This article was originally published on the Marijuana Patients Organization site on August 24, 2011.
State of Michigan v. Brandon McQueen and Matthew Taylor, d/b/a Compassionate Apothecary, LLC
The Compassionate Apothecary opinion was issued today and has immediate effect. Even though this is a civil case involving an injunction, the Court’s findings, reasoning, and holding will have impact on criminal cases. Prosecutors may now reference this case in currently pending cases. And, municipalities can use it as support to ban dispensaries in their communities utilizing patient to patient transfers.
The Marijuana Patients Organization thinks the Court of Appeals is wrong but encourages its members to comply with the Opinion since it is now the law. We also encourage our members to contact an attorney if they have any questions about how the Opinion effects them personally — the MPO is not authorized to give legal advice.
The facts of the case are that the defendants operated a dispensary where members, who are either registered qualifying patients or their primary caregivers, purchase marihuana that other members have stored in lockers rented from the defendants. The defendants provided the mechanism for the sale of marihuana and retained 20 percent of the sale price.
As of today, transfers of marihuana for money are illegal if the transfer is not between a patient and a caregiver who are connected through the registry system. This means that dispensaries are not protected under the MMMA. Businesses using the Compassionate Apothecary model, as known as the “Chamberlain Model,” named after the Trial Court judge, are also not protected under the MMMA. The owners of these business are considered to be in possession of the marihuana in their facilities even though they have not acquired it and do not directly engaged in the transfer for money; under this new Court of Appeals Opinion, these owners/operators are not just merely passive business owners or merely facilitators of its transfers. They are now considered to be in possession of marihuana and without protection under the MMMA.
The Court of Appeals found that:
• The trial court made two initial findings of fact that were wrong. According to the C/A:
The defendant dispensary owners possessed the marihuana stored in the lockers—even though they did not initially acquire the marihuana or put it into the lockers.
The dispensary operators were not merely facilitating its transfer from patient to patient as passive business owners. Facilitating the transfer of marihuana from patient to patient via this locker system makes the dispensary operators effectively owners, purchasers, and sellers of the marihuana stored in the lockers.
• The operation of this type of dispensary is an enjoinable public nuisance.
The operation of this type of dispensary violates the Public Health Code (PHC), which prohibits the possession and delivery of marihuana.
Defendant’s violation of the PHC is not excused by the MMMA because defendants do not operate the dispensary in accordance with the provisions of the MMMA.
Specifically, 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.
Defendants have no authority under the MMMA to actively engage in and carry out the selling of marihuana between dispensary members.
The sale of marihuana does qualify as assisting registered qualifying patients with “using or administering” marihuana under the MMMA. Thus, even if the defendants were engaged in the “medical use” of marihuana (which the court finds they were not) they would not be entitled to the immunity granted by § 4(i).
At this time the MPO does not known what the defense attorney’s plan of action is. We will update you when we get details. It is worth mentioning that if the Michigan Supreme Court declines to hear the case then the holding of the Court of Appeals will remain in effect.
The full text of the Trial Court and Court of Appeals opinion may be found on the Marijuana Patients Organization Forums.