Michigan’s Medical Marihuana Act has been around for nearly two years, but communities continue to have many questions about it. Simply put, communities have three options: Do nothing, prohibit it, or regulate it.

Background

On November 4, 2008, a citizen-initiated law, the Michigan Medical Marihuana Act (yes, they spelled it with an “h”) was passed by 63 percent of Michigan voters. To qualify as a lawful medical marijuana user under the Act, an individual who suffers from a debilitating medical condition must obtain a doctor’s written certification. Once registered, the individual is authorized to use marijuana under state law. The permitted user can also grow his or her own marijuana or obtain marijuana grown and dispensed by a designated primary caregiver. A primary caregiver means a person who is at least 21 years old and who has agreed to assist with a patient’s medical use of marijuana and who has never been convicted of a felony involving illegal drugs. MCL 333.26423(3)(g).

By submitting that certification, an application, and a $100 fee to the Department of Community Health (DCH), the applicant can obtain a Registry Identification Card. The DCH is responsible for the administration and enforcement of the Act and since April 6, 2009, the department has received 16,776 applications, issued a total of 12,193 registration cards, and is currently receiving an average of 81 applications daily. The Act presents a variety of issues for local governments including those pertaining to the Freedom of Information Act (FOIA)/privacy, zoning, and employment.

FOIA/Privacy

A municipality may not rely upon the application for, or possession of, a card to support the search of a person or their property. Although the Department maintains a confidential list of registered persons, that list is exempt from disclosure under FOIA. Confirming the card’s validity also creates confusion. The DCH rules require that “law enforcement personnel” can check the authenticity of a card through the LEIN (Law Enforcement Information Network) system. Regardless, any employee “of a local unit of government” who discloses confidential information is guilty of a misdemeanor.

Merely maintaining a list of information may not violate the Act, as it punishes the “disclosure” of confidential information, not its “compilation.” However, considering the Act’s intent and the limitations on the use of confidential information, maintaining such records may present risks without providing any benefit. When determining how a municipality should handle a FOIA request or the maintenance of confidential information, education is imperative. A municipality must educate itself to effectively address the Act’s implications.
 
Zoning

The Act grants qualifying patients and caregivers the right to grow and “sell” marijuana. The law has created a group of individuals who are growing marijuana in their homes and other private areas. But the Act does not address commercial growing operations. Notwithstanding the Act’s silence, today’s economy is likely to attract entrepreneurial interests. In fact, at least one medical marijuana dispensary already operates in Michigan.

A municipality’s governing body should consider how it will address growing operations close to schools, and whether it will permit or prohibit a medical marijuana “business” in a commercial district. The Act is silent as to a local government’s role, leaving communities with three options: to do nothing, prohibit it, or regulate it.

Do Nothing

Choosing to ignore the Act may prevent litigation from patient advocacy groups, but it can lead to unintended consequences; such as inconsistencies between a municipality’s policies and ordinances, and state and federal law.

Further, ignoring the Act can result in unintended uses authorized by existing zoning ordinances.

Prohibit It

The possession and manufacture of marijuana remains a violation of federal law. Requiring businesses to comply with federal law provides a potential vehicle to restrict these types of businesses. Although this option may regulate commercial activities, it does not address the non-commercial aspects of medical marijuana.

Regulate It

Communities enact zoning ordinances to regulate businesses for the health, safety, and welfare of citizens. Zoning regulations could be used to confine medical marijuana businesses (similar to other businesses) to commercial districts, rather than neighborhoods or school zones. Such an approach would draw business activity to downtown zones while preserving residential districts.

The power to regulate, however, may be limited by state preemption. Your municipality must decide the best way to address local zoning issues and draft ordinances to protect and advance its goals. Prudent regulation is an objective that should be explored with legal counsel.

Employment

The Act also raises issues pertaining to the Americans with Disabilities Act (ADA) and the Persons with Disabilities Civil Rights Act (PDCRA), Michigan’s counterpart to the ADA. The ADA and the PDCRA require accommodations for disabled individuals unless accommodations would occasion undue hardships.

However, the Act states an employer is not required to accommodate the ingestion of marijuana in the workplace nor accommodate any employee working under the influence of marijuana. The law also states that a registered primary caregiver may receive compensation for costs associated with assisting a registered qualifying patient in the medical use of marijuana.

Any such compensation shall not constitute the sale of controlled substances. Unfortunately, the Act does not define “under the influence.”

How is a municipality to reconcile the ADA, PDCRA, and the requirements in the Act? How does an employer determine whether an employee is “under the influence,” and respond, while not violating the Act’s patient protection provisions?

Merely adopting a policy defining “under the influence” may not be sufficient. Any attempt to determine whether an employee is under the influence of marijuana should entail whether the employee’s ordinary judgment, common sense, mental state or physical coordination is affected and to what degree. The implementation of policies aimed at reducing the risk of loss from claims by employees, residents, and third parties may be necessary.

Conclusion

The Act’s silence regarding the role of local government leaves municipalities with a myriad of challenges and options. Each municipality must decide the most appropriate way to address the Act and its effect on the health, safety, and welfare of its citizens. How a municipality responds over the next few months will impact every aspect of its operations.

Andria M. Ditschman is a partner with The Hubbard Law Firm, P.C.. She may be reached at 517-886-7176 or Aditschman@hubbardlaw.com.

Matthew R. Newburg is an attorney with The Hubbard Law Firm, P.C.. He may be reached at 517-886-7176 or MNewburg@HubbardLaw.com.