Testing the Waters

Three new dispensaries are in store for Kalamazoo . . . sometime soon?

Nov. 6, 2012 may be remembered as a watershed moment in U.S. history. Two states voted for recreational use, and five pro-cannabis ballot initiatives were passed in Michigan. Kalamazoo, for instance, voted by an overwhelming 2-1 margin to allow three dispensaries within the city limits.

Ballot proposal co-author John Targowski was thrilled Kalamazoo was atop the wave of social change washing across the nation. Speaking to mLive reporter Emily Monicelli, Targowski said, “I’m really proud that Kalamazoo is part of the broader conversation on drug policy reform.”

But Kalamazoo voters must nevertheless wait.

“While the language is part of our charter now, legally it’s not effective because those dispensaries, at least according to the Michigan Court of Appeals, are unlawful,” Kalamazoo City Attorney Clyde Robinson says.

Robinson and Kalamazoo officials await the outcome of People v. McQueen to settle who can participate in cannabis transfers.

This doesn’t mean that patients cannot procure their medication, Robinson said. “Under Kalamazoo ordinances we do permit caregivers to dispense medical marijuana as a home occupation.”

Kalamazoo adopted that model for its dispensary ordinance back in 2010, mainly, Robinson said, because the city wished to preserve the patient’s need for privacy emphasized by the framers of the 2008 Michigan Medical Marihuana Act (MMMA).

But a patient who voluntarily visits a dispensary is exercising her own autonomy, Targowski counters. His initiative would not have replaced the caregiver/patient model or the privacy desired by some in that relationship, he explains.

Instead, patients would have had access to medicine in a safe, convenient, and consistent fashion as many other municipalities in Michigan now allow.

But Robinson wondered how a caregiver—limited to five plants—could be commercially viable.

“The only way I can see it is if a group of caregivers got together. If you get a big enough core of people—times five—you can probably make it commercially viable,” he reasons. But until People v. Bylsma—stemming from a Grand Rapids case—is settled, Robinson’s proposal remains illegal in Michigan as well.

But even if dispensaries become legal, Robinson said there is another river for Kalamazoo to cross.

“The charter amendment [said] dispensaries had to be located in appropriate commercial districts, without defining what ‘appropriate’ is. That is an issue that is going to have to be decided by the planning commission and the zoning commission,” Robinson contends.

Targowski says Robinson’s attention to the ballot wording “appropriate” may be overly legalistic.

“He needs to see the forest for the trees,” Targowski argues. Robinson is “allocating resources of his office to fight an issue that is in clear defiance of community support—and that’s a problem.”

As it stands, Kalamazoo and the rest of Michigan await the Supreme Court’s decisions before jumping into the water. A decision is expected in the near future.

Regardless, Targowski is upbeat about cannabis legislation in Michigan. The election in November remains a watershed moment, which should have a chilling effect on enforcement of prohibitionist  policies, Targowski said.

We have reached a point where the populace is ready for reform, Targowski added. Though cannabis legislation lags behind, “we’re essentially a marijuana nation now.”

Waiting to Exhale

The case of People vs. Bylsma stems from Grand Rapids caregiver Ryan Bylsma, who was arrested after officers seized 88 plants from a space he leased. While Bylsma was entitled to possess 24 plants, he said the 64 other plants belonged to other caregivers and patients, and sought to use an affirmative defense (using one’s status as an MMJ patient as a legal defense against cannabis-related charges). The Court of Appeals ruled Bylsma failed to comply with state MMJ laws and disallowed an affirmative defense—though, at press time, the case was on appeal.

In People vs. McQueen, Isabella County prosecutor Larry Burdick filed an injunction against Mt. Pleasant’s Compassionate Apothecary operators Brandon McQueen and Matthew Taylor in 2010. Burdick claims that Compassionate was conducting illegal patient-to-patient transfers or sales not permitted under the MMMA. A trial court held that McQueen and operated in accordance with the law, but the state appealed, and the Court of Appeals reversed the initial decision. McQueen and Taylor have appealed and the case will be reviewed by the Supreme Court with an expected ruling in July.