An applicant for a medical-marijuana dispensary and cultivation site has sued Maricopa County, accusing the county of purposely stalling action on its application to prevent it from seeking a state operating license.
The lawsuit by White Mountain Health Center Inc. alleges the county would not certify or reject its registration certificate, one of the Arizona Department of Health Services' first requirements for obtaining a dispensary license.
The White Mountain Health Center wants to open a dispensary and cultivation site in Sun City, which is in an unincorporated part of the county and therefore requires county zoning approval.
Maricopa County last year decided not to allow county employees to accept, process or issue permits for medical-marijuana dispensaries or cultivation sites on county unincorporated land unless marijuana becomes a federally-approved drug.
However, the Arizona Medical Marijuana Act, which voters approved in November 2010, allows qualifying patients with certain debilitating medical conditions to use marijuana. It allows local jurisdictions to impose "reasonable" zoning restrictions for dispensaries, and requires local zoning approval before a permit is processed by the state.
The county Board of Supervisors nonetheless opted out of the program after County Attorney Bill Montgomery, named as defendant in the lawsuit, advised the board not to participate in the medical-marijuana program. He said county employees may be subject to federal backlash, and it may make them accomplices in committing a federal offense because marijuana is not an approved drug under the federal Controlled Substances Act.
That is why no county employee has acted on dispensary applications, Montgomery said: To avoid "having to argue the fine details of whether even a denial" of a permit application could be considered a violation of federal law.
In its lawsuit, White Mountain Health Center claims the DHS rejected its application for a registration certificate because the center could not obtain documentation from Maricopa County or from Montgomery showing there are no zoning restrictions that prevent a dispensary from opening in Sun City. DHS and its director, Will Humble, are also named as defendants.
In a letter to Jeffrey Kaufman, attorney for the health center, Montgomery explained the county will not issue zoning verification for medical-marijuana dispensaries "until the threat of federal prosecution is conclusively removed."
After applicants receive their registration certificate from DHS, they must get approval from their local jurisdiction to operate. Cities and towns across the Valley have different requirements for potential dispensary or cultivation-site owners.
A dispensary applicant must meet local zoning requirements.
If a local government rejects the application, the case would need to be handled in the courts, Humble said.
"Each jurisdiction handles it a little differently," Humble said. "Some, you just march into the office and they sign it. Others ask for some more information."
Ken Strobeck, executive director of the League of Arizona Cities and Towns, said he was not aware of any city or town in the state that has disallowed medical-marijuana dispensaries or cultivation sites, as Maricopa County has.
Based on his analysis, Montgomery said, other local jurisdictions that allow medical-marijuana dispensaries should be subject to federal prosecution.
"You can't enforce the Arizona Medical Marijuana Act," Montgomery said. "I don't care if it passed with 90 percent of the vote. Voters are no more entitled to pass something that's unconstitutional than the Legislature, and that's just a legal fact. If it's against the law, you can't enforce it … The medical-marijuana act is not even protected by the Voter Protection Act because it can't protect something that's unlawful."
Kaufman said the White Mountain Health Center is the only applicant for a medical-marijuana dispensary in Sun City.
"Obviously there are a lot of people in Sun City with serious medical conditions that we believe would benefit from medical marijuana," Kaufman said. "The voters in the state have approved medical marijuana, and I think it would be very unfair for the people of Sun City to travel outside of Sun City to go and get medical marijuana."
By Michelle Ye Hee Lee, The Republic|azcentral.com Jun 26, 2012
Permit for pot blocked, suit says - USATODAY.com
