The Michigan Medical Marihuana Act generally provides immunity to patients, caregivers, physicians, and other persons from arrest, prosecution, or penalty for the medical use of marihuana. “Medical use” is defined in MCL 333.26423(e) as “the acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of marihuana or paraphernalia relating to the administration of marihuana to treat or alleviate a registered qualifying patient’s debilitating medical condition or symptoms associated with the debilitating medical condition.” Without the immunity established in the MMMA, the use of marihuana would violate the Public Health Code, which still lists marihuana as a schedule 1 controlled substance.
Brandon McQueen and Matthew Taylor owned and operated CA (once entitled Compassionate Apothecary), LLC, a medical marihuana dispensary in Mt. Pleasant. McQueen and Taylor claim that their operation of CA, through which they facilitated the distribution of marihuana to the dispensary’s members, is permitted under the MMMA. CA members were MMMA registered qualifying patients, or their registered primary caregivers, who purchased marihuana that other members stored in lockers rented from CA. Some members were qualifying patients who were unable to grow marihuana for medical use and sought a safe source. McQueen is both a registered qualifying patient and primary caregiver for three qualifying patients, while Taylor is a registered primary caregiver for two qualifying patients. McQueen and Taylor retained a minimum 20 percent transaction fee.
The State of Michigan, through the Isabella County Prosecuting Attorney, filed a complaint against McQueen and Taylor for injunctive relief. The prosecutor claimed that McQueen and Taylor’s dispensary did not comply with the MMMA, and therefore was a public nuisance or nuisance per se as a violation of the Public Health Code. The MMMA does not allow patient-to-patient transfers or sales of marihuana, nor does it allow marihuana taken from a caregiver to be dispensed to patients who are not the caregiver’s registered qualifying patients, the prosecutor contended.
After a two-day hearing, the trial court held that McQueen and Taylor operated their dispensary in accordance with the MMMA. The court ruled that patient-to-patient transfers fell within the scope of medical marihuana, as defined in MCL 333.26423(e). McQueen and Taylor did not own, possess, purchase, or sell marihuana through CA, the court said, but merely collected membership fees, locker rental fees, and the 20 percent sales transfer fee.
The State of Michigan appealed, and the Court of Appeals reversed the trial court in a published opinion. The appellate panel noted that the MMMA allows a qualifying patient to obtain marihuana from his or her primary caregiver, but the statute does not state how a primary caregiver or a qualifying patient without a primary caregiver is to obtain marihuana. The MMMA does not authorize marihuana dispensaries, the Court of Appeals added. Moreover – in contrast to the trial court’s ruling – the Court of Appeals concluded that McQueen and Taylor did possess the marihuana stored in the dispensary’s lockers, and that McQueen and Taylor were selling the marihuana stored there. McQueen and Taylor were engaged in the patient-to-patient sales of marihuana, and the MMMA did not authorize such sales, the panel said. Accordingly, held the Court of Appeals, McQueen and Taylor were not entitled to the presumption that they were engaged in the “medical use” of marihuana because “medical use” does not include “sale,” the panel ruled. “Defendants, therefore, have no authority under the MMMA to operate a marihuana dispensary that actively engaged in and carries out patient-to-patient sales of marihuana.” Because the defendants’ operation of CA does not comply with the MMMA, the dispensary is a public nuisance, the panel held, and “must be enjoined.”
McQueen and Taylor appeal.