In a lawsuit served this week to the Michigan Board of Pharmacy and its chairwoman, Nichole Cover, the plaintiffs claim the current law that issues medical marijuana cards to patients and licenses dispensaries is contradictory to the state’s Controlled Substance Act that classifies the drug as contraband. Because of that, they say its status violates their due process and equal protection rights and freedom from unreasonable searches and seizures.
“It’s not a Schedule 1 drug,” Sinclair told The Detroit News. “It’s been legalized by the citizens and approved by the state. There are thousands that take it and licenses to sell marijuana. That’s why it needs to be corrected in my opinion.”
A Schedule 1 classification refers to substances that have no currently accepted medical use and a high potential for abuse. It includes drugs such as heroin and ecstasy. The Michigan Board of Pharmacy determines the scheduling.
The lawsuit focus on the 2016 Medical Marihuana Facilities Licensing Act in which the state legislature granted the state permission to license marijuana businesses. The state Licensing and Regulatory Affairs Department’s Medical Marihuana Licensing Board began issuing licenses for businesses to grow, process, transport and sell medical marijuana last spring.
As a result, the plaintiffs that include medical patient Josey Scoggin, physician Dr. Christian Bogner, pharmacist Paul Littler, the National Organization for the Reform of Marijuana Laws of Michigan Inc. and theMichigan Medical Marijuana Associationclaim marijuana’s Schedule 1 listing is repealed by implication.
Michael Komorn, one of the attorneys for the plaintiffs, stated: “This is not a controlled substance.” He added “The idea that someone would be growing an opioid … and bringing it to a pharmacy because they were running low on their meds is the scenario that would have to exist in order for marijuana to remain as a scheduled drug.”
Poet and activist John Sinclair has been a cannabis activist in Michigan for more than 50 years. He stated: “For 80 years they’ve been locking people up and taking their possessions and harassing and terrorizing us as citizens because we like to smoke weed,” adding “I want to be part of every effort to completely remove the police from our lives regarding marijuana. They’ve got nothing at all to do with marijuana.”
The lawsuit argues that Michigan laws recognize the medical benefits of marijuana, and yet the Michigan Board of Pharmacy continues to list marijuana as a Schedule 1 drug — a designation that means it has no accepted medical benefits and has a high potential for abuse.
“The Michigan Department of Attorney General is in the process of reviewing and preparing a response to the complaint,” according to a statement from spokeswoman Kelly Rossman-McKinney.
The “absurdity” of the legal conflict between theMedical Marihuana Facilities Licensing Actand the Public Health Code has to be addressed, said Michael Komorn, one of the attorneys behind the case.
“It’s intellectually dishonest,” Michael Komorn ofKomorn Lawsaid.
The Michigan Supreme Court in 1972 noted in the opinion that overturned Sinclair’s conviction that “not only that there is no rational basis for classifying marijuana with the ‘hard narcotics’, but, also, that there is not even a rational basis for treating marijuana as a more dangerous drug than alcohol.”
Federally, marijuana remains listed as a Schedule 1 Controlled Substance and its use remains illegal. The U.S. Attorney General’s office has declined to prosecute states or businesses that have launched medical and recreational marijuana programs. President Donald Trump’s nominee for attorney general, Bill Barr, has said he’ll continue that approach — but believes overarching change is needed.
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Lansing — Medical marijuana business owners would not need to disclose an arrest, charge, indictment or expunged conviction on applications for state operating licenses under legislation the Michigan House approved Tuesday.
The bill by Republican Rep. Klint Kesto of Commerce Township also would exempt those with less than five percent ownership in a medical marijuana business from being listed in the application and abiding by the same financial disclosure requirements assigned to other owners.
“If they own less than five percent, they’re not really decision makers; they’re really just investors,” Kesto said, noting the legislation would lessen the board’s burden and encourage investment in the state.
The bill addresses concerns that have arisen as the state licensing board has slogged through dozens of medical marijuana license applications, at times slowed by questions about decades-old arrests or dropped charges.
Arrested for or Charged with DUI or driving under the influence of “drugs”?… Contact Komorn Law 800-656-3557.
In addition to exempting applicants from reporting arrests or charges, the legislation would prohibit the board from considering an indictment, charge or arrest during the license determination. The legislation would still require applicants to disclose a conviction, guilty plea or forfeited bail.
“Rather than look at every contact with police, they look at the conviction,” Kesto said, bringing the industry more in line with a state effort to remove road blocks to employment.
In addition to exempting applicants from reporting arrests or charges, the legislation would prohibit the board from considering an indictment, charge or arrest during the license determination. The legislation would still require applicants to disclose a conviction, guilty plea or forfeited bail.
.If you have any questions or wish to get into the cannabis business industry, call my office to get started or we can also consult existing businesses to maximize profits and minimize risk 800-656-3557.
Komorn Law has represented numerous clients through the legal chaos of starting up a business in the Michigan Medical Marihuana Industry as well as consulting and legal representation for Medical Maruhuana Patients and Caregivers.
If you or someone you know has been arrested as a result of Medical Marijuana, DUI, Drugs, Forfeiture, Criminal Enterprise or any other criminal charges please contact our office and ensure you’re defended by an experienced lawyer.
Attorney Michael Komorn is recognized as an expert on the Michigan Medical Marihuana Act. He is the President of the Michigan Medical Marijuana Association (MMMA), a nonprofit patient advocacy group which advocates for the rights of medical marijuana patients and their caregivers.
Contact us for a free no-obligation case evaluation 800-656-3557.
This page is for informational purposes only. Laws, regulations and the world change routinely, therefore we insist you consult an attorney for the most current legal information.
Sept 15, 2018 – The Michigan Cannabis Business Licensing Deadline
The Medical Marihuana Licensing Board’s September 15th deadline for unlicensed provisioning centers to shut down is approaching fast. Originally the deadline was June 15, 2018, but the state licensing office moved it due to an apparent backlog in processing applications
Only about 16 licenses out of a reported 637 applications have been approved.
There are approximately over 200 provisioning centers operating temporarily under state emergency rules. Most will have to shut down on the deadline date.
There are licenses that have been approved which include cannabis businesses in each of the five classes of operation in the state regulatory system. Even if there are more licenses approved at a meeting scheduled Sept. 10 meeting, it might only be a few.
“The implementation is insufficient,” says attorney Josh Colton of the Komorn Law firm. “Patients need safe access to their medicine. Extending the deadline from June to September was for this purpose. To all of a sudden shut this down is going to leave quite a few people scrambling.”
There are approximately 300,000 Michigan medical marijuana patients. The licensing bureau has calculated that two-thirds of the patients live within 30 miles or so of a county where one of the licensed provisioning centers is located.
“Even though I think [MMLB] are doing everything they possibly can, even if they are successful in getting 20 more facilities licensed, it is simply not enough to take care of the patient base,” says Colton.
“I have many cannabis business clients looking for answers” said attorneyMichael Komorn who has experience and is recognized as an expert in Michigan Medical Marijuana laws.
Medical marijuana home delivery under consideration in Michigan
8/29/18
Medical marijuana patients might be able to soon have their medicine delivered… right to their homes under a proposed set of rules. Michigan officials are reviewing this with consideration.
Provisioning centers could send out an employee to deliver products to patients directly in a transaction as simple as ordering a pizza or Chinese food.
Marijuana home deliveries are allowed in Oregon, California and Nevada — though their programs are not all universal. Colorado, Washington, Alaska and Washington D.C. don’t allow for home delivery.
Under the proposed rules in Michigan, medical patients could order online and pay online for home deliveries.
Provisioning centers would be allowed to staff one person to make home deliveries, who could only deliver to three patients at a time, according to the proposed rules. The provisioning center would have to be able to track the delivery’s GPS location at all times during the delivery, and logs would have to be kept. Deliveries would only be allowed to the home address of the patient.
Medical patients living in a city or township that has banned medical marijuana businesses from operating could receive deliveries from provisioning centers, said David Harns, spokesman for the state’s Bureau of Medical Marijuana Regulation.
A hearing on the permanent rules is set for Sept. 17. The emergency rules and permanent rules are largely the same, save for the ability of provisioning centers to make deliveries, Copenhaver said.
According to some cannabis attorneys patients and caregivers as well as cultivators in Michigan can’t process their plants without breaking the law as a result of a Court of Appeals decision.
During the drying process between when a marijuana plant is harvested and completely dried for use (AKA -wet marijuana), that time is not covered by the state law, according to a Michigan Court of Appeals decision ruling on July 19, 2018.
The appeals court case — People v. Vanessa Mansour — arises from a police raid at Mansour’s Troy home. There they found marijuana plants and marijuana buds in different stages of wet and drying. They also found dried marijuana buds.
Mansour was a medical marijuana patient at the time.
Mansour’s defense argued that the marijuana that was drying was not usable and therefore qualified her for immunity under state law. They argued the drying marijuana should not be considered as authorities made up their charges.
“To say that the legislature makes it legal to possess growing plants and to possess a limited amount of finished product — but that in between, everybody is just illegal — that’s the interpretation that the Court of Appeals has hoisted on everybody,” Neil Rockind said.
The Carruthers ruling is outdated and not relevant, Rockind said.
Court’s interpretation of § 4 of the MMMA in People v Carruthers, 301 Mich App 590, 609; 837 NW2d 16 (2013), was controlling, and that the holding of Carruthers required the trial court to consider the total amount of marijuana possessed by defendant, not just the total amount of usable marijuana.
Rockind said it conflicts with state law and with People vs. Manuel, which the Court of Appeals previously decided. The Michigan Supreme Court has already had to refer a medical marijuana case back to the Court of Appeals due to the Manuel ruling, Rockind said.
In Manuel, the defendant was “both a qualifying patient and a primary caregiver for five patients, so he was allowed . . . to possess up to 15 ounces, or approximately 425.24 grams, of usable marijuana under the MMMA.” Manuel, 319 Mich App at 300. The marijuana he possessed was well in excess of that amount, however. The trial court held that “the marijuana . . . was unusable because it was in ‘various stages of drying.’ ” Id. at 122. It therefore ruled “that the defendant was entitled to § 4 immunity and dismissed the charges against him.”
But the COA referred to the second prong of Carruthers analysis stating.
Importantly, however, neither the prosecution nor the defendant in Manuel cited to Carruthers. Nor, perhaps largely for that reason, did this Court in Manuel cite to Carruthers.
And, consequently, neither the parties nor this Court in Manuel ever reached the second prong of the Carruthers analysis:
In short, the question of whether a possessor of marijuana possesses an allowed quantity of usable marijuana is only the beginning of the relevant inquiry under
4. A further pertinent and necessary inquiry, for purposes of a § 4 analysis, is whether that person possesses any quantity of marijuana that does not constitute usable marijuana under the term-of-art definition of the MMMA. If so, and without regard to the quantity of usable marijuana possessed, the person then does not possess “an amount of marihuana that does not exceed . . . 2.5 ounces of usable marihuana . . . .” MCL 333.26424 (a) and (b)(1) (emphasis added).
Instead, he or she then possesses an amount of marijuana that is in excess of the permitted amount of usable marijuana. In other words, the language establishing limited immunity in § 4 of the MMMA expressly conditions that immunity on the person possessing no amount of marijuana that does not qualify as usable marijuana under the applicable definitions. Carruthers, 301 Mich App at 610.
Rockind said he plans to take the case to the Michigan Supreme Court.
Michigan voters will soon be asked to consider a ballot proposal Nov. 8, 2018 that would make recreational marijuana legal in the state.
Komorn Law has represented numerous clients through the legal chaos of starting up a business in the Michigan Medical Marihuana Industry.
