Medical Marihuana Update:

[+Dizledot]

Just to keep all of you up to date....my latest township news letter

 

 

February 2011

 

　Township Law E-Letter

 

Medical Marihuana Update:

 

The Puzzle Begins to Unfold

 

　

 

The Michigan Medical Marihuana Act (MMMA) continued to produce more new developments in the courts this past month. Here’s a summary of the most recent cases, together with an explanation about what these court battles mean for township officials and your residents.

 

The New Court Cases

 

The courts are grappling with the criminal as] pects of Medical Marihuana, as well as individual patients’ and caregivers’ challenges and argu] ments about the MMMA. We are getting glimpses of a narrowing interpretation of the claimed privileges and protections. Clearly, the trend of the courts so far has been to view the rights and privileges of patients and caregivers very strictly. Since there is a slippery slope be] tween drug abuse and the use of marihuana to control pain in chronically ill patients, the courts’ cautious approach is understandable.

 

What is an Enclosed, Locked Facility?

 

The MMMA requires that marihuana plants be kept in an "enclosed, locked facility." One defen] dant arrested for illegally growing marihuana ar] gued he was protected by the MMMA because he was a qualified, registered patient who grew his marihuana in a "closed, locked facility." One of his growing areas was within a six]foot high dog kennel, partially covered with black plastic but with an open top. His other growing area was an unlocked living room closet in his house.

 

The Court determined that the purpose of the "enclosed, locked facility" requirement is to ensure that medical marihuana is inaccessible to anyone other than a registered caregiver or qualifying patient. Therefore, an open chain link kennel or an unlocked closet do not satisfy the MMMA’s strict requirements. Michigan v King (Court of Appeals, February 3, 2011).

 

Timing of a Physician’s Certification

 

What happens if a claimed patient does not possess a valid registry identification card at the time of an arrest for possession of marihuana? A patient may still be protected by the MMMA from prosecution even if he does not yet have a card, as long as he has previously obtained a physician’s certification and approval for medical marihuana. But if the patient waits until after the arrest to see a physician to get a certification, he is too late and will be subject to prosecution, even if he might otherwise be qualified.

 

How Much Marihuana?

 

Section 4 of the MMMA allows the possession of 12 plants and 2.5 ounces of usable marihuana per qualifying patient. But Section 8 of the MMMA permits the possession of a quantity of marihuana "not more than reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitation medical condition." This raises some potentially serious issues of proof in medical marihuana cases involving the amount of marijuana. The actual amount allowed may possibly be more than or less than 12 plants and 2.5 ounces. People v Walburg (Court of Appeals, February 10, 2011).

 

Township Law E-Letter Fahey Schultz Burzych Rhodes PLC

 

Employment Issues

 

It was only a matter of time before an employee would claim protection by the MMMA from discharge based on the consumption of medical marihuana as a registered patient. As it turns out, however, the MMMA does not protect employment rights at all.

 

An employee was fired under the employer’s drug policy after testing positive for marihuana, and then sued for wrongful discharge. He was an at will employee with a good work record for 5 years prior to being fired. He admitted using marihuana, but claimed that because he was a qualified and registered medical marihuana pa] tient, he could not be fired for testing positive.

 

The Court noted that the MMMA does not mention employee rights or protection from discipline or discharge, and the Michigan voters thus could not have intended to enact private employment regulation in the MMMA. There are no employee rights or entitlements under the MMMA to use marihuana under any circumstances. Casias v Wal]Mart (Western Dist of Michigan, February 11, 2011).

 

rental fees, membership fees, receives 20% of the sales price per transfer, and pays a state sales tax per transfer.

 

The Circuit Court determined that the owners and operators of the warehouse did not violate the MMMA by possessing or growing more marihuana than is permissible, because they did not own the marihuana that was stored in the lockers or transferred on the property. Further, the warehouse did not constitute a public nuisance because the owners operated under the strict terms of the MMMA. The Court further noted that the MMMA permits patient to patient marihuana transfers, even through or at the hands of primary caregivers, because it is a medical use of marihuana.

 

The result reached by the Circuit Court in this case seems to contradict the opinion written by Court of Appeals Judge O’Connell in the Redden case last year. So we will carefully watch the results of this most recent case as it works its way through the Court of Appeals. Michigan v McQueen (Isabella Circuit Court, December 16, 2010).

 

Marihuana Dispensaries

 

Putting All the Pieces Together

The MMMA does not say anything about the es] tablishment of dispensaries, and one case out of Isabella County bears further watching on this issue.

 

A registered qualifying patient and a registered primary caregiver started a business in a warehouse that leases lockers for medical marihuana storage purposes to other registered qualifying patients and primary caregivers that become "members" of the business upon approved appli] cation. Members pay a membership fee, receive a membership number, may lease a locker to store medical marihuana, and supposedly can sell or purchase marihuana to and from other members, at a price set by the members. The warehouse business does not own, purchase, or sell any marihuana, but it does collect locker

 

As we move forward and continue to track the progress of the future MMMA cases, one thing is clear: well]meaning townships remain caught in the middle.

 

There are risks. If your township opts to regulate medical marihuana by limiting where and how caregivers or patients may grow, store, or provide marihuana, there is a risk that caregiv] ers or patients may claim your regulations are preempted by the MMMA. A similar but much greater risk exists if your Township elects to totally ban the use of medical marihuana.

 

If your Township instead chooses not to regulate medical marihuana at all, you run a perhaps higher risk of permitting or encouraging conduct that goes beyond the medical, palliative purpose of the MMMA, to exploit the gray

 

Page 2

 

Township Law E-Letter Fahey Schultz Burzych Rhodes PLC

 

areas of medical marihuana use by setting up dispensaries in your township, or encouraging or facilitating the sale and use of large quantities of marihuana.

 

Looking Forward

 

2 1/2 years after the MMMA became law, courts are still sorting out many issues, but some things are be] coming clearer. Courts are recognizing that the MMMA does not create a special class of civil protections for medical marihuana users. Strict interpretation of the greater policy and purpose of the MMMA will likely lead to stricter and more uniform interpretation of the MMMA’s protections.

 

Also acknowledge that it is very likely, despite this strict construction of the MMMA, that many proper, legal operations can be created by which patients or caregivers, acting in full compliance with the law, may meet their palliative needs. It is wise to familiarize yourself with the agendas and propaganda of interest groups on both sides of the law, to better understand what may lie ahead for you in your township.

 

Appreciate that courts do not frame this legal puzzle as a question of whether marihuana should be a controlled substance. Rather, the correct question is how to do so properly, within the bounds of the MMMA, which was so broadly supported by the electorate in 2008. — Helen Mills

 

　

 

　

 

　

 

　

 

　

 

　

 

　

 

　

 

　

 

　

 

　

 

　

 

4151 Okemos Road Okemos MI 48864 517.381.0100 main tel 517.381.5151 main fax www.fsblawyers.com

 

　

 

　

 

　

 

　

 

Copyright © 2011 Fahey Schultz Burzych Rhodes PLC

 

[+Silverblue]

"2 1/2 years after the MMMA became law, courts are still sorting out many issues, but some things are be] coming clearer. Courts are recognizing that the MMMA does not create a special class of civil protections for medical marihuana users. Strict interpretation of the greater policy and purpose of the MMMA will likely lead to stricter and more uniform interpretation of the MMMA’s protections."

WHAT THE ...??? I'm sure when I read the law it said WE ARE protected. I'd bet those who say we aren't are against it. (DUH). HOW can they SAY it doesn't protect us when it says it does? As long as we stay within its guidelines, it says we are. Right?

 

Sb

[+Dizledot]

Interesting.....it never ceases to amaze me what they come up with. This why I share this with you. We need to see where they are getting their info from and what they are thinking in order to stand up to them.

[+Silverblue]

I hope BB sees this.

 

Sb

[bobandtorey]

Just to keep all of you up to date....my latest township news letter

 

 

February 2011

 

　Township Law E-Letter

 

Medical Marihuana Update:

 

The Puzzle Begins to Unfold

 

　

 

The Michigan Medical Marihuana Act (MMMA) continued to produce more new developments in the courts this past month. Here’s a summary of the most recent cases, together with an explanation about what these court battles mean for township officials and your residents.

 

The New Court Cases

 

The courts are grappling with the criminal as] pects of Medical Marihuana, as well as individual patients’ and caregivers’ challenges and argu] ments about the MMMA. We are getting glimpses of a narrowing interpretation of the claimed privileges and protections. Clearly, the trend of the courts so far has been to view the rights and privileges of patients and caregivers very strictly. Since there is a slippery slope be] tween drug abuse and the use of marihuana to control pain in chronically ill patients, the courts’ cautious approach is understandable.

 

What is an Enclosed, Locked Facility?

 

The MMMA requires that marihuana plants be kept in an "enclosed, locked facility." One defen] dant arrested for illegally growing marihuana ar] gued he was protected by the MMMA because he was a qualified, registered patient who grew his marihuana in a "closed, locked facility." One of his growing areas was within a six]foot high dog kennel, partially covered with black plastic but with an open top. His other growing area was an unlocked living room closet in his house.

 

The Court determined that the purpose of the "enclosed, locked facility" requirement is to ensure that medical marihuana is inaccessible to anyone other than a registered caregiver or qualifying patient. Therefore, an open chain link kennel or an unlocked closet do not satisfy the MMMA’s strict requirements. Michigan v King (Court of Appeals, February 3, 2011).

 

Timing of a Physician’s Certification

 

What happens if a claimed patient does not possess a valid registry identification card at the time of an arrest for possession of marihuana? A patient may still be protected by the MMMA from prosecution even if he does not yet have a card, as long as he has previously obtained a physician’s certification and approval for medical marihuana. But if the patient waits until after the arrest to see a physician to get a certification, he is too late and will be subject to prosecution, even if he might otherwise be qualified.

 

How Much Marihuana?

 

Section 4 of the MMMA allows the possession of 12 plants and 2.5 ounces of usable marihuana per qualifying patient. But Section 8 of the MMMA permits the possession of a quantity of marihuana "not more than reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitation medical condition." This raises some potentially serious issues of proof in medical marihuana cases involving the amount of marijuana. The actual amount allowed may possibly be more than or less than 12 plants and 2.5 ounces. People v Walburg (Court of Appeals, February 10, 2011).

 

Township Law E-Letter Fahey Schultz Burzych Rhodes PLC

 

Employment Issues

 

It was only a matter of time before an employee would claim protection by the MMMA from discharge based on the consumption of medical marihuana as a registered patient. As it turns out, however, the MMMA does not protect employment rights at all.

 

An employee was fired under the employer’s drug policy after testing positive for marihuana, and then sued for wrongful discharge. He was an at will employee with a good work record for 5 years prior to being fired. He admitted using marihuana, but claimed that because he was a qualified and registered medical marihuana pa] tient, he could not be fired for testing positive.

 

The Court noted that the MMMA does not mention employee rights or protection from discipline or discharge, and the Michigan voters thus could not have intended to enact private employment regulation in the MMMA. There are no employee rights or entitlements under the MMMA to use marihuana under any circumstances. Casias v Wal]Mart (Western Dist of Michigan, February 11, 2011).

 

rental fees, membership fees, receives 20% of the sales price per transfer, and pays a state sales tax per transfer.

 

The Circuit Court determined that the owners and operators of the warehouse did not violate the MMMA by possessing or growing more marihuana than is permissible, because they did not own the marihuana that was stored in the lockers or transferred on the property. Further, the warehouse did not constitute a public nuisance because the owners operated under the strict terms of the MMMA. The Court further noted that the MMMA permits patient to patient marihuana transfers, even through or at the hands of primary caregivers, because it is a medical use of marihuana.

 

The result reached by the Circuit Court in this case seems to contradict the opinion written by Court of Appeals Judge O’Connell in the Redden case last year. So we will carefully watch the results of this most recent case as it works its way through the Court of Appeals. Michigan v McQueen (Isabella Circuit Court, December 16, 2010).

 

Marihuana Dispensaries

 

Putting All the Pieces Together

The MMMA does not say anything about the es] tablishment of dispensaries, and one case out of Isabella County bears further watching on this issue.

 

A registered qualifying patient and a registered primary caregiver started a business in a warehouse that leases lockers for medical marihuana storage purposes to other registered qualifying patients and primary caregivers that become "members" of the business upon approved appli] cation. Members pay a membership fee, receive a membership number, may lease a locker to store medical marihuana, and supposedly can sell or purchase marihuana to and from other members, at a price set by the members. The warehouse business does not own, purchase, or sell any marihuana, but it does collect locker

 

As we move forward and continue to track the progress of the future MMMA cases, one thing is clear: well]meaning townships remain caught in the middle.

 

There are risks. If your township opts to regulate medical marihuana by limiting where and how caregivers or patients may grow, store, or provide marihuana, there is a risk that caregiv] ers or patients may claim your regulations are preempted by the MMMA. A similar but much greater risk exists if your Township elects to totally ban the use of medical marihuana.

 

If your Township instead chooses not to regulate medical marihuana at all, you run a perhaps higher risk of permitting or encouraging conduct that goes beyond the medical, palliative purpose of the MMMA, to exploit the gray

 

Page 2

 

Township Law E-Letter Fahey Schultz Burzych Rhodes PLC

 

areas of medical marihuana use by setting up dispensaries in your township, or encouraging or facilitating the sale and use of large quantities of marihuana.

 

Looking Forward

 

2 1/2 years after the MMMA became law, courts are still sorting out many issues, but some things are be] coming clearer. Courts are recognizing that the MMMA does not create a special class of civil protections for medical marihuana users. Strict interpretation of the greater policy and purpose of the MMMA will likely lead to stricter and more uniform interpretation of the MMMA’s protections.

 

Also acknowledge that it is very likely, despite this strict construction of the MMMA, that many proper, legal operations can be created by which patients or caregivers, acting in full compliance with the law, may meet their palliative needs. It is wise to familiarize yourself with the agendas and propaganda of interest groups on both sides of the law, to better understand what may lie ahead for you in your township.

 

Appreciate that courts do not frame this legal puzzle as a question of whether marihuana should be a controlled substance. Rather, the correct question is how to do so properly, within the bounds of the MMMA, which was so broadly supported by the electorate in 2008. — Helen Mills

 

　

 

　

 

　

 

　

 

　

 

　

 

　

 

　

 

　

 

　

 

　

 

　

 

4151 Okemos Road Okemos MI 48864 517.381.0100 main tel 517.381.5151 main fax www.fsblawyers.com

 

　

 

　

 

　

 

　

 

Copyright © 2011 Fahey Schultz Burzych Rhodes PLC

 

 

 

Thanks for the update

i guess they have it all figured out

[bobandtorey]

Well well , how about the locked facility in the most known case of all Bob and Torey . Just the other day a friend asked me if his house qualifies as a locked facility . He lives in an A-frame chalet that has just one portioned wall and thats for the Bathroom the rest is open and the bedrooms are lofts . So does this mean he has to build a locking cabinet if he grows his own 12 plants . I dont get it. Do we have to lock up our meds by law ?Nope not at all from what I read in the law . And to be honest Most thieves would rather steal dry meds than plants . I dont get the whole locked enclosed facility and houses in general being disqualified .Its no different than a warehouse or any other type of locked facility . If its locked and private than it is so and I believe that would be legal . I would like to know, so when I relocate and setup a grow I am in the guidelines of this part of the law ....

 

next thing we will see that the grow tents that the grow stores sells wont fly ether look at us are front door was locked the bedroom door had a lock on it but the plants were in a closet in the bedroom with the lock and thats not locked up com on

[+Silverblue]

Medical Prisoner. Perfect description.

 

Sb

[yesican]

Great post. I am wondering why in the world there is no requirement for people who are prescribed the notorious brain-mushing & addictive prescribed drugs (you know the ones - we always get to read about them in the crime & court news) to keep those meds in an "enclosed locked facility" plus account for their amounts etc ...

Are we just .. so.. special??

[mizerman]

Blueberry,

 

I wish May 25th was TOMORROW!

 

Mizerman

[mizerman]

exactly Mm... we need to kick there donkey's with numbers on may 25th!

Well, I have to think that it will be one heck of show that night on Planet Green Trees!

 

May 25th is on a Wednesday.

 

Mizerman

[+Silverblue]

Milking the poor is a favorite pastime for some, those people have way too much; MORE than we'll EVER see in our lifetime. They will NEVER spend it all! It's not just about money, but control. We all know that, right? They can buy many things but there's one thing they can NEVER buy- COMPASSION. Real, honest, sincere, GENUINE Compassion can never be bought. Like a smile, or real love, or anything else that shows the true nature of caring, Compassion can only be given away. Those who prey on the sick have traded their compassion away for money and power. Those who do the right thing may achieve wealth and power, too, but they do it honestly, EARNING the RESPECT of WE, THE PEOPLE. So I shall echo a question that asks, "WHERE are the GOOD people who have the Power to help us? We know they're out there, we see messages saying who voted for what, who's supporting/writing what bill. We need to make sure they'll stand by us, thank the ones who are trying to stop bad bills, thank the ones who are trying to pass good bills. Remember them, too.

 

So we have another opportunity to back up our position by countering their claim that this is not what the people wanted, AAANNDDD we MUST counter the claim that our law does not protect us. It doesn't surprise me that they'd come up with such falseness. It's not just us they hate, but that's no comfort.

 

They are under quite a grand illusion to think they represent The People. Most of them haven't a clue, nor do they care. This hurts the good ones who really are trying to be reasonable. I want them to know that my voice will be heard. Our collective voices ARE being heard, not by ASA, not by certain other groups who betrayed us, and certainly NOT those who draft legislation against us!

 

Sb

[phaquetoo]

This document is a written conspiracy to overthrow the will of the people. Am I right, that it is the government that is engaged in this conspiracy? Where is one good government official that will stand up and say HELL NO, Your not going to tamper with the will of the people. Your not going to invent reasons for the government to steal from the sick and the poor. Your not going to terrorize patients, caregivers and compassion clubs. If the government pursues it's current course concerning our law and the will of the people, it will fail! As well as having the ultimate contingency plan, we are taking action on many fronts. All the competing groups need to understand that Patients Are First! Thousands of people who were obeying the letter and intent of the law, invested all they had to serve the sick. All they are asking for is to be left alone. Our patient caregiver system is off limits. Our social network must be left intact and unimpeded. Sick people should not be restricted to medicating at their home. The sick need to be among the living. So this is a civil rights issue. It is about the sick and dying retaining rights granted by the people. Politicians are only doing themselves a favor by not abusing the sick. Abuse is also defined by stripping a sick person of their dignity and denying them basic civil rights. The reason the "people" voted for this law was because it is people helping people. Not so the government and the mega rich could make a fortune off the suffering of the sick.

 

Let's face it folks, bottom line, we got them out numbered! Thanks, Bb

 

 

I dont know I use my mm every where i used to do my meds (methadone. xanax, celexa,etc) oh darn maybe thats why i have so much contact with the law also!

Phaqem

 

didnt po po's use to be called peace officers?

 

Peace

[bobandtorey]

some times i think that me and kingpinn are still inn court is because of greed i can not think of any thing else that would put us still in court i think about it all the time if Kingpinn gets off then outside grows would be OK

if they set us free then all you would need is a Doctor's Recommendation for MMJ but but we already no that you need a Doc Rec; so whats it going to prove

anyways am sorry for the post

now Sb thats a great post as always

[DayTripper]

some times i think that me and kingpinn are still inn court is because of greed i can not think of any thing else that would put us still in court i think about it all the time if Kingpinn gets off then outside grows would be OK

if they set us free then all you would need is a Doctor's Recommendation for MMJ but but we already no that you need a Doc Rec; so whats it going to prove

anyways am sorry for the post

now Sb thats a great post as always

 

I don't think the COA opinion in King will hurt you two because you didn't have anyone else living there and it is NOT REASONABLE to expect to have to protect anything in your bedroom beyond the lock that was on that door. Leo can not reasonably expect that bedroom door to be locked while you are at home without visitors like when they raided you. Further even if someone was there the law protects you and them from harm simply for being around your medicine.

 

The King ruling makes the case that anyone in that home could have gotten into the hall closet; because it didn't have a lock on it. Well your lawyer should be able to explain to a jury that per a laymans understanding of a new law it is reasonable for you two to assume that a locked bedroom door containg the closet met the requirement, and that it DOES in fact meet the requirement.

 

If growing in a basement; how many doors do they expect? I say one after the front door according to the ruling. It would not be reasonable for them to expect you to put more than one additional lock between the plants and the rest of the dwelling unless the law specified that which it does not. The law DOES NOT say you can't sleep with your plants. Ask that complain Cooper where it says you can't sleep in part of your grow room?

 

Try not to sweat it too much Bob & Torey; I wish I could say the same for Larry King but it doesn't look good for him unless he gets to the MI. Supreme Court somehow in my opinion.

[bobandtorey]

I don't think the COA opinion in King will hurt you two because you didn't have anyone else living there and it is NOT REASONABLE to expect to have to protect anything in your bedroom beyond the lock that was on that door. Leo can not reasonably expect that bedroom door to be locked while you are at home without visitors like when they raided you. Further even if someone was there the law protects you and them from harm simply for being around your medicine.

 

The King ruling makes the case that anyone in that home could have gotten into the hall closet; because it didn't have a lock on it. Well your lawyer should be able to explain to a jury that per a laymans understanding of a new law it is reasonable for you two to assume that a locked bedroom door containg the closet met the requirement, and that it DOES in fact meet the requirement.

 

If growing in a basement; how many doors do they expect? I say one after the front door according to the ruling. It would not be reasonable for them to expect you to put more than one additional lock between the plants and the rest of the dwelling unless the law specified that which it does not. The law DOES NOT say you can't sleep with your plants. Ask that complain Cooper where it says you can't sleep in part of your grow room?

 

Try not to sweat it too much Bob & Torey; I wish I could say the same for Larry King but it doesn't look good for him unless he gets to the MI. Supreme Court somehow in my opinion.

 

Thanks i know Larry is worred for sure and Matt does want to go all the way but at what cost some days i think we will be OK and some days i don't no i do no they are still trying to get some one

[+Silverblue]

I don't think the COA opinion in King will hurt you two because you didn't have anyone else living there and it is NOT REASONABLE to expect to have to protect anything in your bedroom beyond the lock that was on that door. Leo can not reasonably expect that bedroom door to be locked while you are at home without visitors like when they raided you. Further even if someone was there the law protects you and them from harm simply for being around your medicine.

 

The King ruling makes the case that anyone in that home could have gotten into the hall closet; because it didn't have a lock on it. Well your lawyer should be able to explain to a jury that per a laymans understanding of a new law it is reasonable for you two to assume that a locked bedroom door containg the closet met the requirement, and that it DOES in fact meet the requirement.

 

If growing in a basement; how many doors do they expect? I say one after the front door according to the ruling. It would not be reasonable for them to expect you to put more than one additional lock between the plants and the rest of the dwelling unless the law specified that which it does not. The law DOES NOT say you can't sleep with your plants. Ask that complain Cooper where it says you can't sleep in part of your grow room?

 

Try not to sweat it too much Bob & Torey; I wish I could say the same for Larry King but it doesn't look good for him unless he gets to the MI. Supreme Court somehow in my opinion.

REASONABLE. That's all we're asking for. We didn't ask for this fight, we didn't think we'd be in this war. We WANT to abide by the law, most of us are doing so. Yes, REASONABLE is the operative word.

 

Sb