A settlement in a lawsuit between a medical marijuana facilities license applicant, the city of Warren and members of the city’s Medical Marihuana Review Committee was reached before Judge Carl Marlinga in Macomb County Circuit Court on Sept. 17. The deal required the committee to hold a public meeting in the auditorium of the Warren Community Center at 4 p.m. Sept. 20.

A settlement in a lawsuit between a medical marijuana facilities license applicant, the city of Warren and members of the city’s Medical Marihuana Review Committee was reached before Judge Carl Marlinga in Macomb County Circuit Court on Sept. 17. The deal required the committee to hold a public meeting in the auditorium of the Warren Community Center at 4 p.m. Sept. 20.

Photo by Brian Louwers


Deal allows Warren to move forward with medical marijuana licenses

By: Brian Louwers | Warren Weekly | Published September 19, 2019

Advertisement

WARREN — Legal wrangling over medical marijuana facilities licensing in Warren continues to take twists and turns, but it now looks like a batch of up to 15 applications could soon go to the full City Council for consideration.

Where it will go from there and when, however, remains to be seen.

On Sept. 17, Macomb County Circuit Court Judge Carl Marlinga signed off on a deal brokered between attorneys representing the city and one of 65 medical marijuana facilities seeking a license that would, if followed as stipulated, lift a preliminary injunction stemming from an alleged violation of the Open Meetings Act.

Marlinga ordered the city to refrain from considering or approving licenses after hearing briefs, arguments and testimony in the case late last month. Among the claims brought by the plaintiff, DNVK 4 LLC, operating as Rise Wellness, was that the city’s Medical Marihuana Review Committee violated the Open Meetings Act when it met in closed session. Attorneys later said that happened a total of 13 times.

The closed sessions were also the subject of debate among members of the City Council, and council members Cecil St. Pierre and Ron Papandrea and Warren Public Service Director Richard Sabaugh, all of whom sit on the committee, were named in a lawsuit along with the city.

The DNVK 4 case is one of three lawsuits now pending in Macomb County Circuit Court over the city’s handling of medical marijuana facilities licensing.

The pact agreed to on Sept. 17 in the DNVK 4 case and entered into the record as a stipulated order essentially will permit the committee to hold one public meeting instead of requiring a “do over” of all 13 meetings held in closed session. Because 12 of the meetings were used to interview applicants and included sensitive information subject to privacy protection and immune to Freedom of Information Act requests, as stated under laws cited in the stipulated order, the committee will be required to enter a declaration that explains that for the record at the beginning of the meeting, which was scheduled for Sept. 20, after press time.

Prior to that, the order directed attorneys representing the city and the named members of the committee to forward license scoring sheets, based on a list of criteria defined in the city’s ordinance, from all members of the licensing committee to Plante & Moran. On Sept. 10, the City Council voted to hire the firm to audit and total the scores each member gave to each applicant, as well as each applicant’s overall score.

The order indicates that the auditor should return the documents with the total scores and scoring sheets to the respective members of the review committee at the meeting. Members will have an opportunity to amend their scores following public comment during the session, which is required to be limited in scope to comments regarding license applicants and kept to a maximum of one minute per person.

The order tasks the auditor with the tabulation of the final scores, with any modifications, and with notifying those in attendance of the results. A list bearing the name of each applicant for a medical marijuana provisioning center will then be created, including the score from each member and the total scores listed from highest to lowest on an “auditor score sheet,” which the auditor will then read or display for those in attendance.

The process was then slated to include an open discussion among members of the committee, followed by a vote on licensing recommendations to be forwarded to the full Warren City Council for consideration as soon as its next regular meeting on Sept. 24, after press time.

The order also states that all license applications have been submitted to the Warren City Council office. It also directs the auditor to submit all score sheets and the total scores to the full council along with the committee’s recommendations.

Attorneys spent more than two hours working on the settlement after another two-hour hearing in the case and returned to court afterward to put the deal on the record.

As a means of correcting any Open Meetings Act violations, attorney Andrea Pike, representing the city, suggested permitting the city to hold one meeting to first explain why the other meetings were held in closed session, and then to solicit public input before the committee’s scores for the 15 approved licenses are announced, subject to an audit from an independent contractor.

Attorney David Griem, representing the plaintiff in the case, initially likened the offer to a “thinly veiled motion for reconsideration.”

“We’d like to settle this, but the defendant using another theory to get what they didn’t get the last time we were in court isn’t a step toward reconciling this matter. It’s a step toward litigating this matter,” Griem said.

Marlinga expressed concerns about the looming elections, which could give the plaintiff “a victory the plaintiff does not deserve” by tying things up in court until after the election in November. Three of the review committee’s participants — St. Pierre and fellow City Council members Steve Warner and Robert Boccomino, an alternate member of the committee — will leave office under term limits, and Papandrea is facing a challenger for re-election in District 1.

Marlinga also said he didn’t want to hand the city an undeserved victory by permitting it to simply hold a single open meeting and to continue what would have been the previous course with a “wink and a nod.”

That’s essentially what the parties agreed to in the end, however.

But attorneys for the defendants were clear that they wanted to preserve their right to move forward on other claims laid out in the lawsuit, including alleged violations of procedural and substantive due process rights as guaranteed under state law and local ordinance, pertaining to the “merit-based” scoring and license consideration and approval procedure.

Before the hearing, the judge heard arguments for a motion to intervene filed by another applicant, who was apparently concerned about the impact any legal proceedings and resulting delays may have on the company’s own business plans. Marlinga opted to “bar the door” to intervening parties and denied the request, rather than open the floodgates to any of the 65 potential license holders wishing to join the case. But attorneys admitted that any of those parties could file their own lawsuit and request consolidation with an existing case.

At least two other cases related to the city’s medical marijuana facilities licensing process remained pending at press time.

All of this could ultimately be a moot point, at least until after the election.  

While Warren Mayor Jim Fouts maintained he’s not against medical marijuana and said he voted for it, he took to Facebook on Sept. 17 to announce a planned veto of any action taken by the City Council to approve medical marijuana facilities licenses. The mayor has already issued several vetoes that were overridden by the council, but it is unclear if the support is there for an override now.

Fouts said he’s concerned about the potential cost of ongoing litigation related to the licensing process and the impact an influx of marijuana facilities would have on Warren neighborhoods. He later added, “The method for selecting medical marijuana licensees was flawed because of a faulty scoring system,” and said that was the main reason for his planned veto.

“As of now, yeah, I don’t know if that would change,” Fouts said Sept. 18 about his plans to veto City Council action on medical marijuana facilities licenses. “I’ll look closely at what they do. I’m not comfortable with it.”

Councilwoman Kelly Colegio, who is running against Fouts for mayor in November, said earlier this month that the whole licensing process has been “rushed from the beginning” and accused members of the committee of acting with a “sense of urgency” while “trying to get the job done while they’re in office.” She also cited repeated concerns about violations of the Open Meetings Act.

The closure of the meetings was brought to the attention of the City Council by Warren resident Sarah Garvey, who uses medical marijuana as an alternative to pharmaceuticals to treat various conditions and expressed an interest in seeing residents serve on the licensing committee as taxpaying stakeholders in the city.

Councilman Scott Stevens previously accused the committee of “pulling shenanigans” by holding the closed-door meetings.

Look for updates to this story after the Sept. 20 and Sept. 24 meetings at candgnews.com or on Facebook at facebook.com/warrenweekly.

Advertisement