Ann Arbor Cannabis Laws Ready for Final OK

Zoning, licensing may get final vote at June 20 council meeting

Ann Arbor city council meeting (June 6, 2011, Part 2): At its first meeting in June, the council undertook amendments to both new medical marijuana ordinances, which it has been discussing in some form at least since June 7, 2010.

Christopher Taylor

The body language of Christopher Taylor (Ward 3), with Stephen Rapundalo (Ward 2) seated to his right, reflects that the council's evening on June 6 was a long one.

One ordinance concerns zoning – legislation that stipulates where medical marijuana dispensaries and cultivation facilities can set up business. And the second ordinance concerns licensing – a law that describes how a maximum of 20 licenses in the first year will be awarded, and how a licensing board will be set up to evaluate applications.

Both ordinances have already received the council’s initial approval. But all ordinances require two approvals by the council and a public hearing. If an ordinance is amended in a significant way after the first approval, it needs an additional approval to count as the initial reading and approval in front of the council.

Revisions to the zoning ordinance made on June 6 involved wording changes like including “part of a building” in the definition of a dispensary. They were deemed not substantial enough to re-set the legislation to its first reading. So the council did not take a vote on anything except a set of amendments. The council postponed the vote on the ordinance as a whole, because that would have been the second and final vote, which would have enacted the zoning legislation. The licensing legislation was not able to receive its final approval that evening – and the council would like the zoning and the licensing ordinances to be enacted together.

The licensing ordinance could not receive its final approval, because it underwent substantial changes. Those included eliminating a requirement that effectively made the landlord give written permission for use of any leased property as a medical marijuana dispensary or cultivation facility. Also altered were two record-keeping requirements. A requirement on storing patient records was changed from one year to 30 days, with access to the information limited to patients themselves. And a requirement on cultivation source record-keeping was changed from an indefinite period to 60 days.

At its June 20 meeting, the council may take its final vote on both pieces of legislation.

For a description of the council’s business on June 6, 2011 that was unrelated to medical marijuana, see Part 1 of the meeting report: “Beyond Pot: Streets, Utilities, Design.”

Medical Marijuana Public Commentary

Every time the medical marijuana ordinances have been discussed by the council, public commentary has been extensive. It’s by now a familiar cast of characters who make the trip from the audience to the podium. For example, Chuck Ream’s first appearance before the council dates back at least to February 2010. The Chronicle counts 14 occasions since then, when Ream has appeared before the council.

Tony Keene told the council that he’d filed but then dropped a lawsuit against the city of Ann Arbor. He characterized the lawsuit as premature and apologized for using that mechanism. He said the medical marijuana ordinances are as clear and unambiguous as can be constructed under the Michigan Medical Marijuana Act. In his last public commentary turn at the city council, he said he’d taken a hard line on dispensaries. But he told them that he’d visited every brick-and-mortar dispensary in the city. They’re professionally run, he said.

Keene said he previously would have fought against grandfathering in dispensaries, but would no longer do that. He felt there was no need to pursue mandated testing at each facility. Instead, he suggested using batch testing as part of a third-party testing program. He thanked the mayor and all councilmembers who have managed to balance the interests of the different parties. He said he was proud that Ann Arbor had taken the time to get it right.

Chuck Ream said he hoped that the council could eliminate all the material in the ordinance about cultivation facilities and zoning compliance permits. He also suggested making parallel the title of the two ordinances – zoning and licensing. He noted that in one section of the licensing ordinance, it’s established that the granting of a license does not create a defense against prosecution.

Ream was referring to this section of the licensing ordinance:

7:502. License Required, Number of Licenses Available, Eligibility.

(6) The issuance of any license pursuant to this chapter does not create an exception, defense or immunity to any person in regard to any potential criminal liability the person may have for the production, distribution or possession of marijuana.

Ream noted that Ann Arbor’s city charter does establish a defense against prosecution, and that’s what should be referenced in the ordinance. Ream was referring to a passage from Chapter 16 of the city charter:

It is an affirmative defense to a prosecution under this section that the use or intended use of the marijuana or cannabis relieves, or has the potential to relieve, the pain, disability, discomfort or other adverse symptoms of illness or medical treatment, or restores, maintains or improves, or has the potential to restore, maintain or improve, the health or medical quality of life of the user or intended user or users of the marijuana or cannabis. Requirements of this subjection shall not be construed to exclude the assertion of other defenses.

Ream asked the city council to include wording from the city charter. With respect to the landlord permission requirement, said Ream, a verbal assurance should suffice. He also asked that the price not be required on the labels of marijuana packaging. Drug stores don’t put the price on labels. A price on the label “just advertises that it’s steal-able.”

A big concern still is the reporting and record-keeping requirement, Ream said. The request for records should be related to health and safety concerns, he said. Maintaining a list of suppliers for 12 months would be too dangerous. He said that 60 days would be a reasonable maximum.

Rohry Gould thanked the council for their work. He complained, however, about the sheer length of the moratorium on using property within the city for medical marijuana businesses. That moratorium had been established on Aug. 5, 2010 he said. At the time, the length of the moratorium was suggested to be 90 days – now it’s June 2011. [The initial moratorium as proposed by the city attorney's office was for 180 days; at their Aug. 5, 2010 meeting, the council enacted a moratorium for 120 days. That has subsequently been extended multiple times.] The city has come a long way, Gould said, but at this point it’s time to do what’s right and pass an ordinance.

Dennis Hayes told the council that it was nice to be back again speaking before them. He said he did not have much to add to Ream’s comments. The city had come a long way, he said, and was very close to being able to pass an ordinance they can all be proud of and that is consistent with city’s values. He said it’s interesting that we have governments that have time to pick on sick people. A recent U.S. District Court opinion he characterized as using a sledgehammer on a gnat.

Hayes worried about what would happen if the federal government turns its spotlight on a municipality. So he asked the council to find a way to get along without requiring dispensaries to retain as much information for as long. A court decision handed down on June 3 was a tremendous disservice to patients, Hayes said. [U.S. District Magistrate Judge Hugh Brenneman Jr. ruled that the Michigan Dept. of Community Health had to submit to a subpoena issued by the U.S. Drug Enforcement Administration in support of an investigation in the Lansing area.] Hayes stated that many of the state’s medical marijuana patients are on disability, injured or receiving Social Security. We should be protecting them, he said.

During the time for public comment at the end of the meeting, Tom Partridge said that Ann Arbor’s citizens deserve better than to have their occupancy of a multi-family apartment building be threatened by people who would turn it into an illegal drug facility. He said the council was splitting hairs over regulations. People appearing to be advocates of patients, he said, are drug users talking about the bonanza of money to be made. Other cities have not taken on such an assertive stance, he said. Marijuana is an illegal drug, with many unknown effects on the person using it.

Medical Marijuana: Update

City attorney Stephen Postema gave an update on recent developments, at the request of Stephen Rapundalo (Ward 2). Postema characterized the challenge of developing local legislation as trying to hit “a moving target of the law.” While the state Medical Marijuana Act is one thing, federal law is another, he said. He pointed to the ruling that Dennis Hayes had mentioned, when the previous Friday U.S. District Magistrate Hugh Brenneman Jr. had ruled that the Michigan Dept. of Community Health had to submit to a subpoena issued by the U.S. Drug Enforcement Administration, in support of an investigation in the Lansing area.

Postema referred to articles in the New York Times that indicated a renewed federal interest in distribution facilities. Seven different U.S. Attorney opinions on state-level medical marijuana law have reinforced the idea that federal law is supreme, he said. No opinion had been offered from a U.S. Attorney in Michigan yet, Postema said, but none has been requested.

[The U.S. and its territories are divided into districts, at least one per state. In each district, a U.S. Attorney serves as chief federal law enforcement officer for that district. Michigan is divided into an eastern and a western district. Michigan's eastern district, where Ann Arbor is located, is served by U.S. Attorney Barbara L. McQuade. Graham Teall, husband of councilmember Margie Teall (Ward 1) is an assistant U.S. Attorney in Michigan's eastern district office.]

Rapundalo responded to Postema’s remarks by saying that over time he’s increasingly become quite concerned about proceeding down the path the city is on, if a lot of it is eventually turned upside down due to court decisions. He wondered if it wouldn’t be prudent to request an opinion from a U.S. Attorney in Michigan. He floated the idea of postponing consideration until an opinion from a Michigan U.S. Attorney had been received. Postema said he would not address the question of whether it’s prudent for the council to do that. He said he assumed that any opinion would be similar – it depends on what’s asked, he said.

Tony Derezinski (Ward 2) said that a couple of lawsuits have been filed concerning communities that have banned medical marijuana – had any decisions been handed down yet? Postema said no Michigan Court of Appeals decision had been handed down yet in those cases.

Sabra Briere (Ward 1) said the Michigan Court of Appeals is one thing, but the ruling of a U.S. Magistrate is another. She confirmed with Postema that the ruling in the western part of the state to which he’d alluded was simply from a magistrate? Postema indicated that the magistrate is who rules on subpoena and evidence issues and he did not think a U.S. district judge would rule differently.

Briere ventured that to date, there are no cases that are definitive within Michigan. Postema responded that a number of decisions have narrowed the interpretation of the Michigan Marijuana Act – for example, clarifying the definition of a closed, locked facility and patient-to-patient transfer. He said that the state Supreme Court has not ruled on any of this.

Carsten Hohnke (Ward 5) followed up on Rapundalo’s suggestion, asking Rapundalo what he thought the value would be of asking for an opinion from the U.S. Attorney. In all likelihood, Hohnke ventured, a Michigan U.S. Attorney would communicate to what we already understand: federal law has supremacy over state law. That doesn’t change the council’s responsibility to follow through on the state and local level, Hohnke said. He asked Rapundalo if there is something in particular that he feel might result from the opinion.

Rapundalo said he could not presuppose what a U.S. Attorney might render in a letter. Rapundalo said he was not prepared to formally ask for such an opinion. His point was more that he hesitated to go further down the path of enacting local legislation, when changes will be imposed upon the city by the courts and the legislature. The more information he has from sources like the U.S. Attorney, Rapundalo said, the better prepared he felt.

Mayor John Hieftje said he had never seen an issue where cities are being sued on both sides of the issue – by medical marijuana advocates for failing to act, and by the federal government for acting. Postema said the dilemma is extreme – the municipalities are where the “rubber meets the road,” he continued. Communities are trying to do the best they can.

Stephen Kunselman (Ward 3) noted that the state of Colorado is collecting taxes on medical marijuana – and we’re not hearing about Colorado being afraid of federal prosecution. Postema insisted there’s plenty of activity that could be happening. But he said the federal courts have not struck down all of the state legislation, and told Kunselman that his point was well taken.

In an interaction between Derezinski and Postema, it emerged that there is legislation pending on the state level that would add additional restrictions on medical marijuana businesses – for example, prohibiting them from locating within 500 feet of a church. But the legislative process is difficult when it comes to amending a law passed on a citizen initiative like the Michigan Medical Marijuana Act. Changes require a 3/4 majority on a citizen initiative.

Derezinski said that Michigan’s attorney general, Bill Schuette,  has publicly stated his concern about medical marijuana dispensaries. He asked if the Michigan Association of Municipal Attorneys might be a source of information. [Stephen Postema is president of that organization.] Postema said MAMA had not yet voted on a position to take – there was a difference of opinion in the group, he said.

Briere wrapped up the discussion by saying that she would like to go through the process of giving the city’s medical marijuana ordinances the council’s consideration, so that the ordinances would be the best possible legislation that the council could support.

With that, the council began consideration of the zoning ordinance with some amendments that had been delivered to her, Briere said, just before the meeting.

Medical Marijuana Zoning Ordinance

The set of amendments to the zoning ordinance, which was given its initial approval at the council’s Oct. 18, 2010 meeting, primarily involved expanding the definition of a dispensary to include a part of a building, and to expand beyond home-occupation type businesses the range of activities regulated by the zoning code. By way of illustration, from the amended ordinance [added material in italics]:

b) Other Words and Phrases. The words and phrases in this subsection, as used in this section, shall have the following meanings:

ii “Medical marijuana cultivation facility” means a building or part of a building where marijuana plants are being grown in compliance with the MMMA, other than a medical marijuana home occupation or a dwelling unit in which marijuana is being cultivated for a qualifying patient who resides in the dwelling unit as permitted under subsection (7).
iii “Medical marijuana dispensary” means a building or part of a building where one or more primary caregivers operate with the intent to transfer marijuana between primary caregivers and/or qualifying patients, other than a medical marijuana home occupation or a dwelling unit in which the transfer of marijuana occurs between a primary caregiver and qualifying patient who resides in the dwelling unit as permitted under subsection (7).

Outcome: The council voted unanimously to approve the amendments to the zoning ordinance regulating where medical marijuana businesses could be established. [.pdf of red-lined zoning ordinance as amended on June 6, 2011] The council then postponed the vote on the zoning ordinance, anticipating that the licensing ordinance would be altered in significant enough ways that its approval would count as the initial approval of the licensing ordinance. The council wanted to ensure that the second and final reading for the zoning and the licensing ordinances took place on the same evening.

What Happened to Buffer Zones?

The zoning ordinance that now awaits the council’s final approval at its June 20 meeting includes a buffer zone around schools:

No medical marijuana dispensary or medical marijuana cultivation facility shall be located within 1,000 feet of a parcel on which a public or private elementary or secondary school is located.

At the council’s May 2, 2011 meeting, Carsten Hohnke (Ward 5) had attempted to get his council colleagues to approve an amendment that would have increased the buffer zone around schools to 1,010 feet. From The Chronicle’s meeting report:

Carsten Hohnke (Ward 5) proposed amending the required buffer between dispensaries and cultivation facilities and schools from 1,000 feet to 1,010 feet. He said that round numbers are not necessarily any better. The 1% difference does a better job of accomplishing what they’re trying to accomplish, he contended. The intent is not to impact existing dispensaries – it’s to make sure they’re not cutting off parts of blocks.

At the request of Tony Derezinski (Ward 2), Hohnke asked Wendy Rampson, head of planning for the city, to explain. Hohnke confirmed with her that the extension of the buffer by 1% would in certain locations help to bring a complete block into the buffer zone. Rampson said there’s no magic number. Sabra Briere (Ward 1) asked Rampson if she’d drafted some maps depicting the 1,010 foot buffer. No, Rampson said, the question came up after they’d looked at the issue. The city has a map showing the 1,000-foot buffer. Briere asked by the next meeting to have maps with 1,000, 1,100 and 1,250-foot buffers shown. She said she’s uncomfortable with a 10-foot change – she found that odd. She noted that Sandi Smith (Ward 1) had actually wanted to decrease the buffer.

At the council meeting, Hohnke did not offer any specific examples of the kind of improvement he’d described as achievable by adding 10 feet to the buffer. After the meeting, in response to a request from Ann Arbor resident Ed Vielmetti, the city made public a set of maps showing buffer zones for different distances. Comparing those maps, it’s clear that a least one case exists where a small increase in the buffer distance would exclude a building from consideration as a cultivation facility or a dispensary – a building whose owner has publicly stated that he’s interested in establishing a medical marijuana facility there.

Medical Marijuana Zoning

The top image shows a 1,010-foot buffer. The bottom image shows the 1,000 buffer. The yellow-highlighting, added by The Chronicle, shows the parcel where the gas station is located. The salmon-colored cross-hatching is the buffer zone, originating at Bach Elementary School on Jefferson. (Image links to higher resolution file.)

The building in question is the former gas station on the southeast corner at Second and Liberty streets – located in Ward 5, which Hohnke represents. The city’s Historic District Commission (HDC) approved the demolition of the gas station in February 2009, but that approval had come in the context of considering two other buildings – the two houses adjacent to the gas station. The HDC declined to grant a notice to proceed with the demolition of the two houses.

Morningside Ann Arbor LLC had sought the option of demolishing the three properties in order to expand the surface parking available to the greenhouse annex of the Liberty Lofts building, to make it more attractive to potential retail tenants. In the meantime, the property has remained vacant and is considered somewhat of an eyesore, although some attempts have been made to spruce up the property on a seasonal basis.

A February 2010 Ann Arbor Observer article – “Medical Marijuana Center,” written by John Rosevear – describes how the owner of the parcel, Garth Bolgos, was hoping to establish a medical marijuana center in the building.

While the 1,000-foot buffer zone appears to fall just short of the parcel where Bolgos’ gas station building is located, the 1,010-foot buffer clearly nips the corner of the parcel. However, the definition of a cultivation facility and dispensary in the proposed zoning code is based on buildings not parcels, so an effort to exclude the gas station building would likely need an additional upward nudge to be successful.

On June 6, in any case, the council was not interested in revisiting the issue of the 1,000-foot buffer.

Medical Marijuana Licensing

The amendments to the medical marijuana licensing ordinance were undertaken in large sets of individual amendments that ranged from wording and spelling changes to substantive issues that provoked extended council discussion.

Among the changes the council debated were two significant alterations to the ordinance as it had been amended over the last several months. The first was the time period for record-keeping by dispensaries and the accessibility of those records. The council settled on 30 days in one case and 60 days in another – reducing the period considerably from one year. The council also opted to make those records accessible just to patients receiving product.

The other significant change was to the requirement that someone who leased a property for use as a cultivation facility or dispensary needs to show approval from the landlord for that use. What began as a suggestion for oral approval only was reduced to a simple requirement that someone show they had legal possession of the premises – so showing a lease would suffice.

Medical Marijuana Licensing Amendment – Definitions

The first set of amendments was a wholesale swapping out of all the definitions in the ordinance with the definitions that had been established in the medical marijuana zoning ordinance. The one definition that was saved out for inclusion in the licensing ordinance was one for “authorized person.” From the ordinance as amended:

“Authorized person” means:
(a) an owner of a medical marijuana dispensary;
(b) the directors, officers, members, partners, and individuals of a medical marijuana dispensary that is a corporation, limited liability company, partnership, or sole proprietorship;
(c) any person who is in charge of and on the premises of the medical marijuana dispensary during business hours.

Outcome:The council voted unanimously to approve the new set of definitions.

Medical Marijuana Licensing Amendment – Not Routine

The second set of amendments included some replacements that applied through the entire document. In one case, the acronym for Michigan Department of Community Health was changed to the word “department.”

MDCH department

And in another case, the word “caregiver” was struck from the phrase “caregiver registry identification card.”

caregiver registry identification card …

This set of amendments included other clarifications, among them that inspections are not “routine.”

Except as otherwise provided for the amendment of existing licenses, no license issued under this chapter may be transferred or assigned, and no license is valid for any location other than the location specified in the license.

Acceptance of a license from the City under this chapter constitutes consent by the licensee, owners, managers and employees to permit the city administrator or designee to conduct routine inspections …

This set of amendments also separated out sections for the application for new licenses and renewal of licenses.

Outcome: The council voted unanimously to approve the first set of amendments.

Medical Marijuana Licensing Amendment – Owner Support

The amendment began as an effort to relax the requirement that written evidence be presented to show that the owners of a leased property used for a dispensary or a cultivation facility support its use for that purpose. That relaxation of the requirement, as initially proposed by Sabra Briere (Ward 1), took the form of an oral assurance. In the end, the council settled on striking the provision, as follows:

(2) Application Requirements for New Licensee.

(g)Proof of applicant’s ownership or legal possession of the premises and, if the applicant does not own the premises, the signatures of all owners on the application indicating that the owners support issuance of a license.

As the council began to contemplate a requirement of an oral agreement, Carsten Hohnke (Ward 5) asked if the verbal certification would provide a means for retroactively verifying that such support was given. City attorney Stephen Postema indicated that oral support would be difficult for staff to deal with as far as record-keeping. He said he understood Briere’s concern that property owners might not want to give a written consent, because it might create legal liability for them. Postema said he would not recommend taking the oral certification approach, because of the problem of keeping records.

Briere suggested that another option was to follow the example of the city of Ypsilanti, which allows a signed lease to qualify as permission. Sandi Smith (Ward 1) agreed with the theory that because of forfeiture laws, a property owner would not be inclined to grant written permission. She suggested striking the requirement altogether, instead of trying to come up with a way to express the oral certification requirement. Smith’s suggestion was accepted as a friendly amendment to Briere’s amendment. That was the final form of the amendment as eventually approved by the council.

Even though oral certification was no longer in play, Tony Derezinski (Ward 2) argued against it, saying the oral certification would be too informal for what the council is trying to achieve. He asked Postema for guidance.

Postema indicated that he did not think property owners would be able to defend themselves – in the event that a prosecution took place by the federal authorities – by claiming they did not know what was happening on their property.

Stephen Kunselman (Ward 3) asked members of the liquor license review committee if lessees have to get permission from lessors to get liquor licenses. He wanted to see some parity in the process – between liquor licenses and medical marijuana licenses.

Stephen Rapundalo (Ward 2) said that for a downtown development authority (DDA) license, he recalled an instance where an applicant filed for an application, but the committee was then notified by city staff that the owner had exercised the condition of the leases, or said that the owner would not support the application.

Postema said that showing the lease is more than just an oral certification – he said he would leave it to the council to decide whether it’s enough. Mayor John Hieftje said he agreed with Postema that the absence of written permission will not protect the owner, but he was not really concerned either way. Hohnke asked why it’s important to have the owner support the license. He saw it as stepping into the relationship between the lessor and the lessee.

Briere told Hohnke that the goal is to make sure that licenses are not granted to someone who is not being honest with the owner of the property about the use of the property.

Outcome: The council voted – with dissent from Tony Derezinski, Stephen Rapundalo, and Mike Anglin – to strike the language requiring explicit consent by the landlord.

Medical Marijuana Licensing Amendment – Application Requirements

The next set of amendments included additional application requirements, among them a zoning compliance permit and a temporary certificate of occupancy.

Outcome: The council unanimously approved the amendment on application requirements.

Medical Marijuana Licensing Amendment – Time Period, Issuance

The next set of amendments dealt with a time period within which the license requirements had to be met (8 weeks for a scheduled inspection for certification of occupancy, and 10 weeks for all requirements) after city staff has deemed a license to be complete.

Once the application is complete and the requirements have been met, city staff issues licenses based on availability – there is a cap of 20 licenses in the first year.

Outcome: The council voted unanimously to approve the time period amendments.

Medical Marijuana Licensing Amendment – Patient Info

Generating extended discussion was an amendment that included various requirements about how marijuana is packaged and delivered. The amendment began life at the council table without a change in the time period for record-keeping.

But that was offered as an amendment by Sabra Briere (Ward 1) right out of the gate. Briere’s amendment to the amendment changed a patient record-keeping requirement from one year to 30 days, and made explicit that the party to whom the information would be available is a patient complaining about the quality of the marijuana. As amended, this is how the record-keeping requirement turned out:

(4) All marijuana delivered to a registered qualifying patient shall be packaged and labeled as provided in this chapter. The label shall include:
(a) a unique alphanumeric identifier for the person to whom it is being delivered;
(b) a unique alphanumeric identifier for the registered primary caregiver who is delivering;

(5) All of the required labeling information, including coded registered qualifying patient information shall be maintained by a medical marijuana dispensary for not less than one year 30 days after dispensing, and available to any registered qualifying patient complaining of the quality of the marijuana dispensed.

After parliamentary discussion of the status of Briere’s initial amendment as friendly or not, Christopher Taylor (Ward 3) said he would support the change to 60 days and would be willing to drop it further to 30 days. But he said he understood that the council is in a balancing situation.

Taylor noted that the council’s original concept was an effort to replicate as nearly as possible a pharmaceutical situation. But he said he was comfortable with the amendment, because it’s such an odd situation in the first place. The state law does not address the issue. People using medical marijuana are under no illusion, Taylor said, that they’re taking an FDA-approved product created under good manufacturing processes. He said he thinks there’s  an assumption of risk associated with using medical marijuana. And the reality is, we don’t need to fight it. Briere accepted Taylor’s suggestion to set the time period to 30 days as a friendly amendment to her amendment to the original amendment.

The council then debated Briere’s amendment to the amendment, with the time period at 30 days.

Carsten Hohnke (Ward 5) asked what the concern was that prompted the move from 1 year to 30 days. Briere told him it reduces the period of time for which records had to exist, in the event that federal authorities might want to seize records. She said the record-keeping intruded into a realtionship between the caregiver and patient.

Hohnke also raised the issue that – in the event that there was some bad product – it should be possible to inform other patients who acquired medical marijuana from the same source. Briere explained that the only entity who has the information is the dispensary. Hohnke asked how the city or dispensary would respond to the desire to inform other patients who might be at risk. Briere stated that neither the city nor the county health department has such a mechanism. It seemed to her, Briere said, that the relationship is entirely between the dispensary and the patient. It’s difficult not to have the burden fall on the government, but she was not sure how to do that while preserving patient privacy.

Tony Derezinski (Ward 2) was adamant that the city has some responsibility for health, safety and welfare, if there is a problem. “Relying only on recipients of the product alone to do it, ain’t going to happen,” he said That’s not adequate for him.

Stephen Kunselman (Ward 3) said that in principle he agreed with Derezinski, but he was grappling with the fact that the city has no ability to check the product. He noted wryly that the city would not send a K-9 unit over to determine if the product is proper. The state law is specific about the caregiver-patient relationship – the city needs to stay out of that relationship, so he’d support the amendment. The 30 days allows the patient to go back to the caregiver to determine if the product was proper, he concluded.

Taylor said he appreciated Derezinski’s concern for health, safety and welfare, but it’s a balancing act, with tremendous pressures in both directions. He said he felt that the card carriers know what they’re getting into, and the city is doing the best it can for them.

Mayor John Hieftje noted that some of the booths at the recent Taste of Ann Arbor event on Main Street had opened late, because the county health inspector hadn’t been there yet. He was not sure who the city would send if there was a problem with the product dispensed by medical marijuana dispensaries. He said it was tough to leave it up to the patients. If they couldn’t get their records, would patients need to bring a lawsuit against the caregiver? It’s a tough call, he concluded.

Briere allowed that it is a tough call. However, she noted that one of the things already approved in the licensing ordinance is the licensing board. That body has the task of weighing how licenses should be issued in the future. The board’s experience with actual licensing cases will provide an opportunity to identify possible changes, as it learns what’s needed, she said.

City attorney Stephen Postema chimed in, saying he would caution against 30 days as the record-keeping time period. The licensing board will be unable to get meaningful data, he contended. He said that 30 days is very quick. He claimed the board may need the information and that the city may need to look at it.

Sandi Smith (Ward 1) said she felt the question is: Is it possible for a person with a complaint to register that with the city? She said she felt that when the city has multiple complaints about someone, you have an opportunity to act. You act not necessarily against the grower or the caregiver, but rather against the business, she said, so it’s in the interest of  the business to not be affiliated with people who have complaints against them. Dispensaries are sophisticated operations, she said. And it’s small quantiites delivered on a regular basis, so any problems become apparent quickly, she said. With the provision that someone can complain to the licensing board, she would support the amendment.

Hieftje said his problem is not with the majority of the businesses but with the one that might be shoddily run. That left him with a dilemma. Derezinski said it was in fact a dilemma. He said that what you legislate for is the “bad man.” He compared a 30-day period to the time the council has been working on the ordinance – around a year. Limiting the accessibility of the information to the person who’s getting the product is “cutting off our nose to spite our face,” he said.

Outcome: The council voted to approve the amendment to the amendment offered by Sabra Briere that changed the time period for the record-keeping requirement. Dissenting were Tony Derezinski, Stephen Rapundalo and John Hieftje.

Outcome: The council voted to approve the amendment. Dissenting on the voice vote were Derezinski and Rapundalo.

Medical Marijuana Licensing Amendment – Grower Information

The final controversial amendment involved imposing a shorter time limit on a previously unrestricted record-keeping requirement on cultivation sources:

(10) A medical marijuana dispensary shall keep records of the registered primary caregivers cultivation source from whom it received marijuana in any form for not less than 60 days after dispensing, and shall make the records available to the City upon request to promote health, safety and welfare or to otherwise verify compliance with this chapter.

After some back and forth about the difference between the record-keeping in this section and the record-keeping required for patient information, Carsten Hohnke (Ward 5) noted that the section they were amending provides a chance to identify a cultivation source without making a connection to the patient.

Sabra Briere (Ward 1) noted that she was not insisting that this record-keeping requirement be parallel to the previous one.

Outcome: The council voted to approve the amendment on records about cultivation sources. with dissent from Stephen Rapundalo, John Hieftje and Tony Derezinski.

Medical Marijuana Licensing Amendment – Grandfathering

As the council neared the conclusion of its deliberations, city attorney Stephen Postema told councilmembers that the situation might arise where an existing medical marijuana dispensary, operating before the moratorium was put in place, might find itself located within a zoning designation where such dispensaries are not allowed. Or it might be too close to a school.

Sandi Smith (Ward 1) then proposed the language that addressed the situation Postema described. It would allow for an existing dispensary to apply for a license, as long as the application was for a license at a legal location.

7:504. Application Requirements for New Annual License or Renewal of Existing License; License Requirements for New License and for Renewed License.
(1) Application Submission. …
If the medical marijuana dispensary commenced operation prior to passage of the moratorium in a zoning district where its operation is not permitted under the zoning ordinance, the application shall be for a location in a zoning district where operation of a medical marijuana dispensary is permitted under the zoning ordinance.

Asked by Tony Derezinski (Ward 2) to comment on the idea that the city could face liability if it did not “grandfather in” existing dispensaries, Postema contended that all of the dispensaries were illegal to begin with, because the city had no zoning for them.

Outcome: The council voted unanimously to approve the amendment dealing with dispensaries that exist but that will become non-compliant with the medical marijuana zoning ordinance the city enacts.

Medical Marijuana: Outcome – First Reading Approval

After the last amendment, the council quickly took the vote on the ordinance as amended.

Outcome on the main motion: The council voted unanimously to approve the medical marijuana licensing ordinance as amended. [.pdf of red-lined version of the licensing ordinance as amended on June 6, 2011]

City attorney Stephen Postema indicated to councilmembers that the changes the council had made to the licensing ordinance were significant enough that their approval of it counted only as the initial approval, even though it had previously received initial approval from the council. That meant it would need an additional final approval and a public hearing, he said.

Carsten Hohnke (Ward 5) asked which changes had triggered the need for an additional approval. Postema told him it was both the sheer number of changes, and the fact that some were substantive.

Later Postema asked for some direction on enforcement issues. He ventured that some kind of letter should be sent out to dispensaries after the moratorium expires – he felt it was prudent to begin that process. Sabra Briere (Ward 1) asked him what sort of direction he was seeking – a resolution? Tony Derezinski (Ward 2) suggested that it was premature, given that the ordinance had not actually passed yet.

Derezinski felt it could wait until the council’s next meeting, on June 20.

Present: Stephen Rapundalo, Mike Anglin, Margie Teall, Sabra Briere, Sandi Smith, Tony Derezinski, Stephen Kunselman, Marcia Higgins, John Hieftje, Christopher Taylor, Carsten Hohnke.

Next council meeting: June 20, 2011 at 7 p.m. in the second-floor council chambers at 301 E. Huron. [confirm date]

One Comment

  1. June 19, 2011 at 9:38 am | permalink

    I would like to see a comparison to the sale of alcohol in stores. Are alcohol sales required to maintain a list of purchasers? Is zoning the same?
    What record keeping requirements for alcohol sales?