Pubdate: Tue, 31 Jul 2012
Source: Arizona Republic (Phoenix, AZ)
Copyright: 2012 The Arizona Republic
Author: Yvonne Wingett Sanchez


County Attorneys Say Licensing Will Defy Law

Thirteen Arizona county attorneys are urging Gov. Jan Brewer to halt
the state's medical-marijuana program, saying state employees will be
facilitating federal crimes when they issue licenses to pot

The lawyers signed onto a three-page July 24 letter authored by
Yavapai County Attorney Sheila Polk, who requests that the governor
prevent the state's issuance of licenses for medical-marijuana
dispensaries because the state program is pre-empted by the federal
Controlled Substances Act.

The latest round of correspondence over the controversial program
comes as the state Department of Health Services prepares for an Aug.
7 lottery to select 99 out of 486 applicants to run medical-marijuana
dispensaries throughout the state.

Under Arizona's law, there is no limit to the amount of marijuana a
dispensary can grow. Patients can obtain up to 21/2 ounces of medical
pot every two weeks.

About 29,500 people have permission to smoke, eat or otherwise ingest
medical marijuana to ease their ailments.

The overwhelming majority of medical-marijuana users reported chronic
pain as their medical condition; other ailments include muscle spasms,
hepatitis C, cancer and seizures.

State health officials declined to comment on Polk's letter, which
underscores their longtime concerns about the program.

In the past, state health officials have expressed concern they could
be federally prosecuted for implementing the law.

In her letter, Polk pointed out that the federal government is seizing
and closing medical-marijuana dispensaries in other states under the
Controlled Substances Act.

Earlier this month, for example, Melinda Haag, the U.S. attorney for
the Northern District of California, moved to shut down two locations
of a dispensary with more than 100,000 medical-marijuana patients.

Polk wrote that she has been told Arizona's newly appointed U.S.
Attorney 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 federal act.

"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," wrote Polk. She added it is
bad policy for the state to take steps to license a dispensary and
require individuals to pay thousands for fees and obtain permits from
local governments, "knowing full well that these business ventures
will result in significant financial repercussions when the U.S.
attorney shuts them down."

U.S. Attorney's Office spokesman Bill Solomon told The Arizona
Republic late Monday that Polk's representation of the U.S. attorney's
position on medical marijuana is inaccurate.

He said the agency's position has not changed since February, when
then-Acting U.S. Attorney Ann Scheel told Brewer the agency would
follow Department of Justice policy on the issue and would focus
efforts on significant drug traffickers, not people who use marijuana
as treatment.

"Specifically, the Department of Justice is focusing its limited
resources on significant drug traffickers, not seriously ill
individuals and their caregivers who are in compliance with applicable
state medical-marijuana statutes," Solomon wrote in a statement.

Brewer responded to the county attorneys Thursday, saying she
understands -- and shares -- their concerns. While she remains "deeply
concerned about potential abuses of the law," the conflicts between
federal and state laws, and the risk of federal prosecution of state
employees, she is bound to implement the program because voters
approved it.

Brewer also maintains that while the Department of Justice has
prosecuted a number of medical-marijuana operations in California and
elsewhere, "the federal government's position remains unclear"
regarding Arizona's program and state workers' participation in the

Brewer wrote that a federal court dismissed a state lawsuit on
procedural grounds seeking to clarify the conflict between the state
program and federal law.

She pointed out that Maricopa County Superior Court Judge Richard Gama
in January, meanwhile, ordered the state to implement the lawful
provisions of the medical-marijuana program.

Polk told The Republic she appreciated Brewer's "thoughtful response."
However, she said, she disagrees with her regarding the interpretation
of the Gama ruling.

Polk pointed out that the legal quandary put before Gama was not the
issue of pre-emption, but whether state health officials exceeded the
scope of their authority in expanding rules regarding

Halting the dispensary process would force a lawsuit that would
require a court to consider the pre-emption argument, Polk said, and
whether state employees are subject to criminal prosecution for
facilitating violations of the federal law by implementing the
medical-marijuana program.

She said all 17 states that have medical-marijuana laws are grappling
with how to reconcile state and federal laws: "Every single program
has had complications and glitches, and in two or three states the
governors have refused to go forward because of the issues I'm raising."

Greenlee County Attorney Derek Rapier told The Republic he signed onto
Polk's letter based on the pre-emption argument.

"Everyone agrees the feds' primary target will be the dispensaries
themselves, but I cannot, in good conscience, tell my clients, which
in this case are county employees, to violate laws," he said,
referring to zoning officials who may be asked to permit dispensaries.
"I just can't do it."
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