The Michigan Medical Marihuana Act (the “MMMA”) 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.
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 or not. 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 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 favorably considered by the State Legislature. On December 12, 2013, the State House passed, by a margin of 95 to 14, House Bill 4271, which would enact the “Medical Marihuana 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 marihuana provisioning center” in the bill) that were prohibited by the McQueen decision. The bill provides, however, that a medical marihuana 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 State Senate, it languished for a period of months, but it has recently seen more favorable progress. A substitute version of HB 4271 was reported favorably by the Senate Committee on Government Operations on August 13, 2014, with a recommendation for immediate effect. That same day, the substitute bill was reported to the Committee of the Whole. It appears, therefore, that the bill has a fair chance of being adopted into law.
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 marihuana provisioning centers. Which is to say that these types of facilities will be permitted, on a state-wide basis, unless a municipality “opts out,” by adopting an ordinance that prohibits these types of facilities.
Therefore, if your community wants to prohibit medical marihuana provisioning centers, it should have in effect an ordinance that prohibits them, before the new law takes effect. This will ensure that new medical marihuana 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 marihuana 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 marihuana provisioning centers could potentially be adopted, until such time as appropriate regulations can be reviewed.
We recommend that you contact your municipal attorney at Mika Meyers as soon as possible, for the purpose of having your ordinances reviewed, to determine whether an appropriate amendment is needed.