Pubdate: Thu, 25 Aug 2011
Source: Morning Sun (Mt. Pleasant, MI)
Copyright: 2011 Morning Sun
Author: Susan Field, Clare Managing Editor


The Michigan Court of Appeals has overturned an opinion by an Isabella
County judge that a medical marijuana dispensary in Mt. Pleasant is

Judges said in an opinion released Tuesday that Compassionate
Apothecary on Michigan Street in Mt. Pleasant is a "public nuisance"
and that the operation of the dispensary violates the Public Health

Judges also said in the opinion that the owners of the dispensary,
Brandon McQueen and Matthew Taylor, are violating the Michigan Medical
Marihuana Act by selling the drug to medical marijuana patients.

Medical use of marijuana, as defined by the MMMA, does not include
patient-to-patient sales, the judges said.

Isabella County Prosecutor Larry Burdick appealed a decision by Chief
Judge Paul Chamberlain in December to deny a preliminary injuction to
stop McQueen and Taylor from operating the dispensary.

"We hold that the defendants' operation of (Compassionate Apothecary)
in an enjoinable public nuisance," judges Joel P. Hoekstra,
Christopher M. Murray and Cynthia Diane Stephens said in a 17-page
opinion. "Defendants' violation of the (Public Health Code) is not
excused by the (Michigan Medical Marihuana Act) because defendants do
not operate CA in accordance with the provisions of the MMMA."

Medical use of the drug as defined by the MMMA does not include
"patient to patient sales" and no other provision in the law can be
read to permit such sales, the judges said.

"Therefore, defendants have no authority to actively engage in and
carry out the selling of marihuana between CA members," they said in
the opinion. "Accordingly, we reverse the trial court's order denying
plaintiff's request for a preliminary injunction."

McQueen and Taylor opened Compassionate Apothecary in May

Judges said that in the first two and a half months the dispensary was
open, it sold about 19 pounds of marijuana, and its farmers made more
than $76,000.

After expenses, CA earned about $21,000, the judges

Chamberlain made two decisions that area critical to the determination
that McQueen and Taylor operated in accordance with the MMMA, the
judges said.

"First, (the judge) found that even though defendants, in their
operation of CA, owned the lockers that CA rents to its members, it
was the members who rent the lockers, and not defendants, that possess
the" marijuana that was being stored there," the judges said, adding
that Chamberlain found that McQueen and Taylor did not own, purchase
or sell the marijuana stored in the lockers but "facilitated its
transfer from patients to patients."

In order to determine if patient-to-patient sales are in accordance
with the state's medical marijuana law, appeals judges examined the
provision of the MMMA and part of the Michigan Public Health Code.

The state's public health code regulates why can manufacture,
distribute, prescribe or dispense controlled substances, the judges

Only a practitioner who has a license to prescribe or dispense
controlled substances can purchase the drug from a licensed
manufacturer, the judges said.

Burdick said he filed the appeal because he thought dispensaries were
not permitted by the law.

"The unanimous opinion gives clear guidance to local governments which
have been struggling with the issue in zoning their communities, law
enforcement and local judges faced with complaints from citizens, and
to medical marijuana patients themselves," Burdick said. "The voters
in 2008 approved a law carving out a narrow exception to allow for the
compassionate use of marijuana for some individuals suffering from
serious debilitating illnesses.

"The law approved by the voters did not sanction businesses selling

Burdick is preparing a cease and desist letter to McQueen and

Clare County Prosecutor Michelle Ambrozaitis is planning on writing a
cease and desist letter to dispensaries in Clare County.
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