By Andy Moore, AICP

The possession and use of recreational marijuana for adults 21 and over in Michigan was approved by Michigan voters on November 6, 2018 and became effective in December 2018. Known first as Proposal 1 (2018), the new law (the Michigan Regulation and Taxation of Marijuana Act, abbreviated MRTMA) has several implications for municipalities. The MTRMA allows individuals to possess and use marijuana for recreational purposes, and it also further provides for the establishment of commercial business operations that can grow, process, sell, transport and/or distribute marijuana to consumers.  As with the 2016 Medical Marijuana Facilities Licensing Act (MMFLA), the MRTMA allows municipalities decide whether they will allow these types of “marijuana establishments” within their boundaries.

 

Background

Prior to the passing of the Act, it was only legal for Michigan residents to possess marijuana with a physician’s approval. This was approved in 2008 under the Michigan Medical Marijuana Act (MMMA), which allowed qualifying patients to possess 2.5 ounces of marijuana and 12 marijuana plants for medical use, only if prescribed by a licensed physician. This proposal permitted marijuana sales to those who were seriously ill, and many communities interpreted the MMMA to disallow dispensaries or other types of commercial operations (although some communities permitted them anyway).

In order to clarify the law and address some of the uncertainties in the MMMA, the legislature passed legislation in 2016 that allowed regulation and licensing for five types of medical marijuana establishments: (1) growers, (2) processors, (3) provisioning centers, (4) secure transporters, and (5) safety compliance facilities. This provided a framework for licensing different commercial operations related to medical marijuana.  Users of medical marijuana still needed a state-issued card that allow them to possess marijuana.

Under the MTRMA , one no longer needs to suffer from a “debilitating medical condition” in order to lawfully possess or use marijuana, as long as such possession or use is within the parameters of the MTRMA.  It also legalizes the cultivation, processing, distribution, and sale of industrial hemp. Specifically, the MTRMA permits the following:

• The possession of 2.5 ounces of marijuana and 0.5 ounces of marijuana concentrate on an individual 21 years or older.
• A 10-ounce limit for marijuana kept at residences.
• Individuals to give away, but not sell, up to 2.5 ounces of marijuana to people 21 years or older.
• Up to 12 marijuana plants grown in individual residences.
• The ability for local municipalities to ban/limit marijuana establishments within their boundaries.
• A 10 percent excise sales tax levied on sales at retailers and microbusinesses.
• Revenue directed to local governments, K-12 education, and road and bridge maintenance.

Under the MTRMA, the consumption or smoking of marijuana in a public place as a crime, except in areas specifically designated for its consumption that are not accessible to individuals under 21 years of age. If an individual decides to cultivate marijuana plants, such cultivation may not be plainly visible from a public place or outside of an enclosed area that has locks or security devices restricting access. A person is not allowed to possess, consume, or have any marijuana-related accessories on public or private schoolgrounds, a school bus, or any correctional facility. It also does not allow the use of marijuana within 1,000 feet of a school. Workplaces and landlords may also decide whether they allow recreational marijuana use on the premise, and adopt their own drug policies, which may include the prohibition of marijuana possession and/or use.

MTRMA also establishes several defined terms relating to recreational marijuana facilities.  Those include the following:

• Marijuana grower – may cultivate marijuana and sell or transfer it to marijuana establishments. Three classes of growers are defined by the Act: Class A growers (up to 100 plants, Class B growers (up to 500 plants), and class C growers (up to 2,000 plants).
• Marijuana microbusiness – may cultivate up to 150 plants, process and package marijuana, and sell or transfer it to individuals who are 21 or older or to a safety compliance facility (but not to other marijuana establishments).
• Marijuana retailer – may obtain marijuana from marijuana establishments and sell or transfer it to establishments or individuals who are 21 or older.
• Marijuana processor – may obtain marijuana from marijuana establishments, process and package it, and sell or transfer it to marijuana establishments.
• Marijuana safety compliance facility – may test marijuana for potency and contaminants.
• Marijuana secure transporter – may obtain marijuana from, and transport it to, other marijuana establishments.
• Marijuana establishment – any of the six listed facilities above, or any other marijuana facility licensed by LARA pursuant to the Act.

Under this proposal, a municipality may limit the total number of marijuana establishments permitted within its boundaries.  A municipality may also adopt other ordinances that are not unreasonably impracticable and do not conflict with the Act. These ordinances may include restrictions on signage; the time, place, and manner of operation; the allocation of areas for special events; violations; local licenses, and others.

The Michigan Department of Licensing and Regulatory Affairs (LARA) is responsible for administering the Act and controlling the commercial productions and distribution of the marijuana by granting state licenses.  LARA is not allowed to limit the number of any type of state licenses that may be granted, although the municipality may limit the number of establishments it permits within its boundaries.

A municipality may completely prohibit all license types.  If a municipality opts to permit marijuana establishments, it may it may have the effect of preventing some state-licensed applicants from locating there.  In this case, the municipality would decide which of the competing applicants would receive the license.

 

What are the options?

Communities that want to complete prohibit marijuana establishments in their communities can do so by adopting an ordinance that prohibits them.  This should be adopted and sent to LARA by November 1, 2019.

Communities that wish to permit marijuana establishments have many questions to consider, such as:

1. Does the community wish to limit the number of marijuana businesses in its boundaries? If so, what criteria should be used to decide who receives local approval and who doesn’t?
2. Does the community wish to require potential marijuana establishments to apply for a separate municipal license in addition to the state license?
3. Should the community treat marijuana establishments as a separate land use in its zoning ordinance? If so, how should it be regulated through zoning?  In what zoning districts should marijuana establishments be permitted?
4. Should the community further regulate signs, the “time place, and manner of operation,” and any define any permitted areas where marijuana could be consumed? If so, it must be careful that the regulations are not in conflict with the MRTMA and are not “unreasonably impractical.”

Communities should consult with their legal counsel to assist with the evaluation of marijuana establishment and take action of no actions have yet been taken.  The planners at Williams & Works work with numerous cities, villages, and townships and their attorneys to craft appropriate marijuana ordinances that are tailored for their clients’ needs and desires.