Pubdate: Fri, 10 Aug 2012
Source: Arizona Daily Star (Tucson, AZ)
Copyright: 2012 Arizona Daily Star
Author: Howard Fischer


PHOENIX - Gov. Jan Brewer has signed a waiver to allow Attorney 
General Tom Horne to try to close down the marijuana dispensaries 
that her state health department is in the process of licensing.

The move comes in the wake of Horne's legal opinion that the state 
cannot legally permit anyone to sell marijuana, even to those who 
have a doctor's recommendation to use the drug. Horne said as long as 
the drug remains illegal under federal law, the state is powerless to 
authorize anything to the contrary.

But the governor said Thursday that she does not intend to block 
Health Director Will Humble from continuing the process of issuing 
state permits. And Humble, who conducted a lottery Tuesday to see who 
gets to serve each of the 126 health districts in the state, said the 
first of those shops could be open by the end of the month.

The need for the waiver stems from the Attorney General's Office's 
representation of all state agencies, meaning Horne's lawyers would 
have to defend the Department of Health Services in any legal proceeding.

"I gave him a waiver and put kind of a wall between Mr. Horne and 
myself so that he could represent this position and he could still 
represent me with other attorneys on the other side," Brewer said.

Horne said this arrangement will allow one of his deputies to 
continue to provide legal advice to Humble, even as the Attorney 
General's Office pursues a court order declaring the dispensaries 
pre-empted by federal law.

But he insisted this won't create a situation where he will be facing 
off in court against one of his deputies.

Horne said he intends to intervene in a legal fight between Maricopa 
County and the owner of a clinic that wants to open a marijuana 
dispensary in Sun City over the county's refusal to provide the 
necessary zoning certification.

Horne figures that could become a test case for the larger issue of 
whether government agencies can process requests to do something that 
remains a crime under federal law. By extension, it would require a 
judge to decide if federal law trumps the provisions of the 2010 
voter-approved Arizona Medical Marijuana Act, which authorizes people 
with certain ailments to possess the drug and those licensed by the 
state to sell it to them.

"The health department isn't taking a position," Horne said, meaning 
his office won't have someone representing the agency at the hearing 
to defend the legality of the dispensaries, even as he works to shut them down.

He said the fact that the health department is going ahead with the 
licensing of dispensaries does not mean it believes operation of the 
outlets is legal. "They're proceeding right now because that's their 
duty," Horne said.

Brewer pointed out that she had concerns about the legality of the 
dispensaries and whether state health workers who process the 
licenses could be charged with violating the federal Controlled 
Substances Act, and even previously ordered Humble not to process the 

However, a judge subsequently ruled she had to carry out the 
voter-approved law.

But Brewer said Horne and Maricopa County Attorney Bill Montgomery 
remain free to try to shut down the dispensaries anyway.
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