            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



CITY OF WARREN,                                                     UNPUBLISHED
                                                                    May 16, 2019
               Plaintiff-Appellant,

v                                                                   No. 341639
                                                                    Macomb Circuit Court
CLAYTON JAMERS BEZY,                                                LC No. 2017-000111-AR

               Defendant-Appellee.


Before: REDFORD, P.J., and MARKEY and K. F. KELLY, JJ.

PER CURIAM.

        This case concerns the ability of a city to enforce zoning regulations that affect medical
marijuana cultivation. Plaintiff, the City of Warren, appeals by leave granted1 the circuit court’s
order, affirming a decision by 37th District Court. The district court held that several zoning
ordinances enacted by plaintiff were preempted by the Michigan Medical Marihuana Act
(MMMA), MCL 333.26421 et seq., a conclusion with which the circuit court agreed. Discerning
no error, we affirm.



                                        I. BASIC FACTS

        Defendant resides in Warren. He grows marijuana in his home, both for his own use and
for the use of his patients, in accordance with the MMMA. Plaintiff cited defendant for three
ordinance violations, all arising from his marijuana operation. Two of these violations stem from
Warren Zoning Ordinance, § 5.01(m). This ordinance, which applies to the R-1-A, single-family
residential district, prohibits marijuana production and storage unless a number of requirements
are satisfied:


1
  City of Warren v Bezy, unpublished order of the Court of Appeals, entered May 15, 2018
(Docket No. 341639).




                                                -1-
       (m) Growing, storing, or cultivating marihuana or processing or manufacturing
       marihuana into a usable form, except that such uses may be permitted if all of the
       following conditions are satisfied:

       (1) The use, storage, cultivation, growth, manufacturing or processing of the
       medical marihuana is in compliance with the Michigan Medical Marihuana Act,
       MCL 333.264231 et seq., as amended, including but not limited to the
       requirements stated in Section 4, MCL 333.26424, as amended, and in accordance
       with all applicable ordinances and regulations, including the Fire Protection Code
       and Article VI of Chapter 22 of the Code of Ordinances;

       (2) The dwelling is registered with the department of buildings and safety
       engineering and has passed an administrative safety inspection for electrical,
       heating, plumbing, storage, and disposal of materials or water used in connection
       with the marihuana;

       (3) The dwelling has a filtration for its ventilation system or unit to prevent the
       emission of odors upon neighboring properties, and which has been inspected by
       and meets with the satisfaction of the Department of Buildings and Safety
       Engineering;

       (4) No more than one (1) person may grow, cultivate, manufacture, store or
       process marihuana in each dwelling structure;

       (5) The growth, cultivation, manufacture, or storage of medical marihuana occurs
       solely at the property under exclusive control, through written lease, contract or
       deed in favor of a qualifying patient who occupies the property as his or her
       principal residence;

       (6) The legal owner or property manager of the residential dwelling authorizes the
       use, storage, cultivation, growth, or processing of the marihuana;

       (7) No more than one (1) person per residential dwelling may cultivate, grow,
       manufacture or process marihuana on the premises who otherwise meets the
       standards in this section.

       (8) The uses permitted in this subsection (m) are allowed only in the residential
       districts classified as R-1-A, R-1-B, R-1-C, R-1-P, R-2 and R-3, unless expressly
       permitted elsewhere in this Code.

       (9) No use, storage, growth, cultivation or processing of marihuana is permitted in
       Downtown Center District as described in Appendix A of the Code of Zoning
       Ordinances, Section 21-B. [Warren Zoning Ordinances, § 5.01(m) (emphasis
       added).]

Defendant was cited for (1) failing to register with defendant for safety inspections, in violation
of Warren Zoning Ordinance, § 5.01(m)(2); (2) emitting a noxious marijuana odor, in violation
of Warren Zoning Ordinance, § 5.01(m)(3) and plaintiff’s nuisance ordinance, Warren

                                                -2-
Ordinances, § 21-92; and (3) operating a business in violation of any applicable law, a
misdemeanor offense under Warren Zoning Ordinance, §4.01(c) (“Unless otherwise provided, a
person operating a business in violation of any applicable law is guilty of a misdemeanor
punishable by imprisonment for not more than ninety (90) days or a fine of not more than five
hundred dollars ($500.00), or both.”).

        There appears to be no genuine dispute that defendant’s operation complies with the
MMMA. Therefore, in response to these citations, defendant argued in the district court that the
MMMA preempted the cited ordinances, and thus, his violations must be dismissed. Defendant
contended that he was entitled to immunity under MCL 333.26424 (“Section 4”), and that the
city’s ordinances directly conflicted with the MMMA by imposing penalties on an individual
who was operating in full compliance with the MMMA. The district court agreed. Relying on
Ter Beek v City of Wyoming, 495 Mich 1; 846 NW2d 531 (2014) (Ter Beek II), the district court
held that the ordinances were preempted by the MMMA, and dismissed the citations.

        Defendant appealed to the circuit court. The circuit court agreed that there was a direct
conflict between the MMMA and the city’s ordinances, in that the MMMA prohibited the
imposition of a penalty in any manner against one who was entitled to Section 4 immunity, while
the ordinances would result in the imposition of a penalty against an individual entitled to such
immunity. The circuit court went on to explain that the MMMA allowed a caregiver to keep
marijuana plants in an “enclosed, locked facility,” and that this phrase was defined by MCL
333.26423. The definition did not include any particular electrical, heating, or plumbing
requirements, nor did it require any air or odor filtration. Relying on the maxim expressio unius
est exclusio alterius, the court concluded that the extensive definition of an enclosed, locked
facility was the complete statement regarding how marijuana could be kept. The circuit court
concluded that the city’s ordinances conflicted with the MMMA by expanding on the statute’s
requirements. It explained that the MMMA allowed caregivers to grow marijuana at their
residence, and imposed just one limitation: that separating plant resin from the marijuana plant
cannot be performed by butane extraction. See MCL 333.26427(b)(6). In light of that statutory
provision, the court concluded that the citation for operating a business from home in violation of
applicable law could not stand. Because the MMMA allowed caregivers to keep marijuana
plants on their properties, the ordinance was in conflict because it would seem to prohibit such
activity in a home. The circuit court affirmed the district court’s decision.

                                         II. ANALYSIS

         On appeal, plaintiff and amici curiae argue that the lower courts erred in finding that
there was a direct conflict between the MMMA and the city’s ordinances. They argue that the
city’s ordinances, which did not fully ban medical marijuana use and only added certain safety
restrictions, could coexist with the MMMA.

        Preemption questions are reviewed de novo on appeal. X v Peterson, 240 Mich App 287,
289; 611 NW2d 566 (2000). Questions regarding the proper interpretation and application of a
statute or ordinance are likewise reviewed de novo. Spectrum Health Hosps v Farm Bureau Mut
Ins Co of Mich, 492 Mich 503, 515; 821 NW2d 117 (2012); Township of Yankee Springs v Fox,
264 Mich App 604, 605-606; 692 NW2d 728 (2004).


                                                -3-
        “The enactment and enforcement of ordinances related to municipal concerns is a valid
exercise of municipal police powers as long as the ordinance does not conflict with the
constitution or general laws.” Rental Prop Owners Ass’n of Kent Co v Grand Rapids, 455 Mich
246, 253; 566 NW2d 514 (1997). Because a “municipality’s power to adopt ordinances related
to municipal concerns is subject to the constitution and law,” “a municipal ordinance is
preempted by state law if 1) the statute completely occupies the field that ordinance attempts to
regulate, or 2) the ordinance directly conflicts with a state statute.” Id. at 256-257 (quotation
marks and citation omitted). In this case, the district court and circuit court concluded that there
is a direct conflict between the city’s ordinances and the MMMA. In that regard, the ordinary
test to determine whether a conflict exists is straightforward. “[T]he test is whether the
ordinance prohibits an act which the statute permits, or permits an act which the statute prohibits.
Accordingly, it has often been held that a municipality cannot lawfully forbid what the
legislature has expressly authorized, permitted, or required, or authorize what the legislature has
expressly forbidden.” Id. at 262 (quotation omitted).

        In Ter Beek v City of Wyoming, 297 Mich App 446; 823 NW2d 864 (2012) (Ter Beek I),
aff’d 495 Mich 1 (2014), this Court held that a local ordinance that prohibited the use of property
in any manner contrary to federal law was preempted by the MMMA. The local ordinance
effectively prohibited medical marijuana cultivation, distribution, and use, and provided that the
local government could impose civil sanctions for violations of the ordinance. Id. at 453-454. In
contrast, the MMMA explicitly permitted “use, possession, cultivation, delivery, and transfer[]”
of medical marijuana. Id. at 454, citing MCL 333.26423(e). This Court explained that under
MCL 333.26424(a), a qualifying patient (such as the plaintiff in Ter Beek) was granted immunity
from “ ‘arrest, prosecution, or penalty in any manner, or [from being] denied any right or
privilege.’ ” Id. at 454, quoting MCL 333.26424(a). Thus, the question was whether the
possibility of being penalized for doing exactly what the MMMA permitted—and for which the
MMMA prohibited imposing a penalty in any manner—resulted in a conflict between the local
ordinance and the MMMA. Id. at 455. This Court explained that there “can be no doubt that
enforcement of the ordinance could result in the imposition of sanctions that the MMMA does
not permit.” Id. at 455-456. Thus, there was a direct conflict between the statute and the
ordinance, and the ordinance was preempted. Id. at 456-457.

       Our Supreme Court considered the same ordinance after granting leave to appeal this
Court’s ruling in Ter Beek I. The Court likewise concluded that the MMMA preempted the local
ordinance in Ter Beek II, 495 Mich at 19-24. The Court explained:

       Under the Michigan Constitution, the City’s “power to adopt resolutions and
       ordinances relating to its municipal concerns” is “subject to the constitution and
       the law.” Const 1963, art 7, § 22. As this Court has previously noted, “[w]hile
       prescribing broad powers, this provision specifically provides that ordinances are
       subject to the laws of this state, i.e., statutes.” AFSCME v Detroit, 468 Mich 388,
       410; 662 NW2d 695 (2003). The City, therefore, “is precluded from enacting an
       ordinance if . . . the ordinance is in direct conflict with the state statutory scheme,
       or . . . if the state statutory scheme preempts the ordinance by occupying the field
       of regulation which the municipality seeks to enter, to the exclusion of the
       ordinance, even where there is no direct conflict between the two schemes of
       regulation.” People v Llewellyn, 401 Mich 314, 322; 257 NW2d 902 (1977)[, cert

                                                -4-
       den 435 US 1008; 98 S Ct 1879; 56 L Ed 2d 390 (1978), reh den 438 US 909; 98
       S Ct 3131; 57 L Ed 2d 1152 (1978)] (footnotes omitted). A direct conflict exists
       when “the ordinance permits what the statute prohibits or the ordinance prohibits
       what the statute permits.” Id. at 322 n 4. Here, the Ordinance directly conflicts
       with the MMMA by permitting what the MMMA expressly prohibits—the
       imposition of a “penalty in any manner” on a registered qualifying patient whose
       medical use of marijuana falls within the scope of § 4(a)’s immunity. [Ter Beek
       II, 495 Mich at 19-20.]

Our Supreme Court was careful, however, to explain that it was not holding that all local
regulation of medical marijuana was prohibited. In a footnote, the Court wrote:

               Contrary to the City’s concern, this outcome does not “create a situation in
       the State of Michigan where a person, caregiver or a group of caregivers would be
       able to operate with no local regulation of their cultivation and distribution of
       marijuana.” Ter Beek does not argue, and we do not hold, that the MMMA
       forecloses all local regulation of marijuana; nor does this case require us to reach
       whether and to what extent the MMMA might occupy the field of medical
       marijuana regulation. [Id. at 24 n 9.]

        In Charter Twp of York v Miller, 322 Mich App 648; 915 NW2d 373 (2018), app held in
abeyance 921 NW2d 533 (2019), this Court addressed a local zoning ordinance that prohibited
growing marijuana outdoors, along with other related issues. In that case, the defendants,
brothers who resided together, were both qualified medical marijuana patients. Id. at 651. One
brother constructed a detached structure in the backyard for the purpose of containing medical
marijuana cultivated by his then-girlfriend, a registered caregiver. Id. The brothers failed to
obtain construction permits for the building, did not obtain permits before installing electrical
and water systems, and did not obtain an occupancy permit. Id. A local ordinance prohibited
outdoor growing, and required that all necessary building, electrical, plumbing, and mechanical
permits be obtained for those portions of a residential structure containing electrical wiring,
lighting, or watering devices supporting the cultivation of marijuana. Id. at 651-652. After
learning of the aforementioned structure, instead of attempting to enforce its zoning ordinances,
the municipality filed a suit seeking a declaration regarding the validity of its ordinances. Id. at
652. The trial court held that because the MMMA allowed outdoor cultivation of marijuana, the
municipality could not prohibit outdoor cultivation altogether. Id. at 653. However, the trial
court “ruled that defendants’ structure was subject to construction regulations and zoning so long
as the zoning did not forbid outdoor cultivation of medical marijuana. The trial court ordered
defendants to seek the required permits and ordered plaintiff to review and grant the permits if
defendants’ structure complied with the building code.” Id.

        In this Court, “[t]he dispositive issues . . . [were] whether the MMMA permits outdoor
medical marijuana growing and, if so, whether the MMMA preempts plaintiff’s zoning
regulation prohibiting outdoor growing in residential areas.” Id. at 654-655. This Court first
explained that pursuant to MCL 333.26423(d), the MMMA permits medical marijuana growing
in an “ ‘enclosed, locked facility,’ including outdoor growing if done as specified.” Id. at 657.
This was because the definition of an “enclosed, locked facility” had been amended in 2012 to
provide requirements for growing marijuana outdoors. Id., citing 2012 PA 512. Thus, the

                                                -5-
MMMA clearly contemplated that registered caregivers and patients could grow marijuana
outdoors. Id. at 657-658. Because the local ordinance prohibited precisely what the MMMA
allowed, there was a direct conflict, and the local ordinance was preempted. Id. at 658. But this
Court went on to address concerns that its holding would mean that registered caregivers would
be immunized from local construction regulations entirely. Id. at 659. As we stated:

               The record in this case reflects that the trial court essentially read the plain
       language of the MMMA and held that the MMMA permitted growing medical
       marijuana outdoors. The trial court recognized that the Legislature amended
       MCL 333.26423(d) to redefine the meaning of “enclosed, locked facility” to
       include specific requirements for structures enclosing medical marijuana being
       grown outdoors. The trial court did not clearly err by finding that the Legislature
       amended the MMMA to permit outdoor cultivation. The trial court reasonably
       inferred that the Legislature changed the MMMA to permit and regulate outdoor-
       growing facilities. Therefore, the MMMA authorizes growing medical marijuana
       outdoors under specific requirements.

               The trial court read the plain language of MCL 333.26423(d) and simply
       concluded that the MMMA permitted what plaintiff’s home-occupation zoning
       ordinance expressly prohibited. The trial court did not find ambiguity and did not
       judicially construe MCL 333.26423(d) in search of its meaning. We also do not
       find any inherent ambiguity necessitating judicial construction. Therefore, the
       trial court did not err by applying the plain language of the MMMA to resolve the
       case.

                The trial court also correctly held that defendants’ enclosed, locked
       facility must comply with MCL 333.26423(d), plaintiff’s construction regulations,
       and plaintiff’s construction-permit requirements.          Contrary to plaintiff’s
       contention, the trial court’s ruling did not grant defendants immunity and
       exemption from all zoning and construction regulations. We believe that the trial
       court narrowly tailored its ruling to resolve the issues presented in this case and
       yet upheld plaintiff’s power to regulate the public health and safety respecting
       new construction. Accordingly, the trial court did not err. [Id. at 660-661
       (emphasis added).]

       However, after we granted leave to appeal in this case, our Court decided DeRuiter v
Byron Twp, 325 Mich App 275; ___ NW2d ___ (2018), oral argument on lv app 921 NW2d 537
(2019). At issue in DeRuiter, was whether a local zoning ordinance that “prohibited caregivers
from the medical use of marijuana in a commercial property” directly conflicted with the
MMMA. DeRuiter, 325 Mich App at 278. This Court held:

              The MMMA provides immunity from arrest, prosecution, and penalty in
       any manner and prohibits the denial of any right or privilege to qualifying medical
       marijuana patients and registered primary caregivers. See MCL 333.26424(a) and
       (b); People v Hartwick, 498 Mich 192, 210-221; 870 NW2d 37 (2015). MCL
       333.26424(b)(1) and (2) grant caregivers the right to possess 2.5 ounces of usable
       marijuana for each qualifying patient and cultivate and keep 12 marijuana plants

                                                 -6-
       for each qualifying patient in an enclosed, locked facility. In relevant part, MCL
       333.26423(d) defines an “enclosed, locked facility” as “a closet, room, or other
       comparable, stationary, and fully enclosed area equipped with secured locks or
       other functioning security devices that permit access only by a registered primary
       caregiver or registered qualifying patient.”

                                            * * *

               MCL 333.26423(d) essentially provides that caregivers may operate
       medical marijuana activities so long as they comply with the enclosed, locked
       facility requirements. MCL 333.26424(b)(1) and (2) and MCL 333.26423(d),
       when read together, grant registered caregivers the rights and privileges to grow
       marijuana without fear of penalties imposed by local governments. . . .

                                            * * *

                We believe that the plain language of the MMMA lacks any ambiguity
       that would necessitate judicial construction to decipher its meaning. When the
       statute is read as a whole, no irreconcilable conflict results that makes the
       statutory provisions susceptible to more than one meaning. We conclude that the
       MMMA permits medical use of marijuana, particularly the cultivation of
       marijuana by registered caregivers, at locations regardless of land-use zoning
       designations as long as the activity occurs within the statutorily specified
       enclosed, locked facility. No provision in the MMMA authorizes municipalities
       to restrict the location of MMMA-compliant medical use of marijuana by
       caregivers. Nor does the MMMA authorize municipalities to adopt ordinances
       restricting MMMA-compliant conduct to home occupations in residential
       locations. So long as caregivers conduct their medical marijuana activities in
       compliance with the MMMA—including that caregivers cultivate medical
       marijuana in an “enclosed, locked facility” as defined by MCL 333.26423(d) and
       do not violate the prohibitions of MCL 333.26427(b)—such conduct cannot be
       restricted or penalized. [DeRuiter, 325 Mich App at 281-285.]

       Applying its analysis to the facts before it, this Court agreed that the zoning ordinance
could not be enforced:

               We believe that the trial court correctly read the MMMA as a whole,
       analyzed its plain language, and interpreted the MMMA in a reasonable and
       harmonious manner. The trial court correctly ruled that defendant’s home-
       occupation ordinance prohibited what the MMMA permitted, MMMA-compliant
       conduct, merely because it occurred in a commercially zoned location. The trial
       court also correctly decided that defendant’s zoning ordinance permitted what the
       MMMA prohibited by targeting and restricting MMMA-compliant use by adding
       a layer of restrictions and regulations that interfered with lawful use by imposing
       a permit requirement that defendant could revoke without regard to plaintiff’s
       MMMA-compliant conduct. Further, the trial court also correctly ruled that
       defendant’s zoning ordinance also permitted what the MMMA prohibited by

                                               -7-
       allowing defendant to impose penalties regardless of plaintiff’s MMMA-
       compliant conduct. Accordingly, the trial court did not err by ruling that a direct
       conflict existed between defendant’s ordinance and the MMMA resulting in the
       MMMA’s preemption of plaintiff’s home-occupation ordinance. [Id. at 287.]

       Thus, the MMMA prohibits local governments from restricting MMMA-compliant
behavior. As this Court stated in DeRuiter, “So long as caregivers conduct their medical
marijuana activities in compliance with the MMMA—including that caregivers cultivate medical
marijuana in an “enclosed, locked facility” as defined by MCL 333.26423(d) and do not violate
the prohibitions of MCL 333.26427(b)—such conduct cannot be restricted or penalized.” Id. at
285. Applying that rule to this case, the city’s ordinances cannot stand. The ordinances add “a
layer of restrictions and regulations” that restricts defendant’s cultivation of medical marijuana.
The lower courts did not err in concluding that the ordinances in this case directly conflict with
the MMMA and, as such, may not be enforced.

       Affirmed.




                                                            /s/ James Robert Redford
                                                            /s/ Jane E. Markey
                                                            /s/ Kirsten Frank Kelly




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