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A Department of Public Works employee secures Christmas decorations Monday on Marinette Avenue, near the Hall Avenue intersection. The employee asked that his name not be printed.

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Attitude Wellness suit says city broke two state laws in marijuana screening
  • Updated

EagleHerald Staff Writer

MENOMINEE—Marijuana retailer Attitude Wellness/Lume Cannabis Co. is suing the City of Menominee over what it considers a flawed application process for retail marijuana licenses.

In the process of screening applications for the licenses, the City of Menominee violated two Michigan laws, Attitude Wellness/Lume said in court documents. It wants the Circuit Court to invalidate the adult-use recreational marijuana licenses approved at the Sept. 20 Menominee City Council meeting because of the violations.

Attitude Wellness/Lume still hopes to open an adult-use recreational marijuana store at the same location as a medical marijuana store it received approval for, but because of the city’s failure to provide the go-ahead for the recreational-use store, it has sought relief in the court system.

The company’s two applications for retail licenses received perfect scores of 50 points each, but the city did not provide the company with a recreational-use license, and a medical-use retail license was issued on the condition the company receives a special-use permit for a location at 2812 10th St., which is in a C-2 zone. La Cabana Restaurant is located there and renting on a month-to-month basis.

First Property Holdings/Rize, which was awarded a license to open a recreational marijuana store, filed a motion to intervene in the Attitude Wellness/Lume lawsuit, according to a Register of Actions document provided by the deputy county clerk for Menominee County.

Rize has filed a similar motion to intervene in a lawsuit involving Highwire Farms against the City of Menominee, which is asking the court to invalidate the licenses approved Sept. 20. Rize said its due process rights are at stake and the judge should consider its motion before making a decision in the case. Rize has purchased the former Stang Sales & Service property at 3213 10th St. for $900,000. It closed on the property transaction in September.

Barglind is scheduled to hear Rize’s motion to intervene at 11 a.m. CT on Nov. 23 followed by Attitude Wellness/Lume’s case at 11:30 a.m. the same day. Barglind also is scheduled to hear a motion for a preliminary injunction at 1:30 p.m. Dec. 2.

In its lawsuit, Attitude Wellness/Lume said the City of Menominee failed to abide by the Michigan Open Meetings Act because the marijuana application selection committee did not score applications in a public meeting and did not provide the applicant with the opportunity to clarify information it said Interim City Manager Brett Botbyl inaccurately presented. The Open Meetings Act, Act 267 of 1976, is designed to provide transparency to the public in how government decisions are made.

The lawsuit also said the city violated the Michigan Regulation and Taxation of Marijuana Act, which legalizes the sale of marijuana for adults 21 and older to ensure the safety of marijuana in the marketplace. The Marijuana Act stipulates a city must use a competitive process to select the “best suited” applicants when it puts a limit on the number of stores that can sell marijuana.

Attitude Wellness/Lume said the city failed to select the “best suited” applicants because it didn’t provide it with a recreational-use retail license despite the fact Attitude Wellness received perfect scores of 50 on its applications. Only one other company, Fire Station Cannabis Co., received perfect scores, and it was approved for an adult-use recreational retail license. The city also awarded a recreational-use retail license to Rize, which earned 48 points on its application.

The court filing references a previous Michigan retail marijuana case where a Macomb County judge told the City of Warren to invalidate the licenses it issued and start the screening process over largely because of Open Meetings Act violations.

An appeal in the case is still pending. One medical marijuana store is open in Warren and was allowed to continue operating, according to Warren City Councilman Garry Watts.

Watts said the licensing process took place before he joined the city council two years ago. “They did all this behind closed doors. There was no transparency,” he said. Watts said the ratings of applicants should have been public. “My opinion is do it by lottery and in open public,” he said. Watts also said he doesn’t favor marijuana stores.

Macomb County Circuit Court Judge Carl Marlinga said the Warren marijuana review committee violated the Open Meetings Act when it met in private to narrow a list of retail marijuana applicants, according to the opinion he wrote in April 2020.

Marlinga said the review committee was involved in a “critical governmental function” in determining the most worthy applicants and “the public had a right to be there and see the process as it happened. The old saying that ‘it’s hard to do dark things in bright places’ applies here.”

The judge also wrote that no right to privacy applied even if some proprietary information might be involved. “To take the small sliver of potentially confidential or proprietary information and use that sliver as an excuse to keep the public in the dark about the workings of the review committee is unacceptable,” Marlinga wrote.

“The review committee was choosing winners and losers. The public had an absolute right to know how these decisions were reached,” he said.

Marlinga relied on “Booth Newspapers v University of Michigan Board of Regents, supra” in his decision. In that case, the Board of Regents met in private to discuss and rate applicants for the office of the university president and tried to say these preliminary meetings were exempt from the Open Meetings Act. The Supreme Court disagreed and decided a government function was exercised during those meetings and they should have been open, Marlinga said.

The Booth case was relied on as precedent in a number of other cases involving the selection or narrowing down of applicants, Marlinga said.

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Hospital is full, but not with COVID patients
  • Updated

EagleHerald Staff Writer

MARINETTE—The Aurora Medical Center-Bay Area is currently full, but not because of COVID-19 patients, Chief Nurse Officer Nicole Swanson said last week in an interview with the EagleHerald.

As of Nov. 5, the hospital had 15 inpatient COVID cases, according to an Aurora Medical Center-Bay Area (Medical Center) spokesperson. Swanson said the hospital is seeing a decreasing trend of COVID cases but that, in the past few months, there has been a steady increase in hospitalizations of people who have delayed seeking medical care, likely because of the pandemic.

“We’re seeing patients who are much sicker than we have in the past because of this,” she said. “It’s a variety of conditions that we’re seeing people come in to seek care for. I really, truly do believe that a lot of it is just the delay of people not getting (medical) care over the last year. Now, their conditions are a little bit out of control, leading them to hospitalization.”

This appears to be a trend and concern across the nation. A Centers for Disease Control and Prevention (CDC) study from last year estimated that by June 30, about 41% of adults in the U.S. had delayed or avoided seeking medical care because of the pandemic. The study notes that such behavior could “increase morbidity and mortality risk associated with treatable and preventable health conditions.”

According to Swanson’s latest update from last week, the hospital has opened seven surge beds to accommodate this increase in patients.

The emergency department is also up by about 10% from expected patient volumes, according to the Medical Center spokesperson. Swanson said that, under current conditions, patients seeking emergency care have to occasionally board overnight in the emergency room before a bed opens up for them in the inpatient area or they are transferred to another hospital.

“Historically, we haven’t necessarily seen that as much at the Bay Area hospital, but boarding patients overnight in an emergency department really is not completely unusual,” Swanson said. “We make sure that the patients still get high quality care, they’re still taken care of by the same hospitalist team as they are in the inpatient setting.”

In the case of hospital transfers, Swanson said patients typically transfer to the Aurora BayCare Medical Center in Green Bay, although she said this hospital has “frequently been full as well.” The Medical Center spokesperson said in an email to the EagleHerald, however, that patients can choose at any time to go to any other hospital in Wisconsin that is within the Advocate Aurora Health (AAH) system.

Although the Medical Center spokesperson said the increase in patients has made staffing “more challenging,” Swanson said the hospital has nevertheless maintained a consistent staff to patient ratio owing to the flexibility of the AAH system, which is set up to allow staff across the network to work in areas with the greatest need.

The network’s COVID vaccine mandate does not appear to have made too much of a dent in its workforce. The AAH system lost about 0.6% of its employees because of noncompliance with the network’s COVID vaccine mandate, according to the Medical Center spokesperson.

The number of employees who were terminated or chose to part ways with AAH, however, likely varies between its institutions. It’s not clear at the moment how many employees parted ways with the local hospital following AAH’s vaccine mandate.

Swanson said that employees who received exemptions from the vaccine mandate for religious or medical reasons are required to undergo weekly COVID testing. She also noted that all of the hospital’s employees complete a COVID screening on AAH’s SafeCheck app before entering the building. Visitors and patients also go through a COVID screening at the hospital entrances or via AAH’s LiveWell app.

Swanson said that one of the messages she hopes to share with the community is that “primary care is key.”

“We need patients to stay on top of their chronic conditions to avoid these acute exacerbations that we’re seeing within the hospital setting right now,” she said.

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Waupaca Foundry facing over $200,000 in fines for workplace safety violations

EagleHerald Staff Writer

MARINETTE—Waupaca Foundry, Inc. is facing over $200,000 in fines for multiple workplace safety violations at its establishment on 805 Ogden Street in Marinette, the U.S. Department of Labor announced Monday.

Waupaca Foundry is a supplier of iron casting components for the automotive, agricultural, construction and other industries. The foundry is currently owned by Hitachi Metals, a Japanese company that acquired it in 2014.

The Occupational Safety and Health Administration (OSHA) opened an investigation at the foundry following a May 4 incident in which an employee lost two fingers to amputation while at work.

During this investigation, OSHA also conducted a separate inspection under its National Emphasis Program—Primary Metal Industries, which focuses on addressing the “serious safety and health hazards” that can face employees working in these industries.

A July 17 employee injury was also reported to OSHA during the course of this second inspection. The employee was injured after being struck by a hot metal carrier. OSHA opened a third investigation to look into the circumstances surrounding this incident.

Following these investigations, OSHA issued one willful, seven serious and five other-than-serious violations to the foundry. According to OSHA, the violations are defined as follows:

  • WILLFUL: the employer either knowingly failed to comply with a legal requirement or acted with plain indifference to employee safety
  • SERIOUS: could cause an accident or illness most likely resulting in death or serious physical harm, unless the employer did not know or could not have known of the violation.
  • OTHER-THAN-SERIOUS: has a direct relationship to job safety and health, but is not serious in nature.

The violations include exposure to fall and trip hazards, inadequate machine guarding (safeguarding machine parts, functions or processes that could cause injury), use of damaged fixed ladders, excessive noise exposure and excessive exposure to respirable crystalline silica, which can cause permanent disability and death, according to the Centers for Disease Control and Prevention. OSHA also determined that a lack of procedures to prevent the release of hazardous energy, known as lockout/tagout, played a part in creating the circumstances that resulted in the two employee injuries.

OSHA’s proposed penalties for these violations amount to $200,895.

A representative from the Waupaca Foundry in Marinette said the foundry will have an informal hearing with OSHA Nov. 18. and will issue a statement following the conference.

Following the U.S. Department of Labor announcement, Waupaca Foundry issued a statement saying the management team at the Marinette plant “accepts responsibility to address the risks identified by OSHA.”

“We will work diligently to establish a timeline and address the safety violations to ensure we are fostering a safe work environment for our team,” the statement said.