MSC orders oral argument in marijuana ‘collective cultivation’ case

Does a person violate the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., by growing marijuana for other caregivers or patients?

The Michigan Supreme Court may provide an answer. The Court has ordered oral arguments in People v. Bylsma, ___ Mich App ___ (2011), on Bylsma’s application for leave to appeal an adverse Court of Appeals ruling.

Bylsma, a registered caregiver under the MMMA, had 88 marijuana plants under cultivation in a rental space. Following a police raid, Bylsma was charged with manufacturing marijuana. Under the MMMA, a registered caregiver may possess 12 marijuana plants for each registered patient that the caregiver is connected to through the Michigan Department of Community Health’s registration process.

Bylsma was connected to two registered patients, entitling him to possess 24 plants. The remaining plants, Bylsma said, belonged to other registered caregivers and patients. Bylsma argued that he was entitled to immunity under § 4(b) of the MMMA because nothing in the act prevents other caregivers or patients from using the same space to grow marijuana.

The COA denied his motion to dismiss the charge. The COA reasoned that the evidence, which Bylsma did not dispute, showed that he possessed all 88 plants, and that under the MMMA, he was entitled to only 24.

The MSC has directed the parties to address:

“(1) whether the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., permits qualifying patients and registered primary caregivers to possess and cultivate marijuana in a collective or cooperative; and

“(2) whether, under the circumstances of this case, the defendant was entitled to immunity from prosecution for manufacturing marijuana under § 4 of the MMMA, MCL 333.26424, or entitled to dismissal of the manufacturing charge under the affirmative defense in § 8 of the act, MCL 333.26428.”

MSC will take up medical marijuana shop appeal

The Michigan Supreme Court has granted leave to appeal in a case that could put to rest the question once and for all: Are medical marijuana dispensaries permitted under Michigan law, or not?

Brandon McQueen, co-owner of Mount Pleasant-based Compassionate Apothecary LLC, also known as CA, is appealing the Michigan Court of Appeals Aug. 23, 2011, opinion in Michigan v. McQueen, et al. In that decision, the court said that CA was not operating in accordance with the Michigan Medical Marihuana Act when it allowed patient-to-patient transfers of marijuana.

CA operated as a private co-op type of club, and collected fees and a percentage of transactions between members. It did not grow or sell marijuana, but instead provided the space to store it and facilitated transactions between members.

McQueen said that’s allowed under section 4 of the Act, which doesn’t prohibit such transfers.

An Isabella County trial court agreed. But the Court of Appeals overturned that decision, stating that the Act is silent on patient-to-patient transfers and delivery. Even though the Act doesn’t define terms such as delivery or transfer, the panel said “These two words have been given or have acquired peculiar meanings in regard to controlled substances, and we construe them according to those meanings.”

Tomorrow, the House Judiciary Committee will take up a package of bills that would define some ambiguous parts of the Act, such as the definition of a doctor-patient relationship in the context of medical marijuana, and how the transport of medical marijuana is permitted by law.

Did you see that?

The Michigan Senate Judiciary Committee will meet next week to take up a bill that would amend the Michigan Medical Marihuana Act of 2008, to prohibit medical marijuana use for the treatment of glaucoma.

Glaucoma was one of the illnesses the Act listed as a “debilitating” medical condition. The other are: cancer, HIV, hepatitis C, ALS, Crohn’s disease, Alzheimer’s, and nail patella.

Patients may register to use marijuana if they have written certification by a physician who states that in his or her professional opinion, the patient is likely to receive therapeutic or palliative benefit in treating a debilitating illness. But glaucoma won’t be one of them.

The committee will meet March 20, 2012, at 2:30 p.m. in Room 110 of the Farnum Building in Lansing.

Clearing the air on medical marijuana

It’s been a frequent complaint from lawmakers and law enforcement officers: Michigan’s Medical Marihuana Act, approved by voters in 2008, was so vague that it’s difficult for police officers and prosecutors to know exactly who is complying with the law, and who is taking advantage of what they think is a step toward legalizing marijuana.

The Michigan House Judiciary will take up a package of bills tomorrow to address some of the areas where the law could be a little clearer:

House Bill 4834 would require a photo identification on medical marijuana registration cards.

House Bill 4851 would define a patient-physician relationship in the context of medical marijuana use.

House Bill 4853 would enhance sentencing guidelines for medical marijuana providers who sell or furnish marijuana to unregistered people.

House Bill 4856 would allow for the transport of medical marijuana in a car.

The committee will meet Thursday at 10 a.m. in the House office building. The meeting will also be webcast live on House TV.

AG Schuette: Federal law forbids police from returning seized medical marijuana

Attorney General Bill Schuette

Michigan Attorney General Bill Schuette says a portion of the Michigan Medical Marihuana Act that requires police to return medical marijuana to a registered patient or primary caregiver upon release from custody is pre-empted by federal law.

According to Schuette, if the police return the seized marijuana, they could be prosecuted under federal law for distributing or aiding the distribution of marijuana.

From Attorney General Opinion No. 7262:

[T]he MMMA specifically prohibits the forfeiture of marihuana possessed in connection with the medical use of marihuana. Section 4(h) of the Act provides:

“Any marihuana, marihuana paraphernalia, or licit property that is possessed, owned, or used in connection with the medical use of marihuana, as allowed under this act, or acts incidental to such use, shall not be seized or forfeited.” [MCL 333.26424(h); emphasis added.] …

But this does not conclude the analysis because, as stated above, federal law prohibits the manufacture, distribution, or possession of marihuana. The CSA [Controlled Substances Act] provides that “[e]xcept as authorized by this title, it shall be unlawful for any person knowingly or intentionally — (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance . ….” 21 USC 841(a)(1). The CSA categorizes marihuana as a Schedule I controlled substance. 21 USC 812(c) (Schedule I) (c)(10). And its use remains a federal crime. See 21 USC 812(c)(10).7 Simple possession of marihuana is also a crime, 21 USC 844(a), and possession for “personal use” renders the offender “liable to the United States for a civil penalty in an amount not to exceed $10,000.” 21 USC 844a(a). …

Thus, a Michigan law enforcement officer cannot simultaneously comply with the federal prohibition against distribution or aiding and abetting the distribution or possession of marihuana and the state prohibition against forfeiture of marihuana. In other words, it is “impossible” for state law enforcement officers to comply with their state-law duty not to forfeit medical marihuana, and their federal-law duty not to distribute or aid in the distribution of marihuana. …

Under these circumstances, the unavoidable conclusion is that section 4(h) of the MMMA is preempted by the CSA to the extent it requires law enforcement officers to return marihuana to registered patients or caregivers. As a result, law enforcement officers are not required to return marihuana to a patient or caregiver.

Rep. Kevin Cotter (R-Mt. Pleasant)

By returning marihuana to a registered patient or caregiver, a law enforcement officer is exposing himself or herself to potential criminal and civil penalties under the CSA for the distribution of marihuana or for aiding or abetting the possession or distribution of marihuana.

Schuette’s opinion was issued in response to a query from Rep. Kevin Cotter (R-Mt. Pleasant)

Medical marijuana: AG says motels, hotels, landlords can ban use and cultivation

Motel, hotel and apartment complex owners can ban the use and cultivation of medical marijuana anywhere on the premises without violating the Michigan Medical Marihuana Act, says Attorney General Bill Schuette.

Opinion No. 7261 is Schuette’s response to several inquiries from Sen. Rick Jones, R-Grand Ledge.

Jones first asked if Michigan’s ban on smoking in public places applies to medical marijuana use.

Well, no, said Schuette because the smoking ban applies to tobacco products, not marijuana.

Jones’ second question was does the MMMA’s ban on smoking medical marijuana in public apply to public areas of food service establishments, hotels, motels, apartment buildings, and any other place open to the public.

Well, yes, said Schuette.

The MMMA does not define the term “public place.” The administrative rules adopted to implement the MMMA simply define “public place” as “a place open to the public.” See 2009 AACS, R 333.101(16). …

Employing this definition, it cannot reasonably be disputed that the public areas of food service establishments, hotels, motels, and apartment buildings are public places as that term is used in the MMMA. Thus, the plain language of the MMMA would apply to prohibit the smoking of marihuana within these places.

Jones’ third question, however, was not as simplistic as the first two.

Jones wanted to know whether the owner of a food service establishment, hotel, motel, or apartment building may prohibit the smoking of marihuana anywhere within its facility.

You mean “in what would traditionally be considered non-public areas, such as individual rooms, units, or any other area not open to or accessible by the public[?]” Glad you asked, said Schuette, an avowed foe of the MMMA. Yes they can, and although you didn’t ask, they can ban the growing of medical marijuana as well.

While your request referred only to the smoking of marihuana, this opinion will also address the growing of marihuana plants in these areas since that activity raises similar concerns.

Property owners may want to prohibit smoking marihuana or growing marihuana plants within their privately-owned facilities for a number of reasons.

For example … all marihuana-related activity remains illegal under the Controlled Substances Act. See 21 USC 812(c), 823(f), and 844(a). …

Property owners who allow their properties to be used by patients or caregivers for the purposes of using or growing marihuana could be subject to prosecution, civil forfeiture, or other penalty under the Controlled Substances Act. See 21 USC 856(a) and 881(a)(7).

In addition, the smoking of marihuana or the possession of marihuana plants within a property may make other tenants or guests within a facility concerned for their own or their family’s personal safety.

Further, property owners may simply wish to respect the preferences or expectations of other guests or tenants within a facility. Marihuana smoke, like tobacco smoke, has a strong and distinctive odor, which may offend other persons using the facility or discourage future occupancy of the facility.

So, property owners, go ahead and ban the use and cultivation of medical marijuana on your property, Schuette said. The law is on your side.

The MMMA is silent regarding the rights of private property owners with respect to the smoking of marihuana or the growing of marihuana plants by registered patients or registered primary caregivers on property or portions of property not open to the public.

Nor does the MMMA create any private right of action against any owner of a hotel, motel, apartment building, or any other place open to the public that does not allow the smoking of marihuana within its facility. See, e.g., Casias v Wal-Mart Stores, Inc, 764 F Supp 2d 914 (WD Mich, 2011).

To the extent the MMMA provides that registered patients and primary caregivers shall not be “denied any right or privilege,” MCL 333.26424(a) and (b), this language is inapplicable here because it presumes the existence of a right or privilege outside of the MMMA.

In other words, the terms “right or privilege” do not encompass the medical use of marihuana under the Act. See Redden, supra, 290 Mich App at ___ (“The MMMA does not codify a right to use marihuana”). [People v Redden, 290 Mich App 65, __; 799 NW2d 184 (2010) (O’Connell, J., concurring) (citations omitted) (footnotes omitted) (emphasis in original).]

There is no constitutional or statutory right or privilege to housing or accommodation at a hotel, motel, or apartment building. Rather … individuals have a right not to be denied housing or accommodations based on certain enumerated personal characteristics.

Thus, if there is any legal prohibition or impediment regarding an owner’s ability to prohibit the medical use of marihuana on private property, it must be found elsewhere in the law.

COA further limits medical-marijuana defense

A man who was growing marijuana before he obtained a doctor’s certification or a registry identification card under the Michigan Medical Marijuana Act cannot invoke the act’s affirmative defense, even though he was arrested after he obtained both the certification and registry card.

Brian Reed’s marijuana plants were spotted from a police aircraft. At the time, Reed lacked both the physician’s authorization and registry identification card. The card is a prerequisite to invoking the MMMA’s affirmative defense to avoid prosecution for certain marijuana offenses.

By the time Reed was arrested for manufacturing marijuana, he had all of the MMMA’s required documentation. He moved for dismissal, invoking the act’s affirmative defense. He appealed when the trial court denied his motion.

On appeal, Reed relied upon People v. Kolanek. Kolanek hadn’t obtained the act’s required documentation until after his arrest for possession of marijuana. In refusing to dismiss marijuana charges against Kolanek, the Michigan Court of Appeals ruled that “the relevant deadline for obtaining the physician’s statement required to establish the affirmative defense in MCL 333.26428 was the time of a defendant’s arrest.”

Reed argued his documentation was in place before he was arrested, so dismissal was required under Kolanek.

The Court of Appeals ruled against Reed and further limited the MMMA’s affirmative defense:

We now extend [Kolanek] and hold that, for the affirmative defense to apply, the physician’s statement must occur before the commission of the purported offense.

We further hold that defendant has no immunity under MCL 333.26424 because defendant did not possess a registry identification card at the time of the purported offense.

The case is People v. Reed.

Medical marijuana dispensaries close in wake of COA ruling

State of Michigan v. McQueen, the Michigan Court of Appeals ruling that yesterday declared patient-to-patient sales of marijuana at a Mt. Pleasant medical marijuana dispensary were a public nuisance, could have a far-reaching effect.

The Lansing State Journal reports this morning that many of Lansing’s medical marijuana dispensaries were closed yesterday in the wake of the COA’s ruling.

And from The Detroit Free Press:

Rick Thompson, editor-in-chief of Michigan Medical Marijuana Magazine, said the ruling effectively shuts down the state’s 400 to 500 dispensaries, which allow sales in a safe place between people who trust one another, rather than on the streets between strangers.

“Other than a place like this, people would have to go back into neighborhoods,” he said Wednesday at his office in Big Daddy’s Management Group in Oak Park. Big Daddy’s serves about 3,500 certified patients in five locations, including about 100 low-income patients who pay nothing to Big Daddy’s for their marijuana.

Meanwhile, Michigan Attorney General Bill Schuette praised the ruling in a press release and said he’ll coach Michigan’s 83 prosecutors on how to use the ruling to shut down dispensaries:

“This ruling is a huge victory for public safety and Michigan communities struggling with an invasion of pot shops near their schools, homes and churches,” said Schuette.

“Today the Court echoed the concerns of law enforcement, 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.

Stand by for an appeal.

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.