Medical-marijuana law is legal, Arizona judge rules
PHOENIX - Arizona's 2-year-old medical marijuana law is legal and is not preempted by federal law, a trial judge ruled Tuesday.
In an extensive ruling, Maricopa County Superior Court Judge Michael Gordon rejected arguments by Attorney General Tom Horne and Maricopa County Attorney Bill Montgomery that the voter-approved Arizona Medical Marijuana Act is void because the possession and sale of marijuana remain a federal crime.
In his decision, Gordon pointed out 18 states and the District of Columbia already have laws permitting some form of legal marijuana use. And the judge said he wasn't about to declare Arizona's own version invalid.
"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," he wrote.
Most immediately, the decision should pave the way for a planned dispensary in Sun City to get the paperwork it needs to open. But the broad scope of the ruling, unless overturned, provides legal grounds for the state going ahead with plans to license more than 100 dispensaries around the state.
Both Horne and Montgomery vow to appeal.
Gordon acknowledged Congress enacted the Controlled Substances Act to combat drug abuse and to control the legitimate and illegitimate traffic of drugs. That law classifies marijuana as a Schedule 1 drug for which there is no legitimate medical use.
And the judge agreed the 2010 initiative allowing the medical use of marijuana reflects "a very narrow but different policy choice" about the drug. But he said the fact Arizona has a different view of the drug does not conflict with or illegally undermine the federal law: Federal agents remain free to arrest Arizonans who violate federal law.
Horne said that misses the point.
He said Arizona could decriminalize the possession of marijuana entirely, similar to what voters just approved in Washington and Colorado. That would leave it up to federal agents to decide if they want to charge anyone with violating the Controlled Substances Act.
But in this case, though, Horne said the state is actually authorizing the sale of marijuana.
"A state cannot authorize what the federal government prohibits," he said.
Horne said the Oregon Supreme Court, on the same point, found last year that Oregon's medical-marijuana statutes were pre-empted by federal law.
Gordon acknowledged that ruling, but said he sees no conflict. He said what voters approved in Arizona actually could be interpreted to support the goals of Congress in combating drug abuse.
"The Arizona statute requires a physician to review a patient's medical circumstances prior to authorization of its use," he said. Those without a card remain subject to arrest under state law.
Gordon also said the initiative also gives the state health department "full regulatory authority." That agency, in turn, has enacted rules to ensure dIspensaries operate within the law.
The 2010 initiative says people with certain medical conditions, and a doctor's recommendation, can get a state-issued identification card allowing them to obtain up to 2 1/2 ounces of marijuana every two weeks. The most recent figures show more than 33,600 recommendation applications have been approved.
That law also envisions a network of up to 125 state-licensed dispensaries to grow and sell the drug to cardholders and their caregivers.
The state has given final approval to two dispensaries, one in Tucson and one in Glendale, though neither has opened its doors.
But the owners of White Mountain Health Center ran into a problem in Sun City: The health department requires that anyone seeking a dispensary permit must provide documentation that the site is properly zoned and Maricopa County officials, acting under Montgomery's advice, refused to provide the necessary letter.
Dispensary owners sued, asking Gordon to order the county to issue the letter.
The case before Gordon dealt solely with the license to operate a dispensary and had nothing to do with the ability of state workers to issue the ID cards to medical marijuana users. But Montgomery has said he believes that, too, violates federal law and intends to try to have those declared illegal - if he can get this ruling overturned.
Arizona Could Be First To OK Marijuana For Depression, Anxiety
The Arizona Department Of Health Services Will Review Petitions To Add Four New Debilitating Conditions To Medical Marijuana Program
By Staff Report
Modern Times Magazine
April 21, 2012 — Arizona would become the first state in the U.S. to approve marijuana use for depression and anxiety if petitions requesting the addition of the conditions are approved later this summer, according to Will Humble, director of the Arizona Department of Health Services.
“The voter approved language in the AZ Medical Marijuana Act directs us to periodically accept and evaluate petitions to add new debilitating medical conditions. We’ve made it through the first phase of considering whether to add four new debilitating conditions,” Humble posted on his official blog Friday. “Post-traumatic stress disorder; generalized anxiety disorder; migraines; and depression.”
New Mexico and Delaware are the only states that permit medical marijuana for post-traumatic stress disorder. California is the only other state that permits medical marijuana for migraines.
Humble posted Friday afternoon that a public hearing would be begin at 1 p.m., May 25, in the State Lab, 250 N. 17th Avenue, Phoenix. The public hearing is the next stage for the four petitions requesting that four conditions be added the list of debilitating conditions that were passed by voters by way of Prop. 203 in Nov. 2010. The resulting Arizona Medical Marijuana Act also created a regular acceptance protocol for petitions to the department of health services, or DHS. The four potential additions were filed with the DHS in January.
According to the Arizona Medical Marijuana Act, the DHS has 180 days to review the petitions and to approve or deny the application. In order to schedule a public hearing, the DHS must determine that the condition can impair one’s daily life and that it has been cited that marijuana is efficacious to the treatment of the condition. Since the DHS restricted petition submittal to Jan. 23 to 27, the deadline for the state to act on them is sometime during the last week of June.
Humble said in his blog that his department will consult the highest levels of the medical community before reaching a final decision.
“If we decide to add PTSD or any other debilitating conditions, we want to make sure we’re on solid medical ground. I’m heading down to a conference in Tucson next weekend where physicians can get Continuing Medical Education credits for learning about medical cannabis,” Humble posted.
The conference to which Humble was referring is The National Clinical Conference On Cannabis Therapeutics. The conference is in its seventh year and will be held April 26 to 28 at Loews Ventana Canyon Resort in Tucson.
According to the DHS petition information, the department is also working with the University of Arizona, Colleges of Public Health and Medicines to review the petitions.
“The University will be able to provide ADHS valuable support, including further research of each condition or treatment and summary reports with recommendations by accessing its extensive public health and medical expertise,” according to the DHS website.
Current accepted conditions include: cancer; glaucoma; human immunodeficiency virus; acquired immune deficiency syndrome; Hepatitis C; ALS, Crohn's disease; agitation of Alzheimer's disease; cachexia or wasting syndrome; severe and chronic pain; severe nausea; epilepsy; and severe or persistent muscle spasms, including those characteristic of multiple sclerosis.
May will be a busy month for the DHS, as it announced earlier this month that it will begin accepting dispensary applications May 14.
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Phoenix marijuana-cultivation center soon to open is 1st in nation
Around her, dozens of other registered caregivers erected their own grow tents and hauled in boxes of high-pressure sodium lights and duct systems to prepare for the opening of the 5,000-square-foot medical-marijuana cultivation center, soon to be a headquarters of sorts for 45 caregivers and 500 green leafy plants.
The center, near Seventh Avenue and Loop 101 is the first of its kind in the nation, its operators said, and provides a central location for caregivers to grow cannibus for patients with maladies ranging from cancer to chronic pain. Compassion First Caregivers Circle Inc. set up the center.
At 64, Shockley has lived with pain for a decade or so. Her hands are swollen with arthritis, a disease she inherited from her mother. Shockley can’t make a fist, and sometimes her joints hurt so badly it’s difficult to write.
She’s tried everything to numb the constant aching — over-the-counter pills, cortisone shots and high-powered prescription pain relievers.
Eventually, she discovered the only remedy that numbed the pain — pot. For years, she self-medicated by secretly toking on a joint or eating pot brownies. She bought the pot from friends and neighbors. But now, she will grow her own at the cultivation center.
With the voter-approved medical-marijuana law, she can legally grow the drug for herself since she is registered as a caregiver with the state Department of Health Services, and she can distribute it to other cardholders.
“Nothing has touched the pain except for marijuana,” she said. “Now, I can finally help myself legally, and help other patients who need it.”
Under the law, passed by voters in 2010, people with certain debilitating medical conditions can use pot. They must register with the state, which issues ID cards to qualified patients and caregivers.
The state has been embroiled in legal disputes over application of the law, but it appears most of those fights are over. Since there are not yet any licensed pot dispensaries, caregivers and patients can grow their own marijuana, up to 12 plants per person.
Several marijuana “clubs,” which provide patients with medical marijuana, already have opened up in the Valley. They immediately drew concern from state officials, who filed suit to close them.
About 1,065 caregivers and 18,000 patients are registered with the state.
This cultivation center is operated by Scottsdale philanthropist and businessman Gerald Gaines.
The center will open with a soft launch on Saturday, and will be fully up and running on Feb. 18. Gaines plans on opening a center in south Phoenix and a third in Tempe.
Under the center’s model, caregivers will charge patients market rate for the pot, about $300 per ounce, Gaines said. Under state rules, caregivers can sell to five patients. Caregivers cannot make a profit on the pot and cannot charge for their time. The growers will donate extra monetary proceeds or the marijuana itself to charity, he said. Generally, he said, patients use one-eighth of an ounce per week while heavier users can consume three-fourths of an ounce per week. One plant typically generates four ounces of marijuana.
During a recent tour, jars of the dried drug with names like “white queen,” “purple urkle” and “Afghan kush” sat on a table. Growers can manipulate the drug’s potency through different strains to treat different conditions and ailments.
“That’s why medical marijuana has so much promise,” Gaines said. “And this center is a way to get as many patients as much medicine as they need.”
On-hand expertise from pot consultants drew Jeff Moriarity to the center.
A licensed patient and caregiver, the 67-year-old said he can learn how to grow marijuana right.
On this day, Moriarity is really hurting. He suffers from hardening of the arteries and lactic acid build-up in both legs. It’s hurts to vacuum, and he has to rest after walking 100 feet.
“I thought ‘What the heck?’ and tried it at a friend’s house once,” he recalled. “Then, I went for a long walk — and my legs didn’t hurt. So, I decided to grow it so I can make sure it’s fine and dandy with no pesticides.”
Armed guards, security cameras and alarms will protect the marijuana plants around the clock, Gaines said, adding that he also doesn’t expect local law enforcement to hassle them.
“We’re abiding by the law so we don’t expect any problems,” he said.
Phoenix police Sgt. Steve Martos said law enforcement are cautioning people to closely follow the medical-marijuana law to prevent run-ins with the police.
“This is a new kind of program, a new kind of business, and so we’re just telling folks to read the law and follow the law,” Martos said.
Maricopa County Attorney Bill Montgomery would not comment on the opening of the center, a spokesman said, citing potential future litigation regarding medical marijuana.
Angel Rodriguez, a caregiver, grow consultant and former medic with the military, set up shop at the center partly because of a run-in with the cops.
His patients’ maladies range from kidney failure to cancer.
“I grew it out of my home for a little bit, but now I’m trying to help other people grow,” said Rodriguez, 34. “I want to help patients any way I can.”
Arizona Medical-Marijuana Suit Dismissed by Federal Judge
Arizona Governor Jan Brewer claimed the voter-approved measure contradicted federal law and put state employees, who are charged with approving medical-marijuana dispensaries, at risk of prosecution. Her administration refused to approve dispensary applications pending the outcome of the lawsuit.
In her ruling yesterday, U.S. District Judge Susan Bolton in Phoenix said the state failed to establish a “genuine threat of imminent prosecution.”
Bolton gave the state 30 days to amend and refile the complaint. Brewer hasn’t decided whether she will renew the case, her spokesman, Matthew Benson, said. Benson called the ruling a “tremendous disappointment.”
“What the federal court has essentially said is that it won’t hear the state’s lawsuit until we have an employee who is either prosecuted or notified that they face imminent prosecution for their part in facilitating Proposition 203,” Benson said in a telephone interview, referring to the ballot initiative that legalized medical marijuana. “That is an untenable position for any state employee.”
Charles Miller, a spokesman for the U.S. Justice Department, said in an e-mail that the agency wouldn’t comment on the ruling.
Arizona and 15 other states have legalized the use of marijuana for medical purposes in violation of federal law. Brewer filed her lawsuit against the federal government and would-be dispensary operators after U.S. attorneys in other states said state employees wouldn’t be immune from federal prosecution. The suit asked the court to decide whether federal law nullifies the state statute or if the Arizona measure protects state workers from federal prosecution.
Arizona’s law, approved in November 2010 by a margin of fewer than 5,000 votes, created a system of dispensaries to be regulated by the state health department and capped at 125 statewide. Patients are barred from growing their own marijuana if they live within 25 miles of a dispensary.
Grow Your Own
Brewer and Attorney General Tom Horne, who both publicly opposed the measure, filed the lawsuit five days before the state was set to begin accepting applications from would-be dispensary operators in May. The move opened the door for patients and caregivers to grow their own marijuana. So far, the state has approved 18,000 medical marijuana patients, of which 15,000 are allowed to grow their own pot, according to the Health Services Department website.
Joe Yuhas of the Arizona Medical Marijuana Association said voters wanted a regulated dispensary system and never intended to have thousands of patients growing their own pot. His organization of would-be clinic operators will consider suing in state court if Brewer’s administration doesn’t move forward with the dispensaries, he said.
“We would hope that our state leaders will now recognize it is time to stop wasting taxpayer dollars in an effort to thwart the will of the voters and move ahead with full implementation of the initiative,” Yuhas said in a telephone interview.
The case is State of Arizona v. U.S., 11-cv-1072, U.S. District Court, District of Arizona (Phoenix)
Growers selling medical marijuana on the Internet
We need to elect a Minister of Marijuana, for the people. -UA
TUCSON, AZ (KOLD) - The arrest of a Tempe medical marijuana owner and her boyfriend was striking a chord, among Tucson card holders, waiting to legally buy the drug.
D.E.A. officials raided the dispensary and home of Rachel Beeder and her boyfriend James Chaney, after getting reports that the two were selling medical marijuana to those who said they needed it.
Beeder spoke to a KSAZ-TV reporter from her jail cell.
"I'm sitting in jail right now because the law isn't written right," said Beeder.
She said she would gladly go to jail for medical marijuana, because Arizona voters had said yes to providing it to those who needed it. Beeder was licence by the state to be a care-giver and provide medical marijuana to up to five patients, but due to a lawsuit filed by the state, the law was on hold.
Tucson medical marijuana card holder Bob Cherry was not surprised to hear about Beeder's arrest, and that people were resorting to buying the drug illegally.
"I would hope I don't have to break the law and go to jail. It's easy enough. All it does is keep a cartel in business," said Cherry.
Cherry was frustrated with the state government, saying they had no problem charging him $150 for his medical marijuana licence, but they were not providing the service he had paid for.
Many card holders, like Cherry were getting tired of waiting, and turning to the Internet for their prescriptions.
A quick search of Tucson's Craigslist reveals a list of local growers who are willing to provide medical marijuana to card holders for a "donation."
In his ad, one grower stated "we are a family operated operation just wanting to help others."
Beeder said she was also trying to help those in pain.
"I am a good person out here trying to help these people who have medical issues that are taking drugs that aren't good for their bodies, and they're killing them."
Vicky Puchi-Saavedra, a Tucson woman who had applied for permits to open five dispensaries in Tucson was outraged, and concerned to see the "black market" for medical marijuana on the Internet.
Puchi-Saavedra said that was the easiest way to violate federal laws, and dispensing medical marijuana should be left up to licence professionals.
"You want to sell medical marijuana, you have to regulate it otherwise you're opening the door to the black market."
A D.E.A spokeswoman said the federal government does not recognize the term "medical marijuana." It was still considered a controlled substance, and those trying to sell it would be arrested, and prosecuted for dealing drugs.
Medical marijuana clubs under fire from AG
Hey Tom Horne: Take your hand out of the pot. Literally. -UA
Tom Horne intends to shut down groups he believes have been illegally providing medical marijuana to patients with cancer and other diseases.
To that end Horne today filed suit, seeking to stop so-called "Cannibis Clubs" from giving marijuana to patients for a "membership fee."
"It is legal if you're a card holder to give marijuana to another card holder without compensation but it's not legal if there are fees involved. With the five clubs there are fees involved," said Attorney General Tom Horne. "Rather than having them arrested right away, I'm taking a softer approach. We're going to court to ask for a judgment of the court saying that they can't do this and if the court agrees with us and they continue doing it than they would be subject to arrest."
"Mr. Horne says there's nothing in the law that says we can do this I gotta go back to Mr. Horne tell him there's nothing in the law that says we can not," said medical marijuana advocate Allan Sobol. "The 2811 club does not distribute marijuana. We don't sell it here, we don't give it away here. We just allow qualified patients to come in here and exchange the marijuana amongst themselves, which I believe is in full compliance with state law."
Arizona's recently passed medical marijuana law is in disarray after Horne sued the federal government in May to find out whether state regulators could face prosecution.
That action essentially put the medical marijuana law on hold, although the state still is handing out medical marijuana cards to patients with qualifying diseases.