Marijuana Board Requests: Pause Enforcement

Appearing on the Ann Arbor city council’s March 5, 2012 meeting agenda is a resolution that would direct the city attorney, Stephen Postema, to “delay all enforcement activities against medical marijuana dispensaries and cultivation facilities except for claims that they violate Section 5:50.1(3) of the City Code, until the Council amends or rejects amendments to the zoning and licensing ordinances for medical marijuana.”

The resolution reflects an ongoing tension between the city’s medical marijuana licensing board and the city attorney’s office.

The part of the city code called out for continued enforcement in the resolution, Section 5:50.1(3), specifies the zones in the city where medical marijuana businesses may be located. From the code: “Medical marijuana dispensaries shall only be located in a district classified pursuant to this chapter as D, C, or M, or in PUD districts where retail is permitted in the supplemental regulations. Medical marijuana cultivation facilities shall only be located in a district classified pursuant to this chapter as C, M, RE, or ORL.” [.pdf of Section 5:50.1(3)]

The resolution stems from a meeting of the city’s medical marijuana licensing board on Feb. 28 that was convened in response to concerns by several dispensary owners, who have received letters, dated Feb. 24, from the city attorney’s office. The letters make specific inquiries into several aspects of the business model of dispensaries – in order to assess whether they are in compliance with Michigan’s Medical Marijuana Act. Compliance with the MMMA is a requirement for issuance of a medical marijuana license, and recipients of the letters have license applications pending with the city. Although the legal position of the city attorney appears to be that it’s possible for a dispensary to operate in compliance with the MMMA, no explication of what that model would entail has been set forth.

Among the questions being posed to all dispensaries in the letters is the following: “Does any person or entity deliver marijuana to [Dispensary Name]? If so, does [Dispensary Name] ever pay, donate, or in any way give money to the person or entity who delivers the marijuana or to anyone else? If so, to whom is the money paid, donated, or given and how much?” [.pdf of set of letters]

The city council resolution is sponsored on the agenda by Sabra Briere, who is the city council’s representative to the medical marijuana licensing board. After its Jan. 31, 2012 meeting, the board submitted a required report to the council with recommendations on the issuance of the first dispensary licenses and revisions to the city’s medical marijuana ordinance. The report recommends to the council that 10 dispensaries be issued licenses.

The city council enacted zoning and licensing regulations for medical marijuana businesses at its June 20, 2011 meeting.

The resolution on the council’s March 5 agenda requests that the council decide on recommendations for amendments to the city’s medical marijuana ordinance before June 18, 2012.

Added after initial publication:  On Friday, March 2, members of the licensing board sent a statement to members of the city council that crystallizes the tension between the board and the city attorney’s office:

The City Attorneys’ Office decided to look at the MMMA and the McOueen case in Michigan (which is still in the appeal process) as laws forbidding dispensaries and has been aggressively trying to shut them down while we actively try to license them. The McOueen case is unsettled law, and yet it is the basis of action by the City Attorneys’ Office. Since both the Advisory board and the City Attorneys’ Office act at the direction of City Council, we find this confusing.

The Licensing Board came up with several resolutions for changes in the ordinances which would give dispensaries a chance in Ann Arbor by removing some of the wording which seems to give staff discomfort.

An attorney from the City Attorney’s Office was present at every Licensing Board meeting. They were aware of the Board’s resolutions, and knew our resolutions had been attached to an agenda to City Council. Even after that, they sent out new letters to all dispensaries, functionally requesting them to provide a business model to show they were in compliance with the MMMA and the McOueen case.

How can dispensaries be in compliance with the MMMA when they are not mentioned in the MMMA?

What business is it of the City to require a business plan of any business?

[.pdf of entire statement from Ann Arbor's medical marijuana licensing board to the Ann Arbor city council]