Page 10 - the NOISE November 2013

Since its implementation, the Arizona Medical Marijuana Act (AMMA) has been the catalyst for numerous lawsuits against the state of Arizona. signed into law by Governor Jan Brewer in December 2010, the Act gave regulatory authority of medical marijuana to the Arizona Department of Health Services (ADHs). In 2013, two lawsuits have been filed, only one of which has been resolved.
Last May, Total Health & Wellness v ADHS, which listed as plaintiffs 11 nonprofit corpo- rations, was filed because the current policy regarding dispensary registration certificates was thought to be unreasonable. Under Ari- zona Revised statutes (ARs § 36-2804.06), ev- ery medical marijuana dispensary is required to obtain a dispensary registration certificate from ADHs in order to legally operate. while a dispensary registration certificate can be renewed, an additional approval to operate must first be obtained. The dispensary has 10 months to do so, or its certificate will not be renewed, and it is this 10-month requirement which caused the lawsuit, seen as an unrealis- tic span of time, particularly for dispensaries not yet open for business. In July, superior Court Judge Randall Warner, citing the lack of a formal appeals process for dispensaries that fail to obtain their approval to operate, ruled in favor of the plaintiffs, causing ADHs to approve renewal requests for all current dis- pensaries, open or not.
“now that we’ve completed the overhaul of our medical, skilled nursing, assisted living and behavioral health rules (18 Articles in all), we’ve turned our attention toward amending our medical marijuana rules,” explains William
Humble, Director of ADHs, through a post dated 11 October on the department’s official blog. “Once we have an initial ‘straw-man’ draft, we’ll solicit public comment and have oral proceedings just like we did for the original rules in 2011. we think we’ll be able to work through the process and establish the modi- fied rules by the fall of 2014.”
Included among these proposed amend- ments are modifications to what is commonly referred to as the “25-mile rule,” which is the catalyst for Keith Floyd and Daniel Cassidy v ADHS, a lawsuit filed last August which has not yet been concluded. As defined by ARS § 36-2804.02, the AMMA allows a qualify- ing patient to cultivate their own plants only if a registered nonprofit medical marijuana dispensary is not operating within 25 miles of the qualifying patient’s home. The 25-mile rule is “as the crow flies,” meaning that regard- less of potential inaccessibility to roadways or geological barriers, a patient is affected if their residence is within that 25-mile radius, forced to obtain their medication from only state-reg- istered dispensaries.
even if already approved to cultivate their own medicine, if a dispensary opens up within 25 miles, the patient will be denied cultivation rights on their subsequent annual renewal ap- plication — and this is exactly what happened to Messrs. Floyd and Cassidy. They argue the law “improperly compels Arizona qualifying patients to participate in the state-registered dispensary health care system,” claiming that this inescapable influence is unconstitutional as per Proposition 106.
Passed by a margin of 170,393 votes, rough- ly 55% of the total 1.6 million votes cast, Proposition 106 amended Article XXVII of the Arizona Constitution — The Regulation of Health, safety, and welfare — by adding a second section titled “Health care; definitions.” Interestingly, the Proposition appeared on the same 2010 ballot as the AMMA, passed by the very same Arizonans that legalized the use of medicinal marijuana. The first section of the amendment states:
Section 2. A. To preserve the freedom of Arizo- nans to provide for their health care:
1. A law or rule shall not compel, directly or in- directly, any person, employer or health c a r e provider to participate in any health care system.
2. A person or employer may pay directly for lawful health care services and shall not be re- quired to pay penalties or fines for paying direct- ly for lawful health care services. A health care provider may accept direct payment for lawful health care services and shall not be required to pay penalties or fines for accepting direct payment from a person or employer for lawful health care services.
“This plain language,” the plaintiffs argue, “clearly forbids any law or rule which would compel Arizona residents, through penalties
or fines, to participate in any health care sys- tem to obtain personal health care.”
while the AMMA has been a law for nearly three years, the current complications sur- rounding the 25-mile rule had not been an is- sue due to the fact that the opening of medici- nal marijuana dispensaries had been continu- ously delayed. Governor Brewer, well known for her staunch opposition of the AMMA, stalled the dispensary portion of the act due to her concern that state employees would face federal prosecution, simultaneously filing her own federal lawsuit requesting clarification on the AMMA’s federal legality. Her concern was due to a May 2011 letter from the US Depart- ment of Justice which warned that “growing, distributing and possessing marijuana in any capacity, other than as part of a federally au- thorized research program, is a violation of federal law regardless of state laws that pur- port to permit such activities.” After her law- suit was subsequently dismissed in January 2012, the governor adjusted her position, and dispensaries could begin the lengthy applica- tion process. with each new dispensary that
opens — currently there are nearly 50 — more of the Arizona map becomes covered by 25- mile radius “no cultivation” zones, meaning an increasing number of patients are affected as they submit their cultivation licenses for re- newal.
Additionally, it is not only the individual pa- tients that are affected by the 25-mile rule, but also the numerous cultivators and caregivers scattered across Arizona. A Coconino County cultivator — who requested to remain anony- mous — with close to three years of experi- ence operating a state-of-the-art non-profit growing facility, is one of many established Arizonans now facing hardship because of the currentlaw. Heexplains,“Manyhaveinvested their time and money with a false belief of ob- taining a garden to find their preferred strain. Financial losses in equipment, time and R&D are now the concern, with possible illegal growing consequences. This is not a fair play- ing field.”
“The 25-mile zone is forced on us after two years of obtaining cultivation licenses, all be- fore the state knew they would finally honor the lottery for dispensary licenses.” He contin- ues, referring to the period of ambiguity which surrounded Governor Brewer’s stalling of dis- pensary approval, “Our organization of cultiva- tors, for over two years, should have the choice or right to be grandfathered.”
The sentiment he feels, of “grandfathering” pre-established cultivators and caregivers into legalization, is gaining momentum among the multitude of those affected by the 25-mile rule, including many of the 40,000 cardholders in the state. The idea is based upon the belief that dispensaries — which are not required to publicly reveal from where they receive their products — are oftentimes not able to provide patients with the same quality strains that growers have been for years developing, and that existing growers should be allowed to continue providing for the patients they’ve already long served.
It is this growing movement, in addition to the 25-mile rule’s influence on existing cultiva- tors and caregivers, which will be the basis for next month’s installment.
For more information on Arizona’s dispensary policy, visit azdhs.gov/medicalmarijuana/dispensaries
| Mark Szopinski is versed in the art of home improvement. busyb3ingborn@gmail.com
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