COA: Medical marijuana ‘sales’ enjoined

The Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., does not permit patient-to-patient marijuana “sales,” and a medical marijuana dispensary that facilitated such sales should have been enjoined as a public nuisance, according to the Michigan Court of Appeals in State of Michigan v. McQueen, et al.

The operators of Compassionate Apothecary (CA), an Isabella County medical marijuana dispensary, rented locker space to MMMA-registered caregivers and patients to store their excess marijuana. Other registered patients were given the opportunity to buy the stored marijuana. CA took a percentage of the sales.

This worked out great for CA and the individuals renting locker space. In the first 10 weeks of operation, 19 pounds of marijuana were sold. The individuals renting the lockers made more than $76,000. CA grossed $21,000.

All of this is illegal, said COA Judge Joel Hoekstra, and the trial court should have put a stop to it.

[T]he trial court made two findings of fact that were critical to its determination that defendants operated CA in accordance with the MMMA.

First, it found that even though defendants, in their operation of CA, owned the lockers that CA rents to its members, it was the members who rent the lockers, and not defendants, that possess the marihuana stored in the lockers.

Second, it found that defendants did not own, purchase, or sell the marihuana stored in the lockers but merely “facilitated its transfer from patients to patients.”

Reviewing these two findings under the proper definitions for “possessing” and “selling,” we are left with a definite and firm conviction that the trial court made mistakes.

Mistake number one: given that “possession” involves exercising “dominion and control” when it comes to controlled substances, CA exercised both.

When a member comes to CA to purchase marihuana, the member, under the supervision of a CA employee, inspects samples of the available strains of marihuana, and after the member selects a strain of marihuana to purchase, the CA employee retrieves the marihuana from the respective locker, weighs and packages the marihuana, and provides it to the member in exchange for monetary payment.

Under these circumstances, defendants, in their operation of CA, exercise dominion and control over the marihuana.

Mistake number two: CA may have not owned the marijuana that patients were purchasing, but CA was certainly brokering the sales.

[CA] collect[s] the purchase price. After a 20 percent service fee is deducted for CA, the remainder of the purchase money is given to the CA member who supplied the marihuana.

Without defendants’ involvement, there would be no sales. Under these circumstances, defendants are not just “facilitating” the transfers of marihuana between CA members, but they are full participants in the selling of marihuana.

Because CA possesses and sells marijuana, Hoekstra said this must be done in accordance with the MMMA to be entitled to immunity from prosecution. But:

While the MMMA indicates that a qualifying patient may obtain marihuana from his or her primary caregiver, see MCL 333.26424(b)(1), the MMMA does not state how a primary caregiver or a qualifying patient, if the patient does not have a primary caregiver, is to obtain marihuana.

Specifically, in regard to this case, the MMMA does not authorize marihuana dispensaries. In addition, the MMMA does not expressly state that patients may sell their marihuana to other patients.

Defendants, therefore, are left with inferring the authority to operate a dispensary from various provisions of the MMMA.

Hoekstra ruled that no such authority can be inferred from the MMMA.

The question becomes whether the “medical use” of marihuana permits the ““sale” of marihuana.

We hold that it does not because the “sale” of marihuana is not the equivalent to the “delivery” or “transfer” of marihuana. The “delivery” or “transfer” of marihuana is only one component of the “sale” of marihuana — the “sale” of marihuana consists of the “delivery” or “transfer” plus the receipt of compensation.

The “medical use” of marihuana, as defined by the MMMA, allows for the “delivery” and “transfer” of marihuana, but not the “sale” of marihuana. MCL 333.26423(e). We may not ignore, or view as inadvertent, the omission of the term “sale” from the definition of the “medical use” of marihuana. …

Therefore, the “medical use” of marihuana does not include the “sale” of marihuana, i.e., the conveyance of marihuana for a price.

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Michigan Medical Marihuana Act: Perfectly unclear

The rulings by Court of Appeals Judges Patrick M. Meter and Donald S. Owens in People v. Redden are clear enough:

  • defendants charged with manufacturing marijuana can invoke the Michigan Medical Marihuana Act as an affirmative defense even though they weren’t registered under the act when the police raided their home.
  • the prosecutor can take them to trial and try to prove that their patient relationships with the doctor who authorized their marijuana use were too tenuous to be bona fide, they possessed an unreasonable amount of marijuana and that their medical conditions didn’t warrant the doctor’s authorization.

“I concur,” said Judge Peter D. O’Connell.

And most folks would concur with what O’Connell went on to say: the MMMA is perfectly unclear.

O’Connell notes that the law is “inartfully drafted,” creates “much confusion,” is internally contradictory, and also contradicts the state Public Health Code and federal drug laws.

The police, prosecutors, defense attorneys and trial judge wrestling with the MMMA, through no fault of their own, don’t know which end is up.

And “healthy recreational marijuana users incorrectly view the MMMA as a de facto legalization of the drug, seemingly unconcerned that marijuana use remains illegal under both state and federal law.”

O’Connell’s 30-page concurrence exhaustively dissects the MMMA and makes a cogent case for legislative and administrative officials to issue a comprehensive set of administrative rules to implement the act.

It’s required reading for anyone who has an interest, academic or otherwise, in issues arising under the MMMA.

Even Michigan Officials Say Pot Law Is Hazy

“A new policy is trying to clear the air around the use of medical marijuana,” reports WLNS news.

“The Obama administration is telling the feds to ease-up on people using the drug under state laws. But people from marijuana users to state officials still don’t seem clear on what Michigan’s regulations involve.

“Medical marijuana they protested on the steps of the Capitol earlier this month. The protestors claimed Michigan laws were unclear.

“‘That is what we call the gray area, and that gray area has been very scary for patients,’ said Jason Pomales, president of Michigan Health and Environment Services.”

Where did they say this happened? Who did they say was involved?

Last week, there were a couple of reports about folks who were charged with possessing marijuana. Happens all the time, you may be thinking.

Read on.

According to the Associated Press, in Hazel Park, just north of Detroit, authorities asked a fellow to empty his pockets. A bag of marijuana and a pipe to smoke it with surfaced.

And the Kalamazoo Gazette reported that a man was charged with possessing a small metal tin containing suspected marijuana.

Here’s what should give you pause:

In the Hazel Park incident, the AP says the person involved was a 68-year-old man on probation, who tried to pass through the security checkpoint at the 43rd District Court.

The Gazette reported allegations that an attorney was going through a metal detector at the Kalamazoo County District Court when the tin containing suspected marijuana set the machine off.

And just when you thought you’ve heard it all.