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Wednesday, August 22,2012

One year later

Few dispensaries remain, leaving little doubt that medical marijuana activity has gone back underground. Now, all eyes are on the state Supreme Court.

by Andy Balaskovitz
Once the neon flashes of an open sign and maybe a cannabis leaf showed plainly in the windows of 41 storefronts across greater Lansing. A half-dozen or so remain. Where once 11 medical marijuana dispensaries operated on the 1.6-mile stretch of Michigan Avenue between Cedar Street and U.S. 127, one remains. 

Since Aug. 23, 2011, the number of medical marijuana dispensaries around town dropped from 41 to at least six. Thursday marks a happy anniversary for opponents of Lansing’s once thriving medical marijuana dispensary scene, which reached a critical mass last summer right up until the state Court of Appeals sent owners running for the hills. For supporters of the market, particularly medical marijuana patients whose access to cannabis is more limited without dispensaries, Thursday is a far sourer anniversary. 

Consequently, dispensary owners, attorneys and law enforcement officials — though they can’t quantify it — say the dispensary business has merely gone from out in the open to the underground. Which should seem obvious: Did we really think the demand for cannabis would go away simply because of an unfavorable court ruling for businesses?

And those few business owners refusing to crawl under a rock until the state Supreme Court settles this issue, for now, are doing so cautiously — but for the greater good of patients.

“I would have to imagine” the business went underground, said an employee at CA of Lansing on Michigan Avenue, who asked not to be identified. “That’s the only logical conclusion I can come to. 

“Ever since I started working here, I just expect the cops to show up. But there’s no reason for them to — it’s not like we’re doing anything illegal here.”

While the employee said that the business has moved away from the previous CA model of storing cannabis in lockers for patients to buy, he would not detail how the business is run. Some attorneys disagree on whether dispensaries are actually illegal: Is it sales or service? they argue. The Court of Appeals ruled that the patient-to-patient “sale” of cannabis is illegal. Yet some dispensaries operate under legal advice that what they do is a service, and a patient is compensating for the costs of being able to use or have administered cannabis from a dispensary. “Clearly, this is a service industry,” Detroit-based attorney Matt Abel told City Pulse last year shortly after the Court of Appeals ruling.

Brandon McQueen and Matthew Taylor, who are the defendants in the high-profile dispensary case before the state Supreme Court, operated Compassionate Apothecary stores in Mt. Pleasant and in Lansing. The employee who spoke with City Pulse took over the Lansing location in April after the store closed down for a short period, but he had been involved previously as a grower. “The amount of business we have now is far less than before,” he said.

The McQueen case, as it’s commonly called, is the pivotal court case that everyone in the dispensary business is — or should be — following. McQueen and Taylor opened a dispensary in Mt. Pleasant in May 2010 by leasing lockers in which caregivers could store cannabis at the business. Patients would pay a membership fee and have access to those lockers. Members would purchase and sell the cannabis among members. Seven months after opening, an Isabella County circuit judge ruled in favor of the business after the county prosecutor sought to close down CA as a public nuisance. The state appellate court overturned the lower court’s decision, ruling that the patient-to-patient sales of marijuana are illegal, supporting the attorney general’s argument. Moreover, the attorney general argues that not only are patient-to-patient sales illegal, but any kind of transfers are illegal unless it’s between a caregiver and his patient. The Court of Appeals did not rule on the broader issue of patient-to-patient “transfers” — only sales. Matt Newburg, a Lansing attorney representing McQueen and Taylor, argues that the Michigan Medical Marihuana Act — approved by 63 percent of Michigan voters in 2008 — does not expressly prohibit the sale of cannabis, nor does the Public Health Code, which regulates all drugs. “Nothing prohibits it, nothing authorizes it,” Newburg said. Still, Newburg has been advising dispensary owners who have sought his advice to stay closed in light of the Court of Appeals ruling.

The Supreme Court agreed to hear the appeal, and interested parties are now filing briefs with the court. Oral arguments may happen sometime in October, Newburg said. But a potential “wrench” in the case, Newburg added, is the Nov. 6 election, in which we could see new Supreme Court justices. The court may issue a ruling before then, but it may not. A new round of oral arguments could be held.

If Newburg is seeing the battle between law enforcement and prosecutors and patients throughout the state, he’s doing so from the frontlines.

“I’ve probably been more busy since McQueen came out (of the appellate court) than before doing criminal defense work,” Newburg said. “I don’t know if there’s a correlation there or not.” To get an idea of Newburg’s case load since the McQueen ruling shut down a majority of Lansing dispensaries, he said “probably 90 percent” of new medical marijuana cases involve “the exchange of marijuana between patients or with an undercover officer.” Newburg said he gets calls from potential new clients every two to three days.

When asked if he’s seeing the trade move back into the shadows, Newburg said: “I have no direct knowledge of it, but I’m sure it has.”

Ingham County Sheriff Gene Wriggelsworth, who believes dispensaries are illegal, agrees that transactions are surely moving to more secretive areas. Isn’t that more of a challenge from a law enforcement perspective? “I don’t know. They’re gonna do it one way or another. That’s always the case,” he said. “It created a huge problem for law enforcement because of the way the law was written. It made prosecution difficult. Underground or in a building doesn’t make a difference, you still have the issue of whether it’s between a caregiver and a patient or not.”

Wriggelsworth and Ingham County Prosecutor Stuart Dunnings III agree on the notion that the law is vague. Wriggelsworth called the legislation, as written, “mumbo jumbo;” Dunnings called it “chaos.”

While courts can rule on narrow questions of the law on a “case-by-case” basis, Dunnings said, the Legislature has the ability to speed up the process by amending the law itself — which would take a three-fourths majority of both chambers.

“I really hope the Legislature could come in and bring some order to this chaos. If we have to do this case by case in the Supreme Court, it could take years,” Dunnings said.

The dispensaries that still operate in Lansing do so because law enforcement officials have not requested his office to prosecute them, Dunnings said. Those requests would come from the Lansing Police Department or the Tri-County Metro Narcotics Squad. Other times, it’s from Attorney General Bill Schuette. Employees at one dispensary, HydroWorld, are being charged with felony drug crimes by the state Attorney General’s Office. The Lansing State Journal reported last week that, based on testimony, four employees repeatedly sold cannabis to undercover police officers. The case is pending in Lansing district court. The Journal also noted that Schuette filed a civil suit against HydroWorld in December, saying the businesses didn’t comply with the Medical Marihuana Act. 

The brave ones?

Meanwhile, of the 41 dispensaries that once operated in greater Lansing, at least six remain today, all within the city limits. 

For Rocky Antekier, owner of Helping Hands at 4100 S. Cedar St., staying open was his livelihood: “I didn’t have a choice. I would lose everything or stay open.”

Helping Hands did close for two to three months after the McQueen ruling, he said, but he “followed suit” when he saw others stay open. But that doesn’t mean he’s not concerned.

“I worry about it everyday,” he said of possibly being shut down. “It’s just a decision I had to make. I made it, and I live with the decision.” Antekier added that he’s “phasing out” the sale of medical marijuana in the store, focusing instead on a delivery service and selling new and used growing equipment. But it’s not all about his own bottom line, he said. Antekier, a frank talker, realizes the McQueen ruling “screwed” a lot of patients who may not have caregivers or readily available access to cannabis without dispensaries.

“We try to help them out,” he said, noting that he’s heard of patients going to “convenience stores” and “gas stations” to acquire meds. “It’s easier to come to a secured location.”

Steve Green, of Star Buds at 2012 N. Larch St., said the decision to stay open was strictly for the needs of patients — particularly older ones. “Those are the ones that we’re here for: People who are really limited (in mobility) and don’t have access and there isn’t a storefront for them,” he said. And even if the Supreme Court upholds the appellate court’s McQueen decision: “I would say that we’re going to be open until we get a letter that says we can’t be open.”

Jeff Gibson, president of Superior Growers Supply, comes at it from a different perspective. SGS is an indoor gardening supply shop that has four locations throughout the state, three of which are in greater Lansing. A fifth location in Howell recently closed because the market there couldn’t support it. SGS celebrated its 29th anniversary this year and was one of the early indoor gardening supply stores in the country. Naturally, it has a loyal customer base. And naturally, some of those customers grow medical marijuana.

From his view, the McQueen ruling phased out large-scale grow operations. More customers are looking for equipment and nutrients to support small gardens for one or two patients, he said. More dispensaries allowed growers to sell off overages to the business to be sold to businesses. “They were able to supply the dispensaries and in turn supply the patients,” Gibson said.

Without dispensaries, patients’ only realistic alternative is to find a caregiver who can grow well or to grow it themselves, he said.

“It’s really an imposition on the patients,” Gibson said. “Hopefully the authorities will come to their senses and do what they can to help the sick.”

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