Court says "no" to medical marijuana dispensaries

Aug 24, 2011

Updated at 9:57 p.m.

We have this update from Rick Pluta -

The decision leaves the discretion to close a dispensary with local prosecutors.

Isabella County Prosecutor Larry Burdick, who brought the case to the Court of Appeals, says local police in his bailiwick will start tonight delivering copies of the decision and warning letters to the "four or five  dispensaries in his bailiwick."

He says the letters warn the dispensaries they are out of compliance with the law if they accept payments for medical marijuana and, if so, they need to change their operations or shut down.

Ingham County Prosecutor Stuart Dunnings III says he's facing a more complicated situation. The city of Lansing has become a center for dispensaries. It has upwards of 40 -- some of them operate 24/7.

Dunnings says he warned city officials the dispensaries are illegal, but the city passed an ordinance allowing them. Dunnings says he intends to step carefully since the dispensary operators thought they were playing by the rules. Nevertheless, The Lansing City Pulse reports most of the  11 dispensaries on the Michigan Avenue strip directly east of the state Capitol responded to the ruling by closing their doors.   

 

Update 2:37 p.m.

Here's a video of the oral arguments made in front of the Michigan Court of Appeals on June 7, 2011.

The Court of Appeals ruled today that the marijuana dispensary in question operated in violation of the law.

People v Compassionate Apothecary from Eric L. VanDussen on Vimeo.

And here is Steve Carmody's raw interview with Michael Komorn, the president of the Michigan Medical Marihuana Association.

Komoron told Carmody that despite the ruling, dispensaries around the state will continue to operate under local implementation and interpretation of the Michigan Medical Marihuana Act - at least until the Michigan Supreme Court rules on the case.

Update 12:48 p.m.

Sarah Alvarez, Changing Gears Public Insight Analyst and lawyer, read the ruling that was released by the Michigan Court of Appeals this morning. A three-judge panel wrote the opinion (Joel Hoekstra, Christopher Murray, and Cynthia Stephens).

The case involves Isabella County prosecutors office and the two owners of the Compassionate Apothocary, a dispensary in Isabella County operating  with 345 members. Alvarez says the appeals court finds that no provision of the Michigan Medical Marihuana Act would permit for patient to patient sale of marijuana.

The dispensary is therefore found to be a public nuisance and must cease operations. (important to note this is not a criminal prosecution).

Alvarez has more analysis:

The language of the MMMA defining medical use of marijuana is as follows, "the acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of marijuana or paraphernalia relating to the administration of marihuana to treat or alleviate a registered qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition.

It also says "A registered primary caregiver may receive compensation for costs associated with assisting a registered qualifying patient in the medical use of marihuana" THIS is the provision that the dispensaries are set up under, because the law did not address the question of distribution more directly.

The court is saying that since the law does not EXPRESSLY state that dispensaries are permitted or that patient to patient sales are permitted that they are in fact violating the Public Health Code. The court also says that patients are not only transferring marijuana, they're selling it and the part of the law that says folks can receive compensation doesn't protect them.

Michigan Radio's Steve Carmody is also following this story. He reports that the Michigan Court of Appeals ruled Medical Marihuana cannot be sold through dispensaries:

The decision does put the legal status of medical marihuana dispensaries in doubt. Michael Komorn is the president of the Michigan Medical Marihuana Association. He says the court’s ruling hurts patients:

“I believe the voters of Michigan intended medical marihuana patients to have safe, reliable access to cannabis. This decision by the Court of Appeals does not recognize this basic, but important fact.”

Komorn says dispensaries are important sources of medical marihuana for patients…who otherwise would have to wait months for their own plants to grow.

Carmody reports the case could be appealed to the Michigan Supreme Court.

10:58 a.m.

The Michigan Court of Appeals has ruled on a medical marijuana case.

These court decisions are being closely watched as the rulings will help clarify how marijuana dispensaries can operate under the state's medical marijuana law (Michigan Medical Marihuana Act).

From the Associated Press:

The court ruled Wednesday in a case from mid-Michigan's Isabella County where people with medical marijuana cards sold pot to each other. The three-judge panel says the 2008 law and the state's public health code do not allow such sales.

It is the first time the appeals court has ruled in a case involving pot dispensaries. The Michigan Supreme Court has agreed to hear appeals on other aspects of the medical marijuana law.

The Mount Pleasant dispensary is called Compassionate Apothecary. It allows people to sell marijuana to each other, with the owners taking as much as a 20 percent cut. In less than three months, the business earned $21,000 before expenses after opening in 2010.

Here is a link to the court's ruling.

The Detroit Free Press reports a lower court ruled that the practice of patient-to-patient sales was acceptable under state law.

A lower court had said that said the Compassionate Apothecary was operating within the law when its operators allowed patients or caregivers to buy marijuana that other members had stored in their lockers rented from the facility. The owners, according to court records, provided the mechanism for the sales and took a 20 % cut of the sale price.

The appeals court ruling states:

...defendants have no authority to actively engage in and carry out the selling of marihuana between CA (Compassionate Apothecary) members. Accordingly, we reverse the trial court’s order denying plaintiff’s request for a preliminary injunction and remand for entry of judgment in favor of plaintiff.

The Freep reports "the ruling supports the Isabella County Prosecutor’s effort to close the operation as a public nuisance that violates the state’s Public Health Code."

Changing Gears Public Insight Analyst and lawyer, Sarah Alvarez, is reading the ruling and will share her thoughts with us.

*Our earlier headline read "Court rules people cannot sell medical marijuana to each other in dispensaries." We changed it to reflect the broader scope of the ruling.