On Aug. 21, a member of the Michigan Medical Marihuana Licensing Board proposed closing all medical cannabis dispensaries, sending shock waves through the state’s budding medical cannabis industry.
Although closing dispensaries was not on the board’s meeting agenda, member Donald Bailey, a retired state trooper, proposed shuttering all medical cannabis dispensaries by Sept. 5 and disqualifying any of these facilities for licenses when they become available on Dec. 15.
In support of this proposal, Bailey stated that every dispensary currently operating is in violation of the Michigan Medical Marihuana Act (“MMMA”). The MMMA is a voter-initiated law adopted by 63 percent of state voters in 2008, which gives qualifying patients a defense to the possession and cultivation of cannabis for medical use and authorized primary caregivers to assist with a patient’s use of cannabis.
The Michigan Legislature granted specific authority to the board through the Medical Marihuana Facilities Licensing Act (Act). The Act specifies both the duties and powers of the board. The board has the power to implement the Act by granting or denying state operating licenses to applicants, taking action against licensees that violate rules or regulations, and taking appropriate action to enforce the Act and related rules.
The Legislature gave specific powers to the board with respect to these new commercial licenses, but there is no authority in the Act for the board to regulate, investigate or enforce actions against patients or primary caregivers acting under the scope of the MMMA. In Michigan, boards and agencies only have the power that the Legislature directly and specifically vests in them – no more.
Since 2008, medical cannabis dispensaries have opened in various communities across the state in order to meet the needs of the increasing amount of residents with a medical marijuana card. In some cases, law enforcement closed dispensaries, either because it was determined that activity occurring at the dispensary was outside the scope of the MMMA or it was determined to be a public nuisance.
However, many municipalities have decided, as a matter of public policy, to authorize and permit dispensaries under the MMMA. For example, the City of Detroit has adopted an ordinance authorizing Medical Marijuana Caregiver Centers that meet certain zoning and licensing criteria and that operate within the confines of the MMMA.
State regulations adopted pursuant to the MMMA allow primary caregivers to have up to six qualifying patients and to cultivate up to 12 cannabis plants for each patient. If local government permits the dispensary use, and caregivers and patients are following the MMMA rules, it is not a public nuisance. Why would the board take action against facilities permitted by local governments pursuant to a separate law that it is not tasked with enforcing?
The MMMA is a citizen-initiated law that remains distinct and separate from the Facilities Licensing Act. If a municipality permits or licenses a dispensary that functions as a caregiver facility and the activities within that facility are otherwise compliant with the MMMA, the board has no authority to investigate or take action. In fact, even if there were dispensaries violating the MMMA, the board has no authority to take any action against any of them. Simply put, it’s not their bailiwick.
This proposal did not specify how to shutter every dispensary in Michigan within two weeks or which law enforcement agencies would participate. This would be a massive takedown operation that would likely face opposition from local governments that are permitting them. If there are facilities operating in violation of local ordinances or the MMMA, then law enforcement agencies already have the tools to close these facilities, and they do not need an order from a board that is not even tasked with enforcing the MMMA.
Licensing board member Bailey is not the only official who believes that existing dispensaries are illegal, and he may find a way to punish these dispensaries in the future. Although he may not win his battle to close all existing dispensaries, the board may decide to prohibit existing dispensary owners to get an operating license under the new Act once they begin vetting applications after Dec. 15.
Jeffrey M. Schroder serves as Co-Leader of Plunkett Cooney's Cannabis Industry Group, and he is a member of the firm’s Health Care and Governmental Law practice groups.
A partner in the firm's Bloomfield Hills office, Mr. Schroder ...
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