Pubdate: Tue, 07 Aug 2012
Source: Verde Independent (AZ)
Copyright: 2012 Western News & Info, Inc
Author: Howard Fischer


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.

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 preemption 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.

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.

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.

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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MAP posted-by: Jay Bergstrom