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The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
For more information email: tflynn@clarkstonlegal.com

Thursday, August 25, 2011

Medical Marijuana Dispensaries Ruled Illegal by Court of Appeals

Yes, the ballot proposal writers hired by our pot lobby handed criminal defense lawyers a gift-horse when they wrote-up the Michigan Medical Marijuana Act.  Just how are folks supposed to get their marijuana anyway?

A 3-judge panel of the Michigan Court of Appeals has reversed an Isabella County Circuit Judge that had denied the county prosecutor's request for an injunction that would close down the local Compassion Apothecary; a medical marijuana dispensary.  After this decision, consider the Apothecary closed.

The sole issue decided in the case was whether the MMA provides for the "sale" of medical marijuana.  The Court of Appeals said, "no".  That was a foregone conclusion under any plain reading of the provisions of the Act.

Anyone reading the MMA will note that the referendum writers, in their wisdom, provided two ways for "patients" to obtain their, er, "medication".  Either you "grow your own", or you get your pot from a certified care provider who can only service 5 patients at a time with an overall limit to the total number of marijuana plants on the premises.  The MMA is silent, however, on dispensaries; nor does it provide for transfer by sale.

The Compassion Apothecary [BTW, even the name of this dispensary was illegal so they changed it to "CA"] is a membership-based collective designed to distribute a continuous supply of marijuana to certified patients.  The Apothecary  operates a locker system whereby patients and care providers pay monthly fees for both membership in the collective and use of a locker.

The CA is a "no grow" and "no smoke" facility.  Patients can inspect [see, smell and touch] a wide variety of marijuana strains prior to purchase.  The pot price is set by the care provider; the CA takes a 20% "service fee" on the transaction.

Sounds like an organic "win-win" right?  Wrong.  The collective ran afoul of the law, according to the Court of Appeals, as the MMA does not allow patient-to-patient sales or transfers.  Also, the Court held that the CA illegally "possessed" the marijuana under both the Public Health Code, and the MMA.

Accordingly, the Court of Appeals concluded that the CA could be shut down on the basis it was a "public nuisance" as contended by the Isabella County Prosecutor.  Case closed; the CA dispensary, and all others like it, are out of business by operation of this published, thus binding, decision of the Court of Appeals.

While the CA huddles with its attorneys to decide whether to take further appeal to the Michigan Supreme Court, Michigan Attorney General Bill Schuette applauded the decision as a much needed patch on a law that "has more holes than Swiss Cheese."   AG Schuette told the Detroit News that the MMA has been "hijacked" by folks looking to profit from pot sales and by unscrupulous doctors issuing bogus patient certifications.

This blog has long-held the view that the MMA is a poor law.  The Act does not square with the reality that many qualified "patients", perhaps even a majority, once endorsed by Michigan's DCH, smoke pot recreationally, not medicinally.

Some "On-the-Take" physicians conduct cursory reviews of an applicants' medical records in their assessment of a claimed chronic or debilitating medical condition, as required under the Act.  Schuette is looking to criminalize bogus physician certifications.  We're certainly behind that legislative initiative; good luck Bill.

Whenever a law is based on a fiction, as this one is, our jurisprudence suffers.  As AG Schuette correctly points out, too many folks are equating legalization of marijuana with the medicinal use of marijuana.  In this decision, the Court of Appeals removes this stubborn disconnect.

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7 Comments:

Anonymous Medical Marijuana Card said...

FDA to approve medical marijuana? Is the FDA ready to approve medical marijuana drug? Sativex enters advanced clinical trial stage of FDA approval process. So it has been revealed that GW Pharma, a British company, is in advanced clinical trials for Sativex, the world's first pharmaceutical based on raw materials from the cannabis plant. It is hoping to see approval from the FDA by the end of 2013 and be able to market it as a treatment for cancer pain.

January 30, 2012 at 2:14 AM 
Anonymous medical cannabis dispensaries said...

Yes, cannabis can be abused and can be psychologically habituating but the degree of “addiction” or the harm done is astronomically less than many prescription drugs and certainly far less than alcohol, tobacco, cocaine, or heroin.

September 12, 2012 at 7:55 AM 
Blogger Adam L. said...

I know I'll catch shit for saying this, but the states that didn't create very sound laws that not only allow patients to utilize cannabis but also protect them from this kind of crap have done an injustice to the patients and everyone else. Dragging this crap in and out of the court systems is costly to everyone, and so unnecessary. While I applaud states like Calif and Washington for stepping out and starting the bud rolling, the people who are left unprotected and at the mercy of others is very, very unfortunate. It didn't have to happen like this. Stop with the profanity and name calling already. This too is very unproductive and makes everyone here look bad. Thanks.
Adam L.

July 16, 2014 at 6:35 AM 
Anonymous ragini said...

Impressive, definitely great material. This blog is absolutely awesome.

January 21, 2015 at 2:52 AM 
Blogger jowdjbrown said...

In the state of New Jersey medical marijuana became law more than three years ago. However, no mater what medical problem you have, a prescription does not guarantee you can get the medical marijuana you need. http://findmybud.com/

July 12, 2015 at 4:35 AM 
Anonymous Steve R. said...

Legalizing the medical use of cannabis has not led to a surge in the numbers of adolescents using it in the USA, according to new research that surprised its authors and will encourage those hoping for relaxation of the law elsewhere. Since 1996, 23 US states and the District of Columbia have approved the medicinal use of cannabis.

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September 11, 2015 at 7:16 AM 
Blogger Lai C. Hong said...

Lovely post

September 29, 2017 at 11:27 PM 

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