Supreme Court puts end to local medical marijuana bans

By: Tiffany Esshaki | Birmingham - Bloomfield Eagle | Published February 19, 2014

BIRMINGHAM/BLOOMFIELD HILLS — The Michigan Supreme Court recently passed a judgment involving the use of medical marijuana in the city of Wyoming, Mich. Even though the city is more than two hours away from the Birmingham-Bloomfield area, the decision is having an effect here, as well.

Wyoming resident Jon Ter Beek sued the city of Wyoming last fall looking to do away with a city zoning ordinance that prevented the cultivation, manufacture, distribution and use of medical marijuana in the city limits. He claimed that the local ordinance contradicted the Michigan Medical Marijuana Act, which was approved by voters in 2008 to allow the legal use of marijuana for medical purposes when approved by an appropriate physician.

As it turns out, the Michigan Supreme Court agreed with Ter Beek. After the case was moved to the high court from Kent Circuit Court and the court of appeals, Justice Bridget McCormack delivered the unanimous opinion that no city ordinance may preempt the state’s medical marijuana law, despite the fact that federal law still prohibits the drug.

The case was a victory for Ter Beek and medical marijuana users around Michigan, according to Dan Korobkin, deputy legal director of the American Civil Liberties Union of Michigan.

“This decision renders (Birmingham and Bloomfield) ordinances invalid, as well, to the same extent it invalidates Wyoming’s ordinance. If you are using medical marijuana as a patient or a caregiver in compliance (with the law,) the city ordinance cannot prohibit you from doing that,” said Korobkin. “The voters in Michigan voted overwhelmingly to make medical marijuana legal. I don’t think they intended to make it legal except if there was an ordinance.”

The decision means that the city of Wyoming will have to amend or do away with its medical marijuana ordinance, and so too will other municipalities in Michigan that have similar ordinances on the books. Birmingham and Bloomfield Hills are just two of the many areas around the state that have similar regulations.

In Birmingham, City Attorney Tim Currier explained that the city’s ordinance banning medical marijuana is in fact very broad, prohibiting anything that is also prohibited by federal, state or local law, such as arms manufacturing. Now, he said, the city will have to revisit the ordinance to see how the Michigan Supreme Court decision will be accommodated in Birmingham.

“There is really no case of controversy in Birmingham,” said Currier, explaining that city officers aren’t necessarily looking to arrest people for using legal medical marijuana at their private residences, which is what the court decision specifically speaks to.

He went on to detail a similar lawsuit that was filed against Birmingham and Bloomfield Hills by Linda and Robert Lott, seeking to do away with local ordinances preventing the cultivation and use of medical marijuana. A decision in that case was delivered shortly after the Wyoming verdict was decided, stating that since legal users were not being bothered in at their homes, there was no controversy to rule on.

Both Currier and Bloomfield Hills City Attorney Bill Hampton agree that the cities’ respective ordinances were developed with the intention of preventing large-scale grow and distribution operations within city limits. Private marijuana growth and consumption has never been a problem, whereas dispensaries, they say, could draw criminal activity to an area.

“Basically, what we’re going to have to do in Bloomfield Hills is we’re going to have to revisit these ordinances and restructure them or reword them in light of the Michigan Supreme Court decision,” said Hampton. “It just creates a little bit more work, in terms of how we want to go about handling this.”

The attorneys also agreed that they expect their respective cities to regulate the number and placement of medical marijuana dispensaries through zoning ordinances.

“Let’s assume that someone has a license to sell marijuana; you certainly want to regulate where that can take place. We wouldn’t want (dispensaries) in an office district, and we certainly wouldn’t want it in a residential district. If anything, it can only go in a commercial district,” said Hampton.

Currier said that many people looking to open a medical marijuana dispensary in Birmingham would likely find it challenging with many of the zoning ordinances already in existence.

“Right now, we don’t have any provisions for dispensaries. The sale of tobacco products are not permitted in a lot of areas,” said Currier, noting that tobacconists are not allowed in downtown Birmingham. He noted that Churchill’s Cigar Bar, on Old Woodward Avenue, is classified as a bistro.

Another point that both attorneys agreed on is that medical marijuana would be better regulated if state laws were changed and the drug were sold at pharmacies where it can be more closely monitored by doctors, pharmacists and legal authorities.

“This just makes it more complicated for the law enforcement people,” said Currier. “One prosecutor said to me that he’s never seen so many 20-year-old kids with glaucoma in his life. Either allow the stuff to be used and used properly, or don’t allow it. Regulate it with drug stores, because this law has been abused terribly.”