Detroit pot dispensary argues new store site is not in a drug-free zone

CINCINNATI (CN) — Detroit officials’ attempts to verify the precise location of a proposed medical marijuana facility with Google Maps violated the due process rights of the applicant, the company argued before a Sixth Circuit panel Thursday, claiming it submitted the only verified evidence of the location showing it falls outside of a drug-free zone.

Green Genie Inc. and its owner, Alvin Alosachi, sued the city in 2021 after their application for a medical marijuana license was denied because of the proposed location’s proximity to St. Clare of Montefalco School in Grosse Pointe Park.

Officials claimed the site – which is outside Detroit city limits – is within 872 feet of the single tax parcel that contains the school and church, and under Detroit’s zoning laws, the property and a corresponding 1,000-foot boundary are considered a drug-free zone.

The Detroit Board of Zoning Appeals denied the application and rejected Green Genie’s subsequent challenge, which included a “property sketch” that failed to include the church as part of the property boundary.

The dispensary and its owner filed at least four other unsuccessful appeals of the decision and were also denied relief by U.S. District Judge David Lawson in their federal lawsuit.

Lawson, an appointee of Bill Clinton, rejected the equal protection claims made by Green Genie as they related to two other dispensaries in the area.

One of these dispensaries is now located within 1,000 feet of a school after its tax parcel was merged with several others, while the other’s application was approved because a city employee was unaware a “grassy area” was used as a playground by a neighboring school.

Even if the 1,000-foot restriction has not been enforced in an exacting manner in the past, Lawson said, Green Genie could not prove the type of intentional mistreatment required for an equal protection claim.

“Mere error and inconsistent or even haphazard application of a statute are not enough to make out a viable equal protection claim based on allegations of animus or ill will,” the judge wrote. “Instead, the plaintiff must show deliberate, intentional misapplication, for which the record here disclosures no proof.”

Lawson disposed of Green Genie’s due process claims similarly, and determined the multitude of hearings and examinations of the proposed location gave the dispensary and its owner “all the process they were due and then some.”

In their brief to the Sixth Circuit, the plaintiffs argued the professional survey they submitted before the zoning board was the only evidence that provided an exact distance between the proposed site and St. Clare’s school.

“[City] inspectors could not determine the actual lot lines for the school in question because they were not within the City of Detroit,” the brief states. “[The inspector] testified that, when measuring between a proposed facility and a property outside Detroit, such as in this case, [the department] only engages in ‘a Google map search and hopes it got it right.’”

Attorney Michael Wais argued Thursday on behalf of Green Genie and focused on the relevant statute's definition of "zoning lot," which he claimed does not include any language about tax parcels.

"Ordinances have to be strictly construed," he told the panel, "and this ordinance says 'school.'"

Wais emphasized that another marijuana dispensary was granted a permit despite being within 1,000 feet of the same school and church at issue in his client's case, and argued this discrepancy at least creates an issue of fact that cannot be decided on summary judgment.

"I acknowledge our claims are not the easiest to prove, but when their intent is at issue, you cannot summarily decide," he said.

U.S. Circuit Judge Chad Readler, an appointee of Donald Trump, sought clarity on the relief sought by Green Genie.

"You claim a protected property interest in a right to more process?" he asked.

"We have a right to get [to the licensing board]," Wais answered. "We have a right to have the process heard [because] there is no discretion to get there."

Attorney Sheri Whyte argued on behalf of the city of Detroit and flatly rejected her counterpart's argument regarding the ordinance.

"Plaintiffs cannot deny that a zoning lot includes a tax ID parcel," she said. "That's the whole thing here. The presence of the church is actually irrelevant ... because it's on the tax ID parcel."

Readler asked about the other applicants who were granted permits, and whether mistakes were made in those decisions.

"There could have been," Whyte admitted, "but it wasn't known until this case was filed. There is no dispute in terms of the measurement [in this case]."

In his rebuttal, Wais returned to the ordinance and vehemently disputed the city's position.

"It's got to be a school," he said. "No where does the word 'tax parcel' exist [in the ordinance]. If that's what it was, it would say so. Whether it was a mistake or not, it's a question of fact."

U.S. Circuit Judge Richard Griffin, an appointee of George W. Bush, seemed skeptical and pointed out Wais and his client have no direct evidence of an equal protection claim.

"You have a circumstantial case," he told the attorney.

Senior U.S. Circuit Judge Alice Batchelder, an appointee of George H.W. Bush, rounded out the panel.

No timetable has been set for the court's decision.

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