Page 43 - the NOISE December 2013

As the Arizona Medical Marijuana Act 25-mile rule’s possible violation of constitu- with last issue, who again wished to remain association, he recommends a governing
(AMMA) celebrates its third birthday, lawsuits and confusion continue to plague the Arizona Department of Health Ser- vices (ADHS). Numerous medical marijuana patients, cultivators, and businessmen seek clarification regarding different aspects of the law’s implementation in the form of vari- ous lawsuits, and this continued legal activ- ity reaffirms the fact that the AMMA is very much a work in progress.
Last issue, we covered a recent lawsuit filed against the ADHS which called into question the legality of the so-called “25- mile rule,” which allows a qualifying patient to cultivate their own medicinal marijuana plants as long as a registered nonprofit dis- pensary is not operating within 25 miles of the patient’s home.
Filed by plaintiffs Keith Floyd and Daniel Cassidy, the complaint argued that the rule
“improperly compels Arizona qualifying pa- tients to participate in the state-registered dispensary health care system” by forcing patients into purchasing their medicinal marijuana from a state-approved dispen- sary. Because no alternative is permitted for patients supposedly entitled to personal cultivation, the plaintiffs believed the rule was unconstitutional per Proposition 106. Though the lawsuit was recently dismissed in court, the complicated issues surrounding the 25-mile rule are far from resolved.
Last month, Maricopa County Superior Court Judge Katherine Cooper threw out the claim, bluntly writing, “Dispensaries are not a health-care system.” She explained that because dispensaries do not actually manage any of the processes of health-care for their patients, they fail to meet the quali- fications of a health care provider. Further, enrollment in the state’s medical marijuana program is clearly not mandated.
Because of this, dispensaries are not de- fined by nor apply to Proposition 106, which according to Judge Cooper clearly applies to mandated health insurance and not to what she defined as “businesses that sell controlled substances.” Interestingly, she did mention the potential of a separate chal- lenge that could be mounted regarding the
tional provisions which guarantee everyone equal protection under the law. Regardless of whether this approach will be taken, an appeal is expected.
Now that the matter has been at least temporarily settled, where does that leave the numerous Arizona cultivators? For the time being, the previous landscape of con- fusion and uncertainty remains. If cultiva- tors grow their medicine within 25 miles of a dispensary, they are doing so solely within the realm of illegality. In addition to residen- tial patient growers, numerous “cultivation sites” across Arizona are now vulnerable to legal action. A cultivation site is not neces- sarily what is commonly envisioned, some colossal gun-protected field or shed operat- ing solely with malicious, recreational intent. In the medical marijuana patient community, a cultivation site is a place where qualified patients can comfortably grow their own personal medication away from their homes in a controlled facility equipped with condi- tions prime for utmost growing quality. For a fee, of course.
For those first two years, there was no con- flict regarding a cultivation site operating with the 25-mile dispensary radius because at that time, no dispensaries had opened. Though the 25-mile rule was signed into law three years ago by Governor Jan Brewer, it wasn’t until the governor’s own lawsuit re- garding the AMMA’s federal legality — which effectively stalled the dispensary portion of the AMMA from being implemented — was dismissed in January 2012 that dispensaries began opening. During this time, between the AMMA’s initial passing and Governor Brewer’s subsequent change in position that allowed dispensaries to open for busi- ness — with medicinal marijuana legalized but no concrete dispensary system in place
— numerous cultivation sites began opening, serving the needs of the now-legal and rap- idly increasing marijuana patient population.
As the law currently stands, if a dispen- sary happens to open, the cultivation site closes. No exceptions. A Coconino County cultivator — the same person we spoke
anonymous — who since the AMMA’s ini- tial passing has operated a state-of-the-art non-profit growing facility for local qualify- ing patients, spoke in detail about the sticky situation that occurs when dispensaries be- gin opening within 25 miles of an already- established cultivation site, an unpleasant reality he now faces which affects not only himself, but his patients, employees, and en- tire business. He explains, “Our state makes us criminals by reducing our status from a cultivator to a patient with no mercy, even after established years of success in medical marijuana cultivation.”
According to the cultivator, the current climate is one of uncertainty and distrust among cultivators, particularly regarding dispensaries. He explains that dispensaries, potentially feeling economically threatened by the services a cultivation site provides, could report them for illegally posing and functioning as a dispensary. Regardless of actual purpose or operating history — his own operation can boast numerous patients who have been with him “since the begin- ning” — the cultivation site would have little with which to legally defend itself, and its owners and operators would likely face fed- eral felony charges related to marijuana pos- session and distribution.
For cultivation site personnel, their liveli- hood all comes down to luck, to whether or not the state lottery system happens to award an operation license to a bud- ding dispensary within 25 miles. The law is overwhelmingly in favor of state-approved dispensaries — many of which he claims lack any real merit or experience — and this imbalance of power and subsequent vulner- ability is something all cultivation site own- ers and operators are aware of.
“These licensees have the money and pow- er to crush all other cultivators before even weighing in the Arizona cultivators’ three years of strenuous work.” However, he offers a remedy, explaining, “It would be nice to have a patient-cultivator association outside the capitalist licensees controlling our medi- cal marijuana products.”
Relating to a potential patient-cultivator
body similar to the Arizona Liquor Board to provide a necessary system of checks and balances. The board, which is responsible for overseeing liquor application licenses that have met with public protest, is housed within the Department of Liquor Licenses and Control but operates independently from the department’s director. The board consists of an Arizona State Liquor Board administrator — hired by the Department of Liquor — and seven other members ap- pointed to three year terms, with specific rules in place regarding the consistency of the board in order to ensure parity, such as no more than two members from the same county and no more than four members from the same political party. According to the cultivator, there is no reason why such a board cannot exist within the ADHS’s medi- cal marijuana program.
“Let [the potential board members] judge the merits of our cultivation, and others like us. We don’t have the resources to fend off any attackers, may it be the law, or the rich and powerful.” With obvious resentment, he matter-of-factly states, “We could continue our work only with a dispensary helping us as their off-site cultivation center.”
Despite the obvious legal dangers of con- tinuing to operate, he insists it’s still all about the patient. He remains optimistic that in the end, what is best for Arizona patients will prevail, which means the continued availability and operation of cultivation sites in order to provide patients with the highest quality medicine possible. Until forced oth- erwise, the unique services that a cultivation site affords qualifying patients is something both he and his organization will continue to provide.
For more on Arizona’s medical marijuana policy, azdhs.gov/medicalmarijuana
| Mark Szopinski is a writer & musician who makes his home Flagstaff. busyb3ingborn@gmail.com
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