This article was originally published on the Marijuana Patients Organization site on August 30, 2011.
When reading the Court of Appeals decision and listening to detractors, a consistent message is heard, “being connected through the registry process” is necessary to participate in the sale of marijuana with compensation, consideration, reimbursement or whatever term we interpret from the act. How we interpret “connected” is the question that needs answered. Are we all connected by our individual involvement in the registry process?
This article attempts to answer the question and also demonstrates how a storefront dispensary model is possible when a caregiver assists a patient. Based on points below even the strictest constructionist cannot deny the intent of the drafters, clear language of the Act and most importantly the will of the voters.
The Court of Appeals decision determined that a patient cannot sell to another patient, medical marijuana. The court stated that any enterprise that allowed patient to patient transactions of medical marijuana within their control, i.e. dispensary owners, landlords, etc. that they could be in violation of the Public Health Code. This ruling coincides with pharmacy laws and a bit of common sense. If I have excess Motrin, it is not allowed by public health code (or criminal statute) to sell my medicine to other patients in a commercial building without a license from the State. The decision acknowledged that only those approved to “dispense or sell” medical marijuana in commercial locations are registered caregivers and these persons would not be in violation of the public Health Code due to their licensing with the State, much like a pharmacist.
This ruling did not state that “a” (with emphasis) caregiver cannot sell to “a” patient. This suggests that any caregiver can be protected under the Act to “sell” “a” patient, medical marijuana.
What the act tells us about the intent of the drafters is very clear; it allowed patients to have multiple options to acquire medication within a rough framework. The Act does so by allowing the patient the option to do three things:
1) The act allows a patient the right to possess plants while also allowing the simultaneous use of a primary caregiver. This important fact suggests that the patient shall have as many options available to ensure a consistent supply of medication as written in the act. This would suggest that a patient, healthy enough to cultivate his own marijuana is also allowed to transact with a caregiver and the act allows for the sale or transfer. One would conclude if a patient was healthy enough to cultivate marijuana, they would not need a caregiver to assist with “holding the lighter”, clearly the Act allows the use of a caregiver as an additional source for marijuana and allows a patient to change freely until a caregiver intends to assume greater responsibility for the patient, opting to possess plants on behalf of the patient (become their primary caregiver). The drafters of the act knew this and wrote in provisions to protect both parties.
2) Through the registry process, it does not disqualify a patient’s status by changing their primary caregivers, changing of an address, or by changing their last name. The registry requires the patient by administrative procedures to notify the State within 14 days in writing. If a patient is to temporarily change an address, this would imply that a patient that leaves a residence for a week but moves back within the 14 day period, that notification is not necessary to the State. Such notification would only be used to issue a new physical card. Applying the same logic, if a patient needs to change providers (caregivers) for a short period, less than 14 days, this would not warrant a notification to the State. Any notification to the State would be in cases where the Caregiver has not previously applied with the State and/or intends to possess and cultivate plants for the patient (ie. Primary Caregiver), a process that would far exceed the 14 day administrative period and suggest a longer term relationship like that of a permanent physical change of residence.
From LARA website:
If you decide to change your caregiver, it is your responsibility to notify him or her that he or she is no longer protected under the law. The MMMP does not communicate directly with caregivers http://www.michigan.gov/lara/0,4601,7-154-27417_51869_52137—,00.html
The above statement suggests that the patient has the authority to freely change their caregiver and that to stay protected the patient must communicate the patient/caregiver relationship is over. The caregivers are acknowledged and needs to adjust his quantity to receive protection from the Act.
3) The Act tells us that a caregiver participating in the registry process can assist, i.e. sell for profit to a patient.
In short, if the State was concerned with temporary changes in status of patients the Act would have not used the term “Primary Caregiver” throughout the language. This would suggest only one thing; patients were allowed to receive medical marijuana from as many sources as possible to ensure consistent supply. The State is concerned with collecting data on “primary caregivers” to get information where they reside and tell authorities they are able to possess amounts and/or cultivate medical marijuana.
The caregiver at all times is asserting that he will not sell to more than 5 patients at one time in one transaction and/or possessing no more than a maximum 72 plants in order to deter the Federal Governments involvement in the matter, allowing the State of Michigan to exercise its individual rights afforded in the US Constitution. Federalism is the concept that States are able to write their own rules and the State with the best plan will be adopted by the US Government. We are witnessing 16 States experimenting in their laboratories to get it right and be the adopted model, all less Michigan.
Why is it important that the drafters gave clear direction in the Act limiting quantities of marijuana, plants or form thereof that any one person, patient or caregiver can possess at any one moment in time? This is to protect its citizens from mandatory federal guidelines with amounts of marijuana in excess of maximum amounts in the statute. The Act in the first few sentences reminds us of Federal implications and also states that 1% of marijuana charges are brought upon by the US Government, mainly for large scale operations where individual participants are in possession of amounts larger than allowed by the Act. Clearly indicating that the Act was aimed to protect its participant’s from possible federal prosecution while ensuring the consistent supply of medical marijuana to patients through as many sources allowed within the Act.
The only thing the Act failed to protect itself are attacks from within, stalling our science lab and disregarding the fundamentals of a democracy.