Tuesday, 27 November 2018 12:46

Michigan’s Gift to Voters: Michigan legalized it. What’s next?

Written by  Andy Balaskovitz
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funny thing about legalizing marijuana: For most of us, day-to-day life will move on. Sidewalks won’t be littered with pot smokers. Contrary to what prosecutors and sheriffs have claimed, the sky will not fall. 

Then again, as the first state in the Midwest to free the weed, Michigan voters sent a powerful message that will likely push other states to follow suit. A green business rush will come, and out-of-staters will take part. Potentially hundreds of misdemeanor charges will vanish as some of those same prosecutors choose to dismiss them.

“Legalizing marijuana doesn’t change a state’s character,” said Matthew Schweich, deputy director with the Marijuana Policy Project who helped lead the Proposal 1 campaign. “Really, it just recognizes what people already believed on the matter.”

After the law takes effect Dec. 6 and the initial high wears off, a series of questions remain, including for medical marijuana (remember that?) patients. Here’s a look at what’s next: 

But first, medical

As of Nov. 8, the state’s Medical Marijuana Licensing Board had approved licenses for just 13 percent of the 500 applications received from growers, processors, provisioning centers, transporters and safety compliance facilities, according to state data. Of the 67 licenses approved, 40 are for provisioning centers and 12 went to grow facilities.

This is a problem, according to Matthew Abel, executive director of the Michigan chapter of the National Organization for the Reform of Marijuana Laws (NORML). 

Essentially, there aren’t enough growers to supply dispensaries, which have a 30-day window from being licensed until they can receive marijuana from licensed growers.

“It has not been a smooth roll out on the part of the state,” Abel said. “You’d think Michigan would learn from other states — simple things, like license growers first.”

The problem will get worse as permanent state rules take effect that will no longer allow caregivers to sell their overages to provisioning centers, said Abel, who is also an attorney at Detroit-based Cannabis Counsel. Dispensaries will have to rely on licensed growers, with at least one company charging $3,000 a pound on top of an $18 per mile transportation fee, he said. That’s more than $1,000 more per pound than it’s typically sold for. 

“It looks like dispensaries — the legal ones that have been licensed — will be pretty well out of business on Dec. 1,” he said. “Or the product will be incredibly expensive. The state needs to rethink this.”

The Michigan Court of Claims has allowed existing dispensaries to stay open beyond state-imposed deadlines. More rulings are expected this month.

Abel said the problem — namely higher prices for patients — could last for months. Additionally, he said the state licensing board is penalizing dispensary applicants for buying overages from caregivers while being “wishy washy” in explaining license denials. Of the 819 applications for pre-qualification, 82 have been denied, while 31 of 500 license applications have been denied.

All of this signals barriers to overcome on the medical side before the state even begins to shift its focus to recreational marijuana.

“Personally, as a lawyer, I’m looking forward to one consistent set of rules that don’t change,” Abel said. “It’s very difficult to advise clients when the rules keep changing.”

Andrew Brisbo, director of the state’s Bureau of Medical Marijuana Regulation, reportedly said recently that the state is also “somewhat frustrated” with the roll-out of the licensing process.

Department of Licensing and Regulatory Affairs (LARA) spokesperson David Harns said the Medical Marijuana Licensing Board “will continue to meet and issue licenses or deny them as they work through the applications before them.”

OK, when can we get high? And how?

Dec. 6 is the big day. That’s 10 days after the Board of State Canvassers is expected to certify the election results.

Unfortunately, you can’t just go to a dispensary and buy it. The law allows anyone including medical marijuana patients and caregivers over the age of 21 to gift it to someone, so start making friends. For the more self-sufficient, dust off your mom’s horticulture books and buy some grow equipment (if you’re allowed to grow at home; consult your landlord if necessary) to cultivate your own cannabis. 

“Or you could buy it on the street like all of us have been doing for the past 50 years,” Abel joked. That’s still illegal, though. 

“Right now, probably the only reliable way is for someone to start a garden,” Abel said.

The law allows adults to grow up to 12 plants and possess up to 10 ounces at home.

It’ll take some time before it’s legal for non-medical marijuana patients to purchase pot at a store. The law gives LARA a year to start issuing retail licenses, a deadline Harns said LARA intends to meet.

Ben Wrigley, an attorney with the Cannalex law firm in Grand Rapids, said getting a medical marijuana license now is crucial. Under the law, only businesses that have a medical license can get a recreational license for the first two years, in most cases. 

“The challenge is for people who want to be in this industry need to get in (the medical) part of the industry now,” he said.

He believes LARA will resolve its licensing problems in time.

“We’re all learning together,” he said. “I think the process is evolutionary and will get a lot smoother and easier as we move forward.”

In the short term, though, anything under the law’s framework that was illegal before it takes effect will be legal overnight. 

Change in administration 

Not only did pot advocates celebrate the passing of Proposal 1, they also gave a sigh of relief with the election of Gretchen Whitmer for Michigan Governor and Dana Nessel as the next state Attorney General. Both Democrats supported Prop 1, and Whitmer has said publicly that she’ll explore expunging certain marijuana convictions.

The new officials may also shift priorities in how the recreational and medical laws are administered.

“We could have a robust recreational system in six months if there was the will to do it, or remove people who don’t have the will to do it,” Abel said. “It should be quite helpful to have executives who support and endorsed the proposal who understand the issues and are willing to work toward proper implementation. We’re excited for the opportunity.”

Harns said the department will wait on directions from the new administration to develop “adult use” rules. But LARA has been meeting with stakeholders “to see what of our systems can be scaled up to accommodate the adult-use side of things.”

“We’re more the implementers than anything else,” Harns said.

Before the new administration and Legislature (with more Democrats in the House and Senate) take over, some have speculated about legislative attempts to change the law. Senate Majority Leader Arlan Meekhof, R-West Olive, has said he is concerned about the home growing portion of the law and whether the state would be able to inspect whether someone is growing 12 plants.

While the issue may come up this month during lame duck, changing the law requires a three-fourths majority of the Legislature. Advocates are skeptical there is that much support for making changes, considering 50 of the state’s 83 counties passed Prop 1.

“It would be a particularly unpopular move for the Legislature to make changes to this law,” said the Marijuana Policy Project’s Schweich. “The people have spoken, it’s time to execute the policy they chose. We have given the state government a great deal of authority in Prop 1 to regulate this industry very tightly.”

Municipalities have options

The recreational system will have the same basic structure as medical marijuana with growers, processors, dispensaries, transporters and testing facilities. However, instead of opting in to allow medical facilities, municipalities will have to opt-out of allowing recreational ones. The law basically presumes the various types of businesses are allowed.

The recreational law also allows “microbusinesses,” defined as “a person licensed to cultivate not more than 150 marihuana plants, process and package marihuana, and sell or otherwise transfer marihuana” to those over 21 or to a safety compliance facility, “but not to other marihuana establishments.”

Similarly to the medical framework, the majority of municipalities likely will choose to ban marijuana businesses. In the Grand Rapids area, officials in Kentwood, Cedar Springs and Hudsonville have already signaled they won’t participate.

Under Prop 1, however, voters in municipalities that opt out will have recourse. They can petition to initiate an ordinance that allows for businesses if approved at the ballot.

Meanwhile, Grand Rapids continues to refine zoning specifics on its medical marijuana ordinance, including granting waivers for businesses in certain areas and creating a policy on community benefits. The city also will have to adopt an administrative policy on how it processes applications and grants licenses.

“We’re looking to put to bed all of the medical marijuana items before we get into recreational,” said Suzanne Schulz, the city’s director of design, development, and community engagement. 

The city may not take up recreational marijuana until June or July, after the city budget process is finished. She added that it’s too early to tell whether it would have to at least temporarily opt out of allowing recreational businesses, and retail stores and micro businesses will be “another discussion with the commission.”

“It’s a refinement of the work we’ve been doing,” Schulz said of recreational rules. “We want to be clear and consistent for the industry. We’re being very intentional to do that and be as timely as possible. We’ll take action before the state starts licensing for recreational.”

Wrigley says for applicants, “the challenge always is understanding the (local) ordinances and planning ahead, because every ordinance is different.”

Criminal justice impacts

Perhaps the earliest impact of the recreational law affects those who have been charged with marijuana crimes that would be legal under the new Michigan Regulation and Taxation of Marihuana Act.

Following the vote, prosecutors across the state started reviewing cases that could be dismissed.

Kent County Prosecutor Christopher Becker — who spoke out publicly against Prop 1 — identified 40 cases that will be dismissed involving possession and use. That was just the “first batch” reviewed, “I’m sure the number is going to go up,” he added.

“If it’s legal under the new law, we’re not proceeding on them,” Becker said.

Others reportedly looking at dismissing marijuana charges include Ingham, Isabella, Gratiot, Muskegon, Oakland and Clare counties. In most cases, marijuana charges will be reviewed individually by prosecutors and judges.

However, colleges and universities across the state say they will comply with federal law. Particularly, they fear that running afoul of federal law could jeopardize their federal funding. Officials at Michigan State University, Central Michigan University, University of Michigan and Wayne State University all have issued statements saying marijuana will remain illegal on campus. 

In a statement, the two U.S. attorneys in Michigan, Andrew Birge and Matthew Schneider, said: “We will not unilaterally immunize anyone from prosecution for violating federal laws simply because of the passage of Proposal One.

“We will continue to approach the investigation and prosecution of marijuana crimes as we do with any other crime. … As we weigh the interests in enforcing a law, we must also consider our ability to prosecute with our limited resources.”

So should residents be concerned about marijuana still being illegal federally?

According to Wrigley: “99.9 percent of the answer is no. Clients assess risk. They can look at other states and see what has happened.” 

While illegal growing operations run a higher risk of getting prosecuted, dispensaries in other states where marijuana is legal haven’t been closed by the feds, he added.

Becker said the Prosecuting Attorneys Association of Michigan is providing guidance on the new law and was scheduled to hold a training on Dec. 1. He predicts Prop 1 is going to increase the office’s workload “and lead to more problems in terms of enforcement.”

“Marijuana was not a big issue for our office; now I think it’s going to be,” Becker said, including dealing with “black market issues” and marijuana driving offenses, which remain in question without a streamlined process to test for marijuana in someone’s system.

Abel says concerns from marijuana opponents are overblown. The system may not be perfect, but it’s also not going to drastically change the character of Michigan. Just look at other states that have legalized, he and others say.

“We realize that less than half of the population is going to try cannabis or use it,” Abel said. “It will integrate seamlessly into society and become normalized. It’s really not that big of a deal. The sky is not falling.”

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