On August 23, 2011, the Michigan Court of Appeals issued its decision in State of Michigan v Brandon McQueen and Matthew Taylor, d/b/a Compassionate Apothecary, LLC, ____ Mich App ___ (Case No. 301951).  The defendants in this case were a registered medical marihuana qualifying patient and a registered primary caregiver, as defined by Michigan's Medical Marihuana Act (MMMA), MCL 333.26421 et seq.  Together, they operated a marihuana "dispensary" which contained lockers used by members who either were registered as qualifying patients or primary caregivers.  The members paid a monthly rental locker fee to the dispensary.  Marihuana, which exceeded the amount permitted by the MMMA, was stored in the lockers.  The defendants then would "transfer" the stored marihuana from the locker of one qualifying patient to another qualifying patient or the patient of a caregiver who rented the locker.  These "transfers," in reality, were sales.  The patient who "owned" the stored marihuana set the price and the defendants received a 20% "service fee" for each transaction.

     The State of Michigan, through the county prosecutor, sought to shut down the business under Michigan's Public Health Code (PHC), MCL 333.1101 et seq., which prohibits the possession and sale of certain controlled substances, such as marihuana.  After the trial court ruled against the prosecutor, the State appealed to the Michigan Court of Appeals.

     The Court of Appeals reversed the trial court and held that the MMMA is an exception to the PHC which must be construed very narrowly.  It specifically held that the MMMA does not permit patient to patient sales.  Nor does the MMMA permit a caregiver to assist patients in delivering marijuana to other patients for a fee.  The Court concluded that since the dispensary was operating outside the narrow exceptions contained in the MMMA, it was a public nuisance under the PHC.  It, therefore, was enjoined from conducting further operations.

     It should be noted that the Court declined to rule on other issues which, most likely, will be litigated in the future.  For example, the Court expressly declined to rule whether the MMMA allows uncompensated patient to patient transfers.  The Court also declined to rule whether a caregiver can receive compensation from assisting any registered qualifying patient in the medical use of marihuana or only from those patients with whom the caregiver is connected through the State's registry.

     There is little doubt the MMMA will be shaped by judicial decisions such as this one in the future.  If you have questions on this case, or any other matter, please contact John R. McGlinchey or Kristen L. Baiardi at (313) 566-2500.