By Roberta M. Gubbins
Legal News
The Michigan Supreme Court issued an opinion (State of Michigan v McQueen, #143824) further defining the Michigan Medical Marijuana Act (MMMA). The court said that the MMMA does not contemplate patient-to-patient sales of medical marijuana and that by facilitating such sales, defendants' medical marijuana dispensary was a public nuisance and should be ordered closed.
Attorney General Bill Schuette stated in his February 8th press release that the court concluded:
* The MMMA does not legalize marijuana
* The MMMA does not permit marijuana dispensaries
* The MMMA prohibits unrestricted retail sales of marijuana
''Today Michigan's highest Court clarified that this law is narrowly focused to help the seriously ill, not an open door to unrestricted retail marijuana sales,'' said Schuette. ''Dispensaries will have to close their doors. Sales or transfers between patients or between caregivers and patients other than their own are not permitted under the Medical Marijuana Act.''
The facts of the case were as follows:
The Isabella County Prosecuting Attorney filed a complaint against Compassionate Apothecary, LLC (CA), a medical marijuana dispensary owned and operated by Brandon McQueen and Matthew Taylor, charging CA with being a nuisance and seeking to enjoin its operation. McQueen was a registered qualifying patient and both he and Taylor were registered caregivers under the act.
They operated CA as a membership organization and to be a member a person had to be registered under the act. Patients and caregivers would rent lockers to hold excess Marijuana, which was then sold to other patients and/or caregivers, with CA receiving a fee for processing the sale. The Prosecutor said the operation did not comply with the MMMA and was against the Public Health Code (PHC) and thus, a public nuisance and should be closed.
The Circuit Court decided that the operation complied with the MMMA because the transfers between the parties fell within the act's definition of "medical use" of marijuana. The prosecutor appealed to the Michigan Court of Appeals.
The Court of Appeals disagreed with the Circuit Court, concluding that defendants' operation of CA was a public nuisance because the operation of CA violated the PHC, which prohibits the possession and delivery of marijuana. The Court explained that McQueen and Taylor had engaged in the sale of marijuana through their operation of CA, that the "medical use" of marijuana, as defined by the MMMA, does not include patient-to-patient sales of marijuana, and that no other provision of the MMMA could be read to permit such sales.
McQueen and Taylor, represented by Ingham County Attorneys, Mary Chartier and Matthew Newburg, appealed that decision to the Michigan Supreme Court. The question before the Court, explained Newburg to the ICBA Criminal Law Section last October is "whether the Michigan Medical Marihuana Act permits the "sale" of marijuana between patients."
The issue, he said, "is the concept of 'sale'. Does the attachment of a price really affect whether someone is working in accordance with the statute? We said 'no,' our stance was that the price was immaterial and you should look at the conduct of the individuals" to determine if a crime has been committed."
The Supreme Court disagreed.
Michigan's medical marijuana law does not use the term 'dispensaries' or indicate how patients are to find the drug. While patients can grow up to 12 plants for their own use and registered caregivers can provide marijuana for up to five patients, retail sales are not allowed.
Schuette announced he will send a letter to Michigan's 83 county prosecutors explaining that the ruling clearly empowers them to close dispensaries and include instructions on how to file similar nuisance actions to close dispensaries in their own counties.
It is estimated there are about 100 dispensaries throughout Michigan.
Published: Thu, Feb 14, 2013
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