STATE OF MICHIGAN V BRANDON MCQUEEN (Authored Opinion)
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STATE OF MICHIGAN
COURT OF APPEALS
STATE OF MICHIGAN,
FOR PUBLICATION
August 23, 2011
9:00 a.m.
Plaintiff-Appellant,
v
No. 301951
Isabella Circuit Court
LC No. 2010-008488-CZ
BRANDON MCQUEEN and MATTHEW
TAYLOR, d/b/a COMPASSIONATE
APOTHECARY, LLC,
Defendants-Appellees.
Before: MURRAY, P.J., and HOEKSTRA and STEPHENS, JJ.
HOEKSTRA, J.
This case requires us to decide whether the Michigan Medical Marihuana Act (MMMA),
MCL 333.26421 et seq., permits the selling of marihuana. Defendants Brandon McQueen and
Matthew Taylor own and operate Compassionate Apothecary, LLC (CA), a medical marihuana
dispensary. It is a place where CA members, who are either registered qualifying patients or
their primary caregivers, purchase marihuana that other CA members have stored in lockers
rented from CA. Through their operation of CA, defendants provide the mechanism for the sale
of marihuana and retain at least 20 percent of the sale price. Plaintiff, through the Isabella
County Prosecuting Attorney, filed a complaint against defendants for injunctive relief. It
claimed that defendants’ operation of CA was not in accordance with the provisions of the
MMMA and, therefore, was a public nuisance because it violated the Public Health Code (PHC),
MCL 333.1101 et seq. After a two-day hearing, the trial court held that defendants operated CA
in accordance with the provisions of the MMMA. Consequently, it denied plaintiff’s request for
injunctive relief. We hold that defendants’ operation of CA is an enjoinable public nuisance.
The operation of CA violates the PHC, which prohibits the possession and delivery of
marihuana. Defendants’ violation of the PHC is not excused by the MMMA because defendants
do not operate CA in accordance with the provisions of the MMMA. Specifically, the “medical
use” of marihuana, as defined by the MMMA, does not include patient-to-patient “sales” of
marihuana, and no other provision of the MMMA can be read to permit such sales. Therefore,
defendants have no authority to actively engage in and carry out the selling of marihuana
between CA members. Accordingly, we reverse the trial court’s order denying plaintiff’s request
for a preliminary injunction and remand for entry of judgment in favor of plaintiff.
I. FACTS AND PROCEDURAL HISTORY
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The facts regarding defendants’ operation of CA are generally undisputed. They were
established at a two-day hearing at which both McQueen and Taylor testified.
McQueen is a “qualifying patient” who has been issued a “registry identification card” by
the Michigan Department of Community Health (MDCH). He is also the registered “primary
caregiver” for three qualifying patients.1 Taylor is not a “qualifying patient,” but he is the
registered “primary caregiver” for two qualifying patients. Together, McQueen and Taylor
operate CA, which can be described as a medical marihuana dispensary.2 The goal of CA is to
provide an uninterrupted supply of marihuana to registered qualifying patients. It does this by
“facilitating” patient-to-patient transfers of marihuana between its members.
There are approximately 345 members of CA. To be a member of CA, an individual
must either be a qualifying patient or a primary caregiver and must possess a registry
identification card from the MDCH. In addition, a caregiver can only be a member if a
qualifying patient to whom he or she is connected through the MDCH registration process is a
member. A CA membership costs $5.00 per month. CA retains the right to revoke a
membership if the member uses marihuana for a purpose other than the treatment of a medical
condition.
CA has 27 lockers that it rents to its members. The cost to rent one locker is $50 per
month. Either patients or caregivers may rent lockers, but the majority of CA members that rent
lockers are patients. A patient who rents a locker has grown more marihuana than the patient
needs to treat his or her debilitating medical condition and the patient wants to make the “excess”
marihuana available to other patients. Similarly, a caregiver rents a locker when the caregiver’s
patient does not need all the marihuana that was grown by the caregiver.4 When a caregiver
rents a locker, the caregiver’s patient must provide an attestation giving the caregiver permission
to store the marihuana in the locker and allowing CA to distribute the marihuana to other
members. CA limits the amount of marihuana that a patient or caregiver can place in a locker.
A patient may store 2.5 ounces of marihuana, while a caregiver may store 2.5 ounces of
marihuana for each of his or her patients. According to McQueen and Taylor, the marihuana
placed in the rented lockers belongs to a patient—either the patient who rented the locker or the
patient of the caregiver who rented the locker. CA does not purchase marihuana from its
members or from third parties.
3
1
McQueen was the primary caregiver for a fourth patient but that patient “lapsed.” The record
does not indicate when the patient lapsed.
2
During the course of the proceedings below, defendants learned that the word “apothecary” can
only legally be used in the name of pharmacies. Thus, they changed the name of their operation
to “CA.” They were in the midst of filing paperwork to finalize the name change.
3
Additional lockers may be rented at a lower monthly price.
4
McQueen testified that he assumes the marihuana placed in a locker by a member was grown
by that patient or caregiver. However, he admitted that he could not be sure that the member did
not obtain the marihuana from some other place or source.
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When a patient comes to CA to purchase marihuana, one of CA’s four employees verifies
that the patient has been issued a registry identification card by the MDCH and is a CA member.
A caregiver may also purchase marihuana from CA for his or her patients. The patient or
caregiver is escorted into the display room by a CA employee, where the member is permitted to
view, smell, and touch samples of the different “strains” of marihuana that are currently stored in
the lockers.5 The member, however, may not smoke the marihuana at CA; CA is a no-grow and
no-smoke facility. The number of marihuana strains available to CA members fluctuates. The
number of available strains has been as high as 26 but as low as five or six. After the patient or
caregiver selects a strain of marihuana to purchase, a CA employee retrieves the marihuana from
the locker, weighs and packages the marihuana, and records the purchase. CA limits the amount
of marihuana that a member may purchase to 2.5 ounces in a 14-day period. The price of the
marihuana is set by the member who rented the locker, but CA keeps, at a minimum, a 20
percent “service fee” for each transaction.
Defendants opened CA in May 2010. In the first two and a half months of its operation,
it sold approximately 19 pounds of marihuana. Its “farmers” made more than $76,000.6 Before
expenses were paid, CA earned approximately $21,000.
In July 2010, plaintiff, through the Isabella County Prosecuting Attorney, filed a
complaint for a temporary restraining order, preliminary injunction, and permanent injunction
against defendants. Plaintiff alleged that defendants’ operation of CA did not comply with the
provisions of the MMMA because the MMMA does not allow patient-to-patient transfers or
sales of marihuana, nor does it allow marihuana taken from one caregiver to be dispensed to
patients who are not the registered qualifying patients of the caregiver. Plaintiff claimed that
defendants’ operation of CA was a public nuisance because it was contrary to the provisions of
the MMMA and, therefore, in violation of the PHC.
The trial court denied plaintiff’s request for a temporary restraining order. Then, after a
two-day hearing, it denied the request for a preliminary injunction. According to the trial court,
defendants’ operation of CA was in compliance with the MMMA because the patient-to-patient
transfers of marihuana that CA facilitates fall within the scope of the “medical use” of
5
“Strains” of marihuana refer to different genetic varieties of marihuana. Taylor explained that
each “strain” of marihuana requires different growing conditions and, therefore, it is “very
ineffective” for a person to grow more than one or two strains of marihuana. By making
different strains available to its members, CA allows patients to use a “trial and error” method to
determine which strain works best for him or her.
6
McQueen used the term “farmers” while speaking before the Mount Pleasant City Commission,
and he did not explain the term. It appears that the term “farmers” refers to the members who
rent lockers and allow CA to distribute their marihuana to other members.
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marihuana. The trial court stated that its order resolved the last pending claim and closed the
case.7
II. ANALYSIS
On appeal, plaintiff argues that the trial court erred in denying it injunctive relief.
According to plaintiff, the provisions of the MMMA do not authorize patient-to-patient sales of
marihuana. Therefore, plaintiff claims that defendants’ operation of CA, which carries out
patient-to-patient sales of marihuana, is not in accordance with the provisions of the MMMA.
Plaintiff asserts that, without the protection of the MMMA, defendants’ operation of CA is an
enjoinable nuisance because it violates the PHC.
A. STANDARDS OF REVIEW
We review a trial court’s denial of injunctive relief for an abuse of discretion. Mich
Coalition of State Employee Unions v Civil Serv Comm, 465 Mich 212, 217; 634 NW2d 692
(2001). An abuse of discretion occurs when the trial court’s decision falls outside the range of
principled outcomes. Detroit Fire Fighters Ass’n, IAFF Local 344 v Detroit, 482 Mich 18, 28;
753 NW2d 579 (2008). We review a trial court’s factual findings for clear error. Christiansen v
Gerrish Twp, 239 Mich App 380, 387; 608 NW2d 83 (2000). “A finding is clearly erroneous
when a reviewing court is left with a definite and firm conviction that a mistake has been made,
even if there is evidence to support the finding.” In re Bennett Estate, 255 Mich App 545, 549;
662 NW2d 772 (2003). We review de novo the trial court’s interpretation of the MMMA.
People v Redden, 290 Mich App 65, 76; ___ NW2d ___ (2010).
“The words of an initiative law are given their ordinary and customary meaning
as would have been understood by the voters.” Welch Foods, Inc v Attorney
General, 213 Mich App 459, 461; 540 NW2d 693 (1995). We presume that the
meaning as plainly expressed in the statute is what was intended. Id. [Id.]
B. PRELIMINARY ISSUES
In its opinion, the trial court made two findings of fact that were critical to its
determination that defendants operated CA in accordance with the MMMA. First, it 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
marihuana stored in the lockers. Second, it found that defendants did not own, purchase, or sell
the marihuana stored in the lockers but merely “facilitated its transfer from patients to patients.”
7
At the conclusion of the two-day hearing, defendants urged the trial court that if it viewed its
order on plaintiff’s request for a preliminary injunction to be a final order, such that it only
intended to issue one opinion regarding whether any injunctive relief was available to plaintiff,
to indicate in its order that it was a final order so that the losing party could immediately exercise
its appellate rights.
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Reviewing these two findings under the proper definitions for “possessing” and “selling,” we are
left with a definite and firm conviction that the trial court made mistakes.
1. POSSESSION
The term “possession,” when used in regard to controlled substances, “signifies dominion
or right of control over the drug with knowledge of its presence and character.” People v Nunez,
242 Mich App 610, 615; 619 NW2d 550 (2000) (internal quotation marks and citation omitted).
Possession may be actual or constructive, and may be joint or exclusive. People v McKinney,
258 Mich App 157, 166; 670 NW2d 254 (2003). “The essential issue is whether the defendant
exercised dominion or control over the substance.” Id. A person can possess a controlled
substance and not be the owner of the substance. People v Wolfe, 440 Mich 508, 520; 489
NW2d 748 (1992).
Here, defendants exercise dominion and control over the marihuana that is stored in the
lockers that CA rents to its members. A member, either a patient or a caregiver, rents a locker
when the member has excess marihuana that he or she wants to make available for purchase by
other CA members. The member gives consent to CA to convey the marihuana to other
members. Defendants, while they may not actually own the marihuana that is stored in the
lockers, have access to and control over the marihuana. When a member comes to CA to
purchase marihuana, the member, under the supervision of a CA employee, inspects samples of
the available strains of marihuana, and after the member selects a strain of marihuana to
purchase, the CA employee retrieves the marihuana from the respective locker, weighs and
packages the marihuana, and provides it to the member in exchange for monetary payment.
Under these circumstances, defendants, in their operation of CA, exercise dominion and control
over the marihuana. They possess the marihuana that is stored in the lockers. The trial court’s
finding to the contrary, that defendants did not possess the marihuana because they did not have
an ownership interest in it, was clearly erroneous.
2. SELLING
Likewise, defendants are engaged in the selling of the marihuana that CA members store
in the rented lockers. See part II.C.3.b, infra, where we define a “sale” as “the transfer of
property or title for a price.” Admittedly, defendants do not sell marihuana that they themselves
own, but they intend for, make possible, and actively engage in the sale of marihuana between
CA members. Defendants rent lockers to members who want to sell their excess marihuana.
They, or another CA employee, supervise members’ inspections of the samples of the marihuana
strains stored in the lockers, and after a member selects a strain of marihuana to purchase, they
weigh and package the marihuana. They also collect the purchase price. After a 20 percent
service fee is deducted for CA, the remainder of the purchase money is given to the CA member
who supplied the marihuana. Without defendants’ involvement, there would be no sales. Under
these circumstances, defendants are not just “facilitating” the transfers of marihuana between CA
members, but they are full participants in the selling of marihuana.
C. THE SELLING OF MARIHUANA
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The heart of this case is whether patient-to-patient sales of marihuana are in accordance
with the provisions of the MMMA. To answer this question, we must examine not only the
provisions of the MMMA but also article 7 of the PHC, MCL 333.7101 et seq., which governs
the manufacturing, distributing, prescribing, and dispensing of controlled substances.
1. THE PUBLIC HEALTH CODE
The PHC is designed to protect the health, safety, and welfare of the people of the state of
Michigan. MCL 333.1111(2); People v Derror, 475 Mich 316, 329; 715 NW2d 822 (2006),
overruled on other grounds People v Feezel, 486 Mich 184; 783 NW2d 67 (2010). In
furtherance of that mandate, article 7 of the PHC regulates “controlled substances.” “Controlled
substances” are those drugs, substances or immediate precursors included in schedules 1 to 5.
MCL 333.7104(2).
Controlled substances are assigned to one of five schedules according to their potential
for abuse, the level of dependency to which abuse may lead, and medically accepted uses. The
controlled substances listed in schedule 1 have been found by the Michigan board of pharmacy
to have a “high potential for abuse” and have “no accepted medical use in treatment in the
United States or lack[] accepted safety for use in treatment under medical supervision.” MCL
333.7211. Schedule 2 controlled substances have “currently accepted medical use in treatment
in the United States, or currently accepted medical use with severe restrictions.” MCL
333.7213(b). They have a high potential for abuse, and abuse of them may lead to severe
psychic or physical dependence. MCL 333.7213(a), (c). The controlled substances listed in
schedules 3, 4, and 5 have currently accepted medical use in treatment in the United States and
have lessening potential for abuse and dependence. MCL 333.7215; MCL 333.7217; MCL
333.7219.
The PHC regulates who may “manufacture,” “distribute,” “prescribe,” or “dispense”
controlled substances. See, e.g., MCL 333.7303(1) (requiring that anyone who engages in these
activities shall obtain a license issued by the Michigan board of pharmacy); MCL 333.7331(1)
(stating that only a “practitioner” who holds a license to prescribe or dispense controlled
substances may purchase from a licensed manufacturer or distributor a schedule 1 or 2 controlled
substance). Specifically, we note that a “practitioner”8 may dispense a schedule 2 controlled
8
A “practitioner” is defined as:
(a) A prescriber or pharmacist, a scientific investigator as defined by rule
of the administrator, or other person licensed, registered, or otherwise permitted to
distribute, dispense, conduct research with respect to, or administer a controlled
substance in the course of professional practice or research in this state . . . .
(b) A pharmacy, hospital, or other institution or place of professional
practice licensed, registered, or otherwise permitted to distribute, prescribe,
dispense, conduct research with respect to, or administer a controlled substance in
the course of professional practice or research in this state. [MCL 333.7109(3).]
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substance on the receipt of a prescription of a practitioner on a prescription form. MCL
333.7333(2). A “practitioner” may dispense schedule 3, 4, or 5 controlled substances on the
receipt of a written or oral prescription of a practitioner. MCL 333.7333(4). However, MCL
333.7333 contains no provision for the dispensing of schedule 1 controlled substances.
The PHC prohibits a person from knowingly or intentionally possessing or using a
controlled substance unless the substance “was obtained directly from, or pursuant to, a valid
prescription or order of a practitioner while acting in the course of the practitioner’s professional
practice, or except as otherwise authorized by this article.” MCL 333.7403(1); MCL
333.7404(1). In addition, the PHC prohibits a person, unless authorized by article 7, from
manufacturing, creating, delivering, or possessing a controlled substance, or possessing the
substance with the intent to do any of those acts. MCL 333.7401(1). The PHC imposes criminal
sanctions for the unauthorized possession, use, manufacture, creation, and delivery of controlled
substances. The severity of the sanctions generally depends on which schedule the controlled
substance is placed and the amount (in grams) of the controlled substance. See MCL
333.7401(2); MCL 333.7403(2); MCL 333.7404(2).
The PHC classifies marihuana as a schedule 1 controlled substance.
MCL
333.7212(1)(c). This means that the Michigan board of pharmacy has found that marihuana “has
high potential for abuse and has no accepted medical use in treatment in the United States or
lacks accepted safety for use in treatment under medical supervision.” MCL 333.7211. Except
as authorized by article 7 of the PHC, which allows, under certain circumstances, a “practitioner”
to conduct research with schedule 1 controlled substances, MCL 333.7306(3), the possession and
use of marihuana are misdemeanor offenses, MCL 333.7403(2)(d); MCL 333.7404(2)(d), and
the manufacture, creation, and delivery of marihuana are felony offenses, MCL 333.7401(2)(d).
2. THE MICHIGAN MEDICAL MARIHUANA ACT
The MMMA stands in sharp contrast to the PHC. Unlike the PHC’s classification of
marihuana as a schedule 1 controlled substance, the MMMA, which was enacted as the result of
an initiative adopted by voters in the November 2008 election, Redden, 290 Mich App at 76,
declares that as discovered by modern medical research there are beneficial uses for marihuana
in treating or alleviating the symptoms associated with a variety of debilitating medical
conditions. MCL 333.26422(a). Nonetheless, the MMMA operates under the framework,
established by the PHC, that it is illegal to possess, use, or deliver marihuana. The MMMA did
not legalize the possession, use, or delivery of marihuana. People v King, ___ Mich App ___;
___ NW2d ___ (2011); see also Redden, 290 Mich App at 92 (O’CONNELL, P.J., concurring)
(“The MMMA does not repeal any drug laws contained in the Public Health Code, and all
persons under this state’s jurisdiction remain subject to them.”). Rather, the MMMA sets forth
very limited circumstances in which persons involved with the use of marihuana, and who are
thereby violating the PHC, may avoid criminal liability. King, ___ Mich App at ___; see also
People v Anderson, ___ Mich App ___; ___ NW2d ___ (2011) (M. J. KELLY, J., concurring).
To provide a limited exemption from the PHC’s regulations and criminal sanctions for
the possession, use, and delivery of marihuana, the MMMA provides that “[t]he medical use of
marihuana is allowed under state law to the extent that it is carried out in accordance with the
provisions of th[e] act.” MCL 333.26427(a). It further provides that “[a]ll other acts and parts of
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acts inconsistent with this act do not apply to the medical use of marihuana as provided for by
this act.” MCL 333.26427(e). The MMMA broadly defines the “medical use” of marihuana 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.” MCL 333.26423(e).9
The MMMA provides a registration system for “qualifying patients” and “primary
caregivers.” The MDCH shall issue a “registry identification card” to a “qualifying patient,”
defined as “a person who has been diagnosed by a physician as having a debilitating medical
condition,” MCL 333.26423(h), who submits the necessary application and information. MCL
333.26426(a), (c). If the qualifying patient has a “primary caregiver,” defined as “a person who
is at least 21 years old and who has agreed to assist with a patient’s medical use of
marihuana . . . ,” MCL 333.26423(g), the qualifying patient shall inform the MDCH of the
primary caregiver and state whether the qualifying patient or the primary caregiver will possess
marihuana plants for the qualifying patient’s medical use. MCL 333.26426(a)(5), (6). If the
MDCH approves the qualifying patient’s application and the qualifying patient has identified a
primary caregiver, the MDCH shall also issue a registry identification card to the primary
caregiver. MCL 333.26426(d). The registry identification cards must have a clear designation
whether the qualifying patient or the primary caregiver is allowed to possess marihuana plants.
MCL 333.26426(e)(6). “[E]ach qualifying patient can have no more than 1 primary caregiver,
and a primary caregiver may assist no more than 5 qualifying patients with their medical use of
marihuana.” MCL 333.26426(d).
The issues raised in this appeal directly involve several provisions of § 4 of the MMMA.
Section 4 grants immunity to qualifying patients and primary caregivers who have been issued a
registry identification card. MCL 333.26424(a), (b); see also Anderson, ___ Mich App at ___
(M. J. KELLY, J., concurring). MCL 333.26424(a) provides:
A qualifying patient who has been issued and possesses a registry
identification card shall not be subject to arrest, prosecution, or penalty in any
manner, or denied any right or privilege, including but not limited to civil penalty
or disciplinary action by a business or occupational or professional licensing
board or bureau, for the medical use of marihuana in accordance with this act,
provided that the qualifying patient possesses an amount of that does not exceed
9
The MMMA does not allow for the “medical use” of marihuana in all circumstances. See MCL
333.26427(b). A person may not possess marihuana or engage in the “medical use” of
marihuana in a school bus, on the grounds of a preschool or a primary or secondary school, or in
a correctional facility, MCL 333.26427(b)(2); a person may not smoke marihuana on any form of
public transportation or in a public place, MCL 333.26427(b)(3); a person may not operate a
motor vehicle, aircraft, or motor boat while under the influence of marihuana, MCL
333.26427(b)(4); and a person may not use marihuana if the person does not have a serious or
debilitating medical condition, MCL 333.26427(b)(5).
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2.5 ounces or usable marihuana, and, if the qualifying patient has not specified
that a primary caregiver will be allowed under state law to cultivate marihuana for
the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility.
Any incidental amount of seeds, stalks, and unusable roots shall also be allowed
under state law and shall not be included in this amount.
Similar immunity is granted to a primary caregiver. MCL 333.26424(b) provides:
A primary caregiver who has been issued and possesses a registry
identification card shall not be subject to arrest, prosecution, or penalty in any
manner, or denied any right or privilege, including but not limited to civil penalty
or disciplinary action by a business or occupational or professional licensing
board or bureau, for assisting a qualifying patient to whom he or she is connected
through the [MDCH’s] registration process with the medical use of marihuana in
accordance with this act, provided that the primary caregiver possesses an amount
of that does not exceed:
(1) 2.5 ounces of usable marihuana for each qualifying patient to whom he
or she is connected through the [MDCH’s] registration process; and
(2) for each registered qualifying patient who has specified that the
primary caregiver will be allowed under state law to cultivate marihuana for the
qualifying patient, 12 marihuana plants kept in an enclosed, locked facility; and
(3) any incidental amount of seeds, stalks, and unusable roots.
“A registered primary caregiver may receive compensation for costs associated with assisting a
registered qualifying patient in the medical use of marihuana.” MCL 333.26424(e). This
compensation does not constitute the sale of marihuana. Id.
If a qualifying patient or primary caregiver is in possession of a registry identification
card and an amount of marihuana that does not exceed that allowed by the MMMA, § 4(d)
provides a presumption that the qualifying patient or the primary caregiver “is engaged in the
medical use of marihuana in accordance with th[e] act[.]” MCL 333.26424(d)(1), (2). “The
presumption may be rebutted by evidence that conduct related to marihuana was not for the
purpose of alleviating the qualifying patient’s debilitating medical condition or symptoms
associated with the debilitating medical condition, in accordance with th[e] act.” MCL
333.26424(d)(2).
In addition, § 4(i) provides immunity for a “person” who assists a registered qualifying
patient with “using or administering marihuana.” MCL 333.26424(i) provides:
A person shall not be subject to arrest, prosecution, or penalty in any
manner, or denied any right or privilege, including but not limited to civil penalty
or disciplinary action by a business or occupational or professional licensing
board or bureau, solely for being in the presence or vicinity of the medical use of
marihuana in accordance with this act, or for assisting a registered qualifying
patient with using or administering marihuana.
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Finally, § 4(k) imposes criminal sanctions on any registered qualifying patient or
registered primary caregiver who sells marihuana to a person that is not allowed to use
marihuana for medical purposes. MCL 333.26424(k). The patient’s or caregiver’s registry
identification card shall be revoked and the person is guilty of a felony punishable for not more
than 2 years’ imprisonment or a fine of not more than $2,000, or both, in addition to any other
penalties for the distribution of marihuana. Id.10
3. DEFENDANTS’ OPERATION OF CA
Having set forth the relevant statutory provisions of the MMMA and the PHC, we now
apply the provisions of the MMMA to defendants’ operation of CA to determine whether it is in
accordance with the MMMA or remains illegal under the PHC.11 Unlike the PHC, which
contains provisions for dispensing schedule 2, 3, 4, and 5 controlled substances, the MMMA has
no provision governing the dispensing of marihuana. While the MMMA indicates that a
qualifying patient may obtain marihuana from his or her primary caregiver, see MCL
333.26424(b)(1), the MMMA does not state how a primary caregiver or a qualifying patient, if
the patient does not have a primary caregiver, is to obtain marihuana. Specifically, in regard to
this case, the MMMA does not authorize marihuana dispensaries. In addition, the MMMA does
not expressly state that patients may sell their marihuana to other patients. Defendants,
therefore, are left with inferring the authority to operate a dispensary from various provisions of
the MMMA.
Defendants rely on various provisions of § 4 to argue that the MMMA authorizes patientto-patient sales of marihuana and that they, as registered primary caregivers and a registered
qualifying patient in operating CA, may actively participate in and carry out those sales and
receive compensation for their assistance. Defendants argue that because the “medical use” of
marihuana permits the “delivery” and “transfer” of marihuana, patients can transfer marihuana
between themselves. They assert that § 4(i) entitles them to assist registered qualifying patients
with patient-to-patient transfers and that § 4(e) allows them to be compensated for their
assistance. Defendants also assert that they are entitled to the presumption of § 4(d) that they are
engaged in the “medical use” of marihuana.
a
Initially, we address defendants’ contention and the trial court’s finding that defendants
are entitled to the presumption under § 4(d) that they are engaged in the “medical use” of
marihuana when operating CA. Under § 4(d), there is a presumption that a qualifying patient or
a primary caregiver is engaged in the “medical use” of marihuana in accordance with the
10
Section 8 of the MMMA provides an affirmative defense of “medical purpose” for any
prosecution involving marihuana. MCL 333.26428. Defendants do not rely on § 8 in arguing
that their operation of CA is accordance with the provisions of the MMMA and, therefore, it is
not at issue in this case.
11
Defendants do not dispute that the operation of CA is prohibited by the PHC.
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MMMA if the patient or caregiver is in possession of (1) a registry identification card and (2) an
amount of marihuana that does not exceed the amount allowed by the MMMA. MCL
333.26424(d)(1), (2).
However, the presumption may be rebutted. It “may be rebutted by evidence that
conduct related to marihuana was not for the purpose of alleviating the qualifying patient’s
debilitating medical condition or symptoms associated with the debilitating medical condition, in
accordance with this act.” MCL 333.26424(d)(2) (emphasis added). It is well established that in
construing a statute a court must give effect to every provision, if possible. Wolverine Power
Supply Coop, Inc v Dep’t of Environmental Quality, 285 Mich App 548, 558; 777 NW2d 1
(2009). In order to give meaning to the phrase “in accordance with this act,” we hold that the
presumption may be rebutted with evidence that the conduct of the patient or the caregiver was
not in accordance with the provisions of the MMMA. The inclusion of the phrase “in
accordance with the act” reiterates the overarching principle of the MMMA, stated in § 7(a), that
the “medical use” of marihuana is only permitted to the extent that it is carried out in accordance
with the provisions of the MMMA.
Assuming that defendants, who are in possession of registry identification cards, possess
an amount of marihuana that does not exceed the amount allowed under the MMMA,12 the
resulting presumption that defendants are engaged in the “medical use” of marihuana is rebutted.
12
The trial court held that defendants were entitled to the presumption based on its erroneous
finding that defendants do not possess the marihuana that CA members place in the rented
lockers. We observe that although there were no findings by the trial court on whether the
amount of marihuana stored in the lockers ever exceeded the amount that defendants are entitled
to possess under the MMMA, based on the evidence presented, it could reasonably be inferred
that defendants possessed more marihuana than allowed by the MMMA.
McQueen, as a registered qualifying patient and the current primary caregiver for three
qualifying patients, may possess 10 ounces of usable marihuana. Taylor, as the primary
caregiver for two qualifying patients, may possess five ounces of marihuana. CA has 27 lockers
available for rent. If each locker is rented, and each member renting a locker places 2.5 ounces
of marihuana in the locker, then defendants possess as much as 67.5 ounces of marihuana. This
greatly exceeds the amount of marihuana that defendants are allowed to possess. However,
McQueen testified that the number of lockers rented fluctuates; the number of rented lockers has
been as high as 23 or 24 and as low as seven or ten. Taylor testified that he did not believe the
amount of marihuana placed in the lockers ever exceeded the amounts that he and McQueen
were allowed to possess. Nonetheless, there was no evidence that defendants have instituted any
procedure or plan to ensure that the amount of marihuana stored in the lockers does not exceed
the amount that defendants may possess. In addition, the evidence established that in the first
two and a half months of operating CA, defendants sold 19 pounds—or 304 ounces—to CA
members. This large amount of marihuana that has passed through defendants’ possession
provides a strong inference that defendants in their operation of CA have, in fact, possessed more
marihuana than they are authorized to possess under the MMMA.
-11-
It is rebutted because defendants’ conduct relating to marihuana is not in accordance with the
MMMA. As this opinion establishes, infra, defendants, through their operation of CA, are
actively engaged in patient-to-patient sales of marihuana, and the MMMA does not authorize
those sales. Accordingly, defendants are not entitled to the presumption that they are engaged in
the “medical use” of marihuana.13
b
Although defendants are not entitled to the presumption that they are engaged in the
“medical use” of marihuana, we must still determine whether, in fact, their operation of CA is in
accordance with the provisions of the MMMA. The foundation of defendants’ argument for why
the operation of CA complies with the MMMA is that because the “medical use” of marihuana
includes the “delivery” and “transfer” of marihuana. MCL 333.26423(e). According to
defendants, patients are engaged in the “medical use” of marihuana when they transfer
marihuana to other patients.
The MMMA does not define the terms “delivery” or “transfer.” But these two words
have been given or have acquired peculiar meanings in regard to controlled substances, and we
construe them according to those meanings. MCL 8.3a; People v Edenstrom, 280 Mich App 75,
80; 760 NW2d 603 (2008). The “delivery” of a controlled substance is the “actual, constructive,
or attempted transfer from 1 person to another of [the] controlled substance, whether or not there
is an agency relationship.” MCL 333.7105(1); People v Williams, 268 Mich App 416, 422; 707
NW2d 624 (2005).14 The “transfer” of a controlled substance is the conveyance of the controlled
substance from one person to another. People v Schultz, 246 Mich App 695, 703-704; 635
NW2d 491 (2001). In this case, there was no dispute before the trial court that members,
utilizing the services that defendants provide in operating CA, deliver or transfer marihuana to
13
We note that, although not raised below or on appeal, there is evidence from which one could
conclude that defendants’ operation of CA is for a purpose other than alleviating patients’
debilitating medical conditions. Defendants organized CA as a limited liability company, and
implemented a business plan whereby they operate CA by obtaining possession of and selling
marihuana. Although defendants make members’ excess marihuana available to other patients
who may not have the ability to grow marihuana themselves, the evidence shows that this occurs
through defendants’ operation of CA as a business. The operation of CA is indistinguishable
from the operation of a neighborhood pharmacy. The purpose of CA and that of a neighborhood
pharmacy is to provide medications to alleviate the medical needs of their customers. However,
a pharmacy could not continue to operate without charging for its services. Likewise, defendants
must and do charge for the services offered by CA. And just as is the case with a neighborhood
pharmacy, CA could not continue to operate without charging for its services. This evidence of a
business purpose indicates that defendants’ purpose for operating CA is pecuniary.
14
A person constructively delivers a controlled substance when he or she “directs another person
to convey the controlled substance under [his or her] direct or indirect control to a third person or
entity.” People v Plunkett, 281 Mich App 721, 728; 760 NW2d 850 (2008), rev’d on other
grounds 485 Mich 50 (2010).
-12-
other CA members. A member rents a locker and places his or her excess marihuana in a locker
because the member wants to make it available to other members, and the member gives CA
consent to convey the marihuana to other CA members.
However, members, aided by the services of defendants, do not simply “deliver” or
“transfer” marihuana to other members. Rather, the members and CA employees “deliver” or
“transfer” the marihuana to other members for a price. A “sale” is “[t]he transfer of property or
title for a price.” Black’s Law Dictionary (7th ed); see also MCL 440.2106(1) (a “sale,” as
defined by the Uniform Commercial Code, MCL 440.1101 et seq., is “the passing of title from
the seller to the buyer for a price”). Here, the marihuana that a member has placed in a CA
locker is only delivered to another member if that member pays the purchase price for the
marihuana. After a 20 percent service fee is deducted and retained by CA, the remainder of the
purchase money is given to the CA member that rented the locker. Accordingly, members of CA
that supply the marihuana, in utilizing the services that defendants provide through their
operation of CA, are not just delivering or transferring their excess marihuana; they are selling
their excess marihuana.
The question becomes whether the “medical use” of marihuana permits the “sale” of
marihuana. We hold that it does not because the “sale” of marihuana is not the equivalent to the
“delivery” or “transfer” of marihuana. The “delivery” or “transfer” of marihuana is only one
component of the “sale” of marihuana—the “sale” of marihuana consists of the “delivery” or
“transfer” plus the receipt of compensation. The “medical use” of marihuana, as defined by the
MMMA, allows for the “delivery” and “transfer” of marihuana, but not the “sale” of marihuana.
MCL 333.26423(e). We may not ignore, or view as inadvertent, the omission of the term “sale”
from the definition of the “medical use” of marihuana. See People v Burton, 252 Mich App 130,
135; 651 NW2d 143 (2002) (“It is not the job of the judiciary to write into a statute a provision
not included in its clear language.”). Therefore, the “medical use” of marihuana does not include
the “sale” of marihuana, i.e., the conveyance of marihuana for a price.15
We note that two other provisions of the MMMA, § 4(e) and § 4(k), speak of the sale or
of the selling of marihuana. However, neither provision supports defendants’ proposition that
the MMMA authorizes the “sale” of marihuana.
15
We emphasize that our conclusion that the “medical use” of marihuana does not include the
“sale” of marihuana does not lead to the conclusion that the “sale” of a controlled substance is
not prohibited by the PHC, as argued by amicus curiae Michigan Association of Compassion
Center. The PHC does not expressly prohibit a person from engaging in the “sale” of a
controlled substance. It only states that, except as authorized by article 7 of the PHC, a person
shall not “deliver” or possess with intent to deliver a controlled substance. MCL 333.7401(1).
However, because the “delivery” of a controlled substance is a necessary component to the
“sale” of a controlled substance, one cannot engage in the “sale” of marihuana without violating
the PHC. A person who sells a controlled substance necessarily “delivers” the controlled
substance, whether it be an actual, constructive, or attempted delivery, and he or she has,
therefore, engaged in a criminal offense.
-13-
First, § 4(e) authorizes a registered primary caregiver to receive compensation for costs
associated with assisting a registered qualifying patient in the medical use of marihuana. MCL
333.26424(e). However, § 4(e) goes on to state that “[a]ny such compensation shall not
constitute the sale of controlled substances.” Id. This quoted sentence would not be needed if
the definition of the “medical use” of marihuana included the “sale” of marihuana. No statutory
provision should be rendered nugatory. Apsey v Mem Hosp, 477 Mich 120, 131; 730 NW2d 695
(2007). Consequently, § 4(e) actually supports the conclusion that the “medical use” of
marihuana does not include the “sale” of marihuana.
Second, § 4(k) states that any registered qualifying patient or registered primary caregiver
who sells marihuana to someone who is not permitted to use marihuana for medical purposes
shall have his or her registry identification card revoked and is guilty of a felony. MCL
333.26424(k). We agree with Judge O’CONNELL that the fact that § 4(k) “specifies a particular
punishment for a specific type of violation does not mean that, by default, the sale of marijuana
to someone who is allowed to use marijuana for medical purposes under this act is permitted.” If
the drafters of the MMMA intended to authorize the sale of marihuana from one qualifying
patient to another, “they would have included the term ‘sale’ in the definition of ‘medical use.’”
Redden, 290 Mich App at 115 (O’CONNELL, P.J., concurring) (emphasis in original).
In conclusion, the “medical use” of marihuana does not include patient-to-patient “sales”
of marihuana, and neither § 4(e) nor § 4(k) permits the sale of marihuana. Defendants, therefore,
have no authority under the MMMA to operate a marihuana dispensary that actively engages in
and carries out patient-to-patient sales of marihuana.16 Accordingly, defendants’ operation of
CA is not in accordance with the provisions of the MMMA.17
16
In addition, because the “medical use” of marihuana does not include the “sale” of marihuana,
defendants are not entitled to receive compensation for the costs of assisting in the “sale” of
marihuana between CA members. See MCL 333.26424(e) (“A registered primary caregiver may
receive compensation for costs associated with assisting a registered qualifying patient in the
medical use of marihuana.”). Also, in regard to § 4(e), the parties disagree whether a registered
primary caregiver may receive compensation for the costs associated with assisting any
registered qualifying patient in the “medical use” of marihuana or whether a registered primary
caregiver may only receive compensation for assisting the qualifying patients with whom he or
she is connected through the MDCH registry process. Because of our conclusion that the
“medical use” of marihuana does not include the “sale” of marihuana, we need not, and therefore
do not, resolve this dispute.
17
Plaintiff and the Attorney General, as amicus curiae, ask us to hold that patient-to-patient
conveyances of marihuana that are without compensation are not permitted by the MMMA.
Their position is that the only conveyance of marihuana permitted by the MMMA is the
conveyance of marihuana from a primary caregiver to his or her patients. Because defendants’
operation of CA involves the selling of marihuana, and because the selling of marihuana is not
permitted by the MMMA, we need not, and do not, reach the issue whether the MMMA permits
uncompensated patient-to-patient conveyances of marihuana.
-14-
c
Further, even if the “medical use” of marihuana included the “sale” of marihuana,
defendants are not entitled to immunity afforded under § 4 from arrest, prosecution, penalty in
any manner, or the denial of any right or privilege.
We note that sections 4(a) and 4(b) grant immunity to qualifying patients and primary
caregivers who have been issued and possess a registry identification card. And while
defendants are primary caregivers who have been issued and possess registry identification
cards, and McQueen is also a qualifying patient who has been issued and possesses a registry
identification card, defendants do not claim they are entitled to immunity under either § 4(a) or
§ 4(b). Rather, they claim that they are entitled to immunity under § 4(i).
Under § 4(i), “[a] person shall not be subject to arrest, prosecution, or penalty in any
manner, or denied any right or privilege . . . solely for being in the presence or vicinity of the
medical use of marihuana in accordance with this act, or for assisting a registered qualifying
patient with using or administering marihuana.” MCL 333.26424(i) (emphasis added). The
word “or” is a disjunctive term. People v Kowalski, ___ Mich ___; ___ NW2d ___ (2011). It
indicates a choice between two alternatives. Paris Meadows, LLC v City of Kentwood, 287 Mich
App 136, 148; 783 NW2d 133 (2010). Thus, § 4(i) provides immunity to distinctly two different
persons: (1) to the person who is “in the presence or vicinity of the medical use of marihuana”
and (2) to the person who is “assisting a registered qualifying patient with using or administering
marihuana.” Defendants do not claim immunity based on being in the vicinity of the “medical
use” of marihuana; they claim immunity based on their assistance to registered qualifying
patients with “using or administering” marihuana. According to defendants, they assist
registered qualifying patients with using or administering marihuana when they transfer
marihuana between CA members.
The MMMA does not define the phrase “using or administering” marihuana.
Importantly, the phrase cannot be given the same definition as the “medical use” of marihuana.
The inclusion of the phrase “medical use” in the vicinity clause of § 4(i) and its omission and the
presence of the phrase “using or administering” in the assistance clause must be viewed as
intentional. See People v Barrera, 278 Mich App 730, 741-742; 752 NW2d 485 (2008) (“The
omission of a provision in one part of a statute that is included in another should be construed as
intentional, and provisions not included by the [drafters of the statute] should not be included by
the courts.”) (internal quotation marks and citation omitted). Accordingly, the phrase “using or
administering” marihuana must be given a meaning distinct from the definition of the “medical
use” of marihuana.
Because the word “administering” is grouped with the word “using,” the two words must
be given related meaning. See Manuel v Gill, 481 Mich 637, 650; 753 NW2d 48 (2008) (stating
that words grouped in a list must be given related meaning). The word “use” is included in the
definition of the “medical use” of marihuana. MCL 333.26423(e). Accordingly, we hold that
whatever the phrase “using or administering marihuana” means, the phrase has a more limited
meaning than that of the “medical use” of marihuana.
-15-
The word “use” has numerous dictionary definitions, as does the word “administer.”
However, each word has a definition that relates directly to controlled substances or medicines,
and we find those definitions to be the most relevant. To “use” means “to drink, smoke, or
ingest habitually: to use drugs.” Random House Webster’s College Dictionary (1992). To
“administer” means “to give or apply: to administer medicine.” Id. This definition of
“administer” is consistent with the PHC definition of “administer.” The PHC defines
“administer” as “the direct application of a controlled substance, whether by injection,
inhalation, ingestion, or other means, to the body of a patient or research subject by a
practitioner . . . .” MCL 333.7103(1). Employing these definitions, we hold that a person assists
a registered qualifying patient with “using or administering” marihuana when the person assists
the patient in preparing the marihuana to be consumed in any of the various ways that marihuana
is commonly consumed or by physically aiding the patient in consuming the marihuana.
Here, defendants, through the operation of CA, participate in the “sale” of marihuana
between CA members. There is no evidence that defendants assist purchasing registered
qualifying patients in preparing the marihuana to be consumed. Likewise, there is no evidence
that defendants physically aid the purchasing patients in consuming marihuana. Because
defendants are engaged in the selling of marihuana, which is not the “using or administering” of
marihuana, defendants are not entitled to immunity granted by § 4(i).
D. PUBLIC NUISANCE
For the reasons discussed above, defendant’s operation of CA is not in accordance with
the provisions of the MMMA. We, therefore, agree with plaintiff that defendants’ operation of
CA is a public nuisance and must be enjoined.
A public nuisance is “an unreasonable interference with a common right enjoyed by the
general public.” Capitol Props Group, LLC v 1247 Ctr Street, LLC, 283 Mich App 422, 427;
770 NW2d 105 (2009) (internal quotation marks and citation omitted). “Unreasonable
interference” includes conduct that “(1) significantly interferes with the public’s health, safety,
peace, comfort, or convenience, (2) is proscribed by law, or (3) is known or should have been
known by the actor to be of a continuing nature that produces a permanent or long-lasting
significant effect on these rights.” Cloverleaf Car Co v Phillips Petroleum Co, 213 Mich App
186, 190; 540 NW2d 297 (1995). Actions in violation of law constitute a public nuisance, and
the public is presumed harmed from the violation of a statute enacted to preserve public health,
safety, and welfare. Attorney General v PowerPick Player’s Club of Mich, LLC, 287 Mich App
13, 44; 783 NW2d 515 (2010).
Because defendants possess marihuana, and they possess it with the intent to deliver it to
CA members, defendants’ operation of CA is in violation of the PHC. Further, their violation of
the PHC is not excused by the MMMA because defendants do not operate CA in accordance
with the provisions of the MMMA. Through CA, defendants actively participate in the “sale” of
marihuana between CA members, but the “medical use” of marihuana does not include the
“sale” of marihuana. In addition, even if defendants were engaged in the “medical use” of
marihuana, they would not be entitled to the immunity granted by § 4(i) because defendants are
not assisting registered qualifying patients with “using or administering” marihuana.
-16-
The PHC is designed to protect the health, safety, and welfare of the people of the state of
Michigan, MCL 333.1111(2); Derror, 475 Mich at 329, and, therefore, the public is presumed
harmed by defendants’ violation. PowerPick Player’s Club of Mich, 287 Mich App at 44-45.
Accordingly, we conclude that defendants’ operation of CA is a public nuisance, Id.; Cloverleaf
Car Co, 213 Mich App at 190, and the trial court erred in holding otherwise. The trial court’s
order denying plaintiff’s request for a preliminary injunction is reversed. We remand for
judgment in favor of plaintiff on its claim that defendants’ operation of CA is a public nuisance.
The judgment shall include the entry of any order that may be necessary to abate the nuisance
and to enjoin defendants’ continuing operation of CA. See PowerPick Player’s Club of Mich,
287 Mich App at 48, 54.
Reversed and remanded for entry of judgment in favor of plaintiff and further
proceedings not inconsistent with this opinion. We do not retain jurisdiction. This opinion is to
have immediate effect. MCR 7.215(F)(2).
No taxable costs pursuant MCR 7.219, a public question involved.
/s/ Joel P. Hoekstra
/s/ Christopher M. Murray
/s/ Cynthia Diane Stephens
-17-
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