Why Dispensaries and Hash Bars are Already “Legal”

 My constant mantra over
the years that dispensaries are not illegal has been a source of some
confusion. Let’s clear that up.

It first bears
emphasizing that I am speaking, in these articles, to a big group of people,
the majority of whom are not lawyers and whom routinely misuse the word “legal”
as it pertains to cannabis. So, when I have to shorten the more appropriate
title of the article from “Why Businesses That Follow State Law and Only Sell Marihuana
to Their Own Patients and Private Clubs Where Patients Medicate on Private Property
Have Always Been Protected from State Prosecution,” you’ll understand that
until the U.S. decides to deschedule cannabis, the word “legal” is not
accurate, and we mean “protected from state prosecution and generally
tolerated, for now, by the feds.” So, when I use “legal” and “illegal” in this
article, that’s what I mean and I’m just trying to keep this all on one page.

You can’t make something
illegal if you haven’t defined it, and there is no legal definition of
“dispensary” in Michigan. It is just a word used to describe a place to go get cannabis
and wholly unregulated in Michigan to date. That doesn’t make it illegal. What
our Supreme Court has said was more or less always law—no business can
facilitate a felony. So, a business, wherever that is and whatever it calls
itself, whether that is non-profit compassion club, farmer’s market or clinic,
that breaks the law or allows others to break the law, is illegal. On the flip
side, a business that operates in full compliance with the MMMA is legal,
whether it calls itself a dispensary, a “pot shop” or “Bob’s Marihuana Depot.” The
problem is that while dispensaries, clubs and the like remain unregulated,
there is no objective way to tell the good guys from the bad, and they all get
lumped-in together.

We are too hung up on
names, when the real problem is in the infrastructure—zoning, banking,
insurance—all that terribly boring stuff that comes with running a business. Federally
regulated banks are unwilling to take cannabis money, insurance companies are
reluctant to cover risk, and cities have been largely unwilling to zone—content
to use the state’s inaction as an excuse for delay. Banking, insurance and
regulation are well on their way. The time for zoning is right now. A city
willing to take on the task of comprehensively zoning and permitting
dispensaries, clubs and cultivation facilities would not find itself in contravention
of state law, but instead, in a position to provide a place in its community
for those businesses willing to operate responsibly, to weed out the truly bad
actors who bring down the reputation of the entire industry, and to fill its severely
depleted coffers with much needed revenue.

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In the meantime, I
wistfully anticipate the day when “legal” means just that.