State v. McQueen

• Decision Date: 23 August 2011
• Docket Number: Docket No. 301951.
• Citation: 811 N.W.2d 513,293 Mich.App. 644
• Parties: STATE of MICHIGAN v. McQUEEN.
• Court: Court of Appeal of Michigan — District of US

293 Mich.App. 644

811 N.W.2d 513

STATE of MICHIGAN

v.McQUEEN.

Docket No. 301951.

Court of Appeals of Michigan.

Submitted June 7, 2011, at Lansing.Decided Aug. 23, 2011, at 9:00 a.m.

Larry J. Burdick, Prosecuting Attorney, for plaintiff.

Hall, Lewis, & Bolles, P.C. (by John W. Lewis), Big Rapids, for defendants.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Richard A. Bandstra, Chief Legal Counsel, and Heather S. Meingast and Allison M. Dietz, Assistant Attorneys General, for the Attorney General.Newburg Law, PLLC (by Matthew R. Newburg), Lansing, for the Michigan Association of Compassion Centers.

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 marijuana ¹. Defendants Brandon McQueen and Matthew Taylor own and operate Compassionate Apothecary, LLC (CA), a medical-marijuana dispensary. It is a place where CA members, who are either registered qualifying patients or their primary caregivers, purchase marijuana that other CA members have stored in lockers rented from CA. Through their operation of CA, defendants provide the mechanism for the sale of marijuana 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 marijuana. 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 marijuana, as defined by the MMMA, MCL 333.26423(e), does not include patient-to-patient sales of marijuana, 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 marijuana 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

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,” MCL 333.26423(h), who has been issued a “registry identification card,” MCL 333.26423(i), by the Michigan Department of Community Health (MDCH). He is also the registered “primary caregiver,” MCL 333.26423(g), for three qualifying patients.² 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-marijuana dispensary.³ The goal of CA is to provide an uninterrupted supply of marijuana to registered qualifying patients. According to defendants, it does this by facilitating patient-to-patient transfers of marijuana 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 a month. CA retains the right to revoke a membership if the member uses marijuana 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 a month.⁴ 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 marijuana than the patient needs to treat his or her debilitating medical condition and the patient wants to make the “excess” marijuana available to other patients. Similarly, a caregiver rents a locker when the caregiver's patient does not need all the marijuana that was grown by the caregiver.⁵ When a caregiver rents a locker, the caregiver's patient must provide an attestation giving the caregiver permission to store the marijuana in the locker and allowing CA to distribute the marijuana to other members. CA limits the amount of marijuana that a patient or caregiver can place in a locker. A patient may store 2.5 ounces of marijuana, while a caregiver may store 2.5 ounces of marijuana for each of his or her patients. According to McQueen and Taylor, the marijuana 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 marijuana from its members or from third parties.

When a patient comes to CA to purchase marijuana, 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 marijuana 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 marijuana that are currently stored in the lockers.⁶ The member, however, may not smoke the marijuana at CA; CA is a no-grow and no-smoke facility. The number of marijuana strains available to CA members fluctuates. The number of available strains has been as high as 26 but as low as 5 or 6. After the patient or caregiver selects a strain of marijuana to purchase, a CA employee retrieves the marijuana from the locker, weighs and packages the marijuana, and records the purchase. CA limits the amount of marijuana that a member may purchase to 2.5 ounces in a 14–day period. The price of the marijuana 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 2 1/2 months of its operation, it sold approximately 19 pounds of marijuana. Its “farmers” made more than $76,000.⁷ 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 marijuana, nor does it allow marijuana 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 marijuana that CA facilitates fall within the scope of the medical use of marijuana. The trial court stated that its order resolved the last pending claim and closed the case.⁸

II. ANALYSIS

On appeal, plaintiff argues that the trial court erred by denying it injunctive relief. According to plaintiff, the provisions of the MMMA do not authorize patient-to-patient sales of marijuana. Therefore, plaintiff claims that defendants' operation of CA, which carries out patient-to-patient sales of marijuana, 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 N.W.2d 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 N.W.2d 579 (2008). We review a trial court's factual findings for clear error. Christiansen v. Gerrish Twp., 239 Mich.App. 380, 387, 608 N.W.2d 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 N.W.2d 772 (2003). We review de novo the trial court's interpretation of the MMMA. People v. Redden, 290 Mich.App. 65, 76, 799 N.W.2d 184 (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 N.W.2d 693 (1995). We presume that the meaning as plainly expressed in the statute is what was intended. Id. [ Redden, 290 Mich.App. at 76, 799 N.W.2d 184.]

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 defend...