Update on Michigan’s Medical Marihuana Act
Michael A. Karman, Esq.

Michigan’s Medical Marihuana Act (MMMA) was amended by the passage of three new bills in December 2016.  These new updates have implications for housing cooperatives and its residents.

The Act added the definitions for “marihuana-infused products” and “usable marihuana equivalent” to fall within protected use of medical    marihuana, permitting for legal use and possession in accordance with the MMMA.

The MMMA now places legal limitations on the amount of usable marihuana equivalent or marihuana-infused product that a qualifying patient may possess.  It defines a “qualifying patient” as someone who has applied for and received a medical marihuana registry identification card from the State of Michigan for medicinal or health reasons. 

Now, a qualifying patient can have no more than 2.5 ounces of usable marihuana and usable marihuana equivalents. A qualifying patient and primary caregiver (a person who is approved by the State to cultivate marihuana for the patient) may also possess no more than 12 marihuana plants that are to be kept in an enclosed, locked facility.

Additionally, even though a qualifying patient may possess the types and amounts of marihuana as stated above, he or she is not permitted to operate, navigate, or be in actual physical control of any motor vehicle, aircraft, snowmobile, off-road recreational vehicle, or motorboat while under the influence of marihuana.

The MMMA has also restricted a qualifying patient or primary caregiver from transporting or possessing marihuana-infused products inside the passenger compartment of a motor vehicle unless it is in a sealed and labeled container or package carried in the vehicle’s trunk—or, if the vehicle does not have a trunk, it must be stowed so as not be readily accessible from the interior passenger compartment of the vehicle. The label on the container or package must state: the weight of the marihuana-infused   product in ounces, the name of the manufacturer, the date of the manufacture, the name of the person from whom the marihuana-infused product was received, and the date of the receipt.

In 2016, in the case of People v. Carlton, the Michigan Court of Appeals was presented with the issue of whether the provisions of the MMMA apply to a person who smokes marihuana in his or her own car while that car is parked in the parking lot of a private place or business that is open to the general public—which would surely include a housing cooperative’s parking lot.  The Defendant was arrested for smoking marihuana inside of his car that was parked in a casino’s parking lot. The Defendant argued immunity from prosecution on account of the MMMA, which states that a qualifying patient who has been issued and possesses a registry identification card is generally immune from prosecution for possession and use of medical marihuana.

The Court disagreed, stating that the Act does not permit any person to smoke marihuana in any public place—and that any person who smokes marihuana in a public place is not entitled to the immunity provided under the Act, regardless of whether the person has a medical marihuana card.

The Court held that the parking lot, which is open to the general public, is open for the specific purpose of allowing the members of the public to park their vehicles. Furthermore, it ruled that the fact that a person in a vehicle occupies a place that can be characterized as “private” does not alter the fact that the person is at the same time located in a public place. This is an important decision for a cooperative to heed regarding a resident.

A private property owner may refuse to lease to any person who smokes or cultivates marihuana on the premises, if the prohibition against the smoking or cultivating of marihuana is in the written lease. This provision does not help cooperatives as they do not have leases that renew on a monthly, or even yearly basis.  

The MMMA as it currently stands leaves more questions than answers for cooperatives. Does the Occupancy Agreement need revising?  Would a member who has a patient or caregiver card sign a revised Occupancy Agreement?  How would a cooperative’s status be affected by the FHA?  The law, as written, makes no mention of ingesting edibles, only smoking or cultivating.  What if prospective applicants are refused membership because they are medical marihuana users? 

The MMMA provides that a person shall not be subject to arrest, prosecution, or penalty in any manner for the use or cultivation of medical marihuana. However, this directly conflicts with federal law, which prohibits medical marihuana use or possession.

This dichotomy has created problems for those attempting to navigate through the intricate maze of Michigan’s medical marihuana laws.     However, housing cooperatives still have legal remedies available to them when taking action against members whose use or possession of medical marihuana creates a disturbance to others.

The best way to avoid the uncertainties of (and traps set by) the MMMA is via the use of nuisance remedies against the offending member. A nuisance is a condition or situation that interferes with one’s use or enjoyment of his or her property.  Marijuana smoke (or even its mere smell) upon a person’s home could be considered an unwanted intrusion.  The cooperative could file a civil nuisance action and ask the court to abate/remove the problem—hence, treat it like any other offensive condition created by a member that disturbs others, such as tobacco smoke, excessive noise, and the like.

The Michigan legislature will no doubt continue to make revisions to the MMMA, and cooperatives should not be hesitant to voice their concerns to their legislators.

 Michael A. Karman is an attorney in Michigan who specializes in cooperative housing issues