Court of Appeals decision could affect Medical Marijuana growers across State

August 26, 2011

By Pat Maurer

Review Correspondent

A recent State Court of Appeals decision could affect the way many medical marijuana growers are operating across the State.

An August 23 decision by the Michigan Court of Appeals reversed Isabella County Trial Court’s decision denying an injunction against Compassionate Apothecary, LLD, an Isabella County medical marijuana dispensary.

CA, owned and operated by Brandon McQueen and Matthew Taylor, operated a facility including rental lockers for CA members to store marijuana which is “for sale” to other registered qualifying patents or their primary caregivers. According to the court documents, CA collected 20 percent of any sales.

The Appeals Court also outlined the probability that CA stored more marijuana than is allowed per person.

The trial court had held that defendants operated CA in accordance with the provisions of the Michigan Medical Marijuana Act and denied the State of Michigan’s claim that “the business was a public nuisance because it violated the Public Health Code.”

The Court of Appeals reversed their decision because, “The operation of CA violates the PHC, which prohibits the possession and delivery of Marihuana…specifically that  the medical use of marihuana, as defined by the MMMA, does not include patient-to-patient ‘sales’ of marihuana.”

It continued, “Accordingly, we reverse the trial court’s order denying plaintiff’s request for a preliminary injunction and remand for entry of judgment in favor of the plaintiff.”

The MMMA allows for “reimbursement” of costs relating to growing and transferring marijuana, but not for patient-to-patient sales.

Clare City Attorney Jaynie Hoerauf notified the City of Clare about the court ruling, saying, “The Court of Appeals has overturned Isabella County Circuit Court’s decision that the Compassionate Apothecary (now known as “CA”) operated consistent with the MMMA. The business model that most dispensaries are operating under is ruled unlawful.” She added, “I thought that this might interest you, in light of the dispensaries operating locally.”

Hoerauf said, “Unless overturned by the Michigan Supreme Court, or the legislature, the ruling is the law in Michigan.”

When asked if other dispensaries would be facing problems because of the ruling, she said, “I think that the burden would be on the dispensary to show that what they are doing differs from what the Compassionate Apothecary is doing, in some material way.”

Following a lengthy discussion and consideration of three alternatives, the Clare City Commission approved in a 3-2 vote a second reading and zoning for the establishment of regulations for growing and transfer of Medical Marijuana in the city last spring.

The City does not recognize dispensaries.

At the March 7 meeting, Mayor Pat Humphrey, Mayor Pro-Tem Jean McConnell and Commissioner Bill Horwood voted to approve the proposed ordinance. Commissioners John Koch and Tom Koch voted against the motion.

Clare Planning Commission had been working on the proposed ordinance since August, 2010. The first ordinance approved by the planners, was sent back by the City Commission for changes.

The revised zoning ordinance was developed by Hoerauf and the City Planning Commission, who recommended its approval to the City after a meeting February 16.

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