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.
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MAP posted-by: Keith Brilhart