Dec 142012

By Linda Kor
A ruling by a Maricopa County Superior Court judge may set precedent regarding proposed medical marijuana dispensaries in counties throughout the state.
Maricopa County Superior Court Judge Michael Gordon ruled on Dec. 4 that Maricopa County would not be allowed to deny Arizona Department of Health Services approved dispensary operators the paperwork necessary to show they are in compliance with zoning restrictions. In the ruling, Judge Gordon wrote, “This court will not rule that Arizona, having sided with the ever-growing minority of states and having limited it to medi-cal use, has violated public policy.”
The case began over a dispute as to whether Maricopa County had to approve zoning for a dispensary in Sun City. It then grew into a question of whether Arizona’s law was preempted by federal law, which categorizes the possession, sale or use of marijuana as a Class I felony.
Under Judge Gordon’s ruling, county officials must provide the White Mountain Health Center the necessary documentation that show it complies with local zoning restrictions in order to open a dispensary in Sun City.
Maricopa County Attorney Bill Montgomery, with the support of Arizona Attorney General Tom Horne, had advised the Maricopa County Board of Supervisors not to provide the required information, because to do so was to support a violation of federal law.
In his ruling, Gordon stated that the reason the Arizona law is not unconstitutional, as Montgomery and Horne had maintained, is because federal officials are free to enforce federal law if they so choose. In other words, Arizona hasn’t preempted the federal government from doing anything. Gordon went further, stating that Arizona’s system gives the federal government a “roadmap” to enforcement. If federal officials should choose to close down or bust operations that sell marijuana, the dispensary locations will be easily identified.
Last month the Navajo County Board of Supervisors denied Overgaard Compassion Care representatives a special use permit for the dispensary they intended to open on Highway 260 in Overgaard. The denial was based on what Supervisor David Tenney called “principle,” stating that the use of marijuana in this nation is a criminal act and that it is a detriment to the health, safety and welfare of the people of the community of Heber-Overgaard.
A month earlier the Planning and Zoning Commission denied the request for the same reasons, as well as a request for a zone change for a cultivation site east of Snowflake for Dixon Oates.
With the passage of the Medical Marijuana Act the board had outlined what areas in the county would be acceptable for a dispensary location, including distance from schools and churches. With the decision to not allow dispensaries in unincorporated areas of the county, medical marijuana patients will be allowed to grow their own if a dispensary is not within 25 miles of their homes, and will not be subjected to the same stringent oversight as dispensary operations.