Civil Disobedience In Gaylord

May 6, 2016

Northern Michigan city is at the center of the latest flare up over Michigan’s Medical Marijuana Act

Something strange happened after authorities signaled stricter enforcement of medical marijuana laws with May 2015 raids in Gaylord. Afterward, the number of dispensaries went up, not down. There were seven dispensaries operating before the raids and there were nine operating this March when police returned for another round of enforcement.

Part of that is owed to pot purveyors’ belief that they found a way around a prosecutor’s strict reading of the law; part of it was a zoning ordinance that some believed gave them a green light; and part of it is a nascent culture of civil disobedience in Gaylord over marijuana rights.

TROUBLE AT TINCTURETOWN

Even as jail time loomed for one medical marijuana seller facing trial on felony charges for providing product to patients with medical marijuana cards, other pot dispensers set up shop, in seeming defiance of the crackdown.

Partners Beth Kuhle and Ron Smith believed the City of Gaylord’s move earlier this year to include medical marijuana provisioning centers in their zoning ordinance signaled it was safe to open a dispensary.

"I was watching the news one morning and it says Gaylord passed an ordinance for medical marijuana dispensaries," Kuhle recalls. "I said, "˜Hey, we’re on.’" They went to the city to find out where they could operate and they went to the county to register their business. They opened Tincturetown in a former law office on Main Street on Feb. 3. The couple was surprised how fast business took off – but it didn’t last long. They were open 32 days before they were raided by police.

Smith and Kuhle said they believed that, as long as they maintained detailed paperwork about clients, their doctors, their conditions and their dosages, they would be in the clear. Police and prosecutors disagreed.

"The next thing we know, there’s police coming around saying patient-to-patient sales are illegal, and then here we are today," Kuhle said.

Dispensaries have lived in legal limbo for several years, ever since a state Supreme Court decision found that the Michigan’s 2008 medical marijuana law does not legalize storefront sales of marijuana, but only sales of small amounts from licensed caregivers to no more than five licensed patients.

A TRIAL AND TRIBULATIONS

Twenty-seven-year-old Alan Witt has become a sort of folk hero for the northern Michigan pot community. He chose to risk his freedom for the political fight over medical marijuana and he’s inspired demonstrations, a Facebook group and a visit from a former Detroit Red Wing.

Along with a group of medical marijuana operators, Witt faced felony charges when he was snared in the May 2015 police sweep. Everyone else pleaded guilty to reduced charges. Witt took his case to trial, was convicted of a felony (he was acquitted and the jury was hung on two additional counts) and he was sentenced to 180 days in jail in April.

East Lansing–based attorney Joshua Covert, who represented Witt and represents two defendants in pending marijuana cases in Otsego County, said Witt was punished for taking a political stand on medical marijuana and taking his case to trial.

The sentence was six times what was recommended by sentencing guidelines, Covert said.

"I have done a hundred marijuana cases and I have never seen a judge go beyond recommendations," Covert said.

Covert said he believes Witt was punished, not for violating the marijuana law, but because he fought the charges against him. People who were charged in the same sweep of dispensaries who pleaded guilty were sentenced to probation.

"It would appear to be a trial tax," Covert said. Otsego County Prosecutor Michael Rola disagreed with that characterization of the sentence. He said other defendants recognized they had violated the law and they pled guilty to lesser offenses that carry more lenient sentences. Witt, on the other hand, was found guilty of a more serious offense, and therefore faced a harsher punishment.

LEGALIZE IT

Covert said Otsego County stands out in the state for its aggressive pursuit of medical marijuana providers.

"I would certainly say that their enforcement of the act is strict," Covert said.

(Rola also disagrees with Covert’s assessment of marijuana enforcement in Otsego County; he said he is merely enforcing the law.)

Covert hopes backers of a legalization measure can get a state initiative on the ballot in November. He believes legalization would be the best solution to enable people to get access to medical marijuana.

"Legalize recreational marijuana," he said. "Do away with criminal penalties; allow for local control. I don’t think we can wait in the legislature to correct this problem."

Indeed, the legislature was supposed to clarify how dispensaries could operate in 2014. The state House of Representatives passed a resolution that would have made dispensaries legitimate, spelled out rules for their operation, and allowed for local control of where or whether they could operate.

That measure fizzled amid opposition from law enforcement groups, even as some police and prosecutors said they needed clarity in order to do their jobs.

Covert said he might consider a new strategy in the latest round of Otsego County cases, since Gaylord passed an ordinance that spelled out where dispensaries could be located.

It’s not fair for one part of government to signal a green light while another part levels criminal charges, he said.

"I think prosecuting attorneys do have to keep in mind ordinances," Covert said.

Rola said the Gaylord ordinance has nothing to do with state marijuana law and the city merely made accommodations for dispensaries in the event that the law changes.

A GRASSROOTS FIGHT OVER GRASS

Ben Horner, of the Flint-based Cannabis Stakeholders Group, helped push for the Gaylord zoning amendment and helped organize an event in April when former Red Wing Darren McCarty visited town to demonstrate for medical marijuana rights. The event was held at Witt’s former dispensary.

"About a hundred people showed up over the course of the afternoon and, considering all of the fear that’s out there, I thought that was pretty impressive," Horner said.

Horner believes there are ways dispensaries can operate legally in Michigan, even though authorities in Otsego County don’t share his opinion.

"We feel as though the dispensaries were operating in accordance with the act, and yet there is some confusion as to what the act allows," Horner said.

Others, even some within the medical marijuana community, disagree and say that, given the way Michigan courts have interpreted the law, police and prosecutors can shut down dispensaries if they want to.

Horner believes that, because of inaction from the legislature, the political fight over medical marijuana should play out countyby-county, and citizens should encourage local officials to enable dispensaries to operate.

"The important part is people Up North aren’t giving up; they are going to keep re-opening," he said.

Gaylord City Manager Joseph Duff said the city council’s zoning ordinance amendment was not an endorsement of medical marijuana and it wasn’t meant to encourage would-be dispensary owners.

"You’ve got to realize that what the city council was reacting to and what the community was reacting to was a group of citizens who approached us, and they had petitions," Duff said.

The ordinance merely defines which zoning districts would allow provisioning centers, he said. It doesn’t speak to state or federal law.

NOT GOING TO LOOK AWAY

A half-dozen people have been charged since March, when those nine dispensaries were raided by officers working for the Straits Area Narcotics Enforcement (SANE) team.

SANE’s Detective Lt. Kenneth Mills said the regional drug squad doesn’t look for medical marijuana cases to bust, but they don’t turn their heads either. Indeed, amid raids by the Traverse Area Narcotics Enforcement team throughout Wexford County two years ago, Otsego County appeared to be a sort of safe haven at the time.

That sense of well being came crashing down last May when plain-clothes and uniformed police officers fanned out across the city, armed with search warrants based on confidential informants who had purchased medical marijuana from the dispensaries. The informants had medical marijuana cards, but the dispensaries were not registered as their caregivers.

It was the proliferation marijuana business that raised suspicion, Mills said. Detectives came to wonder, how are all of these places staying in business? How many medical marijuana patients can there be?

"Any common sense makes you think they have to be operating illegally," Mills said.

Mills said that, in the latest round of raids, Gaylord’s dispensaries also violated state law by selling patients edible or oil-based marijuana products. The legality of edibles and oils for medical marijuana patients is another hotly disputed aspect of the law.

ENFORCING THE LAW

Mills said SANE is merely enforcing the law. "We’re enforcing the laws that are out there and, until things change, we will continue to do that," he said. "Marijuana is not our priority. Heroin and opiates and methamphetamine are our priorities."

Even if a dispensary became a hub for patients and caregivers to get together, that would have to happen literally, Mills said. Caregivers could only provide to their five patients. And they would have to be together in the same room.

Mills said he recalls hearing about a plan like that in Gaylord when the law first went into effect, and he said he thought that would comply with the law.

"He talked about having marijuana that was available for patients, each person having it locked in a safe or container so that nobody else had access to it in there," Mills said. "That would work."

Through the investigation, Mills said he found that people had come to see Gaylord as a friendly zone for medical marijuana compared to some other parts of the state. He learned during the raids that, in many cases, these were businesses that were operated by out-of-towners.

"We had people from all over, people that were living all over the place, were operating in Gaylord," Mills said. "I asked them those questions, "˜So, how come you didn’t open one in your own home?’ They just thought it was viewed differently in that area."

A BUSINESS IN LIMBO

Smith and Kuhle decided to open a dispensary after they spent several years as caregivers. They live in Charlevoix, where there aren’t any medical marijuana businesses, and they also run a window cleaning business.

"When we were looking for a building, our real estate agent was bragging about how Gaylord was going to be the Up North medical marijuana Mecca," Smith said. Dispensaries are necessary for the law to work, they said, because, without them, most people who qualify for medical marijuana cards would not be able to find a supply of the drug.

"If everybody’s closed and you don’t know how to grow it and you don’t have a caregiver, you can’t get your medicines," Kuhle said.

That’s left Kuhle and Smith considering reopening, despite the heat. Another dispensary in Gaylord opened a day before Smith and Kuhle talked to the Northern Express: D&L on Otsego Avenue. An employee there said he was not permitted to sit for an interview, though he said things were going alright so far.

Kuhle said she wants to reopen because she believes it’s the right thing to do.

"I still say they’re wrong. They’re wrong," she said. "They’re human beings, so they can be wrong."

Still, Kuhle said she wasn’t sure if opening again would be worth it. They still didn’t know if they would face charges. They lost thousands of dollars in the raid when police seized cash and marijuana and equipment.

"What I’d really like to do is go down to Mike Rolo’s offices and say, "˜Here I am. Are you arresting me or what?’" Kohl said.