Pubdate: Sat, 20 Oct 2012
Source: Arizona Daily Star (Tucson, AZ)
Copyright: 2012 Arizona Daily Star
Author: Howard Fischer


Lawyer asks court to allow dispensary zoning in Sun City

PHOENIX - Prosecutors urged a judge Friday to declare that medical
marijuana dispensaries and growing facilities are pre-empted by
federal law.

Maricopa County Attorney Bill Montgomery said it's clear marijuana
remains illegal under federal law. And he told Judge Michael Gordon
marijuana is a Schedule 1 drug for which there is no legitimate
medical use.

That means the state cannot do anything that ultimately results in
issuing a license to someone to sell marijuana, Montgomery argued.

If nothing else, he said the requirements of state laws and
regulations put public employees in a position where they are taking
official action to "aid and abet" others to violate federal law. And
that, Montgomery said, makes them liable for prosecution.

But attorney Zeke Edwards, representing people who want to open a
dispensary in Sun City, said there's no basis for that fear.

He pointed out that when Dennis Burke was the U.S. attorney for
Arizona, he wrote a letter to state health officials saying compliance
with state medical marijuana laws provides no shield from prosecution
under the federal Controlled Substances Act, but in listing who might
face liability, did not include public employees for processing papers.

But Montgomery said that is irrelevant because while this
administration may be uninterested in prosecuting public employees who
help set up dispensaries, there may be a different administration with
different priorities three months from now.

"State employees and county employees should not have to watch debates
and follow the course of any particular election to learn whether or
not their conduct is going to be prosecuted," he said.

Most immediately, Montgomery wants Gordon to block a bid by the owners
of White Mountain Health Center to open a dispensary in Sun City. But
he ultimately hopes to get an appellate level ruling that any action
by any government official paving the way to a dispensary is illegal,
effectively banning not only the shops that will sell the drug but the
facilities to grow it legally.

Ultimately, he wants courts to say it is illegal for the state
Department of Health Services to even issue identification cards to
those who have a doctor's recommendation to use the drug.

That, however, is not the position of the state.

Assistant Attorney General Charles Grubbe agreed the state cannot
authorize someone to sell or grow marijuana commercially, which is
what a dispensary permit would do.

But Grubbe said all the ID cards do is identify those with specific
medical conditions for which a doctor believes marijuana would be helpful.

The fight is over the 2010 law which says those with specific listed
medical conditions and a doctor's recommendation can get a card from
the state entitling them to obtain up to 2 1/2 ounces of marijuana
every two weeks. The plan envisions a network of about 125
state-regulated not-for-profit dispensaries to grow and sell the drug
to cardholders.

The specific issue before Gordon stems from a requirement anyone
seeking a state dispensary permit must provide documentation to the
Department of Health Services that the site is properly zoned.

In this case, Maricopa County officials, acting under Montgomery's
advice, refused to provide the necessary letter.
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