Pubdate: Wed, 08 Aug 2012
Source: Arizona Daily Sun (AZ)
Copyright: 2012 Arizona Daily Sun
Contact: http://news.azdailysun.com/opinion/letter_submit.cfm
Website: http://www.azdailysun.com/
Details: http://www.mapinc.org/media/1906
Author: Howard Fischer, Capitol Media Services

FIRST DISPENSARIES FACE LEGAL HURDLES

PHOENIX -- State health officials issued the first 97 allocations
Tuesday to operate medical marijuana dispensaries amid threats of
litigation on multiple fronts.

The random selection process culled 404 applicants who were in
competitive bids to get licensed in 68 of the state's "community
health analysis areas."

Slots for another 29 areas drew only one applicant
each.

Two areas remain under legal dispute and the balance, mainly tribal
lands, had no applicants at all.

By law, the state cannot identify the successful applicants or even
the locations where they plan to operate.

The only people who will get a list are the nearly 30,000 Arizonans
who have state-issued cards allowing them to obtain up to 2 1/2 ounces
of marijuana every two weeks to treat specified medical conditions.

Health Director Will Humble said he believes the first shops could
have their doors open by the end of the month. He said some
applicants, though, will face delays in getting leases and setting up
security and inventory systems and may not be open until the spring.

RETURN TO FELONY?

But if Maricopa County Attorney Bill Montgomery gets his way, there
won't be any dispensaries by that point.

In fact, Montgomery told Capitol Media Services on Tuesday he hopes to
get a court ruling that makes the entire 2010 voter-approved medical
marijuana program disappear. That would mean marijuana cardholders
would either have to give up the drug or face the risk of arrest.

Montgomery said the first step will be to get a trial judge to rule
that the state law is preempted by the Controlled Substances Act which
makes it a federal crime to possess, sell or transport marijuana.

Most immediately, he said that would allow county officials to refuse
to process the local zoning permits necessary to open a dispensary.

That, however, is just the beginning.

"Once I get that ruling, what I'm going to then do is I'm going to
turn around and issue guidance to law enforcement agencies within
Maricopa County that medical marijuana cards are no longer a defense
to the personal possession, and that we will move forward and
prosecute those cases," Montgomery said.

Ultimately, Montgomery figures the case will wind up at the Arizona
Supreme Court. And if the justices side with him, that will mean
marijuana sale and possession by anyone in the state is once again a
felony.

That makes Montgomery's view of federal pre-emption even more sweeping
than state Attorney General Tom Horne. While Horne formally opined
Monday that dispensaries are precluded by the Controlled Substances
Act, he said Arizona can legally issue cards entitling people to use
marijuana for medical reasons without running afoul of federal law.

DEFENDING THE PROCESS

On the other side of the equation, a Flagstaff lawyer is threatening
his own lawsuit against the state because his clients were not awarded
allocations.

Lee Phillips said the process was tainted because the random selection
for some areas included organizations that were not legally qualified
to be in the process. He said that illegally diluted the chances of
his clients to get a shot at operating a dispensary.

Humble said he expects similar complaints from elsewhere. But he
defended the procedures used and said they will withstand a legal challenge.

"Our whole team did their very, very best to make sure that everybody
who made it to today's lottery was qualified to get into the lottery
according to the regulations that we put forward," he said Tuesday.
And Humble said staffers were checking as recently as Monday to keep
the list fresh.

Still, he acknowledged that some of the successful applicants may end
up being unable to ultimately comply with all of the requirements to
actually open their doors. That includes everything from having a
lease for the space where the dispensary was promised to proving to
health inspectors they have an adequate inventory control system.

It is that situation that concerns Phillips. He said if someone who
got an allocation Tuesday does not quality, "that leaves people up
here without a dispensary for another year."

Humble acknowledged that one or more of the community health areas
could end up with no dispensary despite Tuesday's lottery, at least
for the time being. But he pointed out that the law allows marijuana
cardholders to shop at any dispensary anywhere in Arizona.

THOUSANDS GROWING THEIR OWN

The opening of the dispensaries -- if that occurs -- will mean another
big change in how the law operates in Arizona.

The initiative spelled out that those who live at least 25 miles from
a dispensary are entitled to grow their own marijuana. Backers of the
measure said they inserted that to prevent hardships for those living
in rural areas.

But the state began issuing user cards last year even as Gov. Jan
Brewer directed Humble not to process dispensary applications while
she sought a court order overturning that part of the law. Humble said
the result has been that the state granted more than 25,000 of the
card users permission to cultivate the drug.

Those permits, Humble said, will remain legal until the annual review
of each user's card. He said if the person is then within 25 miles of
an open dispensary, the permission will be revoked; otherwise it will
be renewed.

Humble was an opponent of the 2010 initiative, at least in part
because of the same concerns being raised by Montgomery and Horne
about the conflicts with federal law.

NOT PULLING PLUG YET

But Humble said Tuesday that once it was approved by voters, he went
about putting together the program in the best way he could to keep it
from becoming just an excuse for recreational use. And he said he has
no intention of allowing the threat of litigation bring the program to
a halt unless forced to do so.

"If at some point in the future this whole program, or the dispensary
part of it, ends up in a court of law, and a judge orders us to stop
because of conflict, then obviously we'll stop," he said. Humble also
said he would pull the plug if there were any indication that his
staff was in danger of being prosecuted for facilitating the ability
of marijuana vendors and users to violate federal drug laws.
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