Summary: Ypsilanti may not enforce the Court of Appeals medical marijuana/dispensary decision until the Supreme Court makes a ruling. Story below…
For now, the city of Ypsilanti will await a ruling from the Michigan Supreme Court before it takes any action regarding recent appellate court decision concerning medical marijuana dispensaries.
On Wednesday, the Michigan Court of Appeals ruled that “medical use,” as defined in the Michigan Medical Marihuana Act, does not include “patient-to-patient sales.” The act was passed by 63 percent of Michigan voters in 2008.
“At this time, I don’t foresee the city administration doing anything,” said City Attorney John Bar Wednesday. “We are watching, the city is cognizant of it. If it appears we should take action than we will.”
On Thursday, Barr said he was writing a draft opinion for City Manager Ed Koryzno as how the city should handle the situation.
In February, the city adopted ordinances regarding the growing and dispensing of medical marijuana as well as zoning. Shortly thereafter, it began issuing permits.
Ypsilanti now has four dispensaries and a licensed grow facility still in the planning stages.
The case involved the Mt. Pleasant-based Compassionate Apothecary, LLC. The dispensary, which opened in May 2010, is owned and operated by Brandon McQueen, a patient and primary caregiver, and Matthew Taylor, also a caregiver.
According to the ruling “…the ‘medical use’ of marihuana, as defined by the MMMA, does not include patient-to-patient ‘sales’ of marihuana, and no other provision of the MMMA can be read to permit such sales. Therefore, defendants have no authority to actively engage in and carry out the selling of marihuana between (dispensary) members.”
The ruling states the dispensary can be shut down as a public nuisance as it is in violation of the Public Health Code.
The dispensary has 27 storage lockers that are rented to its members for $50 a month. Patients who use the facility rent lockers where they sell excess marijuana they have grown but do not need to use to treat their condition. In addition, a caregiver can rent a locker if the patient does not need all of the marijuana grown by the caregiver. Both patients and caregivers are able to store 2.5 ounces and a caregiver can store 2.5 ounces for each patient.
Members paid $5 per month and the owners of the dispensary retain at least 20 percent of the sale price.
In the first two and a half months of its operation, the dispensary sold approximately 19 pounds of marijuana. Its “farmers” made more than $76,000. Before expenses were paid, the dispensary earned approximately $21,000.
In July 2010, a complaint was filed by Isabella County by Prosecuting Attorney Larry Burdick against the dispensary, stating its operation was not in accordance with the MMMA and was a public nuisance because it violated the Public Health Code. The trial court found the dispensary was operating in accordance with the MMMA and the decision was appealed.
Barr said the MMMA has created a lot of uncertainty and problems because it is so poorly drafted.
“A ‘good law’ gives direction so people know what they can and cannot do whereas the medical marijuana law essentially gives people a get of jail free card so they can do certain things and not be prosecuted,” Barr said.
“It’s caused a lot of uncertainty,” he said. “Most cities and municipalities have a lot of unanswered questions.”
Barr said the city did not try to say if the law was legal or not. Instead, it passed zoning regulations and other ordinances regarding the dispensaries.
Included in the legislation is a provision stating it does not give the dispensaries greater protection that it would have otherwise because the use and sale is against federal law. If state law was found to not be legal or valid, it does not guarantee anything, he said.
“They’re acting at their own peril,” he said.
Court opinions have been issued in both Oakland and Wayne counties and the Michigan Supreme Court has stated it will hear appeals regarding the matter.
Barr said there is still a level of uncertainty that will remain until the Michigan Supreme Court determines what the law really means. He emphasized the city did not wait for that interpretation, had a number of meetings, passed ordinances and therefore have a plan in place.
“We’re watching to see how the court opinions affect our plan,” he said.
State Attorney General Bill Schuette praised the ruling, saying it was a victory for public safety and local communities.
“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 in a press release. “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.”
According to the release, Schuette will send a letter to the state’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.
Michigan is one of 17 states in addition to the District of Columbia that has active programs allowing cultivation and possession of marijuana for certain medical conditions.