Honorable Rick Jones

State Senator

The Capitol

Lansing, MI 

 You have asked three questions concerning the smoking of marihuana in public places under the Michigan Medical Marihuana¹ Act (MMMA), Initiated Law 1 of 2008, MCL 333.26421 et seq:

1.      Does Michigan's prohibition against smoking in public places and food service establishments, found in 2009 PA 188 [smoking ban], include the smoking of medical marihuana?

2.      If the smoking ban does not ban the smoking of medical marihuana, does the Michigan Medical Marihuana Act['s] prohibition against smoking medical marihuana in a public place apply to public places such as food service establishments, motels, hotels, or apartments?

3.      If neither the smoking ban nor the MMMA applies, may the owner of a public place, food service establishment, hotel or motel, or apartment building still prohibit the smoking of medical marihuana within a facility?

Overview of the Michigan Medical Marihuana Act

The MMMA was adopted by a majority of Michigan voters on November 4, 2008, and became effective December 4, 2008.  Under the MMMA, the medical use of marihuana is permitted under "state law to the extent that it is carried out in accordance with the provisions of this act."  MCL 333.26427(a), 333.26424(d)(1) and (2). 

By enacting the MMMA, the people did not repeal any statutory prohibitions regarding marihuana.  The possession, use, sale, delivery, or manufacture of marihuana remain crimes in Michigan.²  Instead, the MMMA protects specific categories of persons from arrest, prosecution, or other penalty under those laws if they comply with the requirements of the MMMA:

The MMMA does not codify a right to use marihuana; instead, it merely provides a procedure through which seriously ill individuals using marihuana for its palliative effects can be identified and protected from prosecution under state law.  Although these individuals are still violating the Public Health Code by using marijuana, the MMMA sets forth particular circumstances under which they will not be arrested or otherwise prosecuted for their lawbreaking.  [People v Redden, 290 Mich App 65, __; 799 NW2d 184 (2010) (O'Connell, J., concurring) (citations omitted) (footnotes omitted) (emphasis in original).]

Similarly, under the federal Controlled Substances Act, 21 USC 801 et seq, which classifies marihuana as a Schedule 1 substance, all marihuana-related activity is illegal, including the possession and manufacture of marihuana.  See 21 USC 812(c), 823(f), and 844(a). 

The MMMA protects from prosecution or other penalty qualifying patients, MCL 333.26424(a), and registered primary caregivers, MCL 333.26424(b), who engage in the "medical use" of marihuana in accordance with all conditions of the Act.  The term "medical use" is broadly defined and includes the "acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of marihuana or paraphernalia relating to the administration of marihuana."  MCL 333.26423(e) (emphasis added).  In order to qualify for these legal protections, patients and caregivers must apply for and receive a registry identification card from the Department of Licensing and Regulatory Affairs.  MCL 333.26424(a) and (b).³

Application of 2009 PA 188

You first ask whether Michigan's prohibition against smoking in public places and food service establishments, found in the smoking ban law, 2009 PA 188, applies to the smoking of medical marihuana.

2009 PA 188 amended Part 126, Smoking in Public Places and Part 129, Food Service Establishments, of the Public Health Code (Code), MCL 333.1101 et seq, to prohibit smoking in public places, in places of employment, and in food service establishments.  Part 126 is found at MCL 333.12601 and Part 129 is found at MCL 333.12901 (now titled Smoke-Free Food Service Establishments).  Exceptions are made for cigar bars and tobacco specialty retail stores, and for gaming areas of casinos, but those exceptions are not relevant to this inquiry.  The smoking ban took effect May 1, 2010.

"Smoking," for purposes of the smoking ban, means "the burning of a lighted cigar, cigarette, pipe, or any other matter or substance that contains a tobacco product."  MCL 333.12601(r).  Although not defined in 2009 PA 188, "tobacco" may be generally understood to mean the processed leaves of tobacco plants, which are used for smoking, chewing, or inhaling.⁴  MCL 333.12601(t) defines "tobacco product" as "a product that contains tobacco and is intended for human consumption, including, but not limited to cigarettes, noncigarette smoking tobacco, or smokeless tobacco, as those terms are defined in section 2 of the tobacco products tax act, 1993 PA 327, MCL 205.422, and cigars."  Marihuana is not included within the definition of a "tobacco product" under the smoking ban law.⁵
 

Fundamental canons of statutory interpretation require giving effect to the Legislature's intent as expressed by the language of its statutes.  DiBenedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d 300 (2000).  If such language is unambiguous, Michigan courts will "presume that the Legislature intended the meaning clearly expressed–no further judicial construction is required or permitted, and the statute must be enforced as written."  Id.

Under the plain language of the smoking ban, only the smoking or burning of a lighted cigar, cigarette, pipe, or any other matter or substance that contains tobacco is subject to the ban.  MCL 333.12601(1)(r) and 333.12905(7)(c).  If the product smoked is not a tobacco product then it is not covered under Michigan's smoking ban.  There is nothing in the smoking ban to indicate that it applies to the smoking of products that do not contain tobacco.

It is my opinion, therefore, in answer to your first question, 2009 PA 188, which prohibits smoking in public places and food service establishments, applies exclusively to the smoking of tobacco products.  Because marihuana is not a tobacco product, the smoking ban does not apply to the smoking of medical marihuana.

Application of the Medical Marihuana Act's prohibition on smoking

You next ask, in the event 2009 PA 188 does not apply to marihuana, whether the MMMA's prohibition against smoking marihuana in a public place applies to food service establishments, motels, hotels, or apartment buildings.

Because the MMMA was a citizen initiative under Const 1963, art 2, § 9, it must be interpreted in light of the rules governing the construction of initiatives.  Redden, 290 Mich App at ___.  Initiatives should be construed to "effectuate their purposes" and to "facilitate rather than hamper the exercise of reserved rights by the people."  Welch Foods v Attorney General, 213 Mich App 459, 461; 540 NW2d 693 (1995).  See also OAG, 1985-1986, No 6370, p 310, 313-314 (June 10, 1986).  Generally, the words of an initiated law should be given their "ordinary and customary meaning as would have been understood by the voters."  Welch Foods, 213 Mich App at 461.  

Relevant to your question, the MMMA provides that it does not permit a person to do the following:

(3) Smoke marihuana:

(A) on any form of public transportation; or

(B) in any public place.  [MCL 333.26427(b)(3)(A) and (B); emphasis added.]

The MMMA does not define the term "public place."  The administrative rules adopted to implement the MMMA simply define "public place" as "a place open to the public."  See 2009 AACS, R 333.101(16).

As noted above, statutory terms are generally accorded their common meanings, but technical or legal words and phrases must be given their "peculiar and appropriate" meaning. Consumers Power Co v Public Service Comm, 460 Mich 148, 163; 596 NW2d 126 (1999); MCL 8.3a.  The term "public place" can be said to have acquired a quasi-technical or legal meaning in the law.  Black's Law Dictionary (6th ed), p 1230, defines "public place," in part, as "[a] place to which the general public has a right to resort; not necessarily a place devoted solely to the uses of the public, but a place which is in point of fact public rather than private, a place visited by many persons . . . ."  Employing this definition, it cannot reasonably be disputed that the public areas of food service establishments, hotels, motels, and apartment buildings are public places as that term is used in the MMMA.  Thus, the plain language of the MMMA would apply to prohibit the smoking of marihuana within these places.
  

It is my opinion, therefore, in answer to your second question, that the Michigan Medical Marihuana Act, Initiated Law 1 of 2008, MCL 333.26421 et seq, prohibits qualifying registered patients from smoking marihuana in the public areas of food service establishments, hotels, motels, apartment buildings, and any other place open to the public.

Property owner's authority to prohibit smoking or growing of marihuana

Property owners may want to prohibit smoking marihuana or growing marihuana plants within their privately-owned facilities for a number of reasons.  For example, as noted above all marihuana-related activity remains illegal under the Controlled Substances Act.  See 21 USC 812(c), 823(f), and 844(a).  The federal government remains free to enforce the criminal provisions of the Controlled Substances Act against Michigan citizens, regardless of whether they are registered patients or caregivers under the MMMA.  Property owners who allow their properties to be used by patients or caregivers for the purposes of using or growing marihuana could be subject to prosecution, civil forfeiture, or other penalty under the Controlled Substances Act.  See 21 USC 856(a) and 881(a)(7).⁷ 

In addition, the smoking of marihuana or the possession of marihuana plants within a property may make other tenants or guests within a facility concerned for their own or their family's personal safety.  Further, property owners may simply wish to respect the preferences or expectations of other guests or tenants within a facility.  Marihuana smoke, like tobacco smoke, has a strong and distinctive odor, which may offend other persons using the facility or discourage future occupancy of the facility. 

The MMMA is silent regarding the rights of private property owners with respect to the smoking of marihuana or the growing of marihuana plants by registered patients or registered primary caregivers on property or portions of property not open to the public.  Nor does the MMMA create any private right of action against any owner of a hotel, motel, apartment building, or any other place open to the public that does not allow the smoking of marihuana within its facility.  See, e.g., Casias v Wal-Mart Stores, Inc, 764 F Supp 2d 914 (WD Mich, 2011).  To the extent the MMMA provides that registered patients and primary caregivers shall not be "denied any right or privilege," MCL 333.26424(a) and (b), this language is inapplicable here because it presumes the existence of a right or privilege⁸ outside of the MMMA.  In other words, the terms "right or privilege" do not encompass the medical use of marihuana under the Act.  See Redden, supra, 290 Mich App at ___ ("The MMMA does not codify a right to use marihuana").  There is no constitutional or statutory right or privilege to housing or accommodation at a hotel, motel, or apartment building.  Rather, as explained below, individuals have a right not to be denied housing or accommodations based on certain enumerated personal characteristics.  Thus, if there is any legal prohibition or impediment regarding an owner's ability to prohibit the medical use of marihuana on private property, it must be found elsewhere in the law.⁹

Michigan civil rights laws prohibit discrimination in the provision of public accommodations and housing.  Hotels, motels, and apartment buildings fall within these categories.  With respect to housing, the Elliott-Larsen Civil Rights Act, 1976 PA 453, MCL 37.2101 et seq, provides that a person shall not refuse to participate in various real estate transactions, including rental transactions,¹⁰ "on the basis of religion, race, color, national origin, age, sex, familial status, or marital status of a person or a person residing with that person."  MCL 37.2502(1)(a)-(h).  Similarly, with respect to public accommodations, the Act provides that a person shall not "[d]eny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service because of religion, race, color, national origin, age, sex, or marital status."  MCL 37.2302(a). 

By their own terms, these provisions of the Elliott-Larsen Civil Rights Act do not apply here.  Being a registered medical marihuana patient or primary caregiver is not a personal characteristic listed in MCL 37.2302 or 37.2502 to which the Act's specific protections apply.  Thus, the Elliott-Larsen Civil Rights Act does not prohibit a property owner from adopting a policy declining to rent, lease, or provide an accommodation to a person who engages or proposes to engage in the medical use of marihuana on the premises.

The Persons with Disabilities Civil Rights Act, 1976 PA 220, MCL 37.1101 et seq, provides with respect to housing that "[a]n owner . . . shall not, on the basis of a disability of a buyer or renter . . . that is unrelated to the individual's ability to acquire, rent, or maintain property" refuse to engage in various "real estate transaction[s]" with that person.  MCL 37.1502(1)(a)-(h).¹¹  Rather, an owner "shall accommodate a person with a disability for purposes of . . . housing unless the [owner] demonstrates that the accommodation would impose an undue hardship."  MCL 37.1102(2).  Similar provisions exist with respect to public accommodations.  See MCL 37.1302(a) and 37.1102(1).  But these provisions of the Persons with Disabilities Civil Rights Act do not prohibit a property owner from adopting a policy declining to rent, lease, or provide accommodation to a person who engages or proposes to engage in the medical use of marihuana under the MMMA.¹²  Moreover, the refusal to rent, lease, or provide accommodation to a registered patient who engages or proposes to engage in the medical use of marihuana would not be based on a patient's disability, but rather on the patient's decision to treat that condition with marihuana.

Based on the above, neither the MMMA nor any other law precludes the owner of a hotel, motel, apartment building, or any other similar facility from prohibiting the smoking of marihuana or the growing of marihuana plants anywhere on the premises.¹³ 

This conclusion is consistent with the treatment of employers under the MMMA.  The MMMA expressly states that employers do not have to accommodate the use of medical marihuana in a workplace, and do not have to allow an employee to work under the influence of marihuana.  MCL 333.26427(c)(2).  In Casias v Wal-Mart, supra, a Michigan federal district court held that nothing in the MMMA requires an employer to accommodate the ingestion of marihuana in any workplace or any employee working under the influence of marihuana.  The Court further found that the MMMA does not regulate private employment, nor does the MMMA confer any statutory rights:
    

Moreover, the MMMA would also regulate, under the logical conclusion of Plaintiffs’ theory, tenants in private housing, students at private educational institutions, and other private business actors.  Yet the MMMA contains no language stating that it repeals the general rule of at-will employment in Michigan or that it otherwise limits the range of allowable private decisions by Michigan businesses.  [Casias, 764 F Supp 2d at 922 (emphasis in original).]

Similarly, the MMMA does not require owners of a hotel, motel, or apartment building to allow the use of medical marihuana on their properties.

It is my opinion, therefore, in answer to your third question, that an owner of a hotel, motel, apartment building, or other similar facility can prohibit the smoking of marihuana and the growing of marihuana plants anywhere within the facility, and imposing such a prohibition does not violate the Michigan Medical Marihuana Act (MMMA), Initiated Law 1 of 2008, MCL 333.26421 et seq. 

 BILL SCHUETTE
Attorney General