City ordinance = Inspections?!

[PaxEtBonum]

Are you up to speed with Ter Beek v City of Wyoming? Per the Michigan Medical Marijuana Act, Enacted Law 1 of 2008: "7(e) All other acts and parts of acts inconsistent with this act do not apply to the medical use of marihuana as provided for by this act." The case is before the MI Supreme Court. An opinion will be handed down just about any time now. We are expectantly waiting for it. The Court of Appeals ruling is available online.

Then there is this:

MICHIGAN ZONING ENABLING ACT (EXCERPT)
Act 110 of 2006

125.3402 Notice of intent to file petition.Sec. 402.
(1) Within 7 days after publication of a zoning ordinance under section 401, a registered elector residing in the zoning jurisdiction of a county or township may file with the clerk of the legislative body a notice of intent to file a petition under this section.
(2) If a notice of intent is filed under subsection (1), the petitioner shall have 30 days following the publication of the zoning ordinance to file a petition signed by a number of registered electors residing in the zoning jurisdiction not less than 15% of the total vote cast within the zoning jurisdiction for all candidates for governor at the last preceding general election at which a governor was elected, with the clerk of the legislative body requesting the submission of a zoning ordinance or part of a zoning ordinance to the electors residing in the zoning jurisdiction for their approval.
(3) Upon the filing of a notice of intent under subsection (1), the zoning ordinance or part of the zoning ordinance adopted by the legislative body shall not take effect until 1 of the following occurs:
(a) The expiration of 30 days after publication of the ordinance, if a petition is not filed within that time.
(b) If a petition is filed within 30 days after publication of the ordinance, the clerk of the legislative body determines that the petition is inadequate.
(c) If a petition is filed within 30 days after publication of the ordinance, the clerk of the legislative body determines that the petition is adequate and the ordinance or part of the ordinance is approved by a majority of the registered electors residing in the zoning jurisdiction voting on the petition at the next regular election or at any special election called for that purpose. The legislative body shall provide the manner of submitting the zoning ordinance or part of the zoning ordinance to the electors for their approval or rejection and determining the result of the election.
(4) A petition and an election under this section are subject to the Michigan election law, 1954 PA 116, MCL 168.1 to 168.992.

The timeline is short and I do not know how many sigs would be needed, but it is a political solution to try alongside any legal solution. If you call the city clerk and ask how many total votes were cast for the office of governor in the city in 2010, then the number of sigs you would need within 30 days after the ordinance is published is 15% of that vote total. If that seems feasible, it is a shot at a popular vote to repeal the new ordinance if they pass it. Further, if you make a credible threat to file such petition NOW then maybe they will not pass the zoning ordinance in the first place. I doubt that they would want a vote on this.

We can rattle their chains with 42 U.S.C. § 1983, commonly referred to as "section 1983":
Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

We can at least threaten to sue the bastards individually for money and probably win, or at least cause them grave concern. They would think twice about having to each defend a lawsuit that aims at their personal bank account. Think this won't get their attention?

And yes, the Michigan Right to Farm Act can play.

We appreciate the sentiment.

Are you up to speed with Ter Beek v City of Wyoming? Per the Michigan Medical Marijuana Act, Enacted Law 1 of 2008: "7(e) All other acts and parts of acts inconsistent with this act do not apply to the medical use of marihuana as provided for by this act." The case is before the MI Supreme Court. An opinion will be handed down just about any time now. We are expectantly waiting for it. The Court of Appeals ruling is available online.

Then there is this:

MICHIGAN ZONING ENABLING ACT (EXCERPT)
Act 110 of 2006

125.3402 Notice of intent to file petition.Sec. 402.
(1) Within 7 days after publication of a zoning ordinance under section 401, a registered elector residing in the zoning jurisdiction of a county or township may file with the clerk of the legislative body a notice of intent to file a petition under this section.
(2) If a notice of intent is filed under subsection (1), the petitioner shall have 30 days following the publication of the zoning ordinance to file a petition signed by a number of registered electors residing in the zoning jurisdiction not less than 15% of the total vote cast within the zoning jurisdiction for all candidates for governor at the last preceding general election at which a governor was elected, with the clerk of the legislative body requesting the submission of a zoning ordinance or part of a zoning ordinance to the electors residing in the zoning jurisdiction for their approval.
(3) Upon the filing of a notice of intent under subsection (1), the zoning ordinance or part of the zoning ordinance adopted by the legislative body shall not take effect until 1 of the following occurs:
(a) The expiration of 30 days after publication of the ordinance, if a petition is not filed within that time.
(b) If a petition is filed within 30 days after publication of the ordinance, the clerk of the legislative body determines that the petition is inadequate.
(c) If a petition is filed within 30 days after publication of the ordinance, the clerk of the legislative body determines that the petition is adequate and the ordinance or part of the ordinance is approved by a majority of the registered electors residing in the zoning jurisdiction voting on the petition at the next regular election or at any special election called for that purpose. The legislative body shall provide the manner of submitting the zoning ordinance or part of the zoning ordinance to the electors for their approval or rejection and determining the result of the election.
(4) A petition and an election under this section are subject to the Michigan election law, 1954 PA 116, MCL 168.1 to 168.992.

The timeline is short and I do not know how many sigs would be needed, but it is a political solution to try alongside any legal solution. If you call the city clerk and ask how many total votes were cast for the office of governor in the city in 2010, then the number of sigs you would need within 30 days after the ordinance is published is 15% of that vote total. If that seems feasible, it is a shot at a popular vote to repeal the new ordinance if they pass it. Further, if you make a credible threat to file such petition NOW then maybe they will not pass the zoning ordinance in the first place. I doubt that they would want a vote on this.

We can rattle their chains with 42 U.S.C. § 1983, commonly referred to as "section 1983":
Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

We can at least threaten to sue the bastards individually for money and probably win, or at least cause them grave concern. They would think twice about having to each defend a lawsuit that aims at their personal bank account. Think this won't get their attention?

And yes, the Michigan Right to Farm Act can play.

We appreciate the sentiment.

I fail to see how 42 USC is applicable, because it's federal and cannabis is already in contradiction with federal code, so you can't invoke protection for an act (cultivation of cannabis) that is already illegal based on another federal code.

Also, you can't seek financial damages in a lawsuit against elected officials based on their exercising their official duties while in office, so that won't work. Elected officials have no personal liability to legislation they enact, whether or not it is legal or illegal. Nothing would ever be passed if this were the case.

So, you're down to community organizing options and petitions, depending on when the State Supreme Court rules.

The one fellow on the previous page seemed to be offended at the thought of explaining this case to me. Don't be. I work in politics and I'm interested in helping. That said, I'm also a realist and trying to help you find real solutions.

Could someone please explain what part of state statute legalizing cannabis is violated by the ordinance? That's the thrust of the argument. If the ordinance doesn't contradict state law, then it's binding and will hold up in court. You can't invoke federal oversight when the state statute is already in disagreement with federal law.

The legality is between local ordinance and state statute and whether an ordinance can be added as addenda to state statute (which is certainly can if the statute in question, or another relevant one, doesn't prohibit it explicitly).

I'm not comparing alcohol to cannabis. I'm pointing out the modification of local laws to state laws when I use the example of dry counties. Something can be legal within the state but made illegal within a specific municipality or county.

The only potentially useful language I can find in the law that might limit local governments is "A person, including an employee, contractor, or official of the department or another state agency or local unit of government, who discloses confidential information in violation of this act is guilty of a misdemeanor, punishable by
imprisonment for not more than 6 months, or a fine of not more than $1,000.00, or both.

 

[PaxEtBonum]

The MMMA does not allow for any inspections therefore the only LEGAL thing the county, etc can do is use business type zoning and ordinances and caregiving is not a business. So the ordinances cannot dictate what a patient or caregiver does when the MMMA says they can. Like someone else said that is the end of it period.

The act doesn't have to allow anything. Whether or not an act allows is not the question. The question is whether or not the act forbids inspections or ordinances that impact it in any way. That's the legality question. Do any statutes prohibit local ordinance modification and restriction of this act? I can't find one in there. Can you?

In my reading of the act, there is almost zero language prohibiting local ordinance enforcement or restrictions at the local level. The local officials can and will do whatever they want until the public stands up to them or decision is made by the state supreme court.

 

[cephalopod]

First thing that comes to mind is that only a caregiver/registered patient are allowed in the room, I'll have to re-read everything to see if anything else stands out.

 

[GregS]

Sec. 4. (a) A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act, provided that the qualifying patient possesses an amount of marihuana that does not exceed 2.5 ounces of usable marihuana, and, if the qualifying patient has not specified that a primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility. Any incidental amount of seeds, stalks, and unusable roots shall also be allowed under state law and shall not be included in this amount. The privilege from arrest under this subsection applies only if the qualifying patient presents both his or her registry identification card and a valid driver license or government-issued identification card that bears a photographic image of the qualifying patient.
(b) A primary caregiver who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for assisting a qualifying patient to whom he or she is connected through the department's registration process with the medical use of marihuana in accordance with this act. The privilege from arrest under this subsection applies only if the primary caregiver presents both his or her registry identification card and a valid driver license or government-issued identification card that bears a photographic image of the primary caregiver. This subsection applies only if the primary caregiver possesses an amount of marihuana that does not exceed:
(1) 2.5 ounces of usable marihuana for each qualifying patient to whom he or she is connected through the department's registration process; and
(2) for each registered qualifying patient who has specified that the primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility; and
(3) any incidental amount of seeds, stalks, and unusable roots.

These ordinances subject patients and caregivers to arrest, penalty, and prosecution.

7(e) All other acts and parts of acts inconsistent with this act do not apply to the medical use of marihuana as provided for by this act.

Municipal acts that penalize us in any way are void and unenforceable. That was the finding of the Court of Appeals in Ter Beek. The Supreme Court opinion is pending.

 

[GregS]

Re: § 1983, please see the attached file. It is too lengthy to post in its full text. Actions by actors of the states are clearly delineated and prohibited. It is a civil, rather than criminal remedy.

http://www.constitution.org/brief/forsythe_42-1983.htm

 

[PaxEtBonum]

Re: § 1983, please see the attached file. It is too lengthy to post in its full text. Actions by actors of the states are clearly delineated and prohibited. It is a civil, rather than criminal remedy.

http://www.constitution.org/brief/forsythe_42-1983.htm

Yes, the local government itself is civilly liable, but the elected officials have qualified immunity, right? Cities get sued all the time, but not actual council persons or aldermen.

 

[PaxEtBonum]

Sec. 4. (a) A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act, provided that the qualifying patient possesses an amount of marihuana that does not exceed 2.5 ounces of usable marihuana, and, if the qualifying patient has not specified that a primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility. Any incidental amount of seeds, stalks, and unusable roots shall also be allowed under state law and shall not be included in this amount. The privilege from arrest under this subsection applies only if the qualifying patient presents both his or her registry identification card and a valid driver license or government-issued identification card that bears a photographic image of the qualifying patient.
(b) A primary caregiver who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for assisting a qualifying patient to whom he or she is connected through the department's registration process with the medical use of marihuana in accordance with this act. The privilege from arrest under this subsection applies only if the primary caregiver presents both his or her registry identification card and a valid driver license or government-issued identification card that bears a photographic image of the primary caregiver. This subsection applies only if the primary caregiver possesses an amount of marihuana that does not exceed:
(1) 2.5 ounces of usable marihuana for each qualifying patient to whom he or she is connected through the department's registration process; and
(2) for each registered qualifying patient who has specified that the primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility; and
(3) any incidental amount of seeds, stalks, and unusable roots.

These ordinances subject patients and caregivers to arrest, penalty, and prosecution.

7(e) All other acts and parts of acts inconsistent with this act do not apply to the medical use of marihuana as provided for by this act.

Municipal acts that penalize us in any way are void and unenforceable. That was the finding of the Court of Appeals in Ter Beek. The Supreme Court opinion is pending.

The Appellate court ruling is going to be examined very closely by the Supreme Court. While section 4 (b) seems to protect caregivers, the language at the end of 4 (b) is what the Supreme court's attention will be drawn to. This phrase "This subsection applies only if the primary caregiver possesses an amount of marihuana that does not exceed" implies regulation or monitoring of some kind (ie ordinances) because the entirety of the protection of 4 (b) is derived and applies from compliance with "an amount of marihuana that does not exceed." That's the problem right there. The protection under 4(b) is legally written to depend upon confirmed compliance. The court will be trying to determine how compliance rights can be granted if there is no inspection or local compliance agency.

The ordinances, I'm assuming, only subject patients and caregivers to arrest, penalty, and prosecution if they are noncompliant with the terms at the tail end of 4 (b) which validate the rights provided within 4 (b).

Essentially, the Act's language provides protection so long as compliance is achieved. The court likely won't rule on whether or not compliance can be automatically assumed without inspection or whether or not inspection will determine compliance and therefore the rights provided under 4 (b). The problem for the court is that the language does not make the intent of the legislation clear because the protections of 4(b) are determined by compliance. Since regulatory ordinance inspections do not fall under the category of arrest, penalty, and prosecution I would expect, sadly, the court to find in favor of local government regulation.

 

[cephalopod]

The act doesn't have to allow anything. Whether or not an act allows is not the question. The question is whether or not the act forbids inspections or ordinances that impact it in any way. That's the legality question. Do any statutes prohibit local ordinance modification and restriction of this act? I can't find one in there. Can you?

In my reading of the act, there is almost zero language prohibiting local ordinance enforcement or restrictions at the local level. The local officials can and will do whatever they want until the public stands up to them or decision is made by the state supreme court.

How does an "official" conduct an "inspection" without violating the portion of the act that prohibits anyone other than the caregiver or patient in the locked, secured facilty? Also, where in the act is it stated that P2P transfers or dispensaries are not allowed? Thanks for your insight and participation in this scholarly discussion.

 

[PaxEtBonum]

How does an "official" conduct an "inspection" without violating the portion of the act that prohibits anyone other than the caregiver or patient in the locked, secured facilty? Also, where in the act is it stated that P2P transfers or dispensaries are not allowed? Thanks for your insight and participation in this scholarly discussion.

Good question. I don't know, but I wonder what the exact language is on the permits or licenses given to everyone.

 

[cephalopod]

In this paticular circumstance, I feel the use of the word "inspection" carries a heavy connotation of guilt.

 

[GregS]

The Appellate court ruling is going to be examined very closely by the Supreme Court. While section 4 (b) seems to protect caregivers, the language at the end of 4 (b) is what the Supreme court's attention will be drawn to. This phrase "This subsection applies only if the primary caregiver possesses an amount of marihuana that does not exceed" implies regulation or monitoring of some kind (ie ordinances) because the entirety of the protection of 4 (b) is derived and applies from compliance with "an amount of marihuana that does not exceed." That's the problem right there. The protection under 4(b) is legally written to depend upon confirmed compliance. The court will be trying to determine how compliance rights can be granted if there is no inspection or local compliance agency.

The ordinances, I'm assuming, only subject patients and caregivers to arrest, penalty, and prosecution if they are noncompliant with the terms at the tail end of 4 (b) which validate the rights provided within 4 (b).

Essentially, the Act's language provides protection so long as compliance is achieved. The court likely won't rule on whether or not compliance can be automatically assumed without inspection or whether or not inspection will determine compliance and therefore the rights provided under 4 (b). The problem for the court is that the language does not make the intent of the legislation clear because the protections of 4(b) are determined by compliance. Since regulatory ordinance inspections do not fall under the category of arrest, penalty, and prosecution I would expect, sadly, the court to find in favor of local government regulation.

This conversation is over.

 

[ozzrokk]

The Appellate court ruling is going to be examined very closely by the Supreme Court. While section 4 (b) seems to protect caregivers, the language at the end of 4 (b) is what the Supreme court's attention will be drawn to. This phrase "This subsection applies only if the primary caregiver possesses an amount of marihuana that does not exceed" implies regulation or monitoring of some kind (ie ordinances) because the entirety of the protection of 4 (b) is derived and applies from compliance with "an amount of marihuana that does not exceed." That's the problem right there. The protection under 4(b) is legally written to depend upon confirmed compliance. The court will be trying to determine how compliance rights can be granted if there is no inspection or local compliance agency.

The ordinances, I'm assuming, only subject patients and caregivers to arrest, penalty, and prosecution if they are noncompliant with the terms at the tail end of 4 (b) which validate the rights provided within 4 (b).

Essentially, the Act's language provides protection so long as compliance is achieved. The court likely won't rule on whether or not compliance can be automatically assumed without inspection or whether or not inspection will determine compliance and therefore the rights provided under 4 (b). The problem for the court is that the language does not make the intent of the legislation clear because the protections of 4(b) are determined by compliance. Since regulatory ordinance inspections do not fall under the category of arrest, penalty, and prosecution I would expect, sadly, the court to find in favor of local government regulation.

They would subject the patients and caregivers to arrest, penalty, and/or prosecution the moment they tried to enforce the inspection.

Greg is right this conversation is over................

 

[PaxEtBonum]

This conversation is over.

I'd say the conversation isn't over. It's time to switch gears in order to enact change at the local level where the ordinances are being proposed. The legality/illegality will be decided but that's no reason not to demand action against those who seek to pass ordinances that infringe upon rights.

Does anyone want to talk about effecting changes in local government? The letter writing campaigns to the newspapers should start very soon. If you don't already have an organized and active cannabis lobby in the state, time to form one. Most municipal charters require only a majority vote to pass an ordinance, but to eliminate an ordinance from city code a 2/3 majority is usually required.

One fight requires a convincing simply majority, the other requires not only a champion in favor of proposing to remove the ordinance and a supermajority of the seated council.

 

[PaxEtBonum]

They would subject the patients and caregivers to arrest, penalty, and/or prosecution the moment they tried to enforce the inspection.

Greg is right this conversation is over................

No. They wouldn't. An inspection is not an arrest, penalty, and/or prosecution. Inspections occur for every restaurant and bar, and for every plumbing or electrical job performed in every residence and commercial establishment. Hospitals face inspections, so do food processing plants, and butcher shops. Inspections ipso facto are not arrests, penalties, and/or prosecution. An inspection determines compliance which establishes the rights in 4 (b). You guys want to have it one way, but you're sitting their with your preconceived nonlegal understandings of the law. I'm trying to help, but since I'm not saying what you want to hear... you're choosing to be ostriches. WTF? Seriously.

 

[abe supercro]

leo-esque bobharris

 

[GregS]

I understand well enough how exciting it is to have a new toy. Some of us already played with it and have outgrown it, with lessons learned.

 

[PaxEtBonum]

Cops only enforce ordinances that are allowed to pass, which makes them moot while there's still time to stop local governments from passing these ordinances. Unfortunately, it seems that everyone on this forum is relying on the supreme court to determine the legality of inspections, rather than taking the fight to their city council chambers, where the inspection ordinances are originating in the first place. Rather than use their own voices and unite, they are looking to seven judges to hopefully interpret the law in the way that they would like. Oh, and by the way, the make up of the Michigan Supreme Court is 5 Republicans to 2 Democrats. Good luck with that. I offered to assist, but was told the conversation is over, and so it is.

Enjoy your inspections. Once the Supreme Court rules them legal, you can expect most municipalities to create similar ordinances.

 

[GregS]

Re: § 1983, please see the attached file. It is too lengthy to post in its full text. Actions by actors of the states are clearly delineated and prohibited. It is a civil, rather than criminal remedy.

http://www.constitution.org/brief/forsythe_42-1983.htm

Only judicial officers have immunity under this statute. Please read it before commenting further.

 

[GregS]

Cops only enforce ordinances that are allowed to pass, which makes them moot while there's still time to stop local governments from passing these ordinances. Unfortunately, it seems that everyone on this forum is relying on the supreme court to determine the legality of inspections, rather than taking the fight to their city council chambers, where the inspection ordinances are originating in the first place. Rather than use their own voices and unite, they are looking to seven judges to hopefully interpret the law in the way that they would like. Oh, and by the way, the make up of the Michigan Supreme Court is 5 Republicans to 2 Democrats. Good luck with that. I offered to assist, but was told the conversation is over, and so it is.

Enjoy your inspections. Once the Supreme Court rules them legal, you can expect most municipalities to create similar ordinances.

C'est la guerre dude. It was fun.

 

[GregS]

Soo. Where is this happening?