Arizona stepped deeper into the national legal quandary surrounding medical marijuana Tuesday with the selection of nearly 100 dispensaries throughout the state, some of which could begin selling the drug in a matter of weeks.
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The tedious, four-hour bingo-style drawing in a state Department of Health Services auditorium came a day after Attorney General Tom Horne declared that the dispensaries violate federal drug laws and as Maricopa County Attorney Bill Montgomery vowed to prosecute any that opened.
Arizona Department of Health Services Director Will Humble said the voter-approved medical-marijuana law has been fraught with legal issues since before it became law in 2010. All he can do, he said, is implement the rules accurately and fairly.
"No one disputes that there's a conflict between state and federal law when it comes to dispensaries, or the entire program for that matter," Humble said. "But we're going to do the very best job we can to put together as responsible a medical … marijuana program as we can."
The state issued special identification cards to nearly 30,000 Arizonans since last summer, permitting them to use medical marijuana to treat certain debilitating conditions. More than four out of five users also have permission to grow the drug. That permission will be gradually withdrawn as dispensaries open.
Gov. Jan Brewer and Horne stalled implementation of the dispensary process last year with a federal lawsuit, then dropped their challenge in January after the judge threw out their lawsuit and a lower-court judge ordered the process to go forward.
On Tuesday, the state health department issued 97 dispensary registration certificates from among 433 applicants, giving them the opportunity to sell marijuana and operate cultivation sites to grow it. The law does not limit how much marijuana dispensary operators can grow. Users are limited to 2½ ounces every two weeks.
Successful applicants first had to show they had a viable non-profit business plan, $150,000 in capital and met zoning requirements, among other things. Those who won Tuesday's drawing now have less than a year to prepare for and pass a state inspection before they can open their doors.
Officials divided the state into 126 areas, nearly 30 in Maricopa County. Two of those regions, in Sun City and Glendale, are the subject of legal challenges by would-be dispensary owners so the state did not draw winners there. In 27 areas, there were no applicants.
One of those lawsuits, brought in June by White Mountain Health Center, charges that Maricopa County illegally rejected its registration certificate, which is among the state requirements to become a dispensary applicant.
The facility is in an unincorporated area and requires county zoning approval. Montgomery had advised county officials not to participate in the medical-marijuana program because he believes employees could risk prosecution under federal drug laws.
Montgomery said Tuesday that he will ask the judge in that case for a quick ruling on whether the state's medical-marijuana program is legal under the federal Controlled Substances Act, which makes possession, sale or use of marijuana a crime. Judges who issued the earlier court rulings weren't asked and didn't answer that question, he said.
In the meantime, he said, Horne's legal opinion gives him the authority to prosecute dispensary operators. State health department employees also are at risk under federal law, he said.
"Any action that was taken by a state employee, if in fact any dispensaries open, was a federal crime," he said. "If they wind up not opening, no harm, no foul."
Horne issued the non-binding opinion late Monday, saying federal drug laws trump the state's voter-approved medical-marijuana law when it comes to "cultivating, selling and dispensing" marijuana. He cautioned potential dispensary owners against moving forward with their operations until the issue had been settled in court.
Both attorneys mentioned recent court rulings and crackdowns by federal prosecutors to bolster their arguments.
But attorney Ryan Hurley, who represented about 20 dispensary applicants -- four of whom won drawings Tuesday -- said other courts have ruled that state medical-marijuana laws don't prevent federal officials from enforcing their own laws. Arizona is one of 17 states to allow medical marijuana.
And, Hurley said, federal prosecutors, including Arizona's U.S. attorney, have sent a consistent, if vague, message that they intend to focus on large-scale drug traffickers, not those complying with state laws.
Other lawsuits are likely from applicants who weren't selected and have concerns about those who were, he said. Humble agreed, saying he set up Tuesday's drawing -- complete with white gloves, auditors and sealed plastic bags -- in part to defend against legal action.
"I recognize that there are people who disagree with some of the decisions that we've made," Humble said.
At least one local entrepreneur claimed two coveted Maricopa County locations.
Gerald Gaines of Compassion First AZ, whose affiliates filed 24 applications in eight regions, earned permission to launch dispensaries in Fountain Hills and west Phoenix.
Gaines, who already uses the Phoenix location for caregivers to grow and provide marijuana, said he could open a dispensary within weeks, depending on how quickly the state can move to inspect it.
But he said the biggest obstacle may be the Governor's Office and Horne, whom he accused of using "scare tactics" to intimidate patients, caregivers and dispensary operators.
By Mary K. Reinhart, The Republic|azcentral.com Aug 8, 2012
Ariz. picks dispensaries in medical-pot program - USATODAY.com
