Pubdate: Thu, 25 Aug 2011
Source: Daily Tribune, The (Royal Oak, MI)
Copyright: 2011 The Daily Tribune
Contact:  http://www.dailytribune.com/
Details: http://www.mapinc.org/media/1579
Authors: Carol Hopkins And Ann Zaniewski, Daily Tribune, Associated Press contributed to this story. 

PROSECUTOR, ADVOCATES REACT TO APPEALS COURT RULING BARRING MARIJUANA
DISPENSARY SALES

Oakland County law enforcement officials and medical marijuana
advocates are taking sides regarding a Court of Appeals' decision that
states medical marijuana cannot be sold through private shops or
dispensaries -- estimated to currently number in the hundreds in Michigan.

Wednesday's ruling -- a major decision that strikes at businesses
trying to cash in on pot -- is the first time the appeals court has
ruled in a case involving commercial pot sales. The Michigan Supreme
Court has agreed to hear appeals on other aspects of the medical
marijuana law.

A three-judge panel said the 2008 medical marijuana law, as well as 
the state's public health code, does not allow people to sell pot to 
each other, even if they have state-issued marijuana cards.

Paul Walton, Oakland County chief assistant prosecutor, said given the
Medical Marihuana Act's language, the ruling wasn't surprising.

"If you are a patient under the act, you can grow 12 plants yourself
or you can designate a caregiver to grow for you," he said.
"Caregivers can have up to five patients. It's pretty clear -- patients
have to be linked to caregivers, and patient-to-patient sales are illegal."

He explained that the Medical Marihuana Act provides an exemption to
allow patients to use marijuana.

"If you don't fall within the four squares of the law, then you are
engaged in illegal activity," he said. "The Court of Appeals has
repeatedly said, 'This is an exemption.'"

Rick Thompson, editor of Oak Park-based Michigan Medical Marijuana
Magazine, said the Court of Appeals ruling is a "direct contradiction"
to the Medical Marihuana Act.

"The act states transfers don't constitute sales of an illegal
substance," Thompson said.

Thompson estimated there may be 500 dispensaries currently operating
in Michigan. Walton said he knows of dispensaries in Wayne and Macomb
counties, and said Lansing just put a limit on having 48 in the city.

Thompson also referenced a number of medical marijuana-related bills
recently supported by Attorney General Bill Schuette.

"There was no bill on dispensaries," said Thompson. "Either he loves
them or he already knew the Court of Appeals was going to strike them
down."

If the latter is true, said Thompson, "The Attorney General should not
be privileged to knowing Court of Appeal rulings in advance. It's
inappropriate."

The Court of Appeals ruling stems from a case out of Isabella County
involving Compassionate Apothecary, a facility in which members who
were either registered patients or their caregivers purchased
marijuana from other members while the business owners retained at
least 20 percent of the sale price. Prosecutors filed a complaint
alleging that the operation of the facility was not in accordance with
the state's Medical Marihuana Act, and therefore a nuisance because it
violated the public health code.

A trial court judge sided with Compassionate Apothecary. In reversing
the lower court, the Court of Appeals said the operation of the
business is an enjoinable public nuisance and in violation of the
health code, which prohibits the possession and delivery of marijuana.

The appellate judges also said the business is not operated within the
provisions of the state's Medical Marihuana Act because the medical
use of marijuana, as defined by the Act, does not include
patient-to-patient sales.

Gerald Fisher, a professor at Cooley Law School in Auburn Hills, wrote
an extensive paper last fall on the Act for the Michigan Municipal
League and the Michigan Townships Association. He said the Court of
Appeals decision is consistent with his interpretation of the law.

"When you read the Act as a whole, the fundamental intent of the Act
is to allow a caregiver to help up to five patients," he said. "What
we have here is not a caregiver helping five patients, but patients
helping an unlimited number of other patients. That strays very far
from the fundamental intent of the Act."

Michael Komorn, an attorney who has defended medical marijuana
cardholders, called the appellate court's ruling "an unfortunate
decision for patients who are suffering."

He said that this opinion means "a cancer patient going through
chemotherapy, vomiting and pain would not be able to acquire cannabis
from another state license caregiver or patient.

"If they did, they would be labeled a criminal and the Court of
Appeals would tell that cancer patient they would have to wait 3-4
months until they could grow their own plants or be arrested," Komorn
said.

"I believe that the 63 percent of the voters in Michigan intended
medical marijuana patients to have safe reliable access to cannabis.
This decision does not recognize this very basic but important fact.

"It is easy to issue opinions from the comfort of judicial chambers
when the Justices don't see the faces of pain and suffering of the
sick."

Medical Marijuana Business Consultant Samantha Moffett of the Walled
Lake-based Ambrose Law Group said she was disappointed with the ruling.

"It is not just business-minded patients and caregivers who believe
dispensaries are a legal business structure in Michigan -- multiple
municipalities across the state have passed ordinances allowing and
structuring such businesses," she said.

"Cities and townships have been able to fill commercial spaces dormant
for years, generate jobs, collect licensing fees to fund the
municipality, and most importantly, provide safe access to medicine
for patients. The appellate court has taken these things from the
people of Michigan today.

"As of right now, all dispensaries in the state are considered a
nuisance and must be shut down unless they want to be pulled into
court. It will be interesting to see how municipalities who have
collected licensing fees from these businesses react."

Clarkston-based attorney Steve Reina, who has handled cases involving
medical marijuana patients facing drug charges, said he said believes
that political events and other factors will result in laws
prohibiting marijuana use eventually becoming more lax.

"Those who cannot learn history's lessons are doomed to repeat them,"
he said. "From Prohibition on forward, a lesson in American history
has been you cannot legislate morality. The Court of Appeals ruling,
therefore, probably stands eventually to be reversed by history itself."

There are several medical marijuana-related cases working their way
through Oakland County courts. A number of people were charged in
connection with the raids of medical marijuana dispensaries Clinical
Relief in Ferndale and Everybody's Cafe and Herbal Remedies in
Waterford Township.

Oakland Circuit Judge Colleen O'Brien issued a ruling last week that
said the Medical Marihuana Act does not provide protection from
prosecution to medical marijuana dispensaries.

Michigan voters in 2008 approved a ballot proposal that included
physician- approved use of marijuana by registered patients with
debilitating medical conditions and allowed registered individuals to
grow limited amounts of marijuana for patients.

Medical marijuana is a controversial topic, with some people saying
that the laws related to marijuana use in Michigan are still unclear.
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MAP posted-by: Richard R Smith Jr.