Pubdate: Thu, 25 Aug 2011 Source: Morning Sun (Mt. Pleasant, MI) Copyright: 2011 Morning Sun Contact: http://www.themorningsun.com/ Details: http://www.mapinc.org/media/3938 Author: Susan Field, Clare Managing Editor Referenced: http://www.scribd.com/doc/63015201/Compassionate-Apothecary-Decision COURT OF APPEALS OVERTURNS ISABELLA JUDGE'S OPINION ON MEDICAL MARIJUANA DISPENSARY; INCLUDES TEXT OF OPINION The Michigan Court of Appeals has overturned an opinion by an Isabella County judge that a medical marijuana dispensary in Mt. Pleasant is legal. 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 Code. 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 2010. 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 said. 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 said. 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 marijuana." Burdick is preparing a cease and desist letter to McQueen and Taylor. Clare County Prosecutor Michelle Ambrozaitis is planning on writing a cease and desist letter to dispensaries in Clare County. - --- MAP posted-by: Richard R Smith Jr.