mi ag nuisance template

8/3/2019 MI AG Nuisance Template

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STATE OF MICHIGANCIRCUIT COURT FOR THE [COURT#] JUDICIAL CIRCUIT[COUNTY] COUNTY

STATE OF MICHIGANEX REL., [COUN TY N AME] COUNTYPROSECUTING ATTORNEY No. [#]

Plaintiff,ON. [JUDGE'S NAM E][DEFENDANTS],Defendants.[Attorney's Name] (P#)Prosecuting Attorney for County of [County Name]Attorney for Plaintiff[Address][Phone Number]

PUBLIC & COMMON LAW NUISANCE COMPLAINT FOR INJUNCTIVE AND OTHER RELIEFThere is no other pending or resolved civil action arisingout of the transaction or occurrence alleged in thisComplaint.

County ProsecutorIntroduction

[County] County Prosecuting Attorney, [Name], brings this action pursuantto MCL 600.3801 and 600.3805 in [his or her] official capacity in the name of theState of Michigan for the purpose of enjoining, abating, and preventing an ongoingpublic and common law nuisance occurring at Defendants' business premises.


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Defendants' business is engaged in the unlawful sale, keeping for sale, bartering, o rfurnishing of m arihuana in violation o f the Michigan Medical Marihuana Act,MC L 33 3.26424 (k), and controlled substance laws o f this state. Relief is sought to ,amo ng o ther things, require that: the o ccupants vacate the pro perty; the businessbe padlocked for a period of o ne year; the illegal contraband be destroyed pursuantto law; and all contents o f the premises be remo ved and so ld pursuant toMCL 600.3801 and MCL 600.3825(1).

Parties1. Plaintiff, the Pro secuting A ttorney for the C ounty of [Co unty], brings

this suit in the name of the State of M ichigan pursuant to M CL 600.38 01 and600.3805.

2. Defendants [names] are the lessees, operators, wo rkers, or em ployeesof the business co mm on ly known as [name o f business] and are operating,maintaining, or co nducting what purports to b e a medical marihuana[dispensary, cooperative, etc.].

3. Defendants [names] are the owners o f the property o n whichDefendants [names] are operating, maintaining, or co nducting what purports to b ea m edical marihuana [dispensary, co operative, etc.].

4. Defendant [name o f business] is the business entity incorpo rated as[type of business entity (corpo ration, no n-profit)] and o wns the co ntents o f thebuilding.

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urisdictionlaintiff is authorized under MCL 600.380 5 and by co mmo n law toinitiate this lawsuit. MC L 60 0.380 5 pro vides:The attorney g eneral of the state o f Michigan, the prosecuting attorneyor any citizen o f the coun ty, may maintain an actio n for equ itable reliefin the name of the state of Michigan, upon the relation o f such attorneygeneral, pro secuting atto rney o r citizen to abate said nuisance and toperpetually enjoin any perso n, his servant, agent, or employ ee, whoshall own, lease, conduct or maintain such building, vehicle, boat,aircraft o r place, from pe rmitting o r suffering such building, vehicle,boat, o r aircraft or place o wned, leased, conducted o r maintained byhim, or any other building, vehicle, boat, aircraft or place conducted ormaintained by him to be used fo r any of the purposes o r by any of thepersons set forth in sectio n 380 1, o r for any o f the acts enumerated insaid sectio n. W hen the injunction has been granted, it shall be bindingo n the defendant throu gho ut the judicial circuit in which it was issued.

.ursuant to M CL 600 .2940(1), all claims based o n o r to abate nuisancemay be brough t in the circuit court. Venue7. Each Defendant does business in [City, To wnship, or Co unty]. Venue

is accordingly proper under MCL 600.1621.8. [Insert business name] is located at [insert business address] in

[City, Tow nship, or Co unty] of [Name].Gen eral Allegations

9. Plaintiff incorporates by reference the allegations set forth inParagraphs 1 thro ugh [insert paragraph #], as if set forth verbatim herein.

10. On November 4, 2008, Michigan voters passed a measure, effectiveecember 4, 200 8, allow ing certain registered patients with deb ilitating medical


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co nditions to use, grow, co nsume, and po ssess medical marihuana. Under theMichigan Medical Marihuana Act (M MM A) "[t]he medical use of m arihuana isallowed u nder state law to the extent that it is carried ou t in accordanc e with theprovisions o f this act." MC L 333.26427(a).

11. In enacting the MM MA , the people did no t repeal any statutorypro hibitio ns regarding marihuana. The use, po ssession, sale, delivery,manufacture, and cultivation o f marihuana remains a crime in M ichigan. MC L333.7401(2)(d)(iii); MCL 333.7403 (2)(d); MCL 333.7404 (2)(d). Instead, the MMM Aprotects specific categories of perso ns from arrest, prosecution, o r other penaltyunder those laws only if they com ply with the requirements of the MMM A. Anyo newho is not in one of the protected categories who uses, possesses, sells, delivers,manufactures, or cultivates marihuana remains subject to state criminalprosecutio n. Indeed, even a properly registered qualifying patient o r registeredprimary caregiver who sells marihuana to som eon e who is not allowed to usemarihuana for medical purposes under the MM MA shall, inter alia, be "guilty of afelony punishable by imprisonment for no t mo re than 2 years or a fine of no t morethan $2,000.00 , or bo th, in additio n to any o ther penalties fo r the distribution o fmarihuana." MCL 3 33.26424(k).

12. The MM MA does no t expressly authorize or provide any protectionfrom prosecution, regarding the operation of dispensaries, clubs, consignmentsho ps, or any other type of business or storefro nt at which marihuana istransferred, delivered, or sold to registered patients or primary caregivers. S tate of

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ichigan u McQueen,ich AppW 2d2011 WL 3685642(2011).13, Furthermore, the MMMA does not authorize transfers or deliveries of

marihuana between qualifying patients; between primary caregivers andunconnected qualifying patients; or between primary caregivers. Absent an expressauthorization, these activities are prohibited by the existing controlled substancelaws.

14. With respect to the cultivation or manufacture of marihuana, theMMMA does not authorize any individual, including qualifying patients or primarycaregivers, to form cooperatives or collectives to jointly cultivate, store, and sharemarihuana with other registered patients or caregivers. See OAG, 2010-2011,No 7259, pJune 28, 2011). This is because the MMMA requires that eachpatient's plants must be grown and maintained in a separate enclosed, lockedfacility that is only accessible to the registered patient or the patient's registeredprimary caregiver. Id. Any activities conducted contrary to these requirements areprohibited.

15. Notwithstanding the MMMA, under federal law, the possession, use,and transfer of marihuanawhether possessed for medical purposes or notremains illegal. The Department of Justice (DOJ), in a letter dated June 29, 2011,expressed concern about an increase in the scope of jurisdictions that haveimplemented legislation sanctioning and regulating the commercial cultivation anddistribution of marihuana, purportedly for medical use. While recognizing United


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States Attorneys' broad prosecutorial authority, the DOJ reminded their attorneysthat "[p] ersons who are in the business of cultivating, selling or distributingmarihuana, and tho se who kno wingly facilitate such activities, are in violatio n o fthe C o ntrolled Substances Act, regardless of state law." Exhibit 1.

Factual Allegations16. Plaintiff incorporates by reference the allegations set forth in

Paragraphs 1 thro ugh [insert paragraph #], as if set fo rth verbatim herein.17. No twithstanding the narrow protections afforded by the MM MA ,

Defendants [names] are involved in a bu siness o r enterprise kno wn as[insert business name] which, upo n information and belief,[insert type of business and how it is operating].

18. Upo n information and belief, Defendants [owners' names] own theproperty loc ated at [insert address] o n which D efendants [operators' names] are[insert type of business and how it is operating].

19. Plaintiff asserts [his or her] autho rity under MC L 60 0.380 5 to remedythese injuries to the public interest by seeking to enjoin D efendants' violations o flaw and to assess equitable and mo netary penalties against Defendants forviolations of law.

20. Upon information and belief, the [dispensary, cooperative, etc.] is abusiness or enterprise ope rated for pro fit that unlawfully sells marihuana tomembers o f the public.

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1. Upon information and belief, Defendants [operators' names] were andare either the agents or principals of [insert name o f business] and[insert name o f business entity] participated in the acts and co nduct alleged herein.

22. Defendants' business premises and its co ntents are used fo r theunlawful sale, keeping for sale, bartering, or furnishing marihuana.

23. Defendan ts' conduct (1) significantly interferes with the public'shealth, safety, peace, co mfo rt, or co nvenience; (2) is pro scribed by law; or (3) iskno wn o r should have been known by the actor to be of a con tinuing nature thatpro duces a perman ent or lo ng-lasting, significant effect o n these rights. CapitolProperties Group, LLC v 1247 Ctr. Street, LLC, 283 Mich App 422; 770 N W2d 105(2009).

24. Under MCL 600.3801, any person or his servant, agent, or employeewho ow ns, leases, conducts, or maintains any building, or place used for any o f thepurposes o r as set forth in this section , is guilty o f a nuisance.

25. Under MCL 600.3815, proo f of know ledge of the existence of thenuisance o n part o f the Defendants, or any o f them, is not required. S tate ex relWayne County Prosecutor v Bennis, 447 Mich 719, 737-739; 527 NW 2d 483 (1994).

26. [Specify the unlawful activity in this paragraph] Exam ple: On o rabo ut [date], inform ant/agent made co ntrol buys of marihuana from D efendants'business or reco rds fro m a search warrant show multiple sales o f marihuana,Defendan ts advertise and m arket their business as a marihuana d ispensary,Defendan t has inco rpo rated as a marijuana dispensary, etc.


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27. That Defendants [operators' names] lease, conduct, maintain, keep, oruse [insert business name ] for the un lawful manufac ture, transporting, sale,keeping for sale, bartering, o r furnishing o f a co ntrolled substance as defined insection 710 4 o f the Public Health Co de, Act No . 368 o f the Public Acts of 1 978, beingsection 333.7104 o f the Michigan Co mpiled Laws.

C O U N T IPublic N uisance

28. Plaintiff incorporates by reference the allegations set forth inParagraphs 1 thro ugh [insert paragraph #], as if set forth verbatim herein.

29. The p ublic nuisance statute, MCL 600 .3801 , in relevant part, definespublic nuisances subject to abatement:

Any building . . . o r place used for the . . . unlawful manufacture,transporting, sale, keeping fo r sale, bartering, o r furnishing of anyco ntrolled substance as defined in section 710 4 o f the Public HealthCo de, 1978 PA 368, being section 333.7104 o f the Michigan Co mpiledLaws . . . is declared a nuisance, and the furniture, fixtures, andcontents of the building . . . or place . . . are also declared a nuisance,and all contro lled substances and nuisances shall be enjoined andabated as prov ided in this act and as provided in the cou rt rules. Anyperson o r his or her servant, agent, or em ployee who ow ns, leases,co nducts, or m aintains any building, vehicle, o r place used for any o fthe purposes or acts set forth in this section is guilty o f a nuisance.30. Marihuana is a contro lled substance under the Public Health Co de.

MCL 333.7212(1).31. The building loc ated at [insert business address] and its contents

therefo re co nstitute a nuisance.32. Defendants' conduct violates MCL 600.380 1, and must be enjoined as a

public nuisance. McQueen, supra.

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laintiff respectfully requests that the C o urt grant a tempo rary andpermanent injunction against each and all o f the Defendan ts, individually andcollectively, to abate and prohibit the public nuisance maintained by them inviolation of Michigan law and provide further relief as requested in this complaint.

C O U N T I ICommon Law Nuisance

33. Plaintiff inco rpo rates by reference the allegatio ns set forth inParagraphs 1 thro ugh [insert paragraph # ], as if set fo rth verbatim herein.

34. The public has an interest in the observance o f the laws passed by thelegislature and to abate public nuisances affecting health, mo rals, o r safety and toprotect a public property right or interest. See Attorney General v PowerPickPlayer's Club of Michigan, 287 Mich App 13, 22; 783 NW2d 51 5 (2010).

35. "A t common law, acts in violation of law constitute a public nuisance.Harm to the public is presumed to flow from the violatio n o f a valid statute enactedto preserve public health, safety and welfare." Attorney General v Peterson,381 Mich 445, 465; 164 NW 2d 43 (1969).

36. Marihuana is a contro lled substance under the Public Health C od e.MCL 333.7212(1).

37. The building lo cated at [insert business address] and its con tents areused fo r the unlawful sale, keeping for sale, bartering, o r furnishing m arihuana.

38. The b uilding located at [insert business address] and its contentsherefore constitute a common law nuisance and must be enjoined.


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Plaintiff respectfully requests that the Court grant a temporary andpermanent injunction against each and all o f the D efendants, individually andco llectively, to ab ate and pro hibit the public nuisance maintained by them inviolation o f M ichigan law and prov ide further relief as requested in this co mplaint.

R E Q U E S T F O R R E L IE FPlaintiff respectfully requests the fo llowing:a. That the business and property be declared a public and co mm on

law nuisance and, under MC L 60 0.3801 , be permanently abated inaccordance with MCL 600.3805 and/or MC L 600.3825(1).

b. That the Court grant a temporary restraining order, preliminaryinjunctio n, permanent injunctio n, and order o f abatement enjoiningand restraining D efendants and their agents, heirs, successors,officers, employees and anyone acting on their behalf, fromunlawfully selling, serving, storing, keeping, manufacturing, orgiving away contro lled substances on the pro perty becauseDefendants are not o perating within the narrow co nfines of theMMMA.

c. That all marihuana and/o r contro lled substances located, used, orsold at the property or w ithin the possession o r con structivepossession o f Defendants be co nfiscated or remo ved by the[insert name] Po lice Department and be destroyed.

d. That an o rder be issued: (1) directing [insert name] Po lice10


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epartment to remo ve from the business and/or Defendants'building or place all furniture, fixtures, and contents therein;(2) directing the sale thereof in the m anner prov ided for the sale o fchattels under execution; and (3) the effectual closing o f thebuilding o r place against its use for any purpose, and so keeping itclosed for a period of 1 year, pursuant to MC L 600.3825(1).

e. That co sts allowable under the Michigan Co urt Rules and M ichiganstatute be awarded.

f. That reason able attorney fees be awarded to Plaintiff.g. That such o ther and further relief as the Co urt may deem just and

proper be awarded to Plaintiff.Respectfully submitted,

[Name of Plaintiffs Counsel][Address of Plaintiffs Co unsel]Dated: [Date]

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