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Medical Marijuana Update

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Ronald D. Richards Jr.
Foster Swift Municipal Law News
February 2011

Another month, another flurry of activity on the Medical Marijuana Act front. Here are just a few items that arose recently:

Federal Court Allows Walmart to Fire Employee For Medical Marijuana Use

A federal judge in Detroit just ruled that Michigan’s Medical Marijuana Act does not prohibit an employer from firing people for drug use. Instead, the judge ruled, the Act merely bars authorities from arresting and prosecuting people for marijuana use. The lawsuit stemmed from Walmart’s decision to fire an employee after he tested positive for marijuana use – even though the employee has a medical marijuana card and allegedly smoked it to alleviate an inoperable brain tumor and cancer. A key factor in the decision was that the marijuana use was detected as part of a company drug testing policy that it had consistently enforced.

Tenant Evicted From Federally Subsidized Housing For Using Medical Marijuana

A Michigan district court recently upheld a landlord’s decision to evict a tenant from federally subsidized housing for using medical marijuana. The landlord evicted the tenant for medical marijuana use, giving two reasons: (1) it violated the tenant’s lease’s prohibition against illegal substances, and (2) the landlord must follow federal law to continue to provide federally subsidized housing.

Court of Appeals Issues Another Decision Regarding Medical Marijuana

Just this month, the Court of Appeals reversed a Shiawassee Circuit Court decision on whether the defendant’s method of storing marijuana met the statutory requirement to keep the marijuana in an "enclosed, locked facility." The statute defines "enclosed, locked facility" as "a closet, room, or other enclosed area equipped with locks or other security devices..." The defendant stored the marijuana in various places in the defendant’s home - such as a living room closet, bedroom, laundry room, and hallway - and outdoors in an area surrounded by a chain link fence but with an open-top.

The Court of Appeals ruled that the defendant’s storage did not meet the "enclosed, locked facility" requirement. As a result, the defendant was not protected by the Act and could be prosecuted.

Federal Government Issues Subpoena For Michigan-Held Medical Marijuana Patient Records

This dispute arose when the United States Drug Enforcement Administration issued a subpoena to the Michigan Department of Community Health requesting records of 7 persons who applied for medical marijuana caregiver cards. The Department of Community Health initially opposed the subpoena, citing concerns about whether complying with the subpoena would cause it to violate the Michigan Medical Marijuana Act’s confidentiality clauses. The Michigan Attorney General stated he would agree to release the information if a court ordered it to do so and if officials could not be held liable for the release. Several medical marijuana groups are seeking permission to participate in the matter to oppose the release of the information. The parties presented arguments on February 1, 2011. The case is still pending in the Western District of Michigan, Case No. 1:10-mc-109.