July 6 2016 11:48 AM

City attorney takes harder line than Bernero


An already complicated battle over Lansing’s medical marijuana industry has gotten even more controversial with the appointment of James Smiertka as the new Lansing city attorney.

Smiertka appears to be at odds with the administration of Mayor Virg Bernero over allowing dispensaries to operate in the city.

Dispensary patients and operators have consistently told the Lansing City Council’s Committee on Public Safety that the businesses regularly sell medical marijuana to anyone with a state issued medical marijuana card. They also have said dispensaries regularly accept overgrowth of pot from caregivers for sale.

Both actions conflict with state court rulings that have deemed that a caregiver must provide the medicine for only five registered patients and are prohibited from transferring overage to other caregivers. The overage results from being able to grow 12 plants per patient at any one time — often more than a patient can consume.

“If this is what is going on, then each of these locations has been consistently breaking the law,” Smiertka said at the end of a nearly hour-long meeting with the activist group Rejuvenating South Lansing. “It seems pretty easy to me. I would just file a lawsuit against all of them.”

Such a move would conflict with Bernero’s benign neglect approach to the growing industry.

Most of Lansing’s 40-some dispensaries closed in 2011 after the Appeals Court found the state law did not provide for them. But as Bernero’s hands-off approach became clear, an estimated 70 storefront dispensaries opened throughout the city before the mayor finally agreed this year with the Chamber of Commerce and members of City Council that a moratorium was in order. He said the state has failed the people, leaving municipalities like Lansing a skeleton of legal framework on which to build legislation.

Emerald City is one of some 70 dispensaries that are operating in Lansing despite court rulings that the new city attorney, James Smiertka, says makes them illegal.
Todd Heywood/City Pulse

Bernero, who appointed Smiertka as city attorney late last month, said he is following the marching orders of local voters who overwhelming approved a charter amendment to decriminalize small amounts of personal use marijuana as well as to approve the medical marijuana act.

“The people have spoken, overwhelmingly, in favor of decriminalization and normalization,” Bernero said in an interview last week.

Lansing Police Chief Michael Yankowski said in an interview with City Pulse a month ago that marijuana enforcement is not a priority for the department at this time. He said police are focusing on combating violent crime and the heroin epidemic in the city.

But that hasn’t stopped police from investigating dispensaries when they receive information to act on. Yankowski said the department has presented cases to prosecutors, and in some instances charges were brought, but not in others.

With small amounts of marijuana possession legal under the city charter, the most likely charges against dispensaries would involve intent to deliver — a trafficking charge. That would require criminal charges by the Prosecutor’s Office.

Billie Jo O’Berry, an assistant city attorney and a Republican candidate for prosecutor, told the Rejuvenating South Lansing group that the lack of enforcement was a county issue.

“At some point, your county prosecutor and your county sheriff decided not to enforce this law,” she said.

The mayor said he had been waiting on the Legislature to act on bills that would legalize dispensaries and create a system for caregivers to share and sell overages; but that hasn’t happened. In fact, Sen Rick Jones, R-Grand Ledge, who chairs the Judiciary Committee, thought just before the Legislature left for summer break that the Senate would act on pending legislation. Instead, he said, the GOP caucus that controls the chamber rejected the plan because some had issues with allowing for edible marijuana products as part of the measure.

As a result, it’s fallen on the City Council to find a way to regulate the business, which means balancing between what courts have ruled is legal and what dispensary owners say allows them to make a profit.

Carol Wood, chairwoman of the Committee on Public Safety, said the Council has been trying to wrap its arms around regulations for months. At first, the committee reviewed a zoning ordinance that would have limited where medical marijuana establishments could operate.

“That wasn’t enough,” Wood said. “We have heard from people that they want licensing.”

So the issue was sent back to then City Attorney Janene McIntyre. In March, the first of a series of licensing ordinance drafts was presented to the committee. Changes were made and questions asked. Wood seemed positive that an ordinance could be adopted by the end of summer.

But in June, the committee was informed by interim City Attorney Joseph Abood that the draft ordinance would be unenforceable in court. The reason? A recent Court of Appeals ruling that prohibits the transfer of marijuana between caregivers and strictly enforces the one caregiver for five registered patients rules.

That ruling, said Smiertka, makes it difficult to understand how dispensaries are legally and economically viable.

“I can’t believe that money is there because there is one caregiver giving it to five patients,” he said.

Abood was given until Friday to return to the committee with an enforceable licensing ordinance or a plan to shut the dispensaries down. But that was when Abood appeared headed toward a long-term appointment to the post. Now that Smiertka has officially been appointed and started the job, Wood has given him until July 22 to come up with a plan.

For his part, the new city attorney said he is just starting to get into the medical marijuana issues, which he called “very complicated.” He told members of Rejuvenating South Lansing that he believed a combination of zoning and nuisance law enforcement could bring the industry under control.

“There’s a provision in the act that you can grow your own marijuana, but that’s restricted. So if that’s being grown under that, but it’s illegal because it’s being sold illegally or given away illegally to so-called patients, then you get into — first of all a violation of the statute — but it’s also a nuisance,” he said. “A public nuisance.”

This is not the city’s first attempt to regulate and license dispensaries. In 2011, during an earlier moratorium, it adopted an ordinance to license and regulate the facilities. It would have allowed 48 such businesses in the city. But then came the Appeals Court ruling, ultimately upheld by the state Supreme Court, that dispensaries were not legal under the Michigan medical marijuana act. Then City Attorney Brig Smith sent a letter to City Clerk Chris Swope directing him not to process license applications under the ordinance. He also sent letters to the dispensaries informing them of the ruling and that he believed their operations were illegal.

Thr upsurge in dispensaries in the last two years has prompted neighborhood groups to circulate petitions last fall calling on the city to regulate the businesses.

For his part, Bernero said those businesses are important. He said they had moved into, and improved, empty commercial properties.

“And they have created jobs. Jobs that are paying taxes,” he said.

Those two points, he said, are reason enough to move with caution. He supports legislation that will control the dispensary numbers through zoning enforcement.

“People are embarrassed having this in the commercial corridors,” he said. “I’m not. I believe we are moving marijuana out of the neighborhoods and that is making neighborhoods safer.”