The following opinion is presented on-line for informational use only and does not replace the official version. (Mich. Dept. of Attorney General Web Site - http://www.ag.state.mi.us)
STATE OF MICHIGAN
BILL SCHUETTE, ATTORNEY GENERAL
MEDICAL MARIHUANA ACT:
ELLIOT LARSEN CIVIL RIGHTS ACT:
PERSONS WITH DISABILITIES CIVIL RIGHTS ACT:
Smoking marihuana is prohibited in public places
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.
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.
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, Initiated Law 1 of 2008, MCL 333.26421 et seq.
Opinion No. 7261
September 15, 2011
Honorable Rick Jones
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
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,
Property owner's authority to prohibit smoking or growing of marihuana
You next ask whether the owner of a food service establishment, hotel, motel, or apartment building may prohibit the smoking of marihuana within its facility.6
As discussed above, the plain language of the MMMA prohibits the smoking of marihuana in "any public place," which includes the public areas of food service establishments, hotels, motels, and apartment buildings. The only question remaining is whether the owner of a facility like a hotel, motel, or apartment building, may prohibit the smoking of marihuana in what would traditionally be considered non-public areas, such as individual rooms, units, or any other area not open to or accessible by the public. While your request referred only to the smoking of marihuana, this opinion will also address the growing of marihuana plants in these areas since that activity raises similar concerns.
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,
1 While other Michigan statutes spell the word "marihuana," using a "j" or "marijuana," because the MMMA uses the former spelling, that spelling will be used for purposes of this opinion.
2 Marihuana remains a Schedule 1 substance under the Public Health Code, MCL 333.7212(1)(c), meaning that "the substance has a high potential for abuse and has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision," MCL 333.7211. Similarly, the manufacture, delivery, or possession with intent to deliver marihuana remains a felony, MCL 333.7401(1) and (2)(d), and possession of marihuana remains a misdemeanor offense, MCL 333.7403(2)(d).
3 The MMMA expressly refers to the Department of Community Health. However, the authority, powers, duties, functions and responsibilities under the MMMA were transferred, from the Department of Community Health to the Department of Licensing and Regulatory Affairs under Executive Order 2011-4.
4 See entry for "tobacco," genus "Nicotiana," The Columbia Encyclopedia, Sixth Edition (2008), available at <http://www.encyclopedia.com/topic/tobacco.aspx> (accessed August 9, 2011).
5 Section 3(d) of the MMMA, MCL 333.26423(3)(d), defines marihuana by incorporating the definition from section 7106, MCL 333.7106, of the Public Health Code, which provides, in part that "'[m]arihuana' means all parts of the plant Cannabis sativa L., growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin."
6 The Attorney General considered a similar question with respect to the smoking of tobacco in OAG, 1991-1992, No 6719, p 144 (May 4, 1992). OAG No 6719 addressed whether state or federal law prohibited a privately-owned apartment complex from renting only to non-smokers. In that opinion, the Attorney General opined that neither state nor federal law requires an owner of an apartment building to allow smoking in apartments. The opinion did not include a discussion of how the prohibition on smoking in rented residences might be accomplished, but made clear that an owner can require that an apartment must remain smoke-free.
7 For a discussion of issues property owners may face, including prosecutions under the Controlled Substances Act, see Tiago Pappas, Providing property owners increased certainty in the conflicting medical marijuana landscape, 39 Real Estate L J 249 (2010).
8 As used in the law, the word "privilege" is generally associated with a right to engage in an activity, such as an occupation or business. For example, the word "license" has been interpreted as "a mere privilege to carry on a business subject to the will of the grantor, and it is not property in the sense which is protected under the Constitution." Midwest Teen Centers, Inc v City of Roseville, 36 Mich App 627, 632; 193 NW2d 906 (1971), citing Eastwood Park Amusement Co v East Detroit Mayor, 325 Mich 60, 76; 38 NW2d 77 (1949); Kudla v Modde, 537 F Supp 87, 90 (ED Mich, 1982). See also 16 A CJS Constitutional Law § 441, Licenses (2011).
9 In contrast, Rhode Island's medical marihuana law expressly provides that no landlord may refuse to lease to a registered medical marihuana patient. See RI Gen Laws § 21-28.6-4(b) ("No school, employer or landlord may refuse to enroll, employ or lease to or otherwise penalize a person solely for his or her status as a cardholder").
10 See definitions set forth in MCL 37.2501(a) and (b), which include rental transactions.
11 Under the Persons with Disabilities Civil Rights Act, "[r]eal estate transaction" is defined as "the sale, exchange, rental, or lease of real property, or an interest therein." MCL 37.1501(d). The term "'[r]eal property' includes a building, structure, mobile home, real estate, land, mobile home park, trailer park, tenement, leasehold, or an interest in a real estate cooperative or condominium." MCL 37.1501(e).
12 Federal law contains similar types of civil rights provisions. See the Federal Fair Housing Act, 42 USC 3601 et seq, the Americans with Disabilities Act, 42 USC 12132, and the Rehabilitation Act, 29 USC 794. But again the use of marihuana is illegal under the Controlled Substances Act, 21 USC 841. The United States Supreme Court held that there is no medical necessity defense to the Controlled Substances Act with respect to persons using or possessing marihuana in accordance with state laws permitting its use. United States v Oakland Cannabis Buyers' Coop, 532 US 483, 491; 121 S Ct 1711; 149 L Ed 2d 722 (2001). Moreover, other federal statutes and regulations prohibit leasing or renting to persons engaging in criminal activity, at least with respect to public housing. See, e.g., 42 USC 1437d(l)(6) (requiring public housing leases to state that any drug-related criminal activity during the lease term shall be grounds for lease termination); 42 USC 13661(b)(1)(A) (prohibiting public housing owners from admitting users of illegal drugs); 42 USC 1437a(b)(9) (defining "drug-related criminal activity" to include illegal manufacture, use or possession of a controlled substance as defined by the CSA); 24 CFR 5.854(b)(1); 24 CFR 960.204(2)(i); 24 CFR 966.4.
13 Given the many statutes and legal principles that govern the operation of hotels, motels, apartment buildings, or other leased premises, see e.g., Ann Arbor Tenants Union v Ann Arbor YMCA, 229 Mich App 431; 581 NW2d 794 (1998) and Ypsilanti Housing Comm v O'Day, 240 Mich App 621; 618 NW2d 18 (2000), this opinion does not address the various methods owners of these entities may employ to prohibit the smoking of marihuana or the growing of marihuana plants on their premises.