Judge Dismisses Felony Charges in Detroit Cultivation CaseMarjorie SteeleAugust 3, 2018
Operators of the facility, owned by retired NBA player Al Harrington and managed by D. Savage LLC, have said they believed the business was in compliance with state and local law, pointing to permits issued by the city. But those permits did little when law enforcement arrived for the May 29 raid.
According to the company, employee Cortea Jones had gone outside to present police with the paperwork when officers threw her to the ground and handcuffed her at gunpoint. In all, six employees—four of whom are people of color—were arrested and charged with Class C felonies, which can mean up to 15 years in prison. Some were also charged with conspiracy charges, which would carry up to an additional 15 years.
“A municipality can, unilaterally and without notice, revoke these permissions.”Denise Pollicella, cannabis attorney
Following the arrests, a local TV news station described the facility as a “sophisticated marijuana grow setup” that was “hiding in plain sight.” But Harrington, who has invested in cannabis cultivation in a handful of legal states, says the operation wasn’t hiding at all.
“The police act like they discovered illegal cultivation, but we weren’t hiding,” he said. “We’ve been there for months going through the buildout—we paved out the driveway, put in brand new parking spaces, a brand-new gate, we had to patch our neighbor’s driveway—and the city was with us, holding our hands through this entire process.”
In initial comments to local media, a Detroit Police communications officer described the facility’s discovery as happenstance. “Our motor patrol was investigating other cases in the area and smelled weed,” the spokesperson said. “They informed our gang intel unit and US Border Patrol unit, who also did a workup.”
The company, however, noted that the facility’s employees had allowed US Border Patrol agents to pass through the property the week prior to the raid in order to retrieve a dead body as part of an unrelated matter.
Detroit’s Cultivation Confusion
D. Savage, as well as roughly 15 other cultivation facilities, was among 57 marijuana facilities approved by Detroit officials for temporary operation under Emergency Rule 19 of the state Medical Marihuana Facilities Licensing Act (MMFLA) earlier this year.
The process to obtain the permits typically took 18 months and required the submission of a site plan, business plan, and operations plan as well as adherence to strict zoning requirements. Additionally, each facility had to acquire a so-called Attestation E certificate, an authorization for temporary operation issued by the city clerk.
The D. Savage facility, located on West Jefferson Avenue, not far from the Detroit River, had a temporary Class C license, which allowed for the cultivation of up to 1,500 plants.
The problem, according to cannabis attorney Denise Pollicella, is that Detroit changed its stance on cannabis cultivation after the temporary permits had already been issued.
“Even though Detroit had originally approved these 15ish facilities as caregiver centers for growing (because they approved their building and business plans), Detroit at some point between February and May changed its mind, did not tell anybody, and then allowed facilities on this list—to whom it had issued Attestations E and who thought they were operating with Detroit’s permission—to be raided and shut down,” she said via email, adding that “a municipality can, unilaterally and without notice, revoke these permissions.”
Six days after the raid of a second cultivator, Detroit issued letters to all non-dispensary marijuana facilities in Detroit informing them that only entities that provide cannabis to patients were authorized to operate.
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Lawrence Garcia, an attorney who serves as corporation counsel for the City of Detroit, declined to comment specifically on the May 29 raid, allegations of excessive force, or whether the facility had been left unlocked. In a statement, he noted that “a lot of investors are ignorant of the large numbers of statutes and ordinances which regulate medical marijuana in Detroit.”
‘Picked on and Downtrodden’
In the wake of the raid, Harrington teamed up with Wanda James, one of the first black owners of a state-legal cannabis business, to call out what they say is a bias against minorities in the cannabis industry. At a July 12 press conference, Harrington suggested that police who raided the facility would’ve behaved differently if the employees were white.
“We’ve been picked on and downtrodden for all these years,” he said. “This building was going to employ 60 to 75 people with great paying jobs, not these minimum wage jobs that exist in these neighborhoods. We were coming in to enact change, that’s why we put our money there. And I firmly believe that if they came into that warehouse, and if all six people were white, they would have looked at it differently. I think they just can’t imagine that black people would operate a legitimate business.”
Harrington also questioned the wisdom of raiding businesses that were operating openly and working to comply with state law.
“This is now an industry where we can operate legitimately and come to the forefront,” he said. “So what purpose does this serve? It doesn’t make any sense for us to put all this money into this building and these licenses if they’re just going to come in and take it all away.”
Picking up the Pieces
Since passing medical marijuana legislation in 2008, Michigan has grappled to get a working cannabis market up and running. For years, a thin legal framework at the state level fed confusion over what was legal, and law enforcement raided dispensaries and incarcerated dispensary owners along the way.
But as the MMFLA took effect last year, an increasing number of local townships have opened their doors to cannabis businesses. While that generally means more opportunity for cannabis entrepreneurs, it can also cause confusion when, as in Detroit, regulators send mixed messages to the industry.
“Long story short,” Pollicella said, “Detroit … claimed that it apparently didn’t know it had issued grow permits for facilities it had issued grow permits for.”
Not only that, she continued, but the city also “claimed it did not allow growing four months after it allowed growing, justified its decision by saying it didn’t have zoning for them when it really does, and unilaterally violated the due process and licensing rights of these facilities who had followed all of the rules. And the State of Michigan backed Detroit up on it.”
Pollicella’s firm, Pollicella & Associates, has filed a lawsuit against the city of Detroit over the actions.
Meanwhile, industry members like Harrington and his employees were left to pick up the pieces, pushing to have the employees’ felony charges dismissed.
On July 31, they were successful. During a preliminary hearing, Detroit District Court Judge Kenneth King agreed to toss the charges.
“In the interest of fairness and in the spirit of trying to do the right thing, this court is left with no other choice but to dismiss the matter,” the judge said.
In response to prosecutors’ argument that the facility was not licensed to grow cannabis, King replied: “If you’re able to dispense but you can’t grow it, how are you supposed to get it? Where are you supposed to get it from?”
The circumstances have also inspired Harrington to push for more involvement in the regulatory process. “We want to have a seat at the table with politicians who are making these rules and these changes, because they obviously need help,” he said. “Now, I’m not disrespecting anybody. The legislation is written to leave room for interpretation, and what we need are more clear guidelines so we can be better operators. Because, let’s be honest, we know what good this industry can do.”