Source: Sherman Publications

Appeals court ruling invalidates village ordinance

by CJ Carnacchio

August 08, 2012

It appears a zoning ordinance amendment prohibiting uses related to medical marijuana enacted earlier this year by the Oxford Village Council is no longer valid thanks to a ruling by the Michigan Court of Appeals last week.

In the July 31 opinion, the court ruled that the City of Wyoming’s ordinance prohibiting medical marijuana in all of its zoning districts is “void and unenforceable” because by purporting to impose sanctions on the drug’s use even when it conforms with the Michigan Medical Marijuana Act (MMMA), the city’s language “directly conflicts” with state law.

Unfortunately for Oxford, the ordinance language utilized by Wyoming is almost identical to the wording adopted by the village council on March 27.

“Basically, what I think this Court of Appeals decision says is if you’ve got a local ordinance that conflicts with any aspect of the state law, it’s not good,” said attorney Robert Davis, an associate of village attorney Robert Bunting, who could not be reached for comment. “If part of the Oxford ordinance conflicts with the state law, this ruling says it’s null and void.”

Back in November 2010, Wyoming amended its city code and enacted a zoning ordinance that stated, “Uses not expressly permitted under this article are prohibited in all districts. Uses that are contrary to federal law, state law or local ordinance are prohibited.”

This language is almost a mirror image of the zoning ordinance amendment adopted by the Oxford Village Council.

It states, “Uses for enterprises or purposes that are contrary to federal, state, local laws or ordinances are hereby expressly prohibited.”

“If (the village ordinance) meets the criteria of this opinion, it’s going to be null and void,” Davis reiterated. “What this whole thing is saying is if at a local level, you’re doing something that conflicts with the state medical marijuana act, you can’t do that.”

Council adopted this language – which is modeled after an ordinance amendment passed by the City of Livonia in fall 2009 – in an effort to prevent any medical marijuana dispensaries from opening up in the village.

“They picked up on that Livonia language and went with it,” Davis said. “I looked at the Livonia language and said, ‘I’m not so sure.’”

Dispensaries are basically businesses and/or other facilities that distribute or sell medical marijuana to qualified patients.

The idea behind the ordinance language was dispensaries would not be permitted in the village because under existing federal law the use of marijuana for any reason is illegal.

There is no federal exception for medical marijuana. The federal government classifies marijuana as Schedule 1 drug, meaning it has a “high potential for abuse” and it “has no currently accepted medical use in treatment.”

When it passed its ordinance amendment, Oxford’s council was not attempting to stop individual patients and caregivers living in the village from growing and using marijuana in their homes in accordance with MMMA rules.

Under state law, qualifying patients, who are registered with the state, may grow up to 12 marijuana plants for their own personal use or possess up to 2.5 ounces of usable marijuana. Or they can obtain their marijuana from someone who’s registered with the state as their primary caregiver. Caregivers are allowed to assist up to five specific patients and grow up to 12 marijuana plants for each of them.

Council was simply trying to prevent dispensaries from moving in and setting up shop in the village’s business areas. All of council’s previous discussions – along with the village planning commission’s dialogue on the subject – revolved around the issue of dispensaries, not individual patients and caregivers acting within the bounds of the MMMA.

At the Jan. 10, 2012 village meeting, former Councilman Kevin Stephison specifically noted how the MMMA is completely silent on the dispensary issue. There is no mention of them at all in the state law.

“In no place in that bill is the word dispensary used or even implied or alluded to in any form,” he said at the time.

In August 2011, the state Court of Appeals ruled dispensaries are a “public nuisance” and not authorized by the MMMA. The court ruled that any business that receives money in order to facilitate the transfer of medical marijuana is operating for a purpose other than to alleviate patients’ debilitating medical conditions and is therefore not protected by state law.

That ruling also found that the “medical use of marijuana as defined by the (MMMA), does not include patient-to-patient sales of marijuana, and no other provision of the MMMA can be read to permit such sales.”

Ironically, the person who filed suit against the City of Wyoming was not attempting to open or operate a dispensary in that city.

The suit was filed by John Ter Beek, a qualified medical marijuana patient who lives in Wyoming where he grows and uses medical marijuana in his home.

Ter Beek was never charged with violating the ordinance nor was he ever subjected to any penalties or fines associated with it. He simply filed a complaint seeking declaratory relief against the city after it enacted its ordinance.

Ter Beek argued Wyoming’s ordinance outlawed the use of medical marijuana because it’s illegal under federal law. He also argued the ordinance was “invalid” because it “prohibits and makes punishable the use, manufacture or cultivation of medical marijuana in direct conflict with the MMMA,” according to the court’s opinion.

Wyoming’s attorney argued that federal Controlled Substances Act (CSA) preempts the MMMA.

The trial court agreed, so Ter Beek took his case to the state’s Court of Appeals, which sided with him against the city.

In addition to being in direct conflict with the MMMA, the appellate court ruled that the state law is “not preempted” by the CSA because the limited immunity from penalties (ranging from fines to jail time) that it offers for the use and growth of medical marijuana “pertains only to state action and does not purport to interfere with federal enforcement.”

In other words, the state law does not prevent the federal government from arresting and prosecuting people for marijuana-related crimes under federal law.

Oxford Village Manager Joe Young indicated council plans to discuss what to do about its ordinance language in light of this court decision at its 6:30 p.m. Tuesday, Aug. 14 meeting.

Davis indicated council could work toward deleting and/or changing the existing ordinance or simply leave it in place and wait to see what happens.

There’s no problem with leaving it on the books for now.

“It’s just unenforceable,” Davis said.

Davis believes there’s a strong possibility this ruling will be appealed to the state Supreme Court.

“My concern right now is that this one isn’t done,” he said. “There’s still uncertainty because there’s another right of appeal here. I’m not really anxious to draft ordinances that later are invalid.”

But unless it goes to the Supreme Court for a decision, the appellate court’s ruling is “the binding ruling,” according to Davis.

Young said council could consider adopting new ordinance language based on a Dec. 27, 2010 written legal opinion issued by village attorney Robert Bunting.

In a nutshell, Bunting’s recommendation was to create an ordinance that would require medical marijuana dispensaries seeking to operate in the village to do so 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.

On paper, Bunting’s recommendation would allow dispensaries. However, in reality, the language prohibits any dispensary from opening or operating in the village.

The reason – doctors cannot legally prescribe medical marijuana and pharmacists cannot dispense it.

According to the Michigan Department of Community Health’s website, “Pharmacies can only dispense medications ‘prescribed’ by licensed physicians. The federal government classifies marijuana as a Schedule 1 drug, which means licensed physicians cannot prescribe it.”

That’s why the MMMA set up the whole patient/caregiver relationship to distribute medical marijuana to those who need it.

Regarding Bunting’s opinion, Davis said, “That could be subject to some scrutiny.”

“It’s like (saying) don’t drink any beer in my house, but there’s none in the fridge anyway,” he noted.