Would-be pot shops sue Arizona for right to open - East Valley Tribune: East Valley Local News

Would-be pot shops sue Arizona for right to open

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Posted: Tuesday, June 14, 2011 12:18 pm | Updated: 4:34 pm, Wed Jul 20, 2011.

Attorneys for the owners of would-be marijuana dispensaries went to court Tuesday in a bid to force the Department of Health Services to accept and process their applications.

The lawsuits contend that the agency and its director, Will Humble, are violating the mandate by voters that they license 125 shops to legally sell marijuana to Arizonans who are entitled to purchase it as medicine. They want an order compelling Humble to proceed with the licensing.

But Humble said he and Gov. Jan Brewer are refusing to proceed based on advice from Attorney General Tom Horne.

Horne contends the medical marijuana law voters approved in November may conflict with federal statutes that make a felony to sell, possess or transport marijuana. More to the point, Horne is questioning whether having state employees processing dispensary applications leaves them liable for helping others violate federal law.

In fact, Humble will not even make blank applications available.

"That's a violation of the Arizona Medical Marijuana Act,'' said Ken Frakes, an attorney in one of the lawsuits filed in Maricopa County Superior Court.

Frakes said the statute requires the health department to adopt rules to license dispensaries. And those rules, he noted, spell out that applications were supposed to be accepted beginning June 1.

Refusing to even accept the applications, he said, "thwarts the will of the voters in this state.''

In a separate legal action, attorney David Dow is asking the Arizona Court of Appeals to order Humble to start accepting applications within 30 days.

Horne said acknowledged he advised Humble not to implement the licensing provision despite the specific direction of voters to set up the system of dispensaries. But Horne said he is doing nothing wrong -- and nothing illegal -- in putting the law on hold, at least for the time being.

He pointed out that last month, at the direction of the governor, he asked a federal judge to decide if Arizona can implement its medical marijuana law despite the federal statutes.

"I think everybody would agree that it's reasonable for me to try to get a judge to tell us what we should do when we have two conflicting laws,'' Horne said. "As soon as we have that direction, if that direction is consistent with proceeding with the state law, we will.''

At this point there is no hearing set on that lawsuit -- and no date for a judge to rule.

Dow said what is going on in federal court is irrelevant. He pointed out that state courts in California, looking at a similar issue, already have concluded that having state employees issuing medical marijuana permits does not violate federal law.

Frakes also said it makes no sense to wait for that federal court case to proceed.

He predicted the federal judge will refuse to rule on the issue, as the state is simply asking for what amounts to an advisory ruling. Frakes said only when a medical marijuana user or dispensary owner is being prosecuted under federal drug laws would the case be considered "ripe'' for ruling.

The law approved by voters last November entitles anyone with a doctor's recommendation to obtain up to 2 1/2 ounces of marijuana every two weeks. It also mandates that the health department license dispensaries which also would have the legal right to cultivate their own marijuana or purchase it from another.

But one provision of the law says individuals who are entitled to legally obtain and use marijuana for medical reasons are entitled to grow their own if they live more than 25 miles from any state-licensed dispensary. With the health department refusing to accept applications, however, there are no dispensaries, meaning anyone is entitled to request permission for self-cultivation.

The health department said that at the end of last week it had approved 5,504 applications from individuals to be considered "qualified patients.'' Agency spokeswoman Laura Oxley said nearly three-quarters of those individuals sought and were granted the right to grow their own plants.

Both attorneys said their clients already have invested substantial sums in their bids to get one or more of those 125 dispensary permits.

Arizona law requires the dispensaries to be non-profit operations. However, they are not required to be charities and there are no restrictions on how much the owners can pay themselves.

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