Evidence From The Statute For Dispenaries: Patients Can Obtain Marijuana From A Secondary Caregiver

[lawyercaregiver]

the way i see this... currently

 

(b) 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 department's registration process with the medical use of marihuana in accordance with this act, provided that the primary caregiver possesses an amount of marihuana that does not exceed:

 

the COA in McQueen stated that CA was not allowed to charge money... that their defense based on 4i was not valid because when they received compensation it made it a sale. CA did not attempt to protect themselves with the argument that a patient can transfer to any patient under 4a. the COA plainly states this... and proceeded to refuse to address it. they instead said being in the vicinity was not medical use if you attach sales. the question about any p to any p or c was specifically not addressed.

 

fast forward.

 

the green decision.

the COA clearly said that a patient can transfer to any patient. the fact that money was not involved is not the determining factor... necessarily in every situation.

 

we now look at the plain meaning to 4e it says..

 

not that i can transfer for money..

not that i can transfer at all..

nothing about transfers specifically.

 

4(e) says, "(e) A registered primary caregiver may receive compensation for costs associated with assisting a registered qualifying patient in the medical use of marihuana. Any such compensation shall not constitute the sale of controlled substances."

 

as a caregiver if i receive compensation for assisting with the medical use of cannabis it is NOT a sale...

 

the green decision clarifies i can transfer to any patient.

 

4e clarifies i can get compensated and it isn't a sale..

 

no way around it that i can see....

 

other than of course the obvious problem that patient to patient must be done free still...

because 4e does not address patients.

but caregiver transfers to any patient seems to be available.

 

This is the analysis I was hoping for! The 14 pages of "Oh, the law does not specifically say you can have dispensaries so you are out of luck" and arguing over Bob's ADD are interesting but not very on topic..

The law provides AT LEAST two direct justifications for dispensaries- and Farmer's Markets:

1. Where the transaction is CG to Patient, section 4 says "A Caregiver can transfer to A patient." Any Caregiver-Any Patient.

2. Section 8 Affirmative Defenses- amount reasonably necessary to insure uninterrupted supply.

 

This law was written for a specific purpose and the meaning, while a bit convoluted, is still clear. My central point is the limited argument that kids are treated differently- they need parents to be Caregivers and this creates a clear and present need for parents to be able to access an alternative network to obtain medicine for their kid. Since there is a need for this network in the case of kids- every kid- this brings to light there is also a need in many cases not involving kids. Besides, you can't treat kids and adults differently under equal protection beyond their inherent differences as a group (i.e. you can certainly require parents to be Caregivers of children but you cannot create an absurd system where the only legal way for parents to get meds for the kids is to break the law). :bong2:

 

I

[peanutbutter]

This is the analysis I was hoping for! The 14 pages of "Oh, the law does not specifically say you can have dispensaries so you are out of luck" and arguing over Bob's ADD are interesting but not very on topic..

The law provides AT LEAST two direct justifications for dispensaries- and Farmer's Markets:

1. Where the transaction is CG to Patient, section 4 says "A Caregiver can transfer to A patient." Any Caregiver-Any Patient.

2. Section 8 Affirmative Defenses- amount reasonably necessary to insure uninterrupted supply.

 

This law was written for a specific purpose and the meaning, while a bit convoluted, is still clear. My central point is the limited argument that kids are treated differently- they need parents to be Caregivers and this creates a clear and present need for parents to be able to access an alternative network to obtain medicine for their kid. Since there is a need for this network in the case of kids- every kid- this brings to light there is also a need in many cases not involving kids. Besides, you can't treat kids and adults differently under equal protection beyond their inherent differences as a group (i.e. you can certainly require parents to be Caregivers of children but you cannot create an absurd system where the only legal way for parents to get meds for the kids is to break the law). :bong2:

 

I

 

The SC just released McQueen. I believe that in it they have defined passing a joint to be a crime.

 

You can receive but not give.

[lawyercaregiver]

Section 8 isn't relevant to this discussion.

 

The fact that your answer is, "don't know why" just leads right into my argument. "Don't know why" isn't an acceptable answer when you are engaging in statutory interpretation. There is always a reason. The reason here is that the drafters meant to protect cgs who dealt with connected patients.

 

Section 8 is absolutely relevant to a potential defense. No matter how bad you screw up section 4- over weight limits, selling outside the network, you STILL have section 8 if the medicine is reasonably necessary to insure an uninterrupted supply.

 

On section 4 I agree with you words in a Statute are put their for a reason and words are OMITTED for a reason. "The Primary Caregiver connected through the registry" in Section 4a was changed to "A" or ANY Caregiver may assist "A" or ANY patient in the medical use of marijuana."

 

Just in case you missed the obvious and plain meaning, they added in the next part: "And such transaction shall not be considered the sale of a controlled substance." This is what dispensaries do- not play lockbox games in bank vaults. They engage in transactions THAT ARE NOT TO BE CONSIDERED THE SALE OF A CONTROLLED SUBSTANCE. Is that clear enough for you?

[Highlander]

Section 8 is absolutely relevant to a potential defense. No matter how bad you screw up section 4- over weight limits, selling outside the network, you STILL have section 8 if the medicine is reasonably necessary to insure an uninterrupted supply.

 

On section 4 I agree with you words in a Statute are put their for a reason and words are OMITTED for a reason. "The Primary Caregiver connected through the registry" in Section 4a was changed to "A" or ANY Caregiver may assist "A" or ANY patient in the medical use of marijuana."

 

Just in case you missed the obvious and plain meaning, they added in the next part: "And such transaction shall not be considered the sale of a controlled substance." This is what dispensaries do- not play lockbox games in bank vaults. They engage in transactions THAT ARE NOT TO BE CONSIDERED THE SALE OF A CONTROLLED SUBSTANCE. Is that clear enough for you?

 

You keep saying that "a" means "any," yet you provide no basis for this. Are you really saying that legalese provides no distinction between these two words? Can you back that up?

[lawyercaregiver]

"THE"

a. Used before singular or plural nouns and noun phrases that denote particular, specified persons or things: the baby; the dress I wore.

b. Used before a noun, and generally stressed, to emphasize one of a group or type as the most outstanding or prominent: "The Primary Caregiver connected through caregiver registry system"

 

 

"A"

"Used before nouns and noun phrases that denote a single but unspecified person or thing.

 

While you are correct, "A Caregiver" does not mean "any" but an 'unspecified person' which means the legislature could tighten this up and better specify the Caregivers who can distribute outside the network. Until we get guidance on who these "unspecified Caregivers" are, the most reasonable interpretation is ANY Caregiver shall be immune for assisting A patient in the medical use.

 

Let us take out the pot and consider statutory interpretation. If a law says: "The Bartender can make your drink and serve it to you for money so long as you registered with that bartender through the State as a drinker." Then in the next section it says" "A bartender can also give you a drink for money even if you don't register with that bartender" this is going to be interpreted that ANY bartender can serve you a drink until the legislature defines precisely which bartenders are included in the broader title "A Bartender."

 

$100.00 says the Supremes blow this.

[Highlander]

"THE"

a. Used before singular or plural nouns and noun phrases that denote particular, specified persons or things: the baby; the dress I wore.

b. Used before a noun, and generally stressed, to emphasize one of a group or type as the most outstanding or prominent: "The Primary Caregiver connected through caregiver registry system"

 

 

"A"

"Used before nouns and noun phrases that denote a single but unspecified person or thing.

 

While you are correct, "A Caregiver" does not mean "any" but an 'unspecified person' which means the legislature could tighten this up and better specify the Caregivers who can distribute outside the network. Until we get guidance on who these "unspecified Caregivers" are, the most reasonable interpretation is ANY Caregiver shall be immune for assisting A patient in the medical use.

 

Let us take out the pot and consider statutory interpretation. If a law says: "The Bartender can make your drink and serve it to you for money so long as you registered with that bartender through the State as a drinker." Then in the next section it says" "A bartender can also give you a drink for money even if you don't register with that bartender" this is going to be interpreted that ANY bartender can serve you a drink until the legislature defines precisely which bartenders are included in the broader title "A Bartender."

 

$100.00 says the Supremes blow this.

 

Well it is not, and it didn't. The courts do not agree that "a" and "any" mean the same thing. I asked that you support this, but you just offer your opinion again.

 

I'm sure you know what conclusary means. Don't be conclusary.

 

We know your opinion. But what is the basis for it? Where is it written that "a" and "any" mean the same thing?

Edited February 8, 2013 by Highlander

[mibrains]

it matters not now.. the supreme court just said today that even under section 8 CA can not operate..

 

this seems to suggest that no dispensary of any type is allowed to operate.

 

they said any transfer outside of the caregiver to patient direct relationship is not medical use.. so the patient is protected they said.. but not the other party.

 

it will always therefore be a win - loose scenario which is not going to work.

[lawyercaregiver]

If we are being intellectually honest then it is clear that "using and administering" is a heck of a lot narrower than "medical use." Interpreting it using proper grammar and English language definitions leads us to "using and administering" meaning helping a pt consume the mj. It doesn't mean tranfers or any of that other stuff.

 

Bullcrap! The section continues: "(e) A registered primary caregiver may receive compensation for costs associated with assisting a registered qualifying patient in the medical use of marihuana. Any such compensation shall not constitute the sale of controlled substances."

 

If it doesn't mean "transfers" then why include the final sentence- "compensation shall not constitute the sale of a controlled substance."

 

Could they have made it any more clear?

[mibrains]

They definitely did not say that. That was not the question before the court.

 

C. SECTION 8 AFFIRMATIVE DEFENSE

Finally, even though § 4 does not permit defendants to operate a business that

facilitates patient-to-patient sales of marijuana, our decision in Kolanek makes clear that

§ 8 provides separate protections for medical marijuana patients and caregivers and that

one need not satisfy the requirements of § 4 immunity to be entitled to the § 8 affirmative

defense,65 which allows “a patient and a patient’s primary caregiver, if any, [to] assert the

medical purpose for using marihuana as a defense to any prosecution involving

marihuana . . . .”66 However, by its own terms, § 8(a) only applies “as a defense to any

prosecution involving marihuana . . . .”67 The text and structure of § 8 establish that the

drafters and voters intended that “prosecution” refer only to a criminal proceeding.

Specifically, § 8(b ) explains that a person “may assert the medical purpose for using

marihuana in a motion to dismiss, and the charges shall be dismissed following an

evidentiary hearing where the person shows the elements listed in subsection (a ).”68 As a

result, § 8 does not provide defendants with a basis to assert that their actions are in

accordance with the MMMA.

Although it did so for a different reason than the one we articulate, the Court of

Appeals reached the correct conclusion that defendants are not entitled to operate a

business that facilitates patient-to-patient sales of marijuana. Because the business model

of defendants’ dispensary relies entirely on transactions that do not comply with the

MMMA, defendants are operating their business in “[a] building . . . used for the

unlawful . . . keeping for sale . . . or furnishing of any controlled substance,” and plaintiff

is entitled to an injunction enjoining the continuing operation of the business because it is

a public nuisance.69

[mibrains]

68 MCL 333.26428(b) (emphasis added). This limitation is further supported by the

explicit exceptions that allow a person to assert the § 8 affirmative defense outside the

criminal context. Section 8© allows a patient or caregiver to assert a patient’s medical

purpose for using marijuana outside the context of criminal proceedings, but only as a

defense to “disciplinary action by a business or occupational or professional licensing

board or bureau” or the “forfeiture of any interest in or right to property.” MCL

333.26428©. This case does not represent one of the two limited exceptions contained

in § 8©.

[Highlander]

C. SECTION 8 AFFIRMATIVE DEFENSE

Finally, even though § 4 does not permit defendants to operate a business that

facilitates patient-to-patient sales of marijuana, our decision in Kolanek makes clear that

§ 8 provides separate protections for medical marijuana patients and caregivers and that

one need not satisfy the requirements of § 4 immunity to be entitled to the § 8 affirmative

defense,65 which allows “a patient and a patient’s primary caregiver, if any, [to] assert the

medical purpose for using marihuana as a defense to any prosecution involving

marihuana . . . .”66 However, by its own terms, § 8(a) only applies “as a defense to any

prosecution involving marihuana . . . .”67 The text and structure of § 8 establish that the

drafters and voters intended that “prosecution” refer only to a criminal proceeding.

Specifically, § 8(b ) explains that a person “may assert the medical purpose for using

marihuana in a motion to dismiss, and the charges shall be dismissed following an

evidentiary hearing where the person shows the elements listed in subsection (a ).”68 As a

result, § 8 does not provide defendants with a basis to assert that their actions are in

accordance with the MMMA.

Although it did so for a different reason than the one we articulate, the Court of

Appeals reached the correct conclusion that defendants are not entitled to operate a

business that facilitates patient-to-patient sales of marijuana. Because the business model

of defendants’ dispensary relies entirely on transactions that do not comply with the

MMMA, defendants are operating their business in “[a] building . . . used for the

unlawful . . . keeping for sale . . . or furnishing of any controlled substance,” and plaintiff

is entitled to an injunction enjoining the continuing operation of the business because it is

a public nuisance.69

 

The SC said that you can't use section 8 to defend against a civil suit. The CA matter was a civil suit - not criminal....the PA was trying to shut them down on a nuisance claim.

 

So no section 8 protection for a civil dispensary shut-down.

 

There was no ruling on using Sec 8 as a defense against CRIMINAL prosecution for running a dispensary.

[mibrains]

oh i see...

 

it is not a criminal case...

 

its a public nuisance case...

 

LOL Jinx

 

Edited February 8, 2013 by mibrains
jinx

[mibrains]

so then

 

how does this change criminal suit with transfers according to green?

 

does this cross over to be binding in a criminal court?

 

are transfers without consideration still ok?

[lawyercaregiver]

Wouldn't you think that possession and internal possession are two different things...and for a reason/reasons?

 

The law says I can't possess MMJ at a school. That means I can't take my baggie to my kids' school. If possession includes internal possession then you couldn't set foot on school ground with any presence of MMJ in your system.

 

This is EXACTLY THE GOAL. Some of these MMMA interpretations are way less far fetched than that idea. Ban pot smokers from being around kids while we are at it! And within 50 feet of a motor vehicle. Pass a law finding that pot smokers breathe more air so breathing by people with marijuana in their system could also be prohibited. Yah, Ameri-kkk-aaa.

[Highlander]

so then

 

how does this change criminal suit with transfers according to green?

 

does this cross over to be binding in a criminal court?

 

are transfers without consideration still ok?

 

Opinion on the legality is the same - criminal vs. civil. The only difference is the charges the defendant faces. The PA could have (and maybe still could???) file criminal charges against the folks who operated CA.

[Highlander]

This is EXACTLY THE GOAL. Some of these MMMA interpretations are way less far fetched than that idea. Ban pot smokers from being around kids while we are at it! And within 50 feet of a motor vehicle. Pass a law finding that pot smokers breathe more air so breathing by people with marijuana in their system could also be prohibited. Yah, Ameri-kkk-aaa.

 

Are you saying that it is against the law to "internally possess" at a school? I'm not disagreeing with you. I'm just asking your opinion.

[bobandtorey]

http://www.wwmt.com/shared/newsroom/top-stories/stories/wwmt_michigan-supreme-court-rules-medicalmarijuana-dispensaries-not-allowed-under-2008-law-7693.shtml

 

Apparently they have ruled 4-1 against sales in McQueen. Waiting for the actual opinion.

 

Not at all unexpected, but at least it is settled.

 

Dr. Bob

 

Am sorry Doc I disagree it won't be settled until people can use the Law in court

[lawyercaregiver]

http://courts.michig...4%20Opinion.pdf

 

Opinion summary

 

 

THANKS DOCTOR BOB. Let me be the first to read and comment on this: This decision bars patient to patient transfers, upholding the appeals court on other grounds. THIS DECISION SAYS NOTHING ABOUT CAREGIVER TO PATIENT TRANSFERS under Section 4e and nothing about the Section 8 Affirmative Defense.

[bobandtorey]

 

 

Opinion on the legality is the same - criminal vs. civil. The only difference is the charges the defendant faces. The PA could have (and maybe still could???) file criminal charges against the folks who operated CA.

 

Oh I see and I think they will do just that There will be no more public nuisance charges filed by the States now it will be Criminal charges

 

When people don't close down the Sh@t will hit the fan

 

Before this came out they knew they would not go to jail it was worth the risk the $$ was good but when you add years in jail it's a game changer IMHO

[Highlander]

THANKS DOCTOR BOB. Let me be the first to read and comment on this: This decision bars patient to patient transfers, upholding the appeals court on other grounds. THIS DECISION SAYS NOTHING ABOUT CAREGIVER TO PATIENT TRANSFERS under Section 4e and nothing about the Section 8 Affirmative Defense.

 

You're far from the first to comment on this...but do check your statements. The opinion doesn't have to say anything about transfers from CG to "any" patient under 4e because it explicitly states that you can't make the transfer in the first place. CG to registered 5. Clear as day in this opinion.

 

It says a lot about the Sec 8 defense. Sec 8 did not and does not apply. Sec 8 applies to a "prosecution," a criminal case. This was nuisance claim.

 

Maybe you shouldn't have been in such a hurry to be the first to post on this.

[bobandtorey]

 

 

 

THANKS DOCTOR BOB. Let me be the first to read and comment on this: This decision bars patient to patient transfers, upholding the appeals court on other grounds. THIS DECISION SAYS NOTHING ABOUT CAREGIVER TO PATIENT TRANSFERS under Section 4e and nothing about the Section 8 Affirmative Defense.

I agree and IMHO that's why they were mad as hell when we took our case out of the SC because the AD could of been no Defense for anyone if it had gone bad up their

 

Witch is why we did take it out we were told back then that the SC could of maid it so no one had any protection but now we know its Limited protection per Sec 8 IMHO

[bobandtorey]

 

 

You're far from the first to comment on this...but do check your statements. The opinion doesn't have to say anything about transfers from CG to "any" patient under 4e because it explicitly states that you can't make the transfer in the first place. CG to registered 5. Clear as day in this opinion.

 

It says a lot about the Sec 8 defense. Sec 8 did not and does not apply.

 

Maybe you shouldn't have been in such a hurry to be the first to post on this.

 

Sec 8 applies to a "prosecution," a criminal case. This was nuisance claim.

 

IMHO that will change now for him to be criminal

 

[Dr. Bob]

Let me make sure I understand this. The Supreme Court ruled and we are all venting about how, in our interpretation, they got it wrong.

 

Are you suggesting we appeal this to the FEDERAL COURT SYSTEM?

 

If not, perhaps a better use of our time would be to figure out a way to use the patient/caregiver system to help patients get their meds? You know, accept the reality of the ruling and figure out how to live with it?

 

 

Dr. Bob

[lawyercaregiver]

You're far from the first to comment on this...but do check your statements. The opinion doesn't have to say anything about transfers from CG to "any" patient under 4e because it explicitly states that you can't make the transfer in the first place. CG to registered 5. Clear as day in this opinion.

 

It says a lot about the Sec 8 defense. Sec 8 did not and does not apply. Sec 8 applies to a "prosecution," a criminal case. This was nuisance claim.

 

Maybe you shouldn't have been in such a hurry to be the first to post on this.

 

Well was I the first or not? And how could I have posted my comment any quicker coming seconds after Dr. Bob posted the opinion?

 

The opinion states you cannot make the transfer from Patient to Patient or at least you are subject to injunction in a civil case. Bring criminal charges and you add the Section 8 defense which was not considered. Argue it is a Caregiver to Patient rather than Patient to Patient, which was also not considered, and you have an entirely new case.

 

Back to square 1.

 

Keep growing every day people. The race is not to the weak nor the battle to the strong. Surely an angel resides in this whirlwind and directs this storm?

[mibrains]

Oh I see and I think they will do just that There will be no more public nuisance charges filed by the States now it will be Criminal charges

 

When people don't close down the Sh@t will hit the fan

 

Before this came out they knew they would not go to jail it was worth the risk the $$ was good but when you add years in jail it's a game changer IMHO

 

actually bob the opposite is true..

this gives every township the power to close a dispensary based on civil case of public nuisance.

any criminal prosecution still has to be tested and run through the courts.