Language contained in the definitions of both the Licensing (Sec. 24-13-2) and the Zoning (Sec. 61-3-353) portions of Detroit’s proposed dispensary ordinance defines what marijuana is, and they both include the statement: “This shall not include butane hash oil.”
Normally banning anything related to marijuana use would be a legal no-go. The Michigan Medical Marihuana Act’s supremacy clause overrules local zoning ordinances (and the Michigan Home Cities Rule Act and state forfeiture laws) which would make any ban on marijuana null and void, but a Court of Appeals decision in a case known as People v Carruthers changed that protected status for concentrates and edibles.
Butane hash oil is a concentrate derived through an extraction process whereby cannabis flowers are washed with gaseous butane to separate the valuable healing oils from the tarry, rough plant material. Only the useable oils are harvested, and the butane is slowly released from the oil over a period of time in a process known as ‘purging.’ Once the butane is fully purged from the oil it is ready for human use in topical creams, liquid tinctures, various foodstuffs and the like.
Since BHO is a concentrate it is controlled via the Carruthers decision. So its current status is banned, therefore not deserving a special mention in Detroit’s ordinance.
Fortunately for the state’s patient population, the Carruthers decision is on the brink of being overruled by the state legislature. House Bill 4210, sponsored by Rep. Lisa Lyons, contains the architecture for the re-legalization of possession and manufacture of concentrates for patients and caregivers.
Consider that BHO looks identical to concentrates derived from other methodologies. Assuming HB 4210 passes and the city ordinance is enforced as written, it would require Detroit officers to determine the origin of any concentrates they find in any caregiver center in the city, or in any inspection of a home-based marijuana businesses registered with the city. If they mistakenly seize non-butane concentrates, which would be protected under state law, the city could be vulnerable to lawsuit or for compensation to the patient for the concentrated medicine taken.
Here’s a further wrinkle: the language of HB 4210 would allow the production of BHO in Detroit and other places in Michigan as long as it is done outside and in adequate ventilation. Now Detroit police officers would be expected to know the difference between a proper purge situation and one that violates state law? Who can teach that?
If Lansing gets the job done it would make this passage in the Detroit ordinance unenforceable. Or, more likely, it will be enforced by poorly-informed officers who believe they are doing good, only to find they’re answering a Summons to explain why they broke state law.
The language bans not only the production of BHO but the sale of its products as well, through a simple reading. Why ban the use or sale of a medical substance which was manufactured in a safe environment in a licensed facility in Lansing, or Flint, or Ann Arbor? Because Council is acting on emotion, not logic.
But what’s another lawsuit against the city of Detroit for unlawful prosecution by a poorly-supported police force? More work for the Legal Department and more burden for Detroit’s already over-taxed citizenry. I’m sure the papers will hardly report on it at all.
Most industry and Lansing insiders who testified before the Licensing and Zoning Commissions told the elected officials this three-bill was close to passage in the Legislature. Council’s rush to pass the ordinance seems eerily similar to the rush being seen in Lansing to pass unpopular legislation aimed at creating a big government, big business-dominated medical marijuana distribution program. ‘If it’s controversial, rush it through’ is a bad policy for Senators, Representatives and Councilmembers alike.