Medical Marijuana Marauders of Ludington

[XLFD]

In November of 2008, about 63% of the voters passed an initiative that became state law in December 2008 called the Michigan Medical Marihuana Act , heres the ballot wording that garnered nearly 2/3 of Michigander's votes: 

The proposed law would:
• Permit physician approved use of marijuana by registered patients with debilitating medical
conditions including cancer, glaucoma, HIV, AIDS, hepatitis C, MS and other conditions as
may be approved by the Department of Community Health.
• Permit registered individuals to grow limited amounts of marijuana for qualifying patients in
an enclosed, locked facility.
• Require Department of Community Health to establish an identification card system for
patients qualified to use marijuana and individuals qualified to grow marijuana.
• Permit registered and unregistered patients and primary caregivers to assert medical reasons
for using marijuana as a defense to any prosecution involving marijuana.

 

Let me be frank, I voted against the MM Act and thought there would be a lot of characters around Michigan looking like Shaggy or Cheech if it passed, and thought reefer madness would run wild, as the law gets abused.  I have never used marijuana, nor do I advocate anybody picking up the habit of doing so, but I now think I was wrong in my vote at the time.   It's a freedom issue -- just like you don't have to own a gun to fully support the Second Amendment.

 

The state law has several aspects of confidentiality as for the health care providers, dispensers and users of the Medical Marihuana (MM) which are not even available by the FOIA, but can be accessed by law enforcement from the State on a need-to-know basis.  Thus since the Act became law in 2008, as long as you were licensed and registered with the State of Michigan and followed the rules, which includes operating a dispensary at least 1000 ft. away from school grounds and 250 ft. from another dispensary, you would be operating within the law. 

 

Enter meddlesome local governments, that try to exert extra power through enacting ordinances that try to further regulate MM because they do not want any MM in their area due to the prevailing desires of the lawmakers, prominent citizens, local mores, and/or law enforcers.   

Many local governments have tried to regulate MM beyond the State's law by either using zoning laws or licensing at the local level.  Many local governments have been sued in Michigan over local regulations and ordinances conflicting with State law: Royal Oak, Bloomfield Twp., St. Joseph, Lansing... just to name a few.  The state law does not prohibit local governments from making their own ordinances restricting where and how MM is to be handled, but if the local governments go too far they run the risk of subjecting their taxpayers to pay an awful lot of needless legal fees to assert their authority, and there is a fair chance of them losing if they have. 

The initiated state law can stand by itself, as it has rules for licensing under the Public Health Department and the previously noted restrictions on placement of any dispensaries within school zones or too close to other dispensaries. Back in May 2011, after putting out moratoriums on MM, our sister city on the lake, Manistee, who shares the same City Attorney as Ludington put out a fairly straightforward ordinance that follows the spirit of the initiated law for the most part:  5-4- 2011 Manistee Medical Marihuana Ord..  The only thing they add extra is the concept to "license a location", whatever that means.  A location can not register through a form, a location cannot cultivate MM. 

A FOIA to the Manistee City Manager had me receive this form, a blank application to "license a location".  It offers a few questions that a location could probably not answer, and has a spot for the location's initials at the end.  It has the Manistee MM Officer review the location's answers and decide whether the location is approved or not.  By State Law, they don't have that authority, and the City is using the color of law to receive information that the Public Health Department declares confidential between them and the human licensee at that location  MCL 333.26426 (h). and the violations of breaching that law is steep.  More than what the citizens of Manistee want to pay for to enforce an ordinance whose main purpose is to let local law officers know where the MM is, which is contrary to the intent of initiated State law.

 

But even though Ludington and Manistee have the same law firm as their City Attorney, they have much different policies.  Let's look at the timeline of Ludington's approach to MM.

11-4- 2008 MI voters vote for MM with 63% of the vote.

12-4-2008  MI MM Law is put into effect

1-24-2011  (over two years later) MM moratorium is put into effect by Ludington City Council, is passed over to Planning Commission for policy creation.

2-1-2011  Planning Commission (PC)  Nekola says MM has been referred to them.

4-5-2011  PC admits 4 inquiries on dispensaries, suggests combining it as a zoning and licensing issue.

5-4-2011  PC sends zoning district idea to City Attorney.

Also, on this date Manistee adopts their MM ordinance.

6-7-2011  CA Wilson recommends licensing procedure with zoning and setbacks at PC meeting.

7-5-2011  At PC meeting, Chief Mark Barnett is said to have finished license procedure, and it is being reviewed by CA Wilson.

7-11-2011 City Council extends MM moratorium for another 6 months to 1-31-2012.

 

In January, they extended the moratorium to 5-31-2012, and at the last council meeting are scheduled to adopt the ordinance tomorrow, 5-7-2012.  One thing that totally scares me about this ordinance, without even seeing it, is the drafters.  LPD Chief Mark Barnett and CA Richard Wilson are the drafters of the Workplace Safety Policy.  A bit of local legislation that permits the trampling of constitutional liberties, described in detail throughout my posts of the last year. 

The secrecy behind the new ordinance rivals the secrecy behind the other policy.  The map of the areas where MM is permitted and the law itself have been suppressed from passive review by the public.  You either have to go to City Hall and request to look at it or do a FOIA request.  I did that and was shocked by what I saw.  Here it is:

I could write a treatise on why this is badly written law, as was the Workplace Safety Policy but here is a brief rundown of what I find most troubling about this proposed ordinance:

 

1)  The licensee is mandated to have a "required security device" (31-02) that alerts both the owner and the LPD when unauthorized access occurs at the MM facility.  This could be fairly costly, violative of the confidentiality of the licensee, and is not part of the State law. 

2)  The licensee is restricted to conduct business between 8 AM and 6 PM (31-04 b3), thus if they conduct business during the other 14 hours of the day, two people could receive misdemeanors.  The State laws have no set time limits.

3)  In 31-05 it states the license can be denied if the licensee has a felony, or a misdemeanor involving assault or theft.  The State only denies applicants if they have a felony involving illegal drugs. 

4)  In 31-07 the ordinance sets out an appeal process that has the City Council and Attorney decide on the appeal, unlike the State law which allows appeals to the court systems (the judicial branch).  No confidentiality provisions are set forth here, or elsewhere in Ludington law, and the prospective licensee may have his name and intention brought out at a public forum if he appeals.

5)  The restriction on distribution in 31-07 is arbitrary and not found in any portion of State laws.  A misdemeanor can occur if you distribute MM in any other way than a "one on one" basis.  This isn't part of State law, and neither is the word "deal" used in State law as it is in 31-09, with the negative connotations that infers.   

 

There are more troubling aspects of the 5 page law, but the most disturbing of all is the draconian restrictions on where you can operate from.  As per State law, you can operate nowhere within 1000 ft. of school property, but under (31-04 b2) an operating facility cannot be within 600 ft. of a daycare facility, a community college facility, a medical facility, a doctor's office, public buildings, public parks, churches and other MM facilities.  That means you can't be within two blocks of such properties, and if you think that covers most all of Ludington, you would be right.

Here's Chief Barnett's map of the areas that would be permitted to be licensed by the City.

 

The brown are "allowable areas" for MM.  You see some brown at the top, you can get rid of most all of that, as the left side are negated by two licensed day care facilities on N Harrison that are not pictured, and the left side is within 1000 ft. of the soccer field.  So if you discount Oxychem to the far south, Lake Michigan Carferry property, Conrad Industrial Park property, and railroad property west of Madison, you're reduced to an area less than 1% of the size of the rest of Ludington.  With the state's laws you get the same map as you would for RSO's that looks like this City Map for MM without new restrictions.  More than 50% of the City is open to entrepreneurs and caring caregivers to ply their trade, if they so wish. 

 

Barnett's and Wilson's law restricts the State's defined legal areas about one hundredfold.  Effectively, nullifying the word and intent of the initiated law, and banning most of Ludington from even thinking about going into MM.  Barnett's motives can be presumed from his past stances and actions with respect to "spice dealers" and "Girls Gone Wild". 

Manistee's Wilson, who represents Ludington as one of our stable of City Attorneys, could have more ulterior motives by making Ludington's law much more controversial and restrictive.  After all, if it is challenged, he stands to make a ton of money in legal fees at $185 an hour, defending this lemon law.  And the effective ban on MM dispensaries in Ludington, makes the much less restrictive Manistee MM law much more palatable for start-up businesses in this field.

 

You will also note that there is nothing in the Ludington ordinance to save your MM business if a church, daycare, etc. moves into your neighborhood after you establish yourself.  If one of the many facilities do move in a couple of blocks away, Chief Barnett may show up one day with a warrant for your arrest on a misdemeanor.  This ordinance is the Workplace Safety Policy on drugs!

 

[XLFD]

The Mayor only votes when there is a tie, but you're right there was an absent councilor, Kaye Holman.  The "no" vote may surprise you; it was 6th Ward's Gary Castonia.  But it wasn't for the reason Shrugs voiced, or the reasons I voiced in the thread head, but according to the LDN on page A8 of today's paper: 

Castonia said he voted against the ordinance because it -- and the State law allowing for marijuana use for medical reasons -- are in conflict with federal law.  "It's still against federal law to possess it in any way." 

Funny-- the point I made in my speech to the council-- that local law cannot overrule state law is codified in the Home Rule City Act, the act that gives Michigan cities the right to set up their own governing bodies.  Section 117.36 says: "No provision of any city charter shall conflict with or contravene the provisions of any general law of the state."  And yet no less authority than the U.S. Constitution says in the tenth amendment:  "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."  A thorough reading of the US Constitution will determine no ability of the federal government to regulate controlled substances, ergo it should be left to the states, or the people themselves, to do so. 

The federal government has the ability to regulate commerce among the states so they can create any draconian laws they want regarding interstate MM commerce.  But the States have the constitutional right to control commerce within their border without any guff from the feds.