Pubdate: Tue, 15 Oct 2013
Source: Arizona Daily Sun (AZ)
Copyright: 2013 Arizona Daily Sun
Author: Howard Fischer, Capitol Media Services


PHOENIX - Counties cannot do an end-run around the Medical Marijuana
Act by changing their zoning laws to make it impossible to open a
dispensary, a judge ruled Monday.

Maricopa County Superior Court Judge Michael Gordon said it's one
thing for counties to use their local powers to prohibit illegal
activities. And he said that's the way the county's ordinance read -
until August.

But Gordon said the new version is worded in a way that it
"categorically prohibits medical marijuana dispensaries." The judge
called that little more than "a transparent attempt to prevent
implementation of the Arizona Medical Marijuana Act" in the areas
where the Board of Supervisors controls the zoning.

Gordon said counties do have broad authority.

"A county, however, may not use its zoning powers to violate state
law," he ruled. And that, he said, is exactly what has occurred here.

Gordon's ruling legally affects only what is happening in Maricopa
County. But the legal arguments he cites in voiding the county
ordinance would apply equally to efforts by another other county - or
city or town - to try to zone out dispensaries.

This is actually the second defeat for Maricopa County Attorney Bill
Montgomery on the issue and his attempt to argue that the county can
do nothing that allows people to violate federal laws which still make
possession and sale of marijuana a crime.

Last year the same judge ruled that the 2010 law is not preempted by
federal law. Gordon pointed out that more than a third of the states
already have laws permitting some form of legal marijuana use.

"This court will not rule that Arizona, having sided with the
ever-growing minority of states and having limited it to medical use,
has violated public policy," Gordon wrote.

Montgomery has appealed that ruling. And the state Court of Appeals is
set to hear arguments next month.

But in the meantime, the board of supervisors - under Montgomery's
legal advice - recrafted its zoning laws to essentially make no
unincorporated area of the county available for a dispensary.

Gordon said state law broadly empowers counties to adopt "reasonable
regulations addressing the public's safety, health and welfare." But
he said the law approved by voters in 2010 expressly limited that
power to allowing dispensaries only in certain specified areas.

"A county zoning ordinances that poses a categorical prohibition of
medical marijuana violates state law that limits its zoning
jurisdiction," the judge wrote.

The dispensaries are a key part of the 2010 law which allows those
with a doctor's recommendation and state-issued ID card to obtain up
to 2 1/2 ounces of marijuana every two weeks. At last count there were
close to 42,000 cardholders.

While cardholders were initially allowed to grow their own drugs, the
law says they must obtain their supply from a state-regulated
dispensary once there is one within 25 miles.

Montgomery did not immediately return calls seeking comment.
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