Pot Shots

LEGALITY OF MEDICAL MARIJUANA ORDINANCES QUESTIONED

It looks as if there's going to be a showdown between the American
Civil Liberties Union and Michigan cities it says are using
questionable tactics in an apparent attempt to address medical
marijuana-related activity within their borders.

The ACLU has sent letters to the cities of Bloomfield Hills and
Birmingham asking that they either clarify or rescind recently
adopted ordinances the group says could "severely and unlawfully"
burden "the rights of medical marijuana patients and caregivers under
the Michigan Medical Marihuana Act."

In both cases, the cities approved ordinances with identical
language, declaring that it "shall be unlawful for any person or
business to engage in any activity, conduct, use or venture in the
City that is contrary to federal, state or local laws or ordinances ..."

Livonia previously passed an ordinance containing similar language,
but has not yet been contacted by the ACLU.

Although Michigan law now sanctions the use of marijuana by
state-approved patients, and allows designated caregivers to grow
plants, any use or possession is still technically a violation of federal law.

Adding yet another dimension to the controversy, though, is a
directive issued by the U.S. Justice Department last October telling
federal prosecutors in the 14 states where medical marijuana has been
approved that they should make prosecution of patients and caregivers
a low priority.

In other words, the ACLU is saying, while the feds are signaling they
won't harass legitimate patients and caregivers, municipalities such
as Bloomfield Hills and Birmingham are passing ordinances that
attempt to use violation of federal law as a way to curtail what
would otherwise be legal activity.

Birmingham City Attorney Timothy J. Currier did not return messages
seeking a response. Bloomfield Hills City Attorney William P. Hampton
tells Metro Times that the ACLU is "jumping to conclusions," saying
that the ordinance referenced in the group's letter is not a "medical
marijuana ordinance."

It's not clear what the purpose of such an ordinance would be other
than to address medical marijuana use. However, whatever the
motivation for the ordinance, the ACLU says it is clearly illegal.

In addition to that ordinance, Bloomfield Hills was slated to discuss
a second ordinance that will attempt to use zoning laws to "forbid
cultivation or sale of medical marijuana in the city," according to
an e-mail from Hampton.

Repercussions from the act, which became law after 63 percent of the
state's voters gave the ballot measure their approval in 2008, are
just beginning to become clear as municipalities grapple with issues
created by the act.

Of particular concern to the municipalities are businesses that
distribute pot to patients. So-called "compassion clubs" have been
established to dispense medical marijuana to qualified patients in
some municipalities. Such operations represent a "gray area" in the
law that is expected to be clarified in court at some point. Although
the medical marijuana law clearly states that sale of pot is
prohibited, caregivers are allowed to recover expenses associated
with growing. Caregivers are allowed to grow as many as 12 plants per
patient, and can have as many as five patients. That means caregivers
who are also registered patients can grow as many as 72 plants at one time.

What they can do legally with excess pot is one of the ill-defined
areas of the law, which Hampton describes as "terribly written."

Detroiter Tim Beck, who had a hand in helping draft the ballot
measure approved by voters, has previously said that it was
intentionally broad to give patients and caregivers as much latitude
as possible while limiting the size of grow operations so as not to
attract the attention of federal authorities.

A number of municipalities have recently approved ordinances designed
specifically to curtail the opening of businesses where marijuana is
sold to patients.

While the legality of dispensary-like operations may be an open
question until sorted out by the courts, the ordinances recently
passed by Bloomfield Hills and Birmingham are clearly illegal, says
ACLU attorney Daniel S. Korobin.

"We've seen other cities pass ordinances that appear to have some
regulatory language," Korobin says. "But these are the only two
cities we've seen that appear to be attempting to ban medical
marijuana outright. That is why we've focused on them by sending
these letters."

The ACLU's legal basis for challenging the legality of the ordinances
is clearly spelled out:

"The Michigan Supreme Court has held that a municipality is precluded
from enacting an ordinance if the ordinance is in direct conflict
with the state statutory scheme," Korobin wrote in letters to the two cities.

Even if the intent of the ordinances is to address the issue of
dispensaries or large growing operations, they lack legal merit
because they are overly broad, Korobin says.

As written, Korobin explains, either patients or caregivers could be
prosecuted for activities clearly allowed under the law.

"These ordinances appear to make it completely illegal to use medical
marijuana in Birmingham and Bloomfield Hills," he says. "We are very
concerned that patients and caregivers in these two cities will fear
being arrested for something they are legally entitled to do under state law."

He adds that, in both cities, voters clearly showed support for
allowing medical marijuana. When the measure was voted on in 2008, 70
percent of Birmingham's voters and 66 percent of the voters in
Bloomfield Hills cast ballots in favor of the measure, Korobin points out.

If the cities do not address the concerns being made by the ACLU, it
could end up causing them to spend time and money defending their
actions in court.

"We're still waiting to hear back from them," Korobin says.
"Hopefully they will agree with our analysis."

And if they don't?

"We're standing ready to protect the rights of patients and
caregivers in Birmingham and Bloomfield Hills and wherever else they
may run into these kinds of problems."