Yesterday the Michigan Court of Appeals released their 17-page opinion in the case of State of Michigan v. Brandon McQueen d/b/a Compassionate Apothecary.
View the opinion here: PEOPLE v COMPASSIONATE APOTHECARY – COA Opinion 08-23-11
The Opinion, which was supported by all three judges and was authored by VERY CONSERVATIVE Judge Hoekstra, holds that:
1. Dispensaries are a public nuisance;
2. Dispensaries are NOT authorized by the Michigan Medical Marijuana Act;
3. Dispensaries that “sell” marijuana violate the Public Health Code;
4. Dispensaries that violate the Public Health Code are not excused by the Michigan Medical Marijuana Act;
5. Any BUSINESS that receives money, in order to facilitate the transfer of medical marijuana, is operating for a purpose other than to alleviate patients’ debilitating medical conditions – and therefore is not protected by the Michigan Medical Marijuana Act;
6. The Michigan Medical Marijuana Act does not authorize patient-to-patient “sales” of medical marijuana – which is the “delivery” or “transfer” of marijuana “plus the receipt of compensation”;
7. The “medical use” of marijuana does not permit the “sale” of marijuana – which is the “delivery” or “transfer” of marijuana “plus the receipt of compensation”;
8. No provision of the Michigan Medical Marijuana Act permits patient-to-patient “sales” of medical marijuana;
9. A patient or caregiver that “sells” marijuana is not entitled to the presumption that they are engaged in the “medical use” of marijuana;
10. “Using or administering” medical marijuana does not permit the “sale” of marijuana; “a person assists a registered qualifying patient with ‘using or administering’ marijuana when the person assists the patient in preparing the marijuana to be consumed in any of the various ways that marijuana is commonly consumed or by physically aiding the patient in consuming the marijuana”; and
11. “Because the ‘medical use’ of marijuana does not include the ‘sale’ of marijuana, [dispensaries] are not entitled to receive compensation for the costs of assisting in the ‘sale’ of marijuana between [dispensary members.]” In other words, dispensaries CANNOT collect a fee to facilitate the “sale” of marijuana.
However, in footnote 17 on page 14 of the opinion, the Court said this: “…we need not, and do not, reach the issue whether the MMMA permits UNCOMPENSATED patient-to-patient conveyances of marijuana.”
These are the findings of the Court of Appeals.
The bottom line is this: Pursuant to the State of Michigan v. McQueen, medical marijuana dispensaries in Michigan are ILLEGAL if any money exchanges hands. Per footnote 17, it seems like uncompensated patient-to-patient transfers may possibly be legal – but if any money is involved AT ALL – then the transaction is ILLEGAL.
Dispensary owners: Take note and act accordingly.
– Colin A. Daniels, Esq. of MedicalMarijuanaLawyers.com