et seq. (“MMFLA”)
Signed into law on September 21, 2016, but did not become effective until December 20, 2016.
Why not?
The law provided that the state would implement a licensing system and licensing board under the Michigan Department of Licensing and Regulatory Affairs (LARA)
The delay was to give the state time to establish this licensing system and board – Medical Marihuana Licensing Board

22. Medical Marihuana Facilities Licensing Act, PA 281 of 2016, MCL 333
Medical Marihuana Facilities Licensing Act, PA 281 of 2016, MCL et seq. (“MMFLA”)
The MMFLA imposes a licensure mandate for certain medical marijuana facilities:
Growers
Transporters
Processors
Dispensaries (Provisioning Centers)
Safety Compliance Facilities
Note: These facilities are only allowed if they comply with the MMMA.
Any facilities that do not comply with the MMMA or are unlicensed are illegal.
Earliest date to apply for a license is December 15, 2017.

23. Municipality’s role under the MMFLA
“Municipality” is defined as cities, townships and villages.
Marijuana facilities may not operate in a municipality unless that municipality has adopted an ordinance (zoning or otherwise) that authorizes that type of facility. Opt-in.
If the municipality does not adopt an authorizing ordinance, the facilities are illegal in its jurisdiction.

24. Existing Facilities
Illegal unless and until the municipality enacts an authorizing ordinance.
Because they are illegal, they will NOT be a prior non-conforming lawful use under zoning ordinance.
If the municipality enacts an authorizing ordinance:
Facility will need to apply for state licensing under the MMFLA.

25. State Licensing under the MMFLA
A facility will only be licensed if the municipality in which it is proposed to be located has enacted an authorizing ordinance.
Applicant facility must apply to the newly enacted state licensing board.
Applications will only be accepted after December 15, 2017, allowing time for municipalities to enact authorizing ordinances if they wish.

26. What if we do not want to authorize facilities in our jurisdiction?
Do nothing.
No municipality is required to adopt an authorizing ordinance.

27. What if we do want to authorize facilities in our jurisdiction?
Enact an authorizing ordinance before December 15, 2017.
This is the earliest date an applicant facility can apply for licensure.

28. Authorizing Ordinance
Specify what type of facilities are allowed:
Growers: “A licensee that is a commercial entity located in this State that cultivates, dries, trims, or cures and packages marihuana for sale to a processor or provisioning center.”
Class A: 500 plants ‐‐ Class B: 1,000 plants ‐‐ Class C: 1,500 plants (“not more than”)
Processors: “A licensee that is a commercial entity located in this State that purchases marihuana from a grower and that extracts resin from the marihuana or creates a marihuana infused product for sale and transfer in packaged form to a provisioning center.”
Provisioning Centers: “A licensee that is a commercial entity located in this State that purchases marihuana from a grower or processor and sells, supplies, or provides marihuana to registered qualifying patients, directly or through their registered primary caregivers.”
Includes: retail sale to patients or caregivers. Does NOT include use of noncommercial property by a primary caregiver to assist qualifying patient.
Secure Transporters: “A licensee that is a commercial entity located in this State that stores marihuana and transports it between marihuana facilities for a fee.”
Safety Compliance Facilities: “A licensee that is a commercial entity that receives marihuana from a marihuana facility or registered primary caregiver, tests it for contaminants and for tetrahydrocannabinol (THC) and other cannabinoids, returns the test results, and may return the marihuana to the facility.”

29. Authorizing Ordinance
Specify how many facilities are allowed.
If not specified = state may approve any type & any number
Specify location of facilities and other appropriate zoning regulations.
Note: growers can only be permitted in industrial or agricultural zones. Cannot allow growers in residential or commercial.
Impose an annual, nonrefundable administrative fee of not more than $5,000.
Regulations MAY NOT be related to:
Purity of marijuana
Pricing of marijuana
Anything conflicting with the MMMA regulations
Use will still not be lawful until after December 15, 2017.
December 15, 2017 is the earliest an applicant may submit an application to the Medical Marihuana Licensing Board (MMLB) for consideration.

30. Why would we want to authorize facilities?
Community support/constituents
Revenue source
Administrative fee (up to $5,000, nonrefundable)
Property taxes (could add value to vacant bldgs)
State shared revenue
Municipalities in which a facility is located receive 25% of the money in a newly created state medical marihuana excise fund (allocated in proportion to the number of facilities in the municipality.)
State tax = 3% of gross revenue.

31. State Licensing under the MMFLA
Only applicable to municipalities after December 17, 2017 AND if your municipality chooses to adopt an authorizing ordinance.
90 days after receiving notice of the application, the municipality must provide the following information to the licensing board:
Copy of local ordinance authorizing the facility
Copy of any zoning regulations applicable to the facility
Description of any violations of these ordinances

32. Miscellaneous Regulations under the MMFLA
Any information that a municipality receives from the applicant related to licensure is exempt from disclosure under the FOIA.
MCL (4).
Any licenses granted by the state are exclusive to the licensee.
The licensee must receive approval from the municipality and the state Licensing Board before a license may be transferred, sold or purchased.

33. Interplay with Federal Law
Keep in mind: marijuana use, even for medical purposes, is still illegal under federal law.
Schedule I drug classification under federal Controlled Substances Act.
Supremacy Clause: Federal law trumps conflicting state law.
In recent years, federal law enforcement has not heavily enforced prohibition if use is legal under state law.
Obama Administration had indicated federal government would not interfere if states legalized medical or recreational use.

34. Interplay with Federal Law
Trump Administration has indicated it may enforce federal drug laws even where state law permits marijuana use.
Preliminary comments have distinguished between recreational and medical use, but both remain illegal under federal law and could be subject to federal enforcement.
Medical marijuana licensees should closely watch the policies of the Administration.

35. Quick Tips for Controversial Issues
Understand the law: substantive law as well as Freedom of Information Act and Open Meetings Act.
FOIA/OMA litigation more likely with controversial issues.
Examples: timely respond to all written requests for documents, even if not called a “FOIA” request; avoid deliberating/discussing outside of open meeting; avoid “reply all” feature on with board/council.
Consider alternative meeting location: If you expect a large crowd, consider using a community center, school, or other venue.
Attorney General has opined that a public body must exercise “reasonable efforts” to accommodate members of the public who wish to attend, including reconvening in a larger room if it is practical. OAG, 1979, No. 5614, p 519 (December 21, 1979).

36. Quick Tips for Controversial Issues
Adopt a policy concerning public comment. A public body cannot limit the total time for public comment (i.e., “public comment will last a maximum of 30 minutes”). But you can limit the length of each person’s comments (i.e., each person may speak for 3 minutes).
Remember: the public is allow to record meetings.
Cannot require public to introduce themselves or sign in, but can require person to state name and address.

37. Conclusion
In sum: the MMFLA fills some “gaps” in the 2008 Act and vests control in local municipalities. “Opt in” law for municipalities.
Cities, townships, and villages should decide how they wish to respond to the MMFLA (if at all).
Be sure to comply with state law, FOIA, and OMA when deciding controversial issues.

38. About Foster Swift
Foster Swift’s municipal attorneys provide both general counsel and special counsel services.
General Counsel. Serving a municipality for all of its legal needs – drafting contracts and ordinances, advising on FOIA and OMA issues, creating special assessment districts, and handling zoning and land use matters, bond issues, labor/employment matters, litigation, and more.
Special Counsel. Working with a municipality on a specific issue, often in collaboration with the municipality’s general counsel. Special counsel matters might include issues with wind and solar energy, urban farming, complex property tax appeals, mining, and medical marijuana.

39. Questions? Laura J. Genovich 1700 E Beltline NE – Suite 200
Grand Rapids MI 49525