Tuesday, January 17, 2012

Wrong On Appeal, Not On Length Of Dispensary Limbo

In a January 5, 2012 post, Arizoneout predicted that the state would appeal the dismissal of its lawsuit against the U.S. Government, and that the status of the 126 dispensaries that voters authorized when they passed the Arizona Medical Marijuana Act (AMMA) would remain in limbo for many months.

As it turns out, Arizoneout was wrong about the appeal.  Last Friday, which happened to be a Friday the Thirteenth and the eve of a three-day holiday weekend, Governor Jan Brewer issued a press release announcing that the state was not going to refile in federal district court, and that she had directed the Arizona Department of Health Services (ADHS) to begin accepting and processing dispensary applications.

“With our request for clarification rebuffed on procedural grounds by the federal court, I believe the best course of action now is to complete the implementation of Proposition 203 in accordance with the law,” Governor Brewer said in the statement.

ADHS Director Will Humble posted notice of the Governor’s decision on his blog.  But Humble’s post made it clear that full implementation of the dispensary system created by the AMMA still was full of uncertainty and was many months away, even under the best case scenario.

Step one according to Humble is setting up a new timetable for dispensary applications, a rulemaking process that itself will take so much time that the earliest ADHS will begin taking applications is sometime this summer!

But Humble sent a strong signal that other litigation may delay the process further.  Humble referred to another pending lawsuit that challenges the scope and constitutionality of ADHS’ medical marijuana rules, stating that it “complicates” the process.  Only if that lawsuit is withdrawn or settled could ADHS start taking dispensary applications this summer, Humble says.  So best case, the dispensaries would be in place a full year after Arizona voters anticipated they would be.

That best case scenario is unlikely to present itself, however, as Compassion First AZ, the organization prosecuting the suit, has announced that it does not plan to drop the case.

For her part, Governor Brewer does not promise a hands-off approach going forward.  She concluded her press release with this warning:  “Know this:  I won’t hesitate to halt State involvement in the AMMA if I receive indication that State employees face prosecution due to their duties in administering this law.”

Thursday, January 5, 2012

Federal Judge Won't Give State Guidance on AMMA

The federal lawsuit that Governor Jan Brewer filed in May 2011 at the same time she stopped full implementation of the Arizona Medical Marijuana Act (AMMA) was tossed out yesterday.  But don’t expect the state to start licensing medical marijuana dispensaries any time soon.

Arizoneout has reported from time to time on the political and legal maneuvers that have created a worst-case scenario in which thousands of Arizonans have a state permit to use marijuana for medical purposes, but no legal way to obtain it other than growing their own.

At the same time she sued, Governor Brewer halted the dispensary licensing process.  The gist of the State’s claim was that state workers implementing the dispensaries could be in jeopardy of federal prosecution, because marijuana is illegal for all purposes under federal law.  Governor Brewer tried to stay neutral, asking the federal court to decide whether the AMMA and federal law could co-exist.

In an ironic twist, the AMMA case landed before U.S. District Judge Susan Bolton, the same judge who struck down provisions of S.B. 1070, Arizona’s controversial immigration law, ruling that it was pre-empted by federal law.  The S.B. 1070 case is now before the U.S. Supreme Court.

At a hearing last month, Judge Bolton told the State that it could not sit on the fence but would have to take a position in the lawsuit on whether federal law trumped the AMMA.  A few days later, the State filed a notice that it would be amending the suit by January 9, 2012, and asked Judge Bolton to wait until then to rule on the various pending motions to throw out the case.

The State’s court papers did not indicate what position Governor Brewer would be taking, but her spokesman reportedly said that Arizona would argue that federal law trumped the dispensary provisions of the AMMA.

Many commentators have skewered Governor Brewer for what they perceive as hypocrisy in the different positions she has taken on the two laws.  A good recent example is E.J. Montini’s New Year’s Day column in the Arizona Republic.

Judge Bolton did not wait for the State’s promised filing, finding that the “scant detail” in the State’s notice was insufficient.  She gave the State until February 3, 2012 to file an amended lawsuit, but signaled that she doubted there was any basis to “substantiate a credible, specific warning or threat to initiate criminal proceedings against state employees in Arizona if they were to enforce the AMMA.”

Governor Brewer’s spokesman told the Republic yesterday that she was consulting with Arizona Attorney General Tom Horne on whether to appeal.  Arizoneout is predicting the state officials will decide to appeal, and that the AMMA’s dispensary licensing program will remain in limbo for many more months.

Tuesday, January 3, 2012

Resolve To Adopt Defensible Workplace Policies On Medical Marijuana

On this the first work day of 2012 in most places of employment, it is an appropriate time to reflect on the past year and resolve to make changes for the year ahead.  In my professional discussions about the Arizona Medical Marijuana Act (AMMA), I find that employers typically have not had to confront the issue and thus are not taking proactive steps to develop policies they can defend.

Nevertheless, the number of Qualified Patients (QPs) licensed by the state to use medical marijuana continues to grow.  The Arizona Department of Health Services (ADHS) has not yet issued its year-end report, but as of November 25, 2011, more than 16,000 QPs had ADHS-issued ID cards making their use and possession of limited quantities of marijuana legal under state law.

According to the U.S. Census bureau, Arizona had 134,000 private, non-farm employer establishments in 2009.  So by a very rough estimation, we should expect that about 10 percent of Arizona employers have a QP among their workers.

There is no one-size-fits-all template for good medical marijuana policies that all employers should adopt.  But here is a good checklist of questions to ask in developing a defensible policy that meets your individual business needs: 

  • Do my existing policies prohibit what the AMMA allows employers to prohibit − ingestion of medical marijuana in the workplace and working while impaired by the use of medical marijuana?
  • Do I fall within the exemption that allows discrimination against protected AMMA Cardholders, because failing to do so would cause the employer to lose a monetary or licensing related benefit under federal laws or regulations?  The exemption is narrow and applies mainly to certain employees in the transportation industry.  See the July 25 and August 3 posts
  • Do I have employees working in such safety-sensitive positions that they need to be transferred out of those positions for the duration of their treatment with medical marijuana? See the December 13 post.  
  • What is my existing drug testing policy, and does it comply with the Arizona Drug Testing of Employees Act?  If not, what can I do to bring it into compliance?  See the September 23, 27, 29 and October 7, 12, 19, 21 and 24 posts.
  • Do I have a business need to bar my employees from bringing medical marijuana onto the premises and, if so, how can I enforce the policy? See the June 24 and 30 posts.

While it is a complicated analysis, it is one every Arizona employer should undertake.  Arizona workers are using marijuana lawfully for medical purposes.  Resolve in 2012 to stop ignoring that reality.