Medical marijuana dispensaries are not only a “public nuisance,” they’re illegal under the 2008 citizen-initiated law that doesn’t allow for the sale of the drug, a three-judge panel of the Michigan Court of Appeals ruled.

In an opinion released this morning, the panel said a Mount Pleasant dispensary, Compassionate Apothecary, could be shut down because it sells the drug to members who are registered with the state to use or provide marijuana.

Specifically, the “medical use of marijuana, as defined by the Michigan Medical Marijuana Act, does not include patient-to-patient sales of marijuana, and no other provision of the MMMA can be read to permit such sales,” the court ruled. “Therefore, defendants have no authority to actively engage in and carry out the selling of marijuana between (apothecary) members.

Through the group, “defendants actively participate in the 'sale' of marijuana between CA members, but the 'medical use' of marijuana does not include the sale of marijuana.”

Attorney General Bill Schuette and lawmakers this month vowed to rewrite the voter-approved law to clarify that physicians who authorize the use of the drug have a “bona fide” relationship with the patient.

Now, dispensaries are advertising the availability of online certification. Lawmakers are also seeking to give local authorities greater zoning authority to restrict stores that have cropped up across the state.

By enjoining the Mount Pleasant store from further operations, the ruling would appear to give prosecutors and law enforcement the authority to shut them down. The decision is expected to be appealed to the Michigan Supreme Court, which has a solid conservative majority.

Believing the law is purposefully vague, local officials have been frustrated by their inability to close down or regulate what Schuette calls "pot shops." Some cities have approved moratoriums while in others, like Lansing, dispensaries have flourished. Just blocks east of the Capitol, there are more than a dozen in operation.

The appeals panel, Judges Joel Hoekstra, Christopher Murray and Cynthia Diane Stephens, said an Isabella County trial judge erred in an earlier ruling by saying that the dispensary operators do not “possess” the marijuana, but merely facilitate its storage in lockers rented by members.

The law allows a “caregiver” to grow up to 72 plants for himself and five other patients. The court ruled dispensary operators indeed have possession of the drug and in amounts far in excess of what the law allows.

Moreover, the court ruled, “the evidence established that in the first two and half months of operating (the dispensary), defendants sold 19 pounds” of marijuana to members.

One legislative proposal would restrict caregiver compensation for costs to their own registered patients and prohibit patients from obtaining legal marijuana from anyone but their caregiver. Patient-to-patient transfer of the drug would be illegal. Card holders would no longer be presumed to have obtained marijuana in their possession legally. Most changes to the law would require a three-fourths vote since it was crafted and approved through citizen initiative.

Cannabis United, a lobbying group of physicians and lawyers - but not dispensaries - says lack of access under the letter of the law approved by voters “forces” patients to dispensaries and “illegal access” when their one caregiver isn’t able to supply it. They’d support allowing caregivers to provide the drug to more patients and allow patients to obtain it from two caregivers instead of one.

Contact Peter Luke at (517) 487-8888 ext. 235 or e-mail him at pluke@boothmichigan.com.