Ever since the adoption of the Michigan Medical Marihuana Act (MMMA) in 2008, an ongoing battle has brewed between caregivers and municipalities in Michigan. The issue? Whether marijuana caregivers who follow Michigan’s medical marijuana law must satisfy additional criteria under their local ordinances.
Rights of caregivers vs. municipal authority
Caregivers argue that state law is clear and allows caregivers to freely engage in certain activities—namely, the cultivation of medical marijuana for their patients—as long as MMMA requirements are fulfilled.
Caregiver requirements include:
- Obtaining a valid caregiver ID card from the state
- Growing no more than twelve (12) plants per patient (up to five (5) patients)
- Possessing no more than 2.5 oz. of usable marijuana (or its equivalent) per patient
- All cultivation must take place in an “enclosed, locked facility” that is only accessible to said caregiver
As long as the cultivation does not occur in a school, school bus, or correctional facility, the MMMA states:
“All other acts and parts of acts inconsistent with this act do not apply to the medical use of marijuana as provided for by this act.” MCL 333.26427(e).
This provision in the law arguably protects caregivers from unlawful penalty or punishment by state or local governments for engaging in certain activities, if the penalty or punishment is based on the caregiver’s compliant and lawful cultivation of medical marijuana.
Additional caregiver requirements under municipalities
However, municipalities argue that the health, safety and welfare of its residents justify imposing additional requirements on caregiver grow operations. This includes application fees, inspections and other restrictions. Generally, local communities have broad authority to govern as they wish with respect to land use and zoning, including establishing time, place, and manner restrictions.
From the municipality’s perspective, it’s dangerous to the public if certain activities are allowed to happen without any oversight through the normal permitting, inspection, and approval process. In this case, it’s reasonable for municipalities to grow concerned.
For example, an individual may overload their electrical system by growing seventy-two (72) plants in a residence. There are potential dangers associated with accidents/human error by a caregiver using processing equipment. However, it’s unclear how much authority municipalities possess on controlling caregivers’ lawfully permitted activities.
In a recent unpublished decision, the Michigan Court of Appeals ruled in favor of caregivers’ rights under the MMMA.
City of Warren v. Clayton Jamers Bezy
Clayton Bezy was growing medical marijuana for both himself and his registered patients at his Warren home. He was 100% in compliance with the MMMA, but the city of Warren imposed additional requirements under its ordinance code. Warren issued citations to Bezy for:
- Failing to register for safety inspections
- Emitting noxious marijuana odors causing a nuisance
- Operating a business in violation of the law which is considered a misdemeanor
Bezy argued that the city’s ordinance requirements directly conflicted with state law and did not apply to his lawful caregiver activities. Additionally, he argued that these violations and citations are punishments that a municipality cannot grant. Warren then argued that its requirements did not conflict with the MMMA, but rather expanded on its requirements and added safety restrictions.
Subsequently, the Michigan Court of Appeals sided in favor of Bezy. The Court of Appeals concluded that, “the MMMA prohibits local governments from restricting MMMA-compliant behavior.” The city of Warren’s ordinances were found to, “add ‘a layer of restrictions and regulations’ that restricts [caregiver] cultivation of medical marijuana.” Since the city’s ordinances prohibited what state law allows, the Court found that the ordinances were invalid and did not apply to caregiver conduct.
DeRuiter v. Township of Byron
This interpretation of the MMMA strongly favors caregiver rights under state law. Based on what the MMMA states, it’s a reasonable conclusion. However, it’s also an unpublished opinion didn’t come from the Michigan Supreme Court. Therefore, it’s still unclear whether it will stand as solid law.
While the Michigan Court of Appeals has addressed this issue in a couple of cases (Charter Township of York v. Miller; City of Warren v. Bezy), the Michigan Supreme Court completed its decision on one similar case: Ter Beek v. City of Wyoming. This case set the framework in Michigan for preemption cases involving the MMMA and municipalities.
The Michigan Supreme Court recently agreed to review and decide one case—DeRuiter v. Township of Byron—which contains similar facts as City of Warren v. Bezy. Both cases involve a caregiver’s rights under state law and municipality land use and zoning authority.
Rights of caregivers under the MMMA
Currently, a majority of the focus in Michigan is on the Medical Marihuana Facilities Licensing Act (MMFLA) and adult-use establishments under the Michigan Regulation and Taxation of Marihuana Act (MRTMA/Prop 1). However, the MMMA and its caregiver-patient system isn’t going anywhere. Caregivers that wish to grow for their patients in either a residential or industrial-zoned property still exist.
Caregivers hold the ability to co-exist with licensed facilities and adult-use establishments. It’s only a matter of where those caregivers can grow for their patients. Therefore, this issue is something to keep an eye on and witness how this issue is resolved once and for all.