The Michigan Regulation & Taxation of Marihuana Act (MRTMA); Municipal ordinances governing recreational marijuana establishments; Marijuana licenses; Exclusive Cap Partners LLC v Royal Oak; The Open Meetings Act (OMA); “Public body” (MCL 15.262(a)); Licensing decisions made in nonpublic meetings; Alleged MRTMA violations; Whether the selection process was competitive; MCL 333.27959(4); Yellow Tail Ventures, Inc v Berkley; Whether the selection criteria related to an applicant’s compliance with the MRTMA; MRTMA’s 1,000-foot rule

In this case concerning the issuance of marijuana licenses under the MRTMA and defendant-City of Royal Oak’s ordinances, the court held that the trial court erred in granting the City summary disposition on plaintiff’s OMA violation claim. But it rejected the claims that the City violated the MRTMA. This appeal arose from the same facts as those in Exclusive Cap. Plaintiff first argued “the City violated the OMA because the city manager and ranking committee effectively rendered the licensing decisions in nonpublic meetings.” The court agreed, noting it held in Exclusive Cap that “the city manager and ranking committee ‘acted as a public body subject to the OMA.’” While that decision is pending on appeal to the Michigan Supreme Court, as a published decision of the court it remains binding unless or until the Supreme Court overturns it. Plaintiff next asserted “the marijuana ordinance—both on its face and as applied—violated the MRTMA because (1) the City’s selection process was not competitive, (2) the selection criteria did not relate to an applicant’s compliance with the MRTMA, and (3) the City violated the MRMTA’s 1,000-foot rule.” It contended as to the first issue that “Exclusive Cap failed to adequately address whether the City’s ‘criteria and process sufficiently focused on what state law requires the competitive process’s focus to be: suitability to comply with MRTMA in Royal Oak.’” The court found this argument was “misplaced. First, Exclusive Cap expressly held that the City’s selection criteria were competitive and did not conflict with the MRTMA because they allowed the city manager ‘to determine which applicants are most favorable for operating in compliance with the MRTMA’ within Royal Oak. Second,” the court rejected a substantially similar argument in Yellow Tail Ventures, concluding “the phrase ‘within the municipality’ in MCL 333.27959(4) was a ‘qualifier’ permitting ‘a municipality to craft criteria suited to its own local concerns, provided that the criteria conform to the other provisions of the MRTMA.’” As to plaintiff’s as-applied challenges, “the City was permitted to establish criteria ‘suited to its own local concerns,’” and plaintiff did not allege that the challenged criteria here “otherwise violated the MRTMA.” Finally, plaintiff’s 1,000 foot rule claim also failed under Exclusive Cap.