Lansing Mayor Virg Bernero’s proposal aimed at regulating homegrown marijuana raises legal concerns and may even be unconstitutional, critics say.
The ordinance the mayor has called for would require the city-owned Lansing Board of Water & Light to monitor customers’ monthly electrical usage and report those using more than 5,000 kilowatts a month to enforcement agencies.
Use beyond that level would trigger home inspections by building inspectors and the fire marshal. If homeowners refuse, the city could seek court orders to enter their homes.
Critics say the proposal goes too far. They believe it violates constitutional protections against unreasonable search and seizure and may also run afoul of state law regulating medical marijuana.
In a press release Nov. 10, Bernero said city officials had “seen a recent increase in safety issues” related to medical marijuana growth. But he offered no details, and marijuana advocates said to their knowledge there has not been a rash of fires related to growing operations.
Bernero spokesman Randy Hannan said the problems are real.
“City staff is aware of numerous incidents related to overloaded electrical circuits at medical marijuana grows in residential areas, some of which have necessitated upgrades to the electrical service to the home, at least five instances where the electric service meter burned out, and one that resulted in a house fire that caused an injury,” he said by email.
“This is a more than adequate basis to conclude that growing facilities can and do overload residential electrical services, which represents a danger to health, safety and welfare.”
Bernero’s proposed ordinance uses electrical consumption as an indicator of in-home marijuana growing operations. According to the BWL, average monthly residential use in 2012 was 674 kilowatt hours in the summer and 558 in the winter.
If follow-up inspections by the city’s code compliance staff find that a business is operating from the residence, it will need to be registered and be subject to yearly inspections. Failure to comply could result in a civil infraction charge.
“While state law makes it legal for registered patients and caregivers to grow their own medical marihuana, it is our responsibility in city government to ensure that it is done safely and does not create a neighborhood nuisance,” Mayor Bernero said. “If approved by the City Council, this new ordinance will give us the tools we need to ensure that marihuana growing in residential areas is done in compliance with the law and in a safe manner that protects the quality of life in our neighborhoods.”
But the deputy legal director of the ACLU of Michigan, Dan Korobkin, said the Bernero plan “raises civil liberties concerns.” Key among those issues, he said, was potential infringement on the Fourth Amendment of the U.S. Constitution. That prevents government from searching personal property without just cause.
The Board of Water & Light has a policy protecting the information related to a customer’s use of a given utility service. That could change under the new ordinance.
“BWL customer energy usage is considered confidential with regard to public disclosure to external individuals or agencies,” said BWL spokesman Steve Serkaian. “If the City passes an ordinance that requires home occupations to comply with energy use standards that are designed to protect the health, safety and welfare of its residents, BWL will share the information necessary to accomplish that goal.”
While residents would have the right to refuse an initial inspection, the city’s code ordinance has provisions allowing the code enforcement officer to seek a warrant to execute an inspection on a property. Attorneys familiar with the use of warrants for code compliance work in the state said the tactic is rarely used in Lansing.
The access to specific electrical use data could become even more sensitive as the Board of Water & Light transitions to using smart meter technology. Those meters measure power consumption in intervals as short as every minute, transmitting that data back to a server at BWL headquarters. A 2012 report by the Congressional Research Service noted that such detailed data could reveal specific living patterns of residents, and identify which appliances are used and when in the home. The data could even reveal sleeping and showering patterns, the report found.
That report went on to indicate that with such a depth of personal information potentially revealed by the new technology, access and release of the data to law enforcement could breach Fourth Amendment protections. However, there has not been a federal case determining the extent of protections extended to this data.
Lansing City Attorney Jim Smiertka, author of the ordinance, said there are no Fourth Amendment concerns with the enforcement of the ordinance.
“Enforcement activity will most likely commence with a voluntary conference between the operator and the City Attorney’s Office to determine whether inspection is necessary,” he wrote in an email to City Pulse responding to a series of questions about the proposal. “If registration and inspection is necessary, it is hoped that a mutual understanding regarding compliance will be reached. In extreme cases, a process of obtaining a judicially-sanctioned administrative search warrant will be sought. This process should alleviate your concern regarding Fourth Amendment searches.”
Korobkin, along with Joshua Covert of the Nichols Law Firm in East Lansing, believes that the registration requirement could violate the Michigan Medical Marihuana Act.
Covert said a challenge to the ordinance would likely be focused on the MMMA, not on Fourth Amendment concerns. He said he was concerned that the city was creating a new list of medical marijuana growers — a list which could be accessed by law enforcement, both nationally and statewide. Korobkin expressed the same concerns.
“My biggest concern — I don’t think you can circumvent the MMMA with regulating electrical use,” said Covert. “I think this will be revealing caregivers.”
He downplayed the concerns about fires.
“If that were true, I think we would have had this in place before people started growing marijuana,” said Covert, an East Lansing lawyer who specializes in marijuana legal defense.
Smiertka dismissed those concerns. “In response, if one of the home occupations happens to be an activity covered by the MMMA or other similar applicable laws, provisions regarding the protection of the personal information of the operator are built into the ordinance,” he said.
Despite the constitutional and MMMA concerns, at least one councilman, Adam Hussain, wants to lower the threshold of power consumption which would trigger the code compliance notification and visits, potentially entangling more citizens.
“I think the standards need to be a bit more stringent,” said Hussain, who represents the 3rd Ward and serves on the Public Safety Committee, which is reviewing the proposed ordinance. “What we have heard from the LBWL is that the potential for home fires begins at a much lower level of use and that they would be supportive of a lower level.”
But Public Safety Committee Chairwoman Carol Wood said she is uncertain the ordinance is even needed.
“We’ve had an ordinance since 2010,” Wood said. “It’s been used to enforce based on odor complaints and people coming and going from a residence. It didn’t rely on electricity use. It does not require you to register.”
She said the trigger for the current ordinance has always been “complaint based.”
Covert concurs with Wood.
“We need to use existing laws,” he said, “not creating new laws.”