Medical Marijuana

In The News

Monday, August 6, 2012


By Michael Nichols
Categories: Medical Marijuana

The Michigan Court Of Appeals recently held that a City of Wyoming zoning ordinance is void because it directly conflicts with Michigan’s Medical Marihuana Act (MMMA) and it is not preempted by the federal Controlled Substance Act (CSA).

In Ter Beek v City Of Wyoming, Mr. John Ter Beek was a qualifying medical marihuana patient who grew medicinal marihuana inside his residence.  The City of Wyoming on November 1, 2010, amended the section of the city code that involves zoning.  The new zoning ordinance read “uses not expressly permitted under this article are prohibited in all districts.  Uses that are contrary to federal law, state law, or local ordinance are prohibited.”  Violators were subject to civil sanctions including fines. 

Mr. Ter Beek challenged the validity of the zoning ordinance and filed a complaint.    His complaint stated that the new zoning ordinance was in direct conflict with the MMA.

When a local ordinance directly conflicts with a state law or regulation the local ordinance is void.  The City of Wyoming ordinance was in direct conflict with the MMMA because the MMMA allows qualifying patients to grow or manufacture marihuana as provided for in section 4 and 8 of the MMMA.   

Preemption is where two regulations or statutes conflict.  Here, we have two statutes the MMMA and the federal CSA.  If the MMMA and the federal CSA conflict, the state statute (MMMA) would then be preempted by the federal statute (CSA) and the state statute would be considered void. The Michigan Court of Appeals held that the federal CSA and the MMMA can be read in a way to give them both effect and that they do not conflict.  This is because the MMMA does not prevent federal officers from charging Michigan residents under the federal CSA.  The MMMA states that “[a]lthough federal law currently prohibits any use of marihuana except under very limited circumstances, states are not required to enforce federal law or prosecute people for engaging in activities prohibited by federal law.”  Because both the CSA and the MMMA have meaning when read together the federal CSA does not preempt the MMMA. 

“This opinion is a big deal for MMMA patients.  They are now protected from local ordinances preventing them from growing their own medicine” says attorney Joshua Covert. Covert adds,  “this case also has the potential to be used outside of the realm of zoning regulations because of the sound reasoning the court of appeals used to determine that the federal controlled substance act does not preempt the Michigan’s medical marihuana act.”

If you are a MMMA patient and are facing a restrictive zoning ordinance or claims that the federal CSA preempts the MMMA call the Nichols Law Firm today and speak with an attorney who understands the complex issues involved with the MMMA.  Call Josh Covert at (517)-432-9000.

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Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

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