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June 2023

The Merriam-Webster dictionary defines conundrum as an intricate and difficult problem which I have decided best captures the issue of development of a cannabis dispensary ordinance for the city of Birmingham by its legal counsel and city commission.

City commissioners in mid-February of this year started to address at a workshop session the issue of reversing the city's position of opting out of allowing cannabis-related businesses, a stance it formally adopted after recreational adult use in 2018 was approved on a state-wide basis when 55.89 percent of those going to the polls backed the idea. Locally, 58.87 percent of those at the polls in Oakland County approved the ballot issue and in Birmingham support was 60.21 percent.

Birmingham found itself in good company when it opted out as allowed in the ballot issue – 1,419 Michigan municipalities or 80 percent of communities said 'no thanks' when it came to issuing license to cannabis-related businesses.

No big deal. Enough neighboring communities, like Royal Oak, Ferndale, Waterford and Walled Lake issued dispensary licenses, so if that is your pleasure, cannabis products were just a short drive away. Better yet, flower, gummies and the like could be ordered up online for delivery to your door.

But the last several years have taught municipalities a valuable lesson. Whether local officials opted out or not, a community could still end up with cannabis operations – dispensaries, grow and processing operations, delivery businesses and the like – thanks to a provision in the law allowing for petitioners to place on the ballot ordinances that can overturn opt out stances taken by local leaders. And although we refer to these attempts as citizen initiatives, recent history has taught us that the term “citizen” can – and often will – include forces from outside the community.

On the 2022 November ballot alone, according to characteristically detailed legwork done by the news department at prior to the vote, there were 32 cannabis-related proposals on the ballot across the state, 22 of which were designed to override local opt out positions. Of that group, many of the petition efforts were driven by what appeared to be a shadow organization that had an office in Livonia and a treasurer with an Oak Park address – hardly a local “citizen” initiative when it came to getting the signatures, as provided by the 2018 ballot proposal, equal to five percent of the local community votes cast in the last election for governor. In Oakland County alone, it would appear the same group was behind the attempt to overturn opt out positions in Clarkston, Addison Township, Royal Oak Township and Brandon Township.

To avoid such an effort here, Birmingham officials were advised that a pro-active approach would make sense – write your own ordinance rather than have someone else impose on the community their view of what was good for the city. Hence the city commission workshop and subsequent unveiling in April of a proposed ordinance written by the Birmingham City Attorney, albeit a less than ideal one that has now gone back to the drawing board. And just in time I might add, given the rumor that has been circulating since the start of this year that a petition effort, aided by a local law firm, could be underway at any moment.

The prevailing attitude of the commission, I am told, is to avoid an ordinance that would be besieged by a string of lawsuits like those that have hamstrung neighboring local communities. Of particular concern, as now written, Birmingham's ordinance would allow for one medical marijuana dispensary and one recreational cannabis dispensary, with a rating system for applicants and the final decision made by the city manager, the same issues that have prompted court challenges in other communities. Others have opted to have an appointed panel make the decision on who gets a license. The rating system approach has prompted a number of court challenges elsewhere, although the alternative, as one cannabis consulting firm told me recently, is to issue the licenses on a first come, first served basis. Somehow this latter approach seems inadequate, to say the least. I can't imagine applicants camped outside city hall the day after an ordinance is adopted as if this were a contest to see who could get tickets to a Taylor Swift concert.

Beyond the intricacies of the ordinance itself, there's the prohibitionist argument, which appears to possibly have the support of two city commissioners (both of whom are up for re-election this year), that the city should find some legal way to block any dispensaries in Birmingham. These two commissioners in an April meeting suggested that the ordinance provision prohibiting dispensaries within 1,000 feet of a park was an open invitation to create more pocket parks that essentially would block any cannabis outlets from operating here. Clearly a set up for another legal challenge.

Then there was the view offered by a local anti-substance abuse community group that allowing any dispensaries would drive up teen use of marijuana, a fear mongering position that we saw when voters in 2018 were considering recreational marijuana decriminalization. It's simply not supported by any number of studies around the country where legalized recreational cannabis has been allowed for years.

In Colorado and California, the first states to decriminalize marijuana, studies found that teen use of cannabis remained fairly constant or declined once dispensaries began opening. And in California, the most recent study found 100 percent compliance with its ID policy (21 or over) at dispensaries, which means that teens will still rely on the same black market dealer they have been using to purchase cannabis, despite the failed promise that the black market would be eliminated once a regulated cannabis industry was established.

The National Institute on Drug Abuse in 2022 found that “cannabis legalization is not associated with increased youth use.”A number of other government conducted or funded studies have basically dispelled the idea that opening dispensaries means higher teen use.

Those facts may not stop the attempt at a ballot issue to ban dispensaries entirely. One commissioner told me privately that it would make sense to alert PTA and other parent groups that they could put this on the ballot. But let's get real.

Cannabis has been legalized in the state of Michigan. The moderate, proactive approach by the city of Birmingham makes the most sense. The responsible path is to control and limit dispensaries here. But how to do it – that is the conundrum.

David Hohendorf



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