Kalamazoo voters will decide Nov. 6 whether to change the city charter to allow medical marijuana dispensaries to open within city limits. Proponents say medical marijuana patients need more access and legitimate ways to obtain it, but Kalamazoo’s city attorney sees several legal problems with the proposal. The ballot proposal states, “Shall the Kalamazoo City Charter be amended such that three (3) medical cannabis dispensaries are permitted within the city limits?” It calls for creation of a licensing system to regulate dispensaries and dispensary owners would pay an annual $3,000 registration fee to the city. Dispensaries would have to be located in “visible store-front locations in appropriate commercial districts,” according to the charter amendment proposal, and would have to be at least 500 feet from pre-existing public schools, private schools or other dispensaries.
John Targowski, a Kalamazoo attorney who specializes in Michigan’s medical marijuana law and was an author the proposal, said dispensaries would provide a legitimate way for people to receive their medical marijuana rather than buying it off the streets or the black market. They would create “an access point such that people don’t have to feel criminal,” he said. Targowski said caregivers, who are licensed by the state of Michigan to provide up to five patients with medical marijuana and are allowed to keep 12 marijuana plants per patient, aren’t able to meet the demand that exists for medical marijuana. Chris Chiles, organizer of the petition drive that got the proposal on the ballot, said three dispensaries seemed like the right number.
“Looking at the size of Kalamazoo, it seems appropriate to at least provide a few for the city, while giving an opportunity for the city commission to approve of more dispensaries if they wish,” Chiles said. “This is where it can start. … I know there is a demand to some extent for these already.” Chiles said requiring dispensaries to be in storefront centers and to get permits from the city would provide safeguards to ensure they are operating in a suitable manner. “Once they have a permit they are subject again to restrictions, regulations, common sense rules and hours of operation,” he said.
As it stands now, medical marijuana dispensaries are illegal in Kalamazoo and City Attorney Clyde Robinson has several concerns with the ballot proposal and its provisions. One is that it would prohibit law enforcement personnel and his office from prosecuting marijuana violations if a dispensary is operating with a permit. “It basically gets you a get-out-of-jail-free card, as long as you get one of these permits,” he told the Kalamazoo City Commission at a recent meeting. Another concern for Robinson is the proposed $3,000 fee. Under state law, the city attorney said, a business can’t be charged more than the administrative cost for processing an application. “Usually, that’s going to be $100 or less,” Robinson said. “I can’t believe that if we get applicants for this and they indicate where they want to be that it’s going to cost $3,000 to administer that process for that application.”
He said if he were to author the proposed amendment, he would set the fee as to be determined by a city commission resolution. Robinson also has said the proposal’s requirement that dispensaries be placed “in ‘appropriate commercial districts’ is more in the nature of a zoning ordinance,” and that a charter amendment should not be used for zoning. The city allows caregivers to grow and provide medical marijuana to patients, but not commercially. In September 2010, city commissioners added language to the zoning ordinance to establish licensed dispensaries as home-based occupations. He said city officials chose that route for two reasons — there was some question whether or not the commercialization of medical marijuana was permissible under state law, and also because organizations promoting the adoption of the medical marijuana law stressed the importance of the intimate patient-caregiver relationship that Robinson said seemed best preserved in a discrete setting.
“We haven’t outlawed the ability of medical marijuana to be provided for, but the route that we chose was the home occupation route as opposed to a building,” Robinson said. Targowski asserts that the ordinance that makes medical marijuana dispensaries home businesses is “pretty restrictive.” “We’re just exercising our right to change the law,” he said of the ballot proposal.
Both sides on the issue are keeping tabs on a particular case being heard by the Michigan Supreme Court that could decide the future of medical marijuana dispensaries in Michigan. Last year, in the State of Michigan v. Brandon McQueen, the Michigan Court of Appeals ruled that medical marijuana dispensaries are illegal under the state’s 2008 medical marijuana law. The case was appealed, and Robinson said he hopes the Michigan Supreme Court will have a decision by the end of this year or early next year.
At The Med Joint Community Compassion Center in Oshtemo Township, one of the only dispensaries that hasn’t shut down or been raided by authorities, customers lined up outside Wednesday waiting for the dispensary to open. A sign posted on the door says the center is not accepting new patients. Founder Kevin Spitler promotes the use of cannabis oils and cannabis juice — made from unused seeds and stems donated by caregivers, then run through a juicer and mixed with fruit juice — as ways to use medical marijuana without getting high. The oils and juicer are some of the first items a client sees after walking through the business’ door, located in a strip mall next to a restaurant on West Main Street.
Spitler explains the dispensary’s set up by using “the grandma test.” “We want the purpose that grandma can walk in here and feel comfortable,” Spitler said. But clients also can receive regular medical marijuana for a suggested donation. Spitler declined to reveal the amount of the suggested donation, nor will he say how many clients use the dispensary. But he says he has a significant amount of customers that are baby boomers. Though it would mean more competition for Spitler, he supports the Kalamazoo ballot proposal to allow three dispensaries in neighboring Kalamazoo. He points to the state’s 125,000 medical marijuana card holders.
“There’s definitely room for more safe access centers,” said Spitler, whose dispensary has been operating in Oshtemo for about two years. Oshtemo Township Attorney James Porter, however, said Med Joint is operating illegally, since commercial dispensaries have been ruled illegal in Michigan. “There’s nothing legal about what they’re doing,” Porter said of the business. “At this point in time we haven’t taken any legal action,” the township attorney said, adding that it’s possible they will in the future. Porter said township officials are watching cases at the Michigan Court of Appeals and Michigan Supreme Court, including the McQueen case.
The state of Michigan grants medical marijuana cards to patients and it’s up to physicians like Dr. David Crocker of Michigan Holistic Health to make a recommendation. Before doing so, Crocker performs a physical examination and reviews a patient’s medical history. Crocker, whose practice has offices here and in other West Michigan cities, said medical marijuana patients in Kalamazoo don’t have a lot of options to receive their medicine currently. Dispensaries offer patients an opportunity to get their medical marijuana in a safe, predictable environment, he said. Dispensaries also test their product and educate patients, Crocker said. “Above all, it gives it a legitimate face, which allows the patients to be more comfortable and safe and allows local officials to monitor and tax, if need be, because it’s a very concentrated focus of medical marijuana activity,” Crocker said.
“This really is vital for safe and reliable access for medical marijuana patients,” Chiles, the petition drive organizer, said of dispensaries. “They need this commercial business.” Chiles filed the petitions for the charter amendment last year, but due to an error in the Kalamazoo City Clerk’s Office not all of the signatures were counted. Some of the signatures were illegible and didn’t seem to match names in the city’s registered voter list, City Clerk Scott Borling said at the time. On further review, officials determined 2,575 valid signatures had been filed, eight more than the 2,567 signatures needed. By then, it was too late to get the measure on the November 2011 ballot, so it is on this November’s general election ballot instead.
Chiles, who has moved out of Kalamazoo since organizing the petition drive, said he believes the charter amendment will be approved by city voters, along the same lines as the voter-approved initiative in 2011 that made marijuana possession the lowest priority for law enforcement in Kalamazoo. This is mainly an issue of compassion,” he said. “When it comes to marijuana prohibition, I think it’s honestly most absurd that it’s affecting people with very serious medical needs and I think that’s what Kalamazoo needs.” Targowski, the attorney, said he knows of people who would apply to open dispensaries in Kalamazoo if the measure passes.
Robinson pointed out that some municipalities across the state have embraced dispensaries as an opportunity for economic development. But marijuana is still classified by the federal government a Schedule 1 drug and Robinson said it’s hard for him as chief legal counsel for the city to condone something that’s unlawful at the federal level. As for the proposed charter amendment, “It’s not drafted well … It just doesn’t reflect the current state of the law,” the city attorney said. “Dispensaries are illegal, at least according to the Michigan Court of Appeals,” he said. The offices of both Gov. Rick Snyder and Michigan Attorney General Bill Schuette have agreed with Robinson’s positions on the Kalamazoo ballot proposal, but since organizers collected enough valid signatures, it must appear on the Nov. 6 ballot.
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