Dispensaries Face Risk of Shut-Down - by Punitor

MOTORCITYBLOG believes everyone should have access to quality legal information, even when you don't think you need it. Especially when you think you don't need it. "Punitor" is a licensed attorney certified to practice in the State of Michigan and in Michigan’s Federal Courts, with an office in Dearborn Heights, Michigan, and a long-time friend of MCB.

She's available for your questions at Punitor@WeFightTheLaw.com


COURT OF APPEALS WON'T "LET THE GOOD TIMES ROLL"
Dispensaries Face Risk of Shut-Down - by Punitor

This case addressed whether the Michigan Medical Marihuana Act permits the selling of marihuana. Defendants Brandon McQueen and Matthew Taylor own and operate Compassionate Apothecary, LLC, a medical marihuana dispensary, where members, who are either registered qualifying patients or their primary caregivers, purchase marihuana that other members have stored in lockers rented from defendants. Defendants provide the mechanism for the sale of marihuana and retain at least 20 percent of the sale price.
Plaintiff, State of Michigan, through the Isabella County Prosecuting Attorney, filed a complaint against defendants for injunctive relief, alleging that the defendants' operation amounted to a public nuisance because it violated the Public Health Code. The trial court denied plaintiff's request for injunctive relief. Up they went to our Court of Appeals.

The Court of Appeals held that defendants' operation is an enjoinable public nuisance, violates the Public Health Code, and is not in accordance with the provisions of the Michigan Medical Marihuana Act. Opinion given immediate effect.

WHAT DOES THIS MEAN TO YOU?????

"Here in downtown Ann Arbor, the state police are, as we speak, apparently shutting down every medical marijuana dispensary in light of yesterday's opinion. Is that happening everywhere????"

The ruling specifically clarifies that marijuana cannot be sold — even from one patient to another — despite the 2008 citizen-initiated law legalizing the use of marijuana for medicinal purposes. The ruling gives prosecutors the authority to shut down dispensaries found to be selling marijuana, although the decision is expected to be appealed to the Michigan Supreme Court.

A recent article in The Flint Journal revealed that:

Benjamin Horner, owner of Michigan Organic Solutions at 3549 S. Dort Hwy. in Flint, said that if the state doesn’t allow dispensaries to operate many patients will be back on the streets purchasing marijuana illegally.

“We voted for this. We definitely didn’t vote for this to be taken away,” he said. “If it is decided that patient-to-patient transfers cannot be done we will shut our doors. ... If the Supreme Court favors against medical marijuana the only thing that’s going to happen is that in 2012 we will reverse it. The citizens can go out and vote again.”  And in the end he believes the Supreme Court will rule to allow each community to decide what guidelines they want.  “This (ruling) doesn’t really end everything,” said Horner, whose business has been open for about 15 months. “I don’t see the Supreme Court not allowing for the public option.”

Gov. Schutte Sez: (Click here for his Press Release) DISPENSARIES CAN BE SHUT DOWN  under Michigan’s public nuisance law.

“This ruling is a huge victory for public safety and Michigan communities struggling with invasion of pot shops near their schools, homes and churches,” said Schuette.  “Today the Court echoed the concerns of law enforcement<Punitor edit; but clearly, disregards the will of the people>, clarifying that this law is narrowly focused to help the seriously ill, not the creation of a marijuana free-for-all.”

Schuette will send a letter to Michigan’s 83 county prosecutors explaining that the ruling clearly empowers them to close dispensaries and provide instructions on how to file similar nuisance actions to close dispensaries in their own counties.

A three judge panel of the Michigan Court of Appeals ruled Compassionate Apothecary is in violation of the state Public Health Code and the MMMA in State of Michigan v. Brandon McQueen
and Matthew Taylor, d/b/a Compassionate Apothecary, LLC. The Court concluded that:

The MMMA does not legalize marijuana;

The MMMA authorizes marijuana use only in “very limited circumstances;”

The “medical use” of marijuana does not include the sale of marihuana;

The MMMA does not authorize marijuana dispensaries; and

The courts can infer that a dispensary’s purpose is not to alleviate a debilitating medical condition.

Isabella County Prosecutor Larry Burdick and Schuette argued the marijuana dispensary violated the Michigan Medical Marihuana Act (MMMA) by allowing profits from medical marijuana sales, in addition to patient-to-patient marijuana transactions, and the possession of medical marijuana in excess of legal limits by the club owners. The club allows patient-to-patient sales of marijuana, with the club profiting by taking a 20% commission.