Aug 102012

By Linda Kor
The Arizona Department of Health Services announced the 97 recipients of medical marijuana dispensary certificates Tuesday, bringing the full implementation of Arizona’s Marijuana Medical Act (AMMA) one step closer. The ADHS conducted the selections through a lottery in order to select the recipients from the 486 dispensary applications received by the department.
Of those selected, one was chosen for each of the three Community Health Analysis Areas (CHAA) in Holbrook, Winslow, and the Heber/Overgaard and Snowflake area. The Holbrook CHAA had three appli-cants, with Winslow, and the Heber/Overgaard and Snowflake CHAAs each having two. The names of those who received certificates will not be announced by the ADHS due to state statute, which specifies that the information is to be kept confidential except to those who are qualifying patients.
As to the need for dispensaries in the region, the ADHS reports that to date there are 30 qualified patients in Holbrook, 52 in Winslow, and 73 in the Heber/Overgaard and Snowflake CHAA. A report from the ADHS notes that throughout the state, 40,463 patient applications were approved from April 2011 through June 2012.
ADHS Director Will Humble clarified that the dispensary registration certificate does not give the holder permission to open or operate a dispensary. In order to do that, certificate holders must subsequently apply for approval to operate after having completed a number of additional requirements.
While the ADHS moves forward with plans to make medical marijuana available to prescription bearing patients, law enforcement officials are questioning the legality of the Arizona Medical Marijuana Act (AMMA), which was voted into law in 2010.
In response to a query by 13 of 15 of the state’s county attorneys regarding the matter, Attorney General Tom Horne attempted to clarify the state’s position on the matter.
The debate revolves around the fact that although Arizonians voted to legalize the sale of medical mari-juana in the state, federal law prohibits the sale, cultivation or transportation of marijuana for any purpose. The question put forth by the counties attorneys is whether the AMMA is pre-empted by federal law.
In response, Horne stated that the law is pre-empted, in part. Court decisions in Oregon and California, where state medical marijuana laws have been in place, hold that the state cannot “authorize” actions that are forbidden under federal law. A state can, however, decriminalize marijuana under its own laws.
“The provisions of the AMMA that relate to patient and caregiver identification cards would not be pre-empted, because they merely identify those individuals who are exempt from prosecution under state law for the possession or use of marijuana for medical purposes. The use of the cards for that purpose would not be pre-empted,” according to Horne’s opinion.
Navajo County Attorney Brad Carlyon was one of the county attorneys questioning Horne regarding the legality of the AMMA and the possible repercussions. He believes there are too many gray areas in the law, and cautions property owners and investors who may feel they have a solid investment in medical marijuana.
“If a property owner changes his mind about leasing a building as a dispensary and the operator doesn’t want to leave, he cannot force them out through the courts. It will not be recognized as a legal business,” stated Carlyon. He cited a recent incident in Maricopa County in which Arizona investors Mark Haile and Michele Hammer lost half a million dollars when the Colorado dispensary they invested in defaulted on its loan. The investors sued the company in Maricopa County Superior Court, fully expecting their money to be returned to them, only to have the case dismissed. The reason: the money was loaned for an illegal purpose under the U.S. Controlled Substances Act, a federal law.
In a recent decision in California, the Los Angeles City Council unanimously agreed to shut down all 900 storefronts selling marijuana for medical purposes, believing that the law, which has been in place for 16 years, has created an environment for crime, nuisance and addiction.
How the implementation of Arizona’s law will play out in the long run has yet to be determined, but ac-cording to Carlyon, those who choose to violate federal law believing they will be protected by state law may not have much to stand on.
How the county will uphold the implementation of the law will be a decision for the future.
“In my position with the county I can advise the Planning and Zoning Commission and the Board of Su-pervisors when it comes to permitting this type of business, but I can’t make decisions for them. That will be up to them.”