November ballot question on legalizing marijuana

Michigan voters in 2008 were presented with a ballot proposal to allow the compassionate use of medical marijuana for a variety of uses, from relief of the nausea from chemotherapy for cancer to glaucoma, Crohn's disease, ALS, also known as Lou Gehrig's Disease, to severe and chronic pain, wasting syndrome, seizures, and severe and persistent muscle spasms. When voters went to the polls that November, throughout Michigan they approved the Michigan Medical Marijuana Act by an overwhelming 63 percent, including in Oakland County, where 62 percent of voters approved the measure.

At the time, then-Michigan Court of Appeals Judge Bill Schuette, who was also chairman of the opposition group Citizens Protecting Michigan's Kids, said he was disappointed with the outcome.

Schuette, currently Michigan's Attorney General and the 2018 Republican candidate for governor in November, is likely not happy with the latest ballot proposal, for Michigan voters will have the opportunity on November 6 to approve, or reject, a ballot initiative to legalize recreational marijuana for adults over the age of 21. Sponsored by the Coalition to Regulate Marijuana Like Alcohol, the proposal seeks to end the prohibition of marijuana in Michigan and establish a system in which marijuana is regulated and taxed similar to alcohol.

The ballot proposal was approved in July to go on the November ballot after backers submitted over 350,000 signatures, well beyond the necessary 252,000 required by the state to be considered. If approved, it will be called the Michigan Regulation and Taxation of Marihuana Act, which would “allow under state law the personal possession and use of marihuana by persons 21 years of age or older to provide for the lawful cultivation and sale of marihuana and industrial hemp by persons 21 years of age or older; to permit the taxation of revenue derived from commercial marihuana facilities; to permit the promulgation of administrative rules; and to prescribe certain penalties for violations of this act.”

It would make Michigan the tenth state, and first in the midwest to “free the weed” if it passes. Backers term it “ending the prohibition on cannabis.”

Does that mean Michigan would just become a Reefer Madness playground? Campaign organizers and legalization advocates are determined to make sure that Michigan does not become a free-for-all state, and within the legislation are guidelines to provide for adequate law enforcement, taxation, local municipal control, and product quality control.

It would permit residents to possess up to 2.5 ounces of flower, which is the marijuana product that is smoked in joints, or 15 grams of concentrate, which is the resin from cannabis plants used in edibles, dabs, vaping and other products. A household could have up to 10 ounces of purchased marijuana. Marijuana could be used in the privacy of your own home, but not in public, nor on the grounds of a K-12 school, and would remain a felony on federal property, like a national park.

A household would be allowed to grow up to 12 plants in a secure and locked area that is not easily visible to the public. And marijuana could be gifted to another adult, as long as they are over the age of 21. But, you can't sell it to a friend unless you go through the complete licensing process, as well as pay taxes on it as a marijuana retailer, and go through the testing process to make sure it's pure and unadulterated. The provision provides for a seed-to-plant registry, as has been done with medical marijuana licensing, so that users know just what they are purchasing and consuming, much like what all states with legalized marijuana do.

According to Josh Hovey, spokesperson for the Coalition to Regulate Marijuana Like Alcohol, “We let the state set up the testing parameters once it's approved. Typically, they test for purity, so what they're buying is what they're getting. They're looking for harmful contaminants, like mold and mildew, and for pesticides that would be harmful and shouldn't be on the product.”

The proposed ballot language does not specify how much THC, the principal psychoactive ingredient in cannabis and different products, leaving it up to the state to determine and regulate. Hovey said state regulators have determined a maximum of 300 milligrams of THC per package for medical marijuana edibles.

Hovey also said the state requires certain labeling and packaging of marijuana products, which they have established for medical marijuana. He noted that the state has very specific regulations and controls over medical marijuana edibles and infused products to control them as food safety products and make sure there are no allergens.

“We don't mandate amount – we direct the state to set these requirements,” Hovey said.

The initiative provides for three different tiers of business licenses for marijuana growers, mirroring the current Medical Marijuana Facilities Licensing Act, while also allowing for marijuana microbusinseses, like microbreweries, which would allow for 150 plants, and could process, package and sell its crop to adults. This provision allows for small growers to participate in the business, as well as class A grower licenses, which allow for the cultivation of up to 100 plants. Other license categories are Class B licenses, which allow for the cultivation of up to 500 plants; and Class C, where a grower can cultivate up to 2,000 plants. While a larger company can be a grower, processor and retailer, they cannot own a transportation company also – that must be owned by a separate licensee.

There are several restrictions in the proposal. Municipalities can ban commercial pot operations in their communities, or place strong restrictions on marijuana businesses. Driving under the influence is forbidden. For underage drivers, it's a felony.

And employers can enforce their employee handbook as they see fit, and prohibit having high workers in the office or on a job site. Which means if they choose to drug test their employees, that's within their rights, and they can fire an employee for failing that drug test. Business and safety rights trump individual freedoms in the workplace.

Just as landlords can forbid tenants from smoking cigarettes on their property, the proposal says they can also prohibit smoking of marijuana on their property. However, residents would be able to consume cannabis in other forms, such as edibles.

Yet, on the other end of the spectrum are equally fervent believers who assert that easier acquisition of marijuana will lead to a higher crime rate, greater drug abuse, further use – especially of edibles, cookies and candies – by teens and youths, and rather than a de-escalation of a black market, a larger black market as excess growth which has nowhere else to go gets sold unlawfully.

Which will it be? Will legalization of recreational marijuana lead to a mellow adult population, or one where drug use escalates among youth, and it leads to greater driving fatalities and worse drug abuse?

It all depends on who you talk to.

“Alcohol is more likely to cause reckless or violent behavior” than marijuana, said Matt Schweich, executive director of the Marijuana Policy Project (MPP), which played a leading role in drafting the proposal in Michigan, along with Coalition to Regulate Marijuana Like Alcohol, ACLU of Michigan, Drug Policy Alliance, MILegalize, National Patient Rights, an advocacy group for medical marijuana patients, and MINorml. Schweich said MPP was also involved in crafting similar legislation approved in Colorado in 2012; Alaska in 2014; and Nevada, Maine and Massachusetts, all in 2016. “We got a large group of stakeholders together to write an excellent piece of legislation.”

He said in drafting the legislation, similar to the process involved with the legalization effort in Massachusetts in 2016, they involved a large group of constituencies on both sides of the issue.

“It makes it difficult, but we want that challenge. That yields a wide-ranging public policy. This (Michigan's) was one of the broadest and most inclusive,” he said. The drafting of the legislation, he said, is governed by each state's rules, regulations and constraints, which have to be worked around.

Hovey, the spokesperson for the Coalition to Regulate Marijuana Like Alcohol, said, “We first got together in late '16, early '17, with several stakeholders to see if there was the will to get this on the ballot. Our drafting committee took this around the state to various groups to anyone who would be impacted and involved, and we sought input. We wanted it to be the best worded legislation, to include the best practices, and include the medical marijuana legislation (from the Michigan state legislature) that was done in 2016, because when you have vaguely worded legislation you have gray areas.”

The 2008 Michigan Medical Marijuana Act was vaguely worded, leading to legislative, regulatory and enforcement gray areas, and confusion, for eight years, until the Michigan state legislature, despite their reticence to take it on, finally clarified where dispensaries can go, who can have grow operations, where people can smoke, how and where law enforcement can apply the law and how to prosecute.

There are currently 289,205 individuals in the state with medical marijuana cards, licensed through the state for a variety of maladies. The 2008 act allows licensed caregivers to grow up to 12 plants each for five patients and themselves, for a total of no more than 72 plants. They must be grown indoors in a locked facility, but the law did not specify how they could be dispensed, where dispensaries could go, how municipalities could zone for them, if patients could be on their medication at work, or while driving. There were a lot of gray areas, to say the least.

In September 2016, three laws were passed, and Governor Rick Snyder signed them into law, that created a licensing and regulatory framework for medical marijuana. The regulatory framework was finally implemented, and applications were first taken by the state Department of Licensing and Regulatory Affairs (LARA), on December 15, 2017. On August 9, 2018, at the state's Medical Marijuana Licensing Board meeting, 15 businesses came up for pre-qualification and 10 for licensing, including two that would be the first testing facilities to receive licenses, one of which is Iron Laboratories in Walled Lake – ten years after voters approved the initial medical marijuana act. Six dispensaries were approved in July, four in Detroit, one in Jackson and one in Burton, as well as a processing facility that is attached to a Chesaning business that received four large grow licenses.

Many of the current 230 dispensary operators will have to cease their operations by September 15, under the new laws.

“This means we have a complete system now, so the licensees can actually begin operating,” said Andrew Brisbo, director of the state’s Bureau of Medical Marijuana Regulation.

Today, municipalities can opt out of dispensaries and grow operations, and to have a grow operation, the license application must be accompanied by a non-refundable $6,000 fee. Small grow licenses are capped by statute at $10,000. Larger grow licenses, where transporting and provisioning are involved, could have assessments for license fees as low as $10,000, or as high as $57,000, according to LARA.

Needless to say, it's not designed for the small time producer in their locked garage with some grow lights.

If recreational marijuana were to pass, dispensaries, grow operations and the like will definitely be a big business in Michigan, if states like Colorado and California are any indication. The drafters of the proposal are banking on that, by creating a taxing component in the legislation.

Hovey said there will a six percent sales tax at the retail level plus a 10 percent excise tax on top, for 16 percent overall. “The six percent sales tax, like all sales tax, goes to the School Aid Fund,” he said. “The 10 percent would be split three ways, 35 percent to roads, 35 percent to public schools, to the School Aid Fund, and 15 percent to municipalities where marijuana businesses are located, and 15 percent to counties where marijuana businesses are located, and those governments can use those funds however they want to.”

He pointed out the goal is to help local governments, public schools, and improve roads in the state as beneficiaries of a new legalization effort.

“We support the legalization of cannabis because it has been proven to be less dangerous and less addictive than either alcohol and tobacco, yet inexplicably, it stays illegal for adults 21 and older at the federal level,” Hovey said.

He acknowledged they cannot stop the state legislature from moving revenue around in the general fund, and not allocating as much to schools if there is a lot of money from legalized marijuana going to the School Aid Fund. “We can't legally restrict how the legislature does their job. The only thing we can do is determine where the tax revenue from the proposal would go. We're doing our job, and it's our hope the legislature would understand that their goal is to increase the money to roads and the School Aid Fund,” Hovey said.

Hovey said that in Colorado, where all of the tax revenue was specifically designated to go to schools, “it was almost too successful, and they had so much money for schools they decided to parse some revenue to other sources.”

Coloradans approved recreational use in 2012, with sales beginning January 1, 2014. There have been 3,051 marijuana businesses licensed in the state, and more than 40,000 people certified to work in the industry, translating to approximately 20,000 full-time or full-time equivalent jobs working directly in marijuana businesses, and thousands more jobs supplying those businesses, according to state figures for the end of 2017.

Sales in 2014 were $683 million, and $1.5 billion in 2017.

Justin Dunaskiss of Dunaskiss Consulting, a government consulting agency working with many municipalities on medical marijuana, said they were not involved in the recreational marijuana legalization effort, although he stated, “We look on the policy side, and we think it's a pretty fair, well-written initiative, but like anything, it needs some tweaks to optimize it to set it up for the fabrics of Michigan municipalities.”

He noted that the tax is a little lower than other states, at 16 percent. In Colorado, recreational marijuana is taxed at 15 percent sales tax plus a 15 percent excise tax, for a 30 percent tax rate. In Washington state, users are taxed 37 percent. Oregon has a tax rate of 17 percent. Nevada has a sales tax of 10 percent and an excise tax of 15 percent, for 25 percent. California has a 15 percent sales tax plus $9.25 an ounce for flowers and $2.75 an ounce for flowers or cultivation tax. Hawaii charges $50 an ounce. Massachusetts is lowest, with a sales tax of 10.75 percent.

“We don't put a charge, or an excise tax, at the production, growing, or refinement level, for either medical or the proposed recreational level,” Dunaskiss said. “There's only the 10 percent excise tax on a purchase. Other states and cities will put a five to 15 percent tax on top (of growing and production).

“If it's regulated properly, it's difficult for a small illicit operator to compete with someone operating a large scale operation,” he said. “It doesn't put the large scale operator at a disadvantage because like other states that have a 25 percent tax or higher, with a lower tax of 10 percent, users aren't being gouged at 10 percent taxes. They won't turn to the illicit market.”

Foes of legalization believe that low taxation rate will actually drive the illicit market, because it's not high enough for law enforcement to crack down on scofflaws.

“It's the lowest taxation rate of state. It's only 10 percent – so you wouldn't want to enforce the laws because it's too low of a rate of taxation,” said former state Sen. Randy Richardville (R-Monroe), currently a spokesperson for the anti-legalization group Healthy and Productive Michigan. “Law enforcement says, 'What about our cut (from taxation)?' There's not enough in it for them.”

But Oakland County Chief Deputy Prosecutor Paul Walton doesn't agree. He said they rarely see a possession of marijuana case currently.

“We've hardly had a possession case in years,” Walton said. “Police agencies are pushing away from prosecuting.”

He said the officers on the streets have the most say in the situation, not advocates or critics.

“I have seen countless car videos (from police cars), and I have spoken to many officers, where they do a stop for a rolling stop, or a broken taillight, and they see a joint in the car, and they're not writing it up,” Walton said. “For the most part, as long as it's not impairing their ability to operate, they just say, 'dump that out.'”

Matthew Abel, a Detroit attorney and founder of Cannabis Counsel who was on the committee which wrote the legislation, said, “People are ahead of the legislators. It will bring the law into compliance with societal norms. We've had medical marijuana for 10 years. The population is accustomed to this. The public's fear of cannabis is much reduced from where it was. They sky hasn't fallen. In the last five years, we've gone from less than 50 percent support to more than 60 percent supporting adult use.”

Nationally, statistics bear that out. According to the Pew Center, in 1990 only 16 percent of the population approved of legalization. Today, more than 60 percent of Americans favor legalization.

What Walton would like is for there to be legislation, both in Michigan and federally, that would tackle and clarify the law for those who possess and use marijuana, both medically and recreationally.

“We have this patchwork approach. It would be so helpful if the federal government would decriminalize or reclassify marijuana from a Schedule 1 narcotic to something more manageable,” he said. “Take that half-step, and take care of it.”

According to the Drug Enforcement Agency (DEA), Schedule 1 drugs, substances and chemicals are defined as drugs with no currently accepted medical use and have a high potential for abuse. Included as Schedule 1 drugs are heroin, LSD, ectsasy, methaqualone, peyote, and marijuana.

The inclusion of marijuana as a Schedule 1 drug of the Controlled Substance Act, the most tightly reserved category, occurred in 1972.

According to the DEA, “The abuse rate is a determinate factor in the scheduling of the drug; for example, Schedule I drugs have a high potential for abuse and the potential to create severe psychological and/or physical dependence. As the drug schedule changes – Schedule II, Schedule III, etc., so does the abuse potential – Schedule V drugs represents the least potential for abuse.”

However, many experts do not believe marijuana should remain a Schedule 1 substance, noting that it has acknowledged medical benefits for many afflictions. The process of rescheduling a drug from a category requires petitioning of the DEA – which first occurred in 1972 in order to be legally prescribed by physicians. The petition was ultimately denied by the DEA after 22 years of court challenges, although a synthetic form of the cannabis's psychoactive ingredient, THC, which comes in pill form, was rescheduled in 1986 as a Schedule II to allow for prescriptions. In 1999, petitions further allowed the pill form to be rescheduled as a Schedule III to permit prescriptions.

But further petitions, to allow clinical studies, were denied by the Food and Drug Administration (FDA) in 2001, 2002, 2011 and 2013.

Yet, in that time, 31 states, plus the District of Columbia, Guam and Puerto Rico, have come further than the DEA, approving the use of legal cannabis for medical purposes – in essence, nullifying that Schedule I classification.

An August 2017 Quinnipiac poll found that national support of medical marijuana was at 94 percent.

Hovey said that while writing the ballot legislation, they did not meet with any individual sheriffs or police chiefs, but they did meet with the police and sheriffs' associations. “None were happy with it, but they all said they know legalization is coming, and said, just make sure it's enforceable and the rules are clear. They also want to make sure no one is driving under the influence.”

Blaine Koops, executive director of the Michigan Sheriffs Association, said they are not taking an official position on the upcoming ballot proposal. “We've been in contact with both sides,” Koops said. “Our legislative advocate has really worked hard to understand the issue, and we've been working on this for some time.”

He said the key is to be able to have, and to respond with, facts – “medical facts and societal facts.” It's so critical to him that on August 14, his organization co-sponsored an educational event in Lansing for law enforcement officers, prosecutors and educators, “to learn the pros and cons of recreational marijuana. Information, education, facts are the key,” he said. “We will do our communities a service by learning the facts.

“My generation, we're looking back to the '70s and '80s,” Koops said, noting there are lots of misconceptions out there, not just among the public, but among law enforcement. “The composition (of marijuana) is totally different than it was.” He said a cookie today could have the same concentration as several cookies decades ago.

Oakland County Sheriff Michael Bouchard is “not a fan because I've talked to others in other states. It increased the drunk/intoxicated driving incidents and the proliferation to younger users,” he said.

Abel challenged whether the intoxicated drivers on marijuana were also under the influence of alcohol and/or other narcotics, as “more people may be driving with cannabis in their system across the board, but not causing traffic accidents, nor the traffic fatalities. Correlation is not causation. It's an independent factor. It's very rare to find a traffic fatality with cannabis without alcohol involved.”

The initiative by The Coalition to Regulate Marijuana Like Alcohol firmly positions itself as an “adoption of smart adult-use marijuana laws by allowing adults 21 and older to possess and grow certain amounts of marijuana. Persons under 21 years of age are prohibited from possessing, cultivating, processing, purchasing, and/or selling marijuana products. This initiative does not allow marijuana to be used openly and publicly, so it will remain entirely illegal to consume marijuana on the street, on a sidewalk, or in a public park. Driving under the influence will also remain illegal. This initiative expressly prohibits people from operating a vehicle, motorboat, aircraft, ORV, or snowmobile while under the influence of marijuana.”

“It's the same as not driving under the influence of alcohol or prescription drugs,” said Hovey.

The difference, for law enforcement, is that, as the Prosecutor's Office's Walton pointed out, “Drunk driving nationally is .08. With this stuff, it's, oh my goodness. Colorado it's 5 nanograms (one billionth of a gram) or more. We don't have anything in place.”

In Colorado, it's illegal to use marijuana in cars, and all marijuana product must be in a sealed container if it's in a vehicle. A person can't drive if he or she has 5 nanograms or more of THC, the ingredient that makes them high, in their system, or they risk being charged with driving under the influence of drugs. It is tested and verified by a blood draw.

“Will the (state) legislature be willing to tackle the attendant laws if it passes?” Walton asked.

Hovey, spokesperson for The Coalition to Regulate Marijuana Like Alcohol, acknowledged the active ingredient in cannabis, THC, can be detected in the system for several weeks, versus an active high, which may last several hours.

“There still needs to be more research done,” he acknowledged. “The Michigan State Police is piloting a mouth swab test, not just for marijuana, but for a whole host of things, including opioids. As a campaign, we really hope that works out. We hope science continues their research.”

Los Angeles labor and employment attorney Michelle Lee Flores has been advising clients in California since January when legalization took effect.

“I've been helping clients manage the misconceptions. It's still illegal federally. Are you impaired in the workplace? Alcohol, pot, it's the same. Are you posing a safety threat to you or your co-workers? Because employers are tasked with providing a safe workplace,” Flores noted. “It's not a 'get out of jail free' card. Do employers make accommodations for medical, or are they zero tolerance? An employer can still enforce a zero tolerance policy because it's illegal federally, and there's certain safety issues. It's like alcohol – this is not a free for all. For employers, educate yourself – what is impairment?”

Anti-recreational marijuana backer Richardson with Healthy and Productive Michigan said for him, “The biggest problem to me is the access to underage citizens. It's a problem as it is. This makes access easier than it is. This risk is significantly higher.”

Research in states where legalization has occurred show an initial spike in marijuana usage by underage users, and then a dip. A more significant increase in use has been seen among aging baby boomers, aged 55 and up.

Justin Dunaskiss pointed out that is the indication internationally. “I truly feel we would see an initial spike in underage use, but based on national and international data, such as in the Netherlands in how they've used cannabis, alcohol and other drugs, once you take away the forbidden fruit, the underage use dies down. We have decades of research on alcohol and on cannabis in the Netherlands and some in other states, that verifies this.”

According to the Pueblo Institute of Cannabis Impact Study of Colorado marijuana users, completed in November 2016, “legalization of recreational cannabis use and dispensaries has not greatly affected high school use and perceptions.”

To Oakland County's Sheriff Bouchard, abuse of the drug, along with black market crime, are overriding concerns for him.

“How many lives will be impacted negatively and we'll have to deal with the societal costs because of it, because of addictive personalities? On any behavior, there's eight to 13 percent of the population that will have addictive behavior,” he said. “Then, they don't work, so they'll seek benefits, which leads to criminality.

“I see it with alcohol,” Bouchard continued. “I'm not saying we need to go back and prohibit alcohol, but I have to say that there will be similar societal costs as alcohol when you deal with legalization.”

But isn't there already the scourge of drug abuse?

California attorney Flores said that marijuana legalization can actually help with the opioid addiction crisis, because it can provide pain relief similar to prescription drugs without the addictive qualities.

As for Bouchard, Richardville, and other opponents of legalization of a growing black market, Hovey said with legalization of cannabis, “The only one we're hoping to drive out of business is the criminal element. We want legitimate businesses to thrive, be part of communities, to pay their taxes and not waste the time and money of law enforcement, prosecutors and the courts.”

“If (legalization) is regulated properly, it will be difficult for a small, illicit operator to compete with someone operating a large scale legal operation,” Dunaskiss said.

Bouchard disagrees.

“There's a huge amount of excess out there already, and there will be way more. We're already an exporter of excess because of the very loose restrictions with the requirements for excesses of medical marijuana,” Bouchard said. “It's an illegal activity, and it will increase the activity for law enforcement. It brings in cartels and drug dealers from other places to undercut the taxed product. There's always overages – and that's illegal if it's transmitted not in compliance with law enforcement.”

Another worry he has is that they are seeing adulterated marijuana with fentanyl, and he's concerned there will be more of it – “unless it's sealed and stamped from a regulated and approved dispensary,” Bouchard said.

Advocates emphasize that is the importance of repealing prohibition – to get rid of the toxic black market, to provide safe, unadulterated product for over-21 adults who choose to enjoy cannabis, no different than the repeal of prohibition of alcohol. Today, rather than dying from rotgut because of bad alcohol, imbibers can choose from craft cocktails, beer from microbreweries, and wine cultivated from around the world.

“A licensed business has a lot at stake. They're not going to sell to minors. Your average drug dealer has no rules,” said MPP's executive director Schweich. “We've seen a steep decline in drug trafficking cases in states with legalization, which suggests that legalization displaces the unregulated market.”

Voters will be the ultimate arbiters, at the voting booth on Tuesday, November 6, when the vote yay or nay. ­