Pubdate: Wed, 11 Jan 2012 Source: Eastern Arizona Courier (AZ) Copyright: 2012 Eastern Arizona Courier Contact: http://drugsense.org/url/3qxecMIL Website: http://www.eacourier.com/ Details: http://www.mapinc.org/media/1674 MEDICAL MARIJUANA LAWSUIT DISMISSED Medical marijuana patients in Arizona who have either had to grow their own cannabis or purchase unregulated strains on the street may be afforded the same availability for their medicine as seen in California and Colorado. A lawsuit filed by Arizona Governor Jan Brewer challenging the legality of the state's voter-approved medical marijuana law was dismissed Jan. 4. Brewer filed the lawsuit in May, just before the Arizona Depart-ment of Health Services was to begin issuing licenses to businesses that wanted to open nonprofit medical marijuana dispensaries. The ADHS is responsible for overseeing and implementing the Arizona Medical Marijuana Act. Due to the lawsuit, the ADHS and its director, Will Humble, suspended the application process for dispensaries May 27, 2011. The ruling seemingly gives Humble a green light to begin processing dispensary applications if Brewer decides not to appeal. A spokesperson for the governor, Matthew Benson, said Brewer would consult with Attorney General Tom Horne before deciding to file an appeal. Brewer previously stated she filed the lawsuit to seek clarification as to whether federal law that makes cannabis illegal trumps the state law and if state workers face possible federal prosecution for implementing the state law. United States District Court Judge Susan Bolton ruled in favor of a motion filed by the American Civil Liberties Union and dismissed the case. In her order, Judge Bolton said the state could file an amended complaint, but it would have to show how state employees are threatened by prosecution from the federal government and how any harm can come if the court doesn't give a ruling. "Plaintiffs do not challenge any specific action taken by any defendant," Bolton wrote. "Plaintiffs also do not describe any actions by state employees that were in violation of (the Controlled Substances Act of 1970) or any threat of prosecution for any reason by federal officials." Judge Bolton said because of the lack of evidence, Brewer's complaint is not appropriate for judicial review. ACLU Attorney Ezekiel Edwards lauded the judge's decision and implored Brewer to implement the law. "The majority of voters in Arizona passed a statute to regulate marijuana as medicine," Edwards said. "They're just obstructing the will of the voters." Brewer and Horne previously said they decided to file a lawsuit seeking clarification after former Arizona U.S. Attorney Dennis Burke wrote a letter that said the federal government still considers distributing cannabis to be illegal. Cannabis is listed as a Schedule I drug with a "high potential for abuse, (and) no currently accepted medical use" on the Drug Enforcement Agency's schedule of drugs. Other Schedule I drugs are heroin, LSD, peyote and ecstasy. Schedule II drugs that can be prescribed to a patient include cocaine, morphine, opium, oxycodone and methamphetamine. Until cannabis' classification is changed to at least a Schedule II drug, physicians cannot officially prescribe it and can only give patients their recommendation to use it. In his letter (and others sent by other federal prosecutors), Burke stressed that he would abide by earlier policies discouraging prosecution of medical marijuana patients and would focus on large-scale for profit operations. His letter didn't mention anything regarding state employees, but he later told reporters that he had no intention of prosecuting state workers. Arizona became the 16th state to allow medical marijuana after voters passed the AMMA on Nov. 2, 2010, and it became law Dec. 14, 2010. According to the proposition, its purpose "is to protect patients with debilitating medical conditions, as well as their physicians and providers, from arrest and prosecution, criminal and other penalties and property forfeiture if such patients engage in the medical use of marijuana." Under the law, qualifying patients can possess up to 2.5 ounces of cannabis every two weeks, and a caregiver - who can assist up to five patients - can possess 2.5 ounces every two weeks per patient. That means a caregiver can possess 15 ounces of cannabis every two weeks if they themselves are a qualified patient and are a caregiver for five other qualified patients. Additionally, if a patient lives more than 25 miles from a medical marijuana dispensary, the patient can cultivate up to 12 cannabis plants and caregivers can cultivate up to 12 plants per patient. That means if a caregiver who is a patient and has five patients who all live more than 25 miles from a dispensary, that person is permitted by state law to cultivate up to 72 plants. Since Brewer's lawsuit halted the dispensary process, all patients who have received a medical marijuana card are permitted to grow their own medicine under state law. To date, the state has issued nearly 18,000 medical marijuana cards and about 15,000 patients have requested permission to grow the plant themselves. The ADHS has approved locations for 126 potential dispensaries throughout the state - one for every Community Heath Analysis Area which equates to one for roughly every 10 regulated pharmacies. The CHAA for Safford consists of southern Graham County and takes in the Gila Valley. Graham County and the municipalities of Safford, Thatcher and Pima all created dispensary zoning regulations in preparation for a dispensary. If an applicant is compliant with local zoning ordinances, a dispensary may be located in any of the jurisdictions. The Gila Valley would likely see a dispensary because the ADHS previously added incentives to encourage dispensary applicants to open in rural areas. One incentive would allow a rural dispensary with a limited number of patients the ability to transfer its inventory to urban dispensaries with more patients. Another incentive is a provision that allows rural dispensaries to move anywhere in the state after three years. In his blog, Humble stated he hopes dispensary applicants will decide to apply in rural areas because there is likely to be stiff competition for the CHAA's in urban areas. If there is more than one applicant in a CHAA, the applicants will be evaluated on a set of standards, including whether the dispensary has access to $150,000 in start-up capital, whether the applicant has previously filed for bankruptcy, whether an applicant has been a resident of Arizona for at least three years and whether an applicant has outstanding taxes or fees. If the applicants rank the same, the ADHS will approve dispensaries at random. According to Safford Police Chief John Griffin, there has been interest in a Highway 70 property to be utilized as a dispensary. Griffin said he would rather have the one, regulated dispensary than allowing all of the patients to grow their own cannabis in their homes, which could possibly increase criminal behavior, such as burglary and theft. There are five other lawsuits currently pending regarding the AMMA. One was filed by Humble against cannabis clubs to stop them from distributing the plant, and four were filed against the state of Arizona for its failure to implement the voter-approved law. - --- MAP posted-by: Keith Brilhart