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COUNTY ATTORNEYS URGE HALT TO DISPENSARIES AS LOTTERY LOOMS

With a lottery for the state's first medical marijuana dispensaries looming just a week away, most of the county attorneys in Arizona have signed onto Yavapai County Attorney Sheila Polk's letter asking the governor to put a halt to dispensaries as well as user cards.

"We believe it is bad public policy for one arm of the government to facilitate marijuana cultivation and use while another arm of the government is moving to close it down," Polk's July 24 letter to Gov.  Jan Brewer said.  A dozen other county attorneys signed on to the letter on short notice, she said.

Yavapai County Sheriff Scott Mascher is drafting a similar letter to the governor, his spokesman Dwight D'Evelyn said, and most of Arizona's sheriffs already have signed off on it.  Mascher is head of Arizona Sheriff's Association.

Gov.  Jan Brewer responded to Polk on July 26 that she is moving forward with the Aug.  7 lottery to choose dispensaries.

The U.S.  Attorney's Office has made it clear that it considers dispensaries illegal, said Polk and law enforcement consultant Anthony Coulson of Tucson, who retired in 2010 from his position as assistant special agent in charge of the U.S.  Drug Enforcement Agency's Tucson District Office.

"I have been told that the newly appointed U.S.  Attorney for the District of Arizona, John Leonardo, fully intends to prevent any dispensaries from operating in Arizona by seizing each and every one as it opens and commits violations of the CSA ( Controlled Substances Act )," Polk wrote to the governor.

Polk said she got that information from Coulson, who said he had talked to Leonardo.  While he doesn't know exactly what Leonardo will do, he said he knows Department of Justice policy.

"The Department of Justice position has been not to let these dispensaries operate," Coulson said.  "Landlords will be at risk of having properties seized."

He anticipates that federal officials will notify property owners that the dispensaries are illegal before raiding them.

Gov.  Brewer responded to Polk's letter that "the federal government's position remains unclear" after her efforts to get the U.S.  Attorney's Office to clarify its position were unsuccessful.

While she doesn't support the legalization of medical marijuana, the voters made it law in 2010, Brewer wrote.

"As such, I am duty-bound to implement the AMMA ( Arizona Medical Marijuana Act ), and my agency will do so unless and until I am instructed otherwise by the courts or notified that state employees face imminent risk of prosecution due to their duties in administering this law," Brewer wrote.

Bill Solomon, spokesperson for the U.S.  Attorney's Office in Arizona, would not respond directly to questions but issued a statement saying Polk's representation of the U.S.  Attorney's position is inaccurate.  The office's position has not changed since former U.S.  Attorney for Arizona Ann Scheel wrote a letter to the governor about it, Solomon said.

"This USAO will continue to vigorously enforce the Controlled Substances Act against individuals and entities that operate and facilitate large marijuana production facilities and marijuana production facilities involved in the cultivation, sale and distribution of marijuana, even if purportedly for medical purposes," Scheel's February letter stated.

U.S.  Attorneys in other states have issued similar letters saying state laws don't make large-scale marijuana growing and selling illegal, although they generally won't go after medical marijuana cardholders.

Scheel's letter also said state employees would not be immune from liability.  Coulson said he wouldn't be surprised to see people whose property is seized by federal officials file federal lawsuits against state officials who license dispensaries.

Other states see raids

Seventeen states and the District of Columbia now have legalized medical marijuana, and the federal government has raided some dispensaries in California and Washington.

The governors of Washington and Rhode Island have petitioned the federal government to reclassify marijuana as a Schedule II instead of a Schedule I drug, so it can have medical uses under federal law.

Gov.  Christine Gregoire of Washington vetoed a bill to clarify dispensary rules last year after the Justice Department said state employees would not be immune from liability.  And Gov.  Lincoln Chafee of Rhode Island wouldn't proceed with authorizing dispensaries last year because federal officials warned him that they could prosecute dispensaries.

"What we have out here is chaos," Gregoire told The New York Times in a November article.

Voters in Oregon, Colorado and Washington will face ballot measures this fall to legalize marijuana completely.

Arizona voters narrowly approved medical marijuana in November 2010, and individuals were able to start getting user and grower cards in April 2011.  While the state has delayed approval of dispensaries during its effort to get clarification of the federal position on the law, cardholders have been able to grow their own marijuana.

Fifty-four businesses and individuals have applied for the eight medical marijuana dispensary licenses that will be issued in Yavapai County.  Statewide, 484 companies and people applied for 126 dispensary licenses.  The Arizona Department of Health Services ( ADHS ) plans to randomly pick the dispensaries that get licenses during an Aug.  7 drawing.

At some point, state-approved dispensaries will need municipal or county approval to open, such as a certificate of occupancy.

"My advice would be for county employees not to have anything to do with this program," Polk said.