Royal Oak faces 2 Medical Marijuana Lawsuits

after approving a controversial marijuana ordinance Jan. 24, and they were right. As of Tuesday, two separate lawsuits have been filed on behalf of Royal Oak residents charging the city’s ruling that qualifying patients may smoke marijuana for medical purposes but not grow it is unconstitutional.

“Neither lawsuit came as a surprise," Royal Oak City Attorney David Gillam said.

The medical marijuana ordinance went into effect Thursday, the same day attorney Joseph Niskar filed a lawsuit on behalf of cancer patient Adam Brook, requesting an injunction to stop the city of Royal Oak from interfering with his client’s right to grow medical marijuana. Niskar is also seeking an unspecified amount of damages.

Niskar said the ban violates Brook’s constitutional right as governed by the Michigan Medical Marijuana Act passed in November 2008 by the majority of voters saying it is OK to grow up to 12 plants and use the plants for medicinal purposes. Seventy-two percent of Royal Oak residents voted in favor of the law during the November 2008 election. The act also states registered caregivers can grow 12 plants for up to five patients.

“The city can’t trump the state law,” Niskar said.

The way Royal Oak has drafted its ordinance, Niskar said, certified patients and caregivers would have to travel outside of Royal Oak to grow marijuana, which would be a great financial hardship and prevent them from having their medicine with them. And, the attorney said, hiding behind a zoning ordinance to say people can't grow marijuana to keep it out of Royal Oak doesn’t excuse the city from complying with the law.

“A pig with lipstick is still a pig,” Niskar said.

Cty Attorney Gillam said Brook's lawsuit also requested a restraining order against the city, which was denied. He said the preliminary injunction is now the focus of the lawsuit, which is basically trying to prohibit the city from enforcing the newly adopted ordinance. Gillam is scheduled to represent the city in Oakland County Circuit Court in Pontiac at 8:30 a.m. Feb. 16 on the matter.

On Monday, a second lawsuit was filed by attorney Neil Rockind on behalf of resident Christopher Frizzo, a multiple sclerosis patient. Gillam said the second lawsuit is fundamentally the same as the first.

During the Jan. 24 City Commission meeting where the ordinance was passed, Rockind told commissioners that he would sue the city. “That is not a threat, that is a promise,” Rockind said during the meeting.

Rockind is suing Bloomfield Township over the same issue and lawsuits are pending in Livonia and Birmingham, too, stating it is unconstitutional for communities to block a patient’s right under the new state law.

Gillam said the city has 21 days to file an answer on both lawsuits, which it will. He said the city is looking into whether or not the scope of the lawsuits falls under Royal Oak’s insurance policy, but either way it will cost the cash-strapped city money.

The City Commission voted 4-3 on Jan. 24 in favor of allowing the use of medical marijuana by qualified patients, but prohibiting cultivation in the city. The ordinance went into effect Feb. 3, 10 days before the city's 120-day moratorium on marijuana dispensaries was set to expire Feb. 13.

Commissioners Patricia Capello, Charles Semchena, Terry Drinkwine and David Poulton voted in favor of the ordinance. Ellison and Commssioners Jim Rasor and Michael Andrzejak voted against the ordinance.