Do cities and townships have the ability to restrict where caregivers grow medical marijuana?
Over the course of the legalization of Medical and Recreational marijuana many have debated about whether control over dispensaries should be at the local or state level.
A 2016 event in Byron Township, which is located south of Grand Rapids. A medical marijuana caregiver as well as patient registered with the state as a medical marijuana commercial grower back in 2016.
The township has zoning laws that restrict medical marijuana caregivers to use their homes for their grow operations and prohibits the use of commercial property. The township also requires caregivers to obtain a local permit.
The Township then ordered the patient to stop all operations the same year.
The medical marijuana grower then sued the Township.
In July of 2018 when the Michigan Court of Appeals upheld a lower trial court’s decision that stated there is no provision in the Michigan Medical Marihuana Act that would allow a municipality to restrict where caregivers can grow medical marijuana.
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The Court of Appeals concluded:
We conclude that the Michigan Medical Marihuana Act permits medical use of marijuana, particularly the cultivation of marijuana by registered caregivers, at locations regardless of land use zoning designations as long as the activity occurs within the statutorily specified enclosed, locked facility
After that Court of Appeals ruling Byron Township, the Michigan Townships Association and the Michigan Municipal League appealed the ruling to our state Supreme Court. That is the status today.
Lawyers for the Michigan Municipal League wrote in their amicus brief:
The voters who approved the MMMA did not clearly intend to immunize medical marijuana patients and caregivers from all local land use laws, and the Court of Appeals’ finding of such immunity ignores both that lack of intent and the very concept of local home rule
It makes a lot more sense to have people who are truly accountable to the public making the decisions
This situation will certainly have an eye kept on it
The recalls of six batches of medical marijuana available on the state’s regulated market since January have prompted industry and health expert concerns about continuing to let caregivers grow and create pot products to meet a shortage in the licensed market.
More than 50 pounds of medical marijuana product were recalled in January from provisioning centers in Detroit, Lansing, Jackson, Kalamazoo and Ypsilanti for issues such as chemical residue, E. coli, arsenic, cadmium and Salmonella. The majority of the 43 products failing the testing were caregiver grown, the state has said.
Despite the recalls, the state Medical Marihuana Licensing Board approved a resolution in mid-January allowing licensed facilities to purchase medical marijuana from caregivers through March 31 in an effort to meet an industry shortage while newly licensed growers prepare their first harvests. The state’s testing of caregiver products sold at provisioning centers lasted two weeks, from early to mid-January.
The potential for contaminated product to slip through the licensed system for lack of testing could pose a risk to patients, in particular those with compromised immune systems, said Jamie Alan, an assistant professor in Michigan State University’s Department of Pharmacology and Toxicology.
“If it’s not tested, you don’t know what’s in it,” Alan said. “But the alternative is that they’re in pain. It’s probably a somewhat small risk, but you can’t guarantee that.”
While licensed facilities want the state’s 350,000 patients to have access to medical marijuana, “we also want people to be able to know what they’re ingesting.” said Joe Neller of Green Peak Innovation in Dimondale, which grows marijuana. “There’s no way to know how contaminated that product that patients have been consuming has been.”
Over the next two months, patients searching for medical marijuana from a licensed provisioning center can buy from a small supply of tested product or sign a release and purchase untested, caregiver-supplied marijuana, said David Harns, a spokesman for the state Department of Licensing and Regulatory Affairs.
Patients also have the option of bringing their untested marijuana to a licensed safety compliance facility for testing, Harns said.
“The products will not be required to have met state testing standards, so patients need to understand that fact and assume the potential risk that the products may present,” he said in a statement.
The batches recalled in the past month largely consisted of marijuana flower, as well as other products such as marijuana concentrate, patches and tinctures. Marijuana flower can be used in a variety of ways; marijuana tinctures are consumed on their own or added to a food or beverage, while concentrate is usually inhaled as a vapor.
‘Selective enforcement’
As the grace period for untested product continues through March, licensed growers and processors will be required to continue testing their own product, giving caregivers and unlicensed sellers a market edge over licensed facilities.
The resolution penalizes “certain licensed facilities by selective enforcement” and fails to provide patients access to safe medical marijuana, the Michigan Coalition of Independent Cannabis Testing Laboratories said in a statement.
“Under this new ruling, Michigan’s most vulnerable patients are buying purported medical cannabis products that could legitimately harm them,” the group said in a statement.
The coalition, made up of more than a dozen licensed testers, growers and processors, proposed the state instead test caregiver marijuana prior to sale and put restrictions on caregiver product based on failure rates for chemical residue, heavy metals and residual solvents.
Because most users will be buying from regulated provisioning centers in the future, the Michigan Cannabis Industry Association is not overly concerned by the short-term use of untested product, said association spokesman Josh Hovey.
Many caregivers had tested their product voluntarily prior to the state’s regulatory framework requiring as much for licensed facilities, Hovey noted. “This is especially true for those that were serving pediatric patients and patients with autoimmune deficiencies,” he said.
While not ideal, the state’s decision to allow caregiver product to be used on the regulated market through March was the appropriate response to the shortage, said Jamie Lowell, a board member of MILegalize and representative for the medical marijuana group, Americans for Safe Access.
“I agree that people should not be consuming things with contaminants in them, but just because a couple things showed up in this testing, you cannot label all caregiver product as being bad for consumers,” Lowell said.
Caution urged amid recalls
Medical marijuana batches in Lansing Jan. 11 tested above state limits for chemicals, such as the mite-killing insecticide Spiromesifin, Salmonella and E. coli. Some items tested at more than double the state limit for Spiromesifin, while others tested positive for Salmonella and E. coli, which the state has ruled should not be detected at all.
Some kinds of E. coli can cause diarrhea, urinary tract infections, pneumonia and other illnesses, according to the Centers for Disease Control and Prevention. A Salmonella infection can result in diarrhea, fever, abdominal cramps and, in severe cases, hospitalization and death, according to federal health officials.
The state contaminant limits for the marijuana products seem reasonable, especially given the historical context of a marijuana-linked Salmonella outbreak in the Midwest in the 1980s, MSU’s Alan said.
“With the chemical it’s hard to say,” Alan said, noting there’s little research of the impact of Spiromesifen on humans.
“With the bacteria, certainly if you’re immuno-compromised or have any serious illnesses, they pose a significant concern.”
The infection risk to the immuno-compromised — a population likely to consume medical marijuana product — is a real concern when it comes to the continued use of untested product, said Dr. Preeti Malani, the University of Michigan’s chief health officer and a professor of medicine in the division of infectious diseases.
A 2017 nationwide poll of people between the ages of 50 and 80 found 6 percent of those polled used medical marijuana and 31 percent said marijuana definitely provided pain relief. The survey, called the National Poll on Healthy Aging and conducted by a UM team Malani directed, should be a wake-up call to physicians, especially those dealing with immuno-compromised populations like the elderly, she said.
As Michigan enters the new world of legal recreational cannabis, some long-time holdouts in law enforcement are expected to stand down.
Although 63 percent of Michigan voters approved medical marijuana in 2008, Bouchard has been a leader, along with former Michigan Attorney General Bill Schutte, in quashing efforts in the decade since then to allow sales outlets for medical marijuana.
That’s a one of the reasons why dozens of the outlets called dispensaries sprung up along the south side of Eight Mile Road in Detroit in Wayne County.
Now, it looks like even Bouchard must yield to the tide of legal cannabis after Michigan voters in November legalized the recreational use of marijuana.
On Friday, a shop billed as Oakland County’s “first licensed dispensary” opened in Walled Lake.
Angie Roullier has muscular dystrophy and she said that “cannabis really changed my life” after she weaned herself from three decades of prescription drugs.
The opening comes a decade after Bouchard ordered undercover officers from OAKNET — the Oakland County Narcotics Enforcement Team — to gather evidence prior to a police raid of what then-Ferndale Mayor Craig Covey said was the county’s first dispensary, called Clinical Relief.
That shop had opened with the Ferndale City Council’s enthusiastic approval. But the ill-fated venture never reopened after OAKNET officers arrested more than two dozen people at the site.
In Walled Lake, the City Council has been equally enthused about the opening of the Greenhouse on Pontiac Trail. And the new outlet’s CEO, Jerry Millen, said he doesn’t expect trouble from Sheriff Bouchard or the county’s narcotics investigators, after he paid $66,000 for a state license and gained full approval to open under the state’s new law.
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In handing out a harsh sentence to a driver who smoked marijuana before she collided with a motorcyclist and killed him, Judge Rosemarie Aquilina is making an example of her.
The lesson: Don’t smoke weed and drive.
Problem is, in Michigan, it’s unclear what that lesson means. Marijuana is now legal, but any amount in a driver’s system could be considered intoxication under the current law.
The sentence given to Logan Brooke Turner, 21, of Dimondale, underscores what’s at stake. Aquilina handed her a minimum of nearly six years in prison for operating while intoxicated, causing the death of motorcyclist Blair Beck, 21.
Turner admits smoking marijuana the day of the crash, but her attorney, Lucas Dillon, argued she had no signs of intoxication beyond a blood test. A jury wasn’t convinced and convicted her after a four-day trial.
Dillon said Turner was prepared for a one- or two-year minimum sentence. Seventy months was stunning.
“We were basically outraged and shocked by the sentence,” he said. “I think it’s completely out of line.”
The judge’s sentence went beyond the five years sought by prosecutors — the same amount of time they argued that it would have taken Blair Beck to meet a girl and start a family, travel cross county with his dad on motorcycles or finish his education.
Recreational marijuana was illegal at the time Turner caused Beck’s death but legal by the time a jury found her guilty.
Dillon, who is not a marijuana advocate, said the case points to the need for Michigan to better define impairment, especially now that it’s legal.
“People are going to be driving around all the time with weed in their system. That doesn’t mean that they’re high,” he said.
As my colleague Kara Berg has reported, how laws against driving while high are enforced depends on who is doing the enforcement. She spoke with nine prosecutors for a December report and found almost as many answers.
”Michigan has a zero tolerance law for drivers with certain narcotics in their system, such as cocaine, marijuana and heroin. That hasn’t changed with the legalization of recreational marijuana.
“Or maybe it has, depending on who you ask,” she wrote.
Some prosecutors said evidence of intoxication, such as swerving while driving or failing a sobriety test, is needed in addition to evidence of tetrahydrocannabinol, or THC, the active ingredient in marijuana. Others said THC alone was enough.
Some clarity on marijuana intoxication may be in the offing. An Impaired Driving Safety Commission, appointed in 2016 by then-Gov. Rick Snyder, has been working to make recommendations to the governor and Legislature on legal marijuana intoxication levels. A report is due out in March.
Michigan State University Professor Norbert Kaminski, director of the Institute for Integrative Toxicology, is a member of the task force. He said recommendations are being finalized.
“Certainly, the commission is wanting an appropriate and fair way to judge whether people are impaired,” he said.
In Turner’s case, she had 5 nanograms of THC, the same amount of marijuana that constitutes impairment in states that have a set limit, including Colorado, a state with a high threshold for impairment.
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So she may have been found guilty even under well-thought-out, reasonable standards, though Dillon said evidence was submitted that Turner smoked after the accident and before she was taken into police custody for testing.
The sentence is tougher than some convictions for drunk driving that led to deaths.
Dillon cited the sentence of Cleveland Browns wide receiver Donte’ Stallworth to 30 days in jail for killing a pedestrian while driving drunk in Florida in 2009 as a contrast to Turner’s 70-month sentence.
That’s in another state, under another set of laws. More locally, a Mason man driving while intoxicated who hit and killed a pedestrian, was given a one-year sentence in 2016.
Years ago, I heard a prison reform advocate describe how we should save our prison space for those people we are afraid of, not people we’re mad at. The reason? Prison is expensive, and we should use our resources wisely.
That makes Aquilina’s lesson a pricey one. And nearly six years of prison seems much more like anger than fear.
