Source: Sherman Publications

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Village attorney suggests MM be dispensed at pharmacies

by CJ Carnacchio

January 12, 2011

Depending on your point of view, the idea may seem radical or quite logical, but there's no denying it's definitely interesting.

In a Dec. 27 legal opinion, Oxford Village attorney Robert Bunting proposed that council consider creating an ordinance that would require medical marijuana dispensaries to operate only in licensed pharmacies under the supervision of licensed pharmacists.

"This approach places a licensed professional operating the dispensary and conducting distribution in the community," he wrote.

Bunting's opinion regarding the Michigan Medical Marihuana Act (MMMA) and the subject of dispensaries was confidential until council voted 5-0 Tuesday night to remove the attorney-client privilege and make it a public document.

"I think it's best for everybody involved that (people) know what opinions we're getting from our attorney regarding this," said Councilman Tony Albensi. "Just because it's an opinion, doesn't necessarily mean that's the way we're going to go."

Council did not discuss the specific contents of the opinion.

The only other action council took was a 5-0 vote to extend the village's existing moratorium "on the issuance of permits or licenses for the sale or dispensation of medical marijuana" for an additional six months (until July 26) or until the effective date of an amendment to the zoning ordinance.

The village planning commission continues to work on creating ordinance language regarding dispensaries for council's consideration and potential approval.

Placing dispensaries under the control of licensed pharmacists would ensure they are staffed by people with the "education and training to dispense controlled substances," in Bunting's opinion.

Bunting listed other "benefits" such as:

n "Michigan law requires a pharmacy dispensing controlled substances to store such under conditions to maintain their stability, integrity and effectiveness. Thus, there is a greater measure of safety and health for the using patient and preventing improper dispensing."

n "Requires the controlled substances to be stored in a securely lockable cabinet and limits access to individuals authorized to dispense controlled substances."

n "To be a pharmacist one needs to be (of) good character, education and void of a criminal felony record."

n "The Michigan Board of Pharmacy regulates, controls and inspects the operation, standards and prescription records of the pharmacy."

Bunting views putting dispensaries under pharmacies as a way to help eliminate the criminal element from the business. "To date, too often individuals with criminal backgrounds or associations are involved with marihuana sale, distribution and use," he wrote. "This unfortunate situation may persist . . . unless effective oversight is provided."

Despite his proposed benefits, Bunting's opinion appears to clash with information provided by the Michigan Department of Community Health.

According to the state agency's website, "Pharmacies can only dispense medications 'prescribed' by licensed physicians. The federal government classifies marihuana as a Schedule 1 drug, which means licensed physicians cannot prescribe it."

Schedule 1 drugs have a high tendency for abuse and have no accepted medical use.

In his opinion, Bunting noted pharmacists who operate a medical marijuana dispensary could still be subject to criminal prosecution as marijuana is illegal under federal law.

It's true that an Oct. 19, 2009 memorandum from the U.S. Deputy Attorney General took the position that U.S. attorneys may not enforce federal marijuana laws against individuals who are bonafide patients covered under state medical marijuana laws because it would be a waste of limited resources.

However, Bunting pointed out that this memo "does not have the legal effect of completely nullifying the pertinent laws prohibiting marihuana use and/or distribution."

Bunting also noted that his approach of using pharmacies as dispensaries "would likely be challenged on the basis that state law does not currently specifically call for marihuana dispensary oversight in this matter and/or a local government is powerless to impose such a legal requirement on a state regulated entity such as a pharmacy."

In the face of such potential challenges, Bunting suggested a possible defense.

"The current state laws do provide for prescriptive use of a general class of controlled substances or drugs and a strong argument can be made that it would include other 'lawful' uses now in the MMMA law," he wrote.

The village attorney was critical of Oxford Township's proposed approach to regulating medical marijuana dispensaries, which involves requiring them to obtain special use permits and follow a whole list of restrictions.

These restrictions include prohibiting marijuana consumption on the premises; limiting hours of operation; limiting the number of dispensaries by population; and allowing minors who are qualified to use medical marijuana to be on the premises only if accompanied by their parent or caregiver.

"The Oxford Township ordinance as well as others may suffer legal attacks that the conditions imposed, in totality, make the ordinance too onerous to be enforceable or that the state has preempted local control as alleged in (an American Civil Liberties Union lawsuit)," Bunting wrote.

He also noted these "traditional approaches . . . are limited in monitoring the internal operation" of a dispensary.