Government, Health Care, and Law

Are medical marijuana dispensaries coming to your community?

December 30, 2014
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The Michigan Medical Marijuana Act has been the topic of numerous lawsuits and the cause of seemingly endless confusion about what it does and does not allow.

From a municipal perspective, one of the initial points of confusion was whether the MMMA allows the operation of a medical marijuana “dispensary” or “cooperative.” These terms refer, generally speaking, to a commercial facility where (a) any number of registered patients could purchase marijuana for medical purposes from one or more registered caregivers operating out of a single commercial business, or (b) any number of registered patients/caregivers could buy and sell marijuana from each other on a cooperative basis, out of a single commercial operation.

Round 1

Many of these types of dispensary or cooperative operations sprouted up throughout the state in the immediate wake of the MMMA having been approved by voter initiative in 2008. The legal community disagreed about whether they were legal. In 2013, however, the Michigan Supreme Court ultimately clarified, in State v McQueen, that these types of operations are not permitted by the MMMA. The Supreme Court held that, under the MMMA, a registered caregiver may transfer marijuana for medical purposes to not more than the five registered patients to whom the caregiver is connected, in a caregiver-patient relationship, under the state’s registration system. This effectively made dispensaries non-viable as a commercial venture. The Supreme Court further held that the MMMA does not permit patient-to-patient transfers of marijuana, thus prohibiting cooperatives.

All of this may change, however, under a bill that is being considered by the Michigan legislature.

Round 2

On Dec. 12, the House passed, by a margin of 95 to 14, House Bill 4271, which would enact the “Medical Marijuana Provisioning Center Regulation Act.” In simple terms, this proposed new law, if adopted, would permit operations that would be similar to the medical marijuana dispensary or cooperative operations (deemed a “medical marijuana provisioning center” in the bill) that were prohibited by the McQueen decision. The bill provides, however, that a medical marijuana provisioning center may be prohibited by local ordinance. Or, if they are not prohibited by local ordinance, they may nonetheless be regulated/licensed by local ordinance.

In its approving vote for HB 4271, the House approved the bill for immediate effect. After referral of HB 4271 to the Senate, it languished for a period of months, but it saw more favorable progress this past summer. A substitute version of HB 4271 was reported favorably by the Senate Committee on Government Operations on Aug. 13, with a recommendation for immediate effect. That same day, the substitute bill was reported to the Committee of the Whole. There is a reasonable prospect of the bill being adopted into law.

Now what?

Municipalities should prepare for this possible new law in advance. The most notable feature of the bill is that it creates an “opt out” feature for medical marijuana provisioning centers, which means these types of facilities will be permitted, on a statewide basis, unless a municipality “opts out” by adopting an ordinance that prohibits these types of facilities.

If your community wants to prohibit medical marijuana provisioning centers, it should have in effect an ordinance that prohibits them before the new law takes effect. This will ensure that new medical marijuana provisioning centers do not sprout up immediately after the new law becomes effective, and thereby claim or establish some type of legal nonconforming rights. It is possible that the new law may be interpreted as prohibiting a medical marijuana provisioning center from establishing lawful nonconforming rights, but that is not a chance worth taking. If your community intends to prohibit this land use, it should do so in advance, by adopting an appropriate ordinance. Or, if your community intends to allow this land use, it should evaluate whether proper regulatory and/or licensing provisions should be adopted. If time does not permit this type of action, then a temporary moratorium on marijuana provisioning centers could potentially be adopted, until such time as appropriate regulations can be reviewed.

Those who are interested should consider having their ordinances reviewed to determine whether an appropriate amendment is needed.

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