tag:blogger.com,1999:blog-46684807786557295162024-03-05T11:44:38.714-05:00ArizoneoutDinitahttp://www.blogger.com/profile/11742899995938493477noreply@blogger.comBlogger76125tag:blogger.com,1999:blog-4668480778655729516.post-50508747359122223702012-08-31T18:37:00.000-04:002012-08-31T18:37:10.952-04:00AG’s Opinion Fails First Test of Legal Research<br />
One of the first things you learn in law school is the importance of making sure that any case you cite as legal precedent is still good law. This process is called Shepardizing, because some guy named Shepard published the reference guides that allow you to determine whether the same court or a higher court had issued a later opinion questioning the validity of the earlier one. Shepardizing once was a tedious process of checking sometimes dozens of volumes of books and pamphlets. Today, however, it is a one-click process on the leading legal publishers’ websites.<br />
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It appears, however, that the “professional attorneys” who prepared the Attorney General’s Opinion that has put the dispensary licensing process in limbo failed to Shepardize the Oregon Supreme Court case that was one of the two legal authorities that “compelled” their conclusion that the Arizona Medical Marijuana Act (AMMA) dispensary provisions were preempted by federal law.<br />
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Arizoneout analyzed the Oregon case in an August 10, 2012 post. Almost a year later, the Oregon Supreme Court revisited the preemption issue in another case, <a href="http://www.publications.ojd.state.or.us/Publications/S058645.htm">Willis v. Winters</a>.<br />
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The Willis case was filed by licensed medical marijuana users in Oregon who had been denied state concealed weapons permits by the sheriffs of two Oregon counties. The applicants met all of the requirements of Oregon law, which required the sheriffs to issue the permits to qualified applicants. The sheriffs denied the permits, however, claiming state law was preempted by the federal Gun Control Act of 1968, which prohibited the possession of firearms by unlawful users of controlled substances. The sheriffs took the position that because the applicants were licensed medical marijuana users, they necessarily were illegal drug users under federal law.<br />
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The Oregon Supreme Court disagreed, finding that the sheriffs were without authority to deny the applicants the gun permits. In doing so, the court limited the reach of its preemption analysis in the Emerald Steel case, one of the two main authorities on which the Arizona Attorney General’s Opinion is based. The Oregon Court stated: “Emerald Steel should not be construed as announcing a stand-alone rule that any state law that can be viewed as ‘affirmatively authorizing’ what federal law prohibits is preempted.”<br />
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The Oregon Supreme Court went on to conduct a detailed federal preemption analysis to determined that the Oregon concealed gun permit law was an obstacle to the purpose of the federal firearms statute. Key to the Oregon court’s decision was the fact that nothing in the Oregon law prohibited federal officials from enforcing the federal law by arresting and prosecuting those who violated it, including licensed Oregon medical marijuana users.<br />
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The Oregon Supreme Court’s analysis in Willis, when applied to the provisions of the AMMA that set up the dispensary process, appear to point to a conclusion that those provisions also are not preempted. Nothing in the AMMA prevents federal authorities from arresting and prosecuting dispensary operators.<br />
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As the Oregon court stated, “It is well established that the federal government lacks constitutional authority to commandeer the policy-making or enforcement apparatus of the states by requiring them to enact or enforce a federal regulatory program.” <br />
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The Arizona Attorney General’s Opinion’s reliance on the Emerald Steel case and failure to address the subsequent Willis case is bad lawyering, pure and simple.<br />
Dinitahttp://www.blogger.com/profile/11742899995938493477noreply@blogger.com1tag:blogger.com,1999:blog-4668480778655729516.post-36934668280185260372012-08-24T09:00:00.000-04:002012-08-24T09:21:57.082-04:00A Closer Look at AG’s OpinionIn an August 10, 2012 <a href="http://www.arizoneout.blogspot.com/2012/08/a-pot-policy-paradox.html">post</a>, Arizoneout reported on the formal Attorney General’s Opinion that has put the whole dispensary licensing process in jeopardy once again. In the press release announcing the opinion, Arizona Attorney General Tom Horne emphasized that the opinion was “without regard to my views,” as Horne is on record opposing the Arizona Medical Marijuana Act (AMMA). <br />
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Instead, Horne characterized the opinion as being “prepared by professional attorneys entirely on the basis of legal precedent, without regard to policy consideration.” The press release went on to state that the <br />
opinion was based on two recent cases that “compel[led]” Horne’s office to issue the formal opinion.<br />
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Arizoneout is a blawg, meaning that it is a blog about law. So today and in a future post or two, Arizoneout is going to examine those cases to see just how much support they offer to the Attorney General’s opinion. <br />
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The Oregon case, <em><a href="http://www.publications.ojd.state.or.us/Publications/S056265.htm">Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries</a></em> (BOLI), is not all that recent. It was decided by the Oregon Supreme Court in April 2010, more than two years before Horne’s office issued the Arizona opinion. <br />
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The Oregon Supreme Court considered a disability discrimination claim brought by a drill press operator against his employer, a steel products manufacturer. Originally hired on a temporary basis, the employee was seeking a permanent position. Knowing he would have to pass a drug test to gain permanent employment, he disclosed to his supervisor that he had medical marijuana registry ID card. The employee was fired within a week of making the disclosure, and he filed a charge of disability discrimination. <br />
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BOLI, the Oregon agency that investigates discrimination charges, found in the employee’s favor. The employer took the case to the Oregon Supreme Court, arguing that because marijuana use and possession remains unlawful under federal law, the employee was an illegal drug user, excluded by the statutory definition of a disabled person protected by Oregon law. The case turned on whether Oregon’s medical marijuana act was preempted by federal law to the extent that it authorized the employee to use marijuana. If the employee’s marijuana use was authorized by state law, then he was not excluded from protection of the disability law. <br />
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Five of the seven justices on the Oregon Supreme Court sided with the employer, holding that the Oregon Medical Marijuana Act did indeed “authorize” the employee to use medical marijuana, but that federal law preempted – meaning invalidated – that state law. Because that specific section of the medical marijuana act was invalid, the employer was free to fire the employee for his use of medical marijuana because he was an illegal drug user under federal law. On this very narrow basis, the Oregon case does support the Arizona General’s Office opinion.<br />
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It is hard to argue, however, that the Oregon case “compelled” Attorney General Horne to issue the formal opinion. First of all, the Oregon Supreme Court has no authority in Arizona. Its opinion on the federal preemption question also is not binding on any federal court, including federal courts in Arizona. <br />
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The Oregon Supreme Court also included a footnote that could have significant implications in Arizona. In footnote 12, the court said that it was expressing no opinion on whether Oregon’s legislature could word Oregon’s disability law differently so as to require employers to reasonably accommodate disabled employees who use medical marijuana to treat their disability. <br />
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In the AMMA the voters of Arizona have prohibited employers in this state from discriminating against Qualified Patients who use marijuana outside of work to treat debilitating medical conditions. Oregon’s Medical Marijuana Act has no such provision. <br />
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Whether the Oregon Supreme Court’s preemption analysis will be followed by other courts remains to be seen. However, close examination of that case makes it appear quite a stretch to argue that the 2-year-old decision compelled the Arizona Attorney General’s office to issue its formal opinion when it did.Dinitahttp://www.blogger.com/profile/11742899995938493477noreply@blogger.com1tag:blogger.com,1999:blog-4668480778655729516.post-68454847487974933682012-08-10T09:00:00.000-04:002012-08-10T10:55:03.317-04:00A Pot Policy ParadoxThere was an interesting paradox in the news about the Arizona Medical Marijuana Act (AMMA) this week. As Arizoneout reported in a <a href="http://www.arizoneout.blogspot.com/2012/06/broad-access-to-retail-pot-likely-in.html">June 7, 2012</a> post, Tuesday, August 7, 2012 was the day the Arizona Department of Health Services (ADHS) conducted a lottery to determine who would get the chance to open dispensaries in areas where there were multiple qualified applicants.<br />
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The <em>Arizona Republic</em> ran a piece on August 7 under the headline, "<a href="http://www.azcentral.com/news/politics/articles/2012/07/27/20120727medical-marijuana-growers-await-outcome-arizona-lottery-dispensaries.html">Big day for medical pot</a>," featuring a photo of a 30-year-old Qualified Patient (QP), Scott, hanging long stems of cannabis on a line like laundry. Scott and his girlfriend, Jody, 44, also a QP, invested $5,000 to turn a spare bedroom of their "nondescript, tan stucco home in a booming Maricopa neighborhood" into a grow-room for marijuana.<br />
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Scott and Jody smoke marijuana throughout the day to ease chronic pain caused by vehicle and other accidents. Scott apparently is employed as an ironworker. (Sounds safety-sensitive, donʼt you think?) He and Jody were complaining to the Republic that the opening of dispensaries would be a financial hardship to them, because then they would lose their cultivation privileges when they next renewed their QP ID cards.<br />
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Thatʼs because the AMMA was designed to restrict dispersed urban cultivation of the kind that is going on all over Phoenix, Tempe, Scottsdale, Tucson, Flagstaff, and Prescott today. The drafters of the AMMA crafted it so that QPs who live within 25 miles of a dispensary must buy their pot from a dispensary. The folks who put the AMMA on the ballot thought it was better to have the cultivation and sale of marijuana tightly controlled and strictly regulated.<br />
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Governor Jan Brewer and Attorney General Tom Horne delayed the implementation of the dispensaries envisioned by the act for a year by suing on the eve of the original "go" date, and ultimately had their lawsuit dismissed. On Monday, August 6, 2012, the eve of the dispensary lottery, Horne issued a formal "<a href="http://www.azag.gov/press_releases/aug/2012/AG_Opinion_I12-001.pdf">Attorney Generalʼs Opinion</a>," declaring that the AMMA provisions authorizing dispensaries were preempted by federal law. The other parts of the AMMA, such as those giving QPs and their caregivers the right to possess and use marijuana and making it a violation of Arizona law for employers to hold that against them, are not preempted, however, according to Horneʼs formal opinion. <br />
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The dispensary lottery went forward as scheduled, with AG Horneʼs blessing, because having a dispensary registration certificate is not state permission to open and start selling pot. There are other steps that have to be completed, including a state inspection, and dispensaries must have an operating certificate to open.<br />
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So now there are 68 folks who are the proud holders of dispensary certificates, thanks to the bounce of the bingo ball. Another 29 have certificates because they were the only qualified applicants in the areas. (Two areas have would-be dispensaries, but the issue is tied up in litigation. Naturally.)<br />
<br />
ADHS Director Will Humble at one point was predicting there could be dispensaries open by September. But who knows now how long the legal wrangling will block them. Horne ended his <a href="http://www.azag.gov/press_releases/aug/2012/120806_marijuana_opinion.html">press release</a> about the formal legal opinion by advising dispensary certificate holders "that it would be prudent to delay additional work and expenditures pending resolution of the preemption issue by a court." <br />
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So once again the stateʼs top lawyer has moved to block the full implementation of the AMMA and put the dispensaries in limbo. And all the while, ADHS will continue to license QPs, and they will be working for you and buying from criminal drug dealers or growing their own in homes scattered across the state. Because Horne thinks thatʼs better?Dinitahttp://www.blogger.com/profile/11742899995938493477noreply@blogger.com0tag:blogger.com,1999:blog-4668480778655729516.post-34766970739939524772012-07-30T09:00:00.000-04:002012-07-30T10:46:14.803-04:00Catch-22 Accurately Describes Science of Medical MarijuanaTwo different commentators to the Arizona Department of Health Services (ADHS) invoked the same literary reference while stating their views on whether four conditions should be added to those for which the Arizona Medical Marijuana Act (AMMA) legalizes the medical use of pot. As we reported in a <a href="http://www.arizoneout.blogspot.com/2012/07/humble-wont-grant-any-new-conditions.html">July 23, 2012 post</a>, ADHS Director Will Humble denied all of the petitions this first time around.<br />
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In Joseph Hellerʼs satirical novel <em>Catch-22</em>, the title was an absurd military rule that prevented the World War II bomber pilot protagonist from ever avoiding combat missions. It has come to mean any circular, self-contradictory bureaucratic policy that renders absurd results.<br />
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In the general written comments submitted to ADHS, someone who self-identified as a social science researcher, implored Humble: "Please help eliminate this 'Catch-22.'"<br />
<blockquote class="tr_bq">
There is a "Catch-22" in this process. Because marijuana is illegal for the most part, research is sparse. And, because pharmaceutical companies seem to prefer their medications, there is little funding available for research on marijuana and it takes a lot of time. . . . More research will likely not occur until marijuana is legal. However, states want research to show it should be legal for some individuals. </blockquote>
The other commentatorʼs reference was more indirect. One of the speakers at the May 25, 2012 public hearing that ADHS conducted referenced an article written by J. Michael Bostwick, M.D., who is in the Mayo Clinicʼs Department of Psychiatry and Psyhcology in Rochester, Minnesota. The article, "<a href="http://www.mayoclinicproceedings.org/article/S0025-6196(11)00021-8/fulltext">Blurred Boundaries: The Therapeutics and Politics of Medical Marijuana</a>," was published in February 2012 in the Mayo Clinic-sponsored, peer-reviewed general and internal medicine journal, <em>Mayo Clinic Proceedings</em>. <br /><br />Dr. Bostwick writes that the purpose of his article is to educate physicians, "so that they can decide for themselves whether marijuana is a panacea, a scourge, or both." He concludes that it is both, finding great promise in the pharmacological development of the active ingredients in pot, which he calls "botanical cannabis." He identifies the same federal barriers to good scientific research as did the other commentator: <br />
<blockquote class="tr_bq">
The involvement of an alphabet soup of federal agencies with divergent missions creates a series of potential barriers because several have the power to veto proposed [research] initiatives. The FDA, for example, authorizes research to proceed on safety and efficacy, the National Institute on Drug Abuse provides the research material, and the Drug Enforcement Agency grants the investigator the actual license to perform the research. Any one of these agencies has the power to halt an initiative in its tracks.</blockquote>
His <em>Catch-22</em> reference is to the poor quality of pot available even for research that clears all of the federal hurdles. "The current catch-22 is that the cannabis that should be studied—diverse strains hybridized by entrepreneurial drug dealers—is illegal and the cannabis that can be legally studied—the decades-old Mississippi strain—is essentially kept off-limits," he says.<br />
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Policy makers want to base their decisions on science. Bad federal policy prevents good science. Which leaves all of us − patients, physicians, regulators, employers, citizens − in the current <em>Catch-22</em> state we find ourselves: dealing with the reality of medical marijuana without a full understanding of its risks and benefits.Dinitahttp://www.blogger.com/profile/11742899995938493477noreply@blogger.com0tag:blogger.com,1999:blog-4668480778655729516.post-18019608963302129712012-07-23T09:00:00.000-04:002012-07-23T09:24:23.300-04:00Humble Wonʼt Grant Any New ConditionsAs Arizoneout predicted in the <a href="http://www.arizoneout.blogspot.com/2012/07/ptsd-petitioners-will-attract-sympathy.html">July 16, 2012</a> post, the University of Arizona (UA) evidence review gave Arizona Department of Health Services (ADHS) Director Will Humble all the justification he needed to deny the four petitions seeking to add debilitating medical conditions whose sufferers can become certified cannabis users under the Arizona Medical Marijuana Act (AMMA).<br />
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Humble announced his decision to deny all four petitions on <a href="http://directorsblog.health.azdhs.gov/?p=2837">Thursday, July 19, 2012</a>, just two days after ADHSʼ Medical Advisory Committee <a href="http://www.azdhs.gov/medicalmarijuana/documents/debilitating/July2012Memorandum.pdf">issued its recommendation</a> that he do so. Based on the UA medical reviews, the committee concluded: "Because marijuana has not been subjected to any high quality, scientifically controlled testing for any of the petitioned conditions, we find no convincing evidence that marijuana provides a benefit."<br />
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If I were on the side of the medical marijuana advocates, I would be arguing that Humble and his committee set an impossibly high standard for the evidence reviews because of the difficulty in getting approval for solid scientific research from the federal government, which is the only legal source of pot for research use. The argument would be that by the standards set, the current debilitating medical conditions that the voters authorized would not get approval under those standards either. Thus, Humble, an opponent of the AMMA before it was approved by voter initiative in November 2010, applied the wrong standard, one that frustrated the votersʼ will.<br />
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As we have <a href="http://www.arizoneout.blogspot.com/2012/02/adhs-avoids-groundhog-day-by-signaling.html">seen</a> <a href="http://www.arizoneout.blogspot.com/2012/05/timely-court-ruling-keeps-dispensary.html">already</a> , the earliest judicial opinions on the AMMA have been deferential to the voters in construing the law and in limiting the discretion of ADHS to enact rules and policies that run contrary to what the voters intended.<br />
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Petitioners to add post-traumatic stress disorder, depression, anxiety disorder and migraine headaches have lost round 1. Arizoneout is confident there will be many rounds to come. Whatʼs more, ADHS will accept the next set of petitions for a week starting today.Dinitahttp://www.blogger.com/profile/11742899995938493477noreply@blogger.com0tag:blogger.com,1999:blog-4668480778655729516.post-63564252881970200272012-07-16T09:00:00.000-04:002012-07-16T14:32:37.885-04:00PTSD Petitioners Will Attract SympathyPost traumatic stress disorder (PTSD) is by far the most sympathetic of the pending petitions to add to the list of debilitating medical conditions for which medical cannabis can be prescribed under the Arizona Medical Marijuana Act (AMMA). Arizoneout discussed the petition procedures in a <a href="http://www.arizoneout.blogspot.com/2012/07/july-is-pivot-point-for-scope-of-amma.html">July 5 post</a>.<br />
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The Arizona Department of Health Services (ADHS) has not posted the actual petitions on its website. The written public comments ADHS has received, however, are overwhelmingly in support of adding PTSD. Many of the supportive comments come from military veterans. <br />
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One of the scientific articles in support of allowing medical cannabis to treat PTSD is authored by Dr. Sue Sisley, a Scottsdale physician in private practice who also is on the clinical faculty at St. Joseph’s Hospital and Medical Center and is an assistant professor in the telemedicine program at the University of Arizona (UA) College of Medicine. Her paper summarizes a number of research studies, and one that she relies on the most was conducted on rat subjects. <br />
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ADHS partnered with the College of Public Health at UA to have faculty researchers conduct evidence reviews of available peer-reviewed scientific research on each of the four conditions under review for inclusion as AMMA debilitating medical conditions. The structure of the UA evidence review basically excluded from the starting point of its analysis the types of articles that Dr. Sisley relies on. The UA reviewers considered only English language articles and human studies, and rejected considering animal studies, case reports or case series, editorials or opinions, and experiments on biochemical or pathophysiological pathways.<br />
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As a result, the UA faculty evidence review concluded that there were no studies that directly addressed the benefits and harms of marijuana use for treatment of PTSD, and that no conclusions could be drawn about those benefits and harms from the available scientific evidence.<br />
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Because ADHS Director Will Humble, the final decision maker (at least until we get into litigation and a judge will have to decide), has insisted that he will make his decisions on science. Thus, the UA evidence review gives him the justification he needs to deny the petition to add PTSD as a debilitating medical condition under the AMMA. <br />
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A lot of veterans will be disappointed if Humble decides to reject the PTSD petition. <br />
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The U.S. Department of Veterans Affairs began to allow patients treated at its medical facilities to use medical marijuana in states where it is legal back in 2010. Because the drug remains illegal under federal law, however, VA doctors themselves cannot recommend it.<br />
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Federal law also makes it very hard to conduct solid scientific research on the effectiveness of medical pot in treating PTSD. Dr. Sisley herself is trying to conduct a research study, and gained approval from the Food and Drug Administration in April 2011. She is still waiting for the Department of Health and Human Services’ scientific review panel to approve the study; that is the agency that has to supply the marijuana Dr. Sisley must use in her research. The AMMA itself does not allow for the use of marijuana for research purposes.<br />
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One thing the public comments make clear is that a number of Arizonans already are using medical marijuana to treat PTSD. Several of the public comments in support of the PTSD petition were from people who already are Qualified Patients authorized to use medical pot for other conditions. <br />
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The comments are similar to these from a military veteran allowed to use cannabis for chronic pain: “ My job evaluations have improved, people at work comment how much better I am to get along with, and did I mention that I have actually started sleeping nearly all night. Before being on this program, I would be awake every 3-4 hours either with a nightmare or jolting awake to get up and check around the house (hyper-vigilant).”<br />
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That veteran says he started using medical marijuana because of its ability to moderate the pain he had from a severe back injury. “[B]ut the benefits to my PTSD makes me wonder why no one is jumping up and down and shouting from the rooftops at the VA that ‘This Works’ and a whole lot better than Trazadone, Zoloft and other . . . medications. I am more productive at work, more pleasant to be around and feel immensely better than I have in nearly twenty years.”<br />
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Whether ADHS Director Humble can turn all these passionate veterans down remains to be seen. Nevertheless, it is clear that veterans out there are using marijuana legally while also working a variety of jobs here in Arizona.Dinitahttp://www.blogger.com/profile/11742899995938493477noreply@blogger.com1tag:blogger.com,1999:blog-4668480778655729516.post-85497582864399975482012-07-05T09:00:00.000-04:002012-07-05T11:41:32.529-04:00July Is Pivot Point For Scope Of AMMA ImpactThe Arizona Medical Marijuana Act (AMMA) as adopted by the voters contained a limited universe of debilitating medical conditions that patients had to have to become Qualified Patients (QP) legally authorized to possess and use cannabis. That universe included eight specific diseases and five symptoms that could be caused by any chronic disease or condition or the treatment of any of them. Arizoneout detailed the specifics in a <a href="http://www.arizoneout.blogspot.com/2011/06/many-physicians-eligible-to-prescribe.html">June 6, 2011</a> post.<br />
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But that universe was not static, as the AMMA itself requires a process where the citizens can petition the Arizona Department of Health Services (ADHS) to add new debilitating medical conditions for which medical pot use could be authorized. <a href="http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/36/02801-01.htm&Title=36&DocType=ARS">ARS § 36-2801.01</a> The law requires ADHS to set rules for the consideration of such requests, and to act on them within 180 days.<br />
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The rules <a href="http://www.azdhs.gov/medicalmarijuana/documents/debilitating/Adding-Debilitating-Condition.pdf">ADHS created</a> allow it to designate a very short window in which ADHS will accept petitions in January and July of each year. The first such window was open for five days at the end of January 2012, and ADHS received a number of petitions during that window. <br />
<br />
Per ADHS rule, the petition had to include: <br />
<ol>
<li>evidence that the medical condition impairs the ability of the individual to accomplish activities of daily living; </li>
<li>evidence that marijuana provides a therapeutic or palliative benefit for the condition; and </li>
<li>whether conventional medical treatments provide a benefit for the medical condition.</li>
</ol>
Petitioners also had to submit supporting data from peer-reviewed scientific journals.<br />
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ADHS' medical review team made a preliminary decision that four of the petitions had enough evidentiary support to warrant a full hearing. ADHS accepted on-line public comments, and conducted a public hearing on those four petitions on May 25, 2012. The decision is due by the end of July.<br />
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Of the original debilitating conditions in the AMMA − the ones we have been operating with for more than a year − the one the overwhelming majority of QPs cite in their applications is chronic pain. That condition, which is extremely subjective and, some would say, easily faked, has been cited by nearly 89% of the nearly 31,000 applications ADHS has received so far. The next most prevalent condition is muscle spasms, at nearly 14%, and nausea, at just over 10% of applicants. Like chronic pain, muscle spasms and nausea are largely self-reported and subjective. In other words, a recreational user could fake it easily enough, especially with the help of a cooperative physician.<br />
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The four conditions currently under consideration arguably fall in the same category as chronic pain, muscle spasms, and nausea. The pending petitions seek to add post-traumatic stress disorder, depression, migraines, and generalized anxiety disorder to the list of eligible debilitating medical conditions.<br />
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ADHS has assembled a lot of information and public comments on these four conditions, including research ADHS commissioned from the University of Arizona College of Public Health, all of which is <a href="http://www.azdhs.gov/medicalmarijuana/debilitating/index.htm">available on its website</a>. Between now and the announcement of the decision on the four petitions, Arizoneout will be reviewing the collected materials and offering tidbits of particular interest to employers.<br />
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ADHS Director Will Humble is quite firm that the decision will be based on the medical evidence. "I want to make sure I'm basing my decision on good science, and Iʼm really looking at the full weight of the evidence," <a href="http://www.azcentral.com/arizonarepublic/local/articles/2012/05/25/20120525arizona-medical-marijuana-hearing.html">he told the <em>Arizona Republic</em></a>.<br />
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Humble has no illusions, however, that the ADHS decision on the petitions will go down without challenge. No, being the litigation veteran he has become since passage of the AMMA in November 2010, he probably expects to be sued no matter what ADHS decides. The AMMA itself authorizes judicial review of decisions on petitions to add debilitating medical conditions.<br />
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July also likely will bring another round of petitions, and some probably will propose the same four conditions now under ADHS review, if more scientific evidence has become available in the last six months. ADHS will accept such petitions for five days from July 23 to 27. Just part of the AMMA's never-ending, ever-expanding mechanism for making marijuana available for medical use. <br />
<div>
</div>Dinitahttp://www.blogger.com/profile/11742899995938493477noreply@blogger.com0tag:blogger.com,1999:blog-4668480778655729516.post-86316786208706945602012-06-07T09:00:00.000-04:002012-06-07T15:17:52.290-04:00Broad Access to Retail Pot Likely in Urban AreasThe two-week application period for medical marijuana dispensaries closed at the end of last month, and the results bode well for most Qualified Patientsʼ (QPs) ability readily to access to consumer cannabis products within the year.<br />
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The Arizona Medical Marijuana Act (AMMA) authorizes a limited number of non-profit dispensaries that can cultivate marijuana and sell it to QPs in various forms. Implementation of this part of the AMMA was on hold for more than nine months, thanks to litigation initiated first by the State and then another suit filed by would-be dispensary applicants, who challenged parts of the regulatory scheme implemented by the Arizona Department of Health Services (ADHS) , and won some victories. You can read about the outcome of the litigation in posts from <a href="http://arizoneout.blogspot.com/2012/01/federal-judge-wont-give-state-guidance.html">January 5</a>, <a href="http://arizoneout.blogspot.com/2012/02/adhs-avoids-groundhog-day-by-signaling.html">February 2</a>, and <a href="http://arizoneout.blogspot.com/2012/05/timely-court-ruling-keeps-dispensary.html">May 17, 2012</a>.<br />
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ADHS is now moving forward with full implementation. It set a two-week period for the initial round of dispensary applications, and by its own rules determined that it would only accept dispensary applications once per year thereafter. So folks who did not meet the deadline this year cannot even apply now until sometime in 2013.<br /><br />The AMMA only allows one medical marijuana dispensary for every 10 licensed pharmacies in the state, which amounts to approximately 126. ADHS just happens to have a map that divides the state into 126 areas for health analysis − Community Health Analysis Areas (CHAA). ADHS is going to award just one dispensary certificate per area in this first year.<br />
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A total of 484 dispensary applications came in by the deadline. ADHS is now reviewing them, and will award certificates on August 7.<br />
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There were 27 CHAAs that did not draw a single dispensary applicant. Those CHAAs are primarily in rural areas, including the stateʼs many Native American reservations. You can find a <a href="http://www.azdhs.gov/medicalmarijuana/documents/dispensaries/DispensaryCHAA.pdf">color-coded map</a> showing the number of applicants per CHAA on the ADHS website.<br /> <br />One of the reasons that some of the least populous areas of the state did not draw a single dispensary application is financial. The ADHS regulations required the prospective dispensary to have $150,000 in the bank at least 30 days before the date of the application. The rural areas are also some of the stateʼs poorest regions.<br />
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They also generally happened to be the areas with the fewest QPs, meaning the smallest customer base. The dispensaries are supposed to be non-profits, but the large number of applicants for the areas with the most QPs signals that the would-be dispensary operators hope to break even while paying themselves well for their services.<br />
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The Estrella CHAA drew the most applications − 16. That's an area in southwest Phoenix. Four other CHAAs had 13 applicants, Flagstaff East, Yavapai County Northeast, Scottsdale North, and Tempe North.<br />
The really happy dispensary applicants are the lucky 24 who are the only ones in a CHAA. They are guaranteed a dispensary certificate if they meet the requirements of the AMMA and its implementing regulations. For the CHAAs with multiple applicants, ADHS will conduct a lottery on August 7 and choose the winner at random from among all qualified applicants. <br />
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There are still many hurdles dispensaries will have to clear after winning the certificates. But slowly and surely, Arizona is moving toward easy access to quality marijuana products for most QPs, without them having to grow their own.<br />
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And that surely means more marijuana use by folks in Arizonaʼs places of work.Dinitahttp://www.blogger.com/profile/11742899995938493477noreply@blogger.com0tag:blogger.com,1999:blog-4668480778655729516.post-2140519866459996112012-05-17T09:00:00.000-04:002012-05-17T10:32:42.018-04:00Timely Court Ruling Keeps Dispensary Application Process on TrackThe Honorable Richard Gama, Judge of the Maricopa Superior Court, has again acted again to ensure Arizona voters that the Arizona Medical Marijuana Act (AMMA) will be implemented. In a February 2, 2012 <a href="http://www.arizoneout.blogspot.com/2012/02/adhs-avoids-groundhog-day-by-signaling.html">post</a>, we highlighted Judge Gama’s first in the state interpretation of the AMMA in the Compassion First v. Arizona case.<br />
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It was Judge Gama’s ruling, issued in January 2012, that cleared the way for the dispensary process to begin. He ruled again in that case on May 8, 2012. In that case, he characterized his earlier ruling in his own words. In January, he did “precisely” what the would-be dispensary applicants who sued asked, and ordered the State “to promptly implement the AMMA.” <br />
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He simultaneously threw out regulations that required dispensary applicants to be an Arizona resident who has submitted a personal state income tax return for the previous three years, never filing for corporate or personal bankruptcy, and is current on child support, taxes and penalties, judgment debts to the government, and government subsidized student loans. Judge Gama found that those regulations exceeded the limited authority given to ADHS by the AMMA to issue regulations to prevent theft and diversion.<br />
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In May, Judge Gama stopped the dispensary applicants who brought the case from coming back with a new challenge to another regulation requiring a medical director. He did not reach the merits of the claim, ruling on grounds of interest only to litigation attorneys like me. So there may be future challenges to the medical director requirement.<br />
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Arizona Department of Health Services (ADHS) Director Will Humble <a href="http://directorsblog.health.azdhs.gov/?p=2571">believes</a> that the medical director requirement is a “key component to making sure that future dispensaries act in the best interest of patients and prevent recreational diversion.”<br />
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The timing of the ruling allowed ADHS to move forward with the medical director requirement for the first dispensary application period, which opened May 14 and will last for only two weeks. <br />
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Seven applications were dropped off in the first two hours they were accepted, and there were 18 after two days, and 32 after three days.<br />
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The AMMA sets the number of dispensaries as a fraction of the number of pharmacies in the state, 1 dispensary for every 10 pharmacies, with the caveat that there can be at least one per county. ADHS has decided to issue 126, one for every Community Health Analysis Area (CHAA), a geographic area defined by the agency for various disease monitoring programs.<br />
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Humble was <a href="http://directorsblog.health.azdhs.gov/?p=1270">candid</a> that the intent of the system was to encourage dispensary applicants to “think rural.” The rules allowed dispensaries to transfer marijuana on a wholesale market, with the hope that rural dispensaries would also take up cultivation, keeping the grow operations out of Arizona’s urban areas.<br />
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Another rule allows dispensary operators to move anywhere in the state after three years. The hope clearly was that there would be applicants for each of the 126 CHAAs. That also meant that fewer Qualified Patients (QP) could grow their own, as cultivation is allowed by the AMMA only for QPs who do not live within 25 miles of a dispensary.<br />
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So how’s that working out? So far, the applicants are clustered in Arizona’s urban areas. The most so far are from the Flagstaff area, 12 in its 3 CHAAs, two of which have 5 and 6 applicants. So far, there are only 4 from the greater Phoenix area, and two from Tucson. There are many rural areas with zero so far.Dinitahttp://www.blogger.com/profile/11742899995938493477noreply@blogger.com0tag:blogger.com,1999:blog-4668480778655729516.post-80038340173015472932012-05-08T17:36:00.004-04:002012-05-08T17:36:33.812-04:00Employers May Determine Marijuana Impairment Based On SymptomsEmployers do not have to tolerate marijuana impairment on their premises or during work hours even when their workforce contains Qualified Patients (QPs) who are authorized to use pot for medical purposes under the Arizona Medical Marijuana Act (AMMA). The AMMA protects QPs and other licensed cardholders against employment discrimination, but the law specifically states that employers do not have to allow their employees to work under the influence of marijuana.<br />
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The problem for employers, then, is how to determine when a QP on the payroll comes to work impaired. For Arizona employers who adopt a drug testing policy that complies with the Drug Testing of Employees Act, as it was recently amended, the legislature has offered help by defining the meaning of impairment.<br />
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The definition itself contains 123 words, but it can be boiled down to just one: “impairment” means “symptoms.” In other words, employers are entitled to use their observation skills to determine when an employee is impaired by marijuana such that his or her job performance may be affected.<br />
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The definition in the Drug Testing of Employees Act doesn’t stop there, though. The statute goes on to identify a long list of possible symptoms of impairment, including effects on “speech, walking, standing, physical dexterity, agility, coordination, actions, movement, demeanor, appearance, clothing, and odor.” <br />
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Also on the list of possible symptoms of impairment is “irrational or unusual behavior,” as well as “negligence or carelessness in operating equipment, machinery or production or manufacturing processes,” and “disregard for the safety of the employee or others.”<br />
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Even “involvement in an accident that results in serious damage to equipment, machinery or property,” and “disruption of a production or manufacturing process” are statutory symptoms of impairment, as is “any injury to the employee or others.”<br />
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Finally, the definition contains a catchall phrase: “other symptoms causing a reasonable suspicion.”<br />
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The clear intent of this legislation is to give employers maximum leeway to make a good-faith determination that an employee is impaired by medical marijuana on the job. Remember, however, that only employers who adopt a drug testing policy in compliance with the Act will be able to claim the benefits of this generous definition of impairment.<br />
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The Drug Testing of Employees Act applies not just to marijuana, however. While the legislature may have been motivated by the voters’ adoption of the AMMA in amending the Act, the definition of impairment had to encompass all kinds of potentially impairing drugs as well as alcohol.<br />
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In future posts, we will examine the science of marijuana impairment. It will be interesting to see whether there is evidence that marijuana can cause all of the impairments included within this statutory definition.Dinitahttp://www.blogger.com/profile/11742899995938493477noreply@blogger.com0tag:blogger.com,1999:blog-4668480778655729516.post-64869379656539433142012-04-30T09:00:00.000-04:002012-04-30T11:33:46.844-04:00Employer Must Act on Good Faith Belief to Claim Liability ShieldWhen the Arizona Legislature first adopted the Drug Testing of Employees Act in 1994, employers had to act based on a good faith belief to claim the liability shield that was the key benefit of that law. When lawmakers expanded the Act in 2011 to give employers tools to ease their implementation of the Arizona Medical Marijuana Act (AMMA), they also fine tuned the meaning of good faith.<br />
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Arizoneout explained in detail in a December 9, 2011 <a href="http://arizoneout.blogspot.com/2011/12/nifty-new-provisions-offer-employers.html">post</a> how the liability shield can be used by employers when they act in good faith to exclude Qualified Patients (QPs) from safety-sensitive positions or discipline or discharge QPs whom the employer believes were impaired on the job or used cannabis on the premises or during work hours<br />
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In today's post, we consider just what good faith means under the Drug Testing of Employees Act. The original definition in the Act defined good faith as "reasonable reliance on fact, or that which is held out to be factual, without intent to deceive or be deceived and without reckless or malicious disregard for the truth." So in plain language, an employer acts in good faith when it doesn't intentionally make up a pretextual reason for its actions or recklessly ignore the truth.<br />
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In the 2011 amendments that were tailored to the issues employers face in dealing with medical marijuana in the workplace, the legislature clarified that good faith does not include a belief formed with gross negligence. In the legal hierarchy of mental states that governs civil and criminal liability, gross negligence is a lower level of culpability than evil intent or recklessness. <br />
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So one the one hand, it appears that the legislature was tightening up on when employers could claim they were acting in good faith. An honest belief that -- say -- a QP used marijuana during work hours would not fall under the liability shield if the employer was grossly negligent in forming that belief. In that context, gross negligence probably would equate to having no facts to support that belief.<br />
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However, other tweaks to the definition of good faith give Arizona employers considerable leeway on what sorts of evidence they can rely upon in taking adverse employment actions against QPs. The legislature developed a laundry list of the kinds of things that an employer can rely upon in forming a good faith belief, including:<br />
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<ul>
<li>the employer's observation of the QP's conduct, behavior, or appearance.</li>
<li>written, electronic or verbal statements, presumably by the QP him or herself.</li>
<li>lawful video surveillance.</li>
<li>records of government and law enforcement agencies or courts.</li>
<li>results of a test for the use of alcohol or drugs.</li>
<li>information reported by a person believed to be reliable, including a report by a person who witnessed the use or possession of drugs or drug paraphernalia at work.</li>
</ul>
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The last one is especially significant, as the apparent intent is to allow the employer to choose to believe the informant against the QP in a "he said-he said" situation, so long as the employer doesn't have some reason to doubt the credibility of the informant.<br />
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The definition of good faith in the Drug Testing of Employees Act also has an extremely broad catchall -- "other information reasonably believed to be reliable or accurate."<br />
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This generous definition of good faith is just one more reason employers concerned about workers legally using medical marijuana will have a policy in place that complies with the Drug Testing of Employees Act.Dinitahttp://www.blogger.com/profile/11742899995938493477noreply@blogger.com1tag:blogger.com,1999:blog-4668480778655729516.post-76057617317781523082012-04-16T09:00:00.000-04:002012-04-16T15:54:15.998-04:00Medical Marijuana Fuels Lottery Fever For Dispensary LicenseA birthday present from Arizona Department of Health Services (ADHS) Director Will Humble awoke Arizoneout from its long winter's nap with a newfound commitment to keep those posts coming on a more regular basis. Humble's blog post on <a href="http://directorsblog.health.azdhs.gov/?p=2479">April 11, 2012</a> − yes, that is the anniversary of <a href="http://www.fordharrison.com/showbio.aspx?Show=139">Dinita James'</a> birth − said his agency was dropping the flag on the race to apply for a dispensary license.<br />
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The demands of my law practice and other professional commitments seemed to call me away from blogging about the Arizona Medical Marijuana Act (AMMA) and its impact on workplaces in the state during the first quarter of 2012. On starting my own personal new year, I had resolved to get back on the blog, with a goal of one or two posts a week.<br />
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So the email announcing Humble's blog post seemed to hit my inbox with karmic significance. Full implementation of the AMMA may be in sight, barring another litigation explosion or a raid by the feds. More Arizonans are bound to seek ID cards as Qualified Patients (QP) authorized to use medical cannabis if there are stores where they can go buy the stuff, or brownies and milkshakes containing it. <br />
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More QPs mean more issues about marijuana for Arizona employers to face. More need for Arizoneout, then, too.<br />
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ADHS will start accepting dispensary applications on May 14, and the window to apply is only 11 days. <br />
ADHS will review the applications as they come in, and will issue registration certificates on August 7. There's another certification and inspection required before dispensaries can open, but it appears likely that some dispensaries will be up and running long before the end of 2012.<br />
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One <a href="http://arizoneout.blogspot.com/2012/02/adhs-avoids-groundhog-day-by-signaling.html">post</a> Arizoneout did make during 1Q 2012 was to announce the clearing of the litigation logjam that had interrupted implementation of the AMMA. The event that Humble called the flag drop was the filing of revised regulations with the Secretary of State. Faced with a court order to strike several selection criteria ADHS had been planning to use in awarding dispensary licenses and to move forward to implement the law, Humble said that's "what we're doing."<br />
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If there are competing applicants for a dispensary license in a given territory, ADHS will determine the winner by random draw. Megabonus for the winners!Dinitahttp://www.blogger.com/profile/11742899995938493477noreply@blogger.com0tag:blogger.com,1999:blog-4668480778655729516.post-17326389887264267112012-03-01T09:00:00.005-05:002012-03-01T14:29:05.643-05:00“Current Use” Is Trigger For Excluding QPs From Safety-Sensitive PositionsThe Arizona Medical Marijuana Act (AMMA) allows employers to prohibit Qualified Patients (QP) in their work force from being impaired by medical pot during work hours or on the premises. The 2011 amendments to the Drug Testing of Employees Act is designed to let employers be more aggressive in excluding QPs from performing safety-sensitive positions if they are engaged in the “current use” of medical cannabis.<br />
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The way the Arizona Legislature has done this is by expanding the immunity from litigation offered to employers who comply with the Drug Testing of Employees Act, as we explained in a February 13, 2012 <a href="http://arizoneout.blogspot.com/2012/02/expansion-of-employer-immunity-for.html">post</a> . The immunity extends to employers who exclude a worker from safety-sensitive positions based on a good-faith belief that the worker is engaged in the “current use of any drug.”<br />
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So what does “current use” of medical marijuana mean? The Drug Testing of Employees Act defines it as “drug use that has occurred recently enough to justify an employer’s reasonable belief that involvement with drugs is ongoing.” <a href="http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/23/00493.htm&Title=23&DocType=ARS">A.R.S. § 23-493(2)</a>. The statute goes on to state, “Current use of any drug is not limited to any specific time frame and depends on the facts of each individual case.”<br />
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The transparent intention of the legislature is to allow employers to equate a positive drug test for marijuana metabolites with “current use.” Remember that the AMMA itself prohibits employment discrimination against a QP based solely on a positive drug test for marijuana components or metabolites, without proof that the QP used marijuana on the premises or during work hours. <a href="http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/36/02813.htm&Title=36&DocType=ARS">A.R.S. § 36-2813(B)(2)</a>.<br />
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Employers who want to exclude QPs from safety-sensitive positions would be well-advised to craft their drug testing policies so that a positive drug test for marijuana constitutes conclusive evidence of “current use.”Dinitahttp://www.blogger.com/profile/11742899995938493477noreply@blogger.com0tag:blogger.com,1999:blog-4668480778655729516.post-60299392250302086532012-02-13T09:00:00.001-05:002012-02-14T14:47:17.727-05:00Expansion Of Employer Immunity For Actions To Keep Medical Cannabis Users Out Of Safety-Sensitive Positions<a href="http://arizoneout.blogspot.com/2011/12/arizona-legislature-adopts-expansive.html">In a post late last year</a>, Arizoneout explained how broadly the state legislature reached in giving employers discretion to attach the safety-sensitive label to certain job positions. Despite the broad protections against workplace discrimination that the Arizona Medical Marijuana Act (AMMA) provides to Qualified Patients (QPs), the legislature wants employers to be able to keep QPs out of safety-sensitive positions when they reasonably believe the QPʼs use of medical cannabis might subject the employer to liability.<br />
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Hereʼs how the legislature has tried to give employers this ability to do what the AMMA seems to prevent employers from doing, and why it had to be done under the Drug Testing of Employees Act. The 2010 amendments to the Act expanded the liability shield already contained within it to actions employers take to get workers using not just medical cannabis but other impairing drugs out of safety-sensitive positions.<br />
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The original language of the liability shield was titled, "Employer protection from litigation," and read as follows: "No cause of action is or may be established for any person against an employer who has established a policy and initiated a testing program in accordance with this article for any of the following."<br />
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The list of immunized conduct included the expected − actions taken in good faith based on positive test results, failure to test, to test for a specific substance, or to detect a substance or condition, and termination of any program or policy on testing or substance abuse prevention.<br />
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The amendments in 2011 that were targeted at the AMMA added three new categories of employer conduct that the legislature wanted to immunize. Two were the very policies that the AMMA itself allowed employers to have: prohibitions on use or being impaired on the employerʼs premises or during work hours. The immunity shield offered for these actions is available only if the employer acted with a good-faith belief that one of those AMMA-sanctioned prohibitions had been violated. (One of these categories also allows prohibition on possession of drugs on the employerʼs premises or during work hours, but see the <a href="http://arizoneout.blogspot.com/2011/06/pot-on-premises-new-dilemma-for-arizona.html">June 24</a>, <a href="http://arizoneout.blogspot.com/2011/06/pot-smoking-ban-in-public-places.html">27</a>, <a href="http://arizoneout.blogspot.com/2011/06/pot-on-premises-new-dilemma-for-arizona_30.html">30</a>, and <a href="http://arizoneout.blogspot.com/2011/07/case-against-adopting-no-pot-on.html">July 5</a>, <a href="http://arizoneout.blogspot.com/2011/07/enforcement-of-no-pot-on-premises.html">6</a>, and <a href="http://arizoneout.blogspot.com/2011/07/employers-subject-to-federal-drug-free.html">18</a>, 2011 posts for much more on that issue.)<br />
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The third new category immunizes "[a]ctions to exclude an employee from performing a safety-sensitive position, including reassigning the employee to another position or placing an employee on paid or unpaid leave, based on the employerʼs good-faith belief that the employee is engaged in the current use of any drug, whether legal, prescribed by a physician or otherwise, if the drug could cause an impairment or otherwise decrease or lessen the employeeʼs job performance or ability to perform the employeeʼs job duties."<br />
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Let that language sink in for a bit. There is a lot packed in there, and the legislature defined some of those key terms, like "current use of any drug," "good faith," and "impairment." Weʼll explore those statutory definitions and consider how they should guide the shaping of your policies in future posts.Dinitahttp://www.blogger.com/profile/11742899995938493477noreply@blogger.com0tag:blogger.com,1999:blog-4668480778655729516.post-2241995737108710822012-02-02T09:00:00.000-05:002012-02-02T09:36:26.106-05:00ADHS Avoids Groundhog Day By Signaling Dispensaries By SummerHappy Groundhog Day! The 1993 movie bearing that name is a favorite. Arizoneout has something of that same, deja vu feeling that Bill Murray had, because the last <a href="http://happy%20groundhog%20day!%20%20the%201993%20movie%20bearing%20that%20name%20is%20a%20favorite.%20%20arizoneout%20has%20something%20of%20that%20same,%20deja%20vu%20feeling%20that%20bill%20murray%20had,%20because%20the%20last%20post%20was%20an%20admission%20of%20error%20on%20a%20prediction,%20and%20this%20post%20starts%20with%20the%20same%20confession./">post</a> was an admission of error on a prediction, and this post starts with the same confession.<br />
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When Arizona Department of Health Services (ADHS) Director Will Humble said the dispensary application process might be further delayed by a pending lawsuit challenging his agencyʼs regulations implementing the Arizona Medical Marijuana Act (AMMA), even after the State's federal lawsuit was dismissed, Arizoneout predicted the dispensaries' legal limbo would extend for many months.<br />
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Wrong, wrong.<br />
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Under the headline "Dispensaries in AZ this Summer?", Humble's <a href="http://directorsblog.health.azdhs.gov/?p=2175">blog</a> on January 25 announced the goal to begin accepting dispensary applications by April. Of 2012. Humble further said that dispensaries could be operating by July or August. That would be a year behind schedule, sure, but much faster than Arizoneout thought possible.<br />
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What appeared to be a persistent logjam cleared so quickly only because of a decisive and well-reasoned <a href="http://www.courtminutes.maricopa.gov/docs/Civil/012012/m5063640.pdf">opinion</a> issued a week earlier by <a href="http://www.superiorcourt.maricopa.gov/JudicialBiographies/Judges/judicialBio.asp?jdgID=28&jdgUSID=130">Judge J. Richard Gama</a> of the Superior Court for Maricopa County. Judge Gama spent 22 years as a civil trial lawyer before being appointed to the court in 2000. He has handled family and juvenile court dockets, but has had a civil docket since 2007.<br />
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The case was brought by would-be dispensary applicants who were not eligible to apply for a license because of regulations issued by ADHS. The agency tried to get the case dismissed on procedural grounds, by arguing that it had complied with the AMMA by issuing regulations on the voter-adopted timetable, even though it had stopped implementing them back in May 2011. <br />
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Judge Gama was having none of that, labeling the State's argument "disingenuous." He ruled that the specific statutory language giving any citizen the right to sue to compel ADHS to implement the dispensary system if it failed to do so within 120 days gave him mandatory jurisdiction over the case. He added, "it would be a Pyrrhic victory for the voters were the Court to conclude otherwise."<br />
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That strong language was followed by an even stronger ruling. He threw out regulations hinging eligibility to apply for a dispensary license on being an Arizona resident and submitting a personal state income tax return for the previous three years, never filing for corporate or personal bankruptcy, and being current on child support, taxes and penalties, judgment debts to the government, and government subsidized student loans.<br />
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The AMMA itself specifies those persons who may be considered for dispensary licenses, and the list of exclusions is short: no felons, no one whose dispensary certificate has been revoked, and no one under 21. ADHS claimed authority to impose the other exclusions based on language in the AMMA authorizing regulations to protect against diversion and theft, and setting a cap on the total number of dispensaries. <br />
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Judge Gama was direct in his rejection of those arguments, saying ADHS could not "bootstrap substantive regulations of who may apply" onto its duty to regulatie dispensaries for the purpose of theft and diversion prevention. <br />
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Judge Gama let stand other regulations as "supplementary rules" to protect against theft and diversion that prohibited absentee ownership of 20% or more of a dispensary, and required proof either of ownership of the proposed site or the landlord's consent to use of the site as a dispensary.<br />
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The fact that Humble announced within a week of the ruling that his teams were "dotting the i's and crossing the t's" on revised regulations to comply with the ruling and to begin accepting applications immediately is a strong signal that the State does not plan to appeal Judge Gama's decision or to pursue any other legal remedies. Having lost two cases, the State apparently does not want to prolong its Groundhog Day on medical marijuana. <br />
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The case is important for reasons beyond its practical effect of clearing the roadblock and letting the dispensary licensing program go forward. It is the first opinion interpreting the AMMA, and it will be cited by the lawyers and judges deciding future AMMA cases. To disagree with Judge Gama, that future judge is going to have to explain why, which is why it is more often the case that the second judge finds the first judge's opinion to be persuasive precedent.<br />
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<em>Compassion First LLC v. State</em> established that officials of the State must carry out the will of the voters as expressed in the AMMA. Sooner than expected, Arizona will have dispensaries. That means employers will have more employees lawfully using or possessing marijuana among their workforce. Smart employers will be prepared by knowing their rights and responsibilities.Dinitahttp://www.blogger.com/profile/11742899995938493477noreply@blogger.com0tag:blogger.com,1999:blog-4668480778655729516.post-67839184688210915152012-01-17T09:00:00.000-05:002012-01-17T14:07:05.612-05:00Wrong On Appeal, Not On Length Of Dispensary LimboIn a January 5, 2012 <a href="http://arizoneout.blogspot.com/2012/01/federal-judge-wont-give-state-guidance.html">post</a>, 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.<br />
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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.<br />
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“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.<br />
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ADHS Director Will Humble posted notice of the Governor’s decision on his <a href="http://directorsblog.health.azdhs.gov/?p=2132">blog</a>. 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.<br />
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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!<br />
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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.<br />
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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.<br />
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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.”Dinitahttp://www.blogger.com/profile/11742899995938493477noreply@blogger.com0tag:blogger.com,1999:blog-4668480778655729516.post-49205065393185320602012-01-05T09:00:00.000-05:002012-01-05T15:29:06.525-05:00Federal Judge Won't Give State Guidance on AMMAThe 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.<br />
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Arizoneout has reported from <a href="http://arizoneout.blogspot.com/2011/06/no-matter-headlines-legal-marijuana-can_02.html">time</a> to <a href="http://arizoneout.blogspot.com/2011/06/lawsuits-pepper-adhs-director-will.html">time</a> 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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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 <a href="http://www.azcentral.com/members/Blog/EJMontini/151446"><em>Arizona Republic</em></a>.<br />
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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.”<br />
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Governor Brewer’s spokesman told the <em><a href="http://www.azcentral.com/arizonarepublic/news/articles/2012/01/04/20120104judge-dismisses-medical-marijuana-suit-by-arizona.html">Republic</a></em> 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.Dinitahttp://www.blogger.com/profile/11742899995938493477noreply@blogger.com0tag:blogger.com,1999:blog-4668480778655729516.post-71698818166454966072012-01-03T09:00:00.001-05:002012-01-03T09:04:38.794-05:00Resolve To Adopt Defensible Workplace Policies On Medical MarijuanaOn 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.<br />
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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.<br />
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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.<br />
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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: <br />
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<ul><li>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?</li>
<li>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 <a href="http://www.arizoneout.blogspot.com/2011/07/amma-exemption-does-not-reach-all.html">July 25</a> and <a href="http://www.arizoneout.blogspot.com/2011/08/federal-drug-testing-regs-only-limited.html">August 3</a> posts </li>
<li>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 <a href="http://www.arizoneout.blogspot.com/2011/07/amma-exemption-does-not-reach-all.html">December 13</a> post. </li>
<li>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 <a href="http://www.arizoneout.blogspot.com/2011/07/amma-exemption-does-not-reach-all.html">September 23</a>, <a href="http://www.arizoneout.blogspot.com/2011/09/specific-detailed-written-policy-helps.html">27</a>, <a href="http://www.arizoneout.blogspot.com/2011/09/written-policy-must-address-whos-whens.html">29</a> and <a href="http://www.arizoneout.blogspot.com/2011/09/specific-detailed-written-policy-helps.html">October 7</a>, <a href="http://www.arizoneout.blogspot.com/2011/10/drug-testing-policy-must-spell-out.html">12</a>, <a href="http://www.arizoneout.blogspot.com/2011/10/policy-must-comply-with-technical.html">19</a>, <a href="http://www.arizoneout.blogspot.com/2011/10/drug-testing-policy-must-spell-out.html">21</a> and <a href="http://www.arizoneout.blogspot.com/2011/10/clear-statement-of-confidentiality-part.html">24</a> posts. </li>
<li>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 <a href="http://www.arizoneout.blogspot.com/2011/06/pot-on-premises-new-dilemma-for-arizona.html">June 24</a> and <a href="http://www.arizoneout.blogspot.com/2011/06/pot-on-premises-new-dilemma-for-arizona_30.html">30</a> posts. </li>
</ul><br />
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.Dinitahttp://www.blogger.com/profile/11742899995938493477noreply@blogger.com1tag:blogger.com,1999:blog-4668480778655729516.post-66126042209553248742011-12-16T09:00:00.000-05:002011-12-16T14:44:43.198-05:00Nurse’s Suit Alleges Firing In Violation Of AMMAA for-profit hospice in Cottonwood is now a defendant in a lawsuit over allegations it fired a nurse because of her status as a Qualifying Patient (QP) cardholder under the Arizona Medical Marijuana Act (AMMA). Whether this is the first case to test the limits of the AMMA’s employment discrimination protections is hard to tell, but it certainly is going to be a closely watched one.<br />
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The suit claims that the hospice, Verde Valley Community Hospice, LLC, hired Esther M. Shapiro in late July 2011. Shapiro allegedly became a legally registered QP Cardholder the month before she was hired by the hospice.<br />
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According to the suit, Shapiro started her employment as a nurse, visiting and caring for hospice patients in their homes, on August 3, 2011. For reasons not explained in the court papers, Shapiro went through the hospice’s training and orientation program about two weeks after her start date, during which she allegedly was told that she had to pass a “pre-employment” drug screen as a condition of continued employment.<br />
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The lawsuit alleges that Shapiro immediately disclosed her QP status to her supervisor, the hospice’s nurse manager, Donna Gould. Gould allegedly was “visibly upset by the information.” Shapiro went to the drug testing facility and provided a sample for testing as required.<br />
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Here is where the facts take a strange turn. Shapiro alleges that she was fired the next day by Gould, who allegedly told her that the hospice’s insurance carrier had directed the adverse employment action, because the insurer believed she was too much of a liability risk. Shapiro does not allege that she was told she had failed the drug test.<br />
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Another strange twist occurred a month after Shapiro’s firing, when she received notice from the state Board of Nursing that the hospice had made a complaint against her license. The hospice allegedly told the Board of Nursing that an unidentified hospice employee had smelled marijuana on Shapiro’s person, and that she had been required to submit to – and presumably failed – a “for cause” drug test. <br />
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Shapiro denies in the suit that she ever had used, possessed, or been under the influence of marijuana on the hospice’s premises or during her working hours.<br />
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The hospice has not yet responded to the lawsuit, and it may take many months to sort out the true facts. But if the allegations are true, the Cottonwood hospice appears to be an Arizona employer who was not prepared to deal with the workplace issues presented by the AMMA. Arizoneout will monitor the case and provide updates and analyses in future posts.Dinitahttp://www.blogger.com/profile/11742899995938493477noreply@blogger.com0tag:blogger.com,1999:blog-4668480778655729516.post-25045725718914703322011-12-13T09:00:00.001-05:002011-12-13T12:14:25.392-05:00Arizona legislature adopts expansive definition of safety-sensitive positionWhen crafting the tools to help employers implement the Arizona Medical Marijuana Act (AMMA) earlier this year, the state legislature tried to be as generous as possible. Regardless of voters’ adoption of broad employment protections for Qualified Patients (QPs) authorized to use medical cannabis, the legislature wanted to provide a liability shield for employers who excluded the QPs in their workforce from performing safety-sensitive positions.<br />
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Arizoneout explored in a recent post the parameters of this liability shield. The most important limitation is that the shield is available only to Arizona employers who adopt a testing program that complies with the Drug Testing of Employees Act. Another important consideration is how employers determine whether a position qualifies as a safety-sensitive one.<br />
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Once again, the legislature tried to be as employer-friendly as possible by giving each employer the discretion to decide just which of its job positions qualified as safety-sensitive. In addition, the legislature also provided some specifics.<br />
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Jobs qualify as safety sensitive if they include tasks or duties that the employer in good faith believes could affect the safety or health of the employee performing the task or others. The legislature then gave several examples, including jobs that involve:<br />
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<ul><li>operation of a motor vehicle, or any other equipment, machinery or power tools;</li>
<li>repairing, maintaining, or monitoring the performance or operation of any equipment, machinery, or manufacturing process, the malfunction or disruption of which could result in injury or property damages;</li>
<li>performing duties on the premises of a customer, supplier, or vendor; or</li>
<li>preparing or handling food or medicine.</li>
</ul><br />
If that list was not employer-friendly enough, the legislature also included in the definition of safety-sensitive position any occupation regulated pursuant to Title 32 of the Arizona Revised Statutes. So who does that include? A whole lot of Arizona employees.<br />
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Title 32 is extremely broad, covering just about every occupation for which a state license is required, including all of the medical professions; barbers, cosmetologists, aestheticians, and nail technicians; certified public accountants; collection agency employees; contractors; funeral directors and embalmers; architects, engineers, geologists, landscape architects, and surveyors; real estate brokers and agents; veterinarians and veterinarian technicians; pest control applicators; private investigators; security guards; polygraph examiners; and massage therapists.<br />
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It’s hard to think of a job that would not fall in the safety-sensitive category, if an employer chooses to designate it as such. Whether Arizona courts will be as generous in applying these legislative provisions is something upon which employers likely will not be able comfortably to rely for years to come.<br />
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In the meantime, employers should be prepared to justify why they have designated any particular position as so safety-sensitive that a QP using medical marijuana during his or her off-duty hours should be disqualified from performing it.Dinitahttp://www.blogger.com/profile/11742899995938493477noreply@blogger.com0tag:blogger.com,1999:blog-4668480778655729516.post-4395547563812290312011-12-09T09:00:00.000-05:002011-12-09T17:23:13.993-05:00Nifty New Provisions Offer Employers Shield From AMMA LiabilityEarlier this year, the Arizona Legislature tried to help employers with implementation of the Arizona Medical Marijuana Act (AMMA). The vehicle used was the Drug Testing of Employees Act. So for Arizona employers who have adopted already or in the future adopt a drug testing program in compliance with the Act, there are some nifty new statutory provisions that may protect them from liability.<br />
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Probably the most important new provision relates to safety-sensitive positions. The Drug Testing of Employees Act always has contained a section designed to protect employers from litigation for the actions they take in response to a positive drug test, as well as for employers’ failure to conduct drug testing or failure to detect a specific drug in particular circumstances.<br />
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The 2011 amendments greatly expanded those protections from litigation for employers who take certain actions, including actions to exclude Qualified Patients (QPs) legally using medical marijuana from working in safety-sensitive positions.<br />
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One new provision purports to shield an employer who has a drug testing program from liability for any actions the employer takes to exclude an employee from performing a safety-sensitive position, based on the employer’s good-faith belief that the employee is engaged in the current use of any drug, whether legal, prescribed by a physician or otherwise, if the drug “could cause an impairment or otherwise decrease or lessen the employee’s job performance or ability to perform the employee’s job duties.”<br />
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This new provision is not specific to medical marijuana. Indeed, employers can rely on this liability shield to exclude employees from safety-sensitive positions while they are on narcotic pain medication or even cough syrup, as two examples.<br />
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The new statutory language allows the employer to reassign the employee to another position, presumably one that is not safety-sensitive, or to place the employee on paid or unpaid leave. This particular statutory provision does not authorize termination, however.<br />
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If the statute is valid, then employers who learn that an employee is a QP using medical marijuana can put that employee on unpaid leave for the duration of the employee’s use of medical marijuana, if the employee otherwise would be working in a safety-sensitive position. <br />
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That caveat – if the statute is valid – is very important. The AMMA adopted by Arizona voters prohibits employers from taking adverse employment actions against a QP because of the QP’s medical use of marijuana. It is hard to argue that forced unpaid leave is not an adverse employment action. <br />
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It will be up to Arizona courts to determine whether that provision is valid, or whether it is inherently in conflict with the voter-approved AMMA. If there is an inherent conflict, then the voter-approved AMMA trumps anything the legislators have adopted.<br />
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Employment actions short of unpaid leave, however, such as reassignment to a different, not safety-sensitive, position or paid leave, with no reduction in pay or other benefits, likely do fall within the liability shield the legislature adopted earlier this year.<br />
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Over several future posts, Arizoneout will delve deeper into the amendments to the Drug Testing of Employees Act that the legislature adopted earlier in 2011 to help employers with the implementation of the AMMA.Dinitahttp://www.blogger.com/profile/11742899995938493477noreply@blogger.com0tag:blogger.com,1999:blog-4668480778655729516.post-91816715431560567472011-12-06T09:00:00.002-05:002011-12-09T19:09:45.543-05:00Honor Indicates Interesting Ways AMMA Experiment Is Turning OutArizoneout is honored to be named one of the top 100 blogs about lawyers and the law as part of the <i>ABA Journal’s</i> 5th Annual Blawg 100. The Journal of the American Bar Association, the nation’s largest voluntary membership organization for lawyers, judges, and law students, received more than 1,300 nominations for the honor this year.<br />
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My thanks to Tony Kessler of <a href="http://www.hrhero.com/">M. Lee Smith Publishers</a>, who penned this wonderful word play for the Arizoneout nominating blurb: “Who would have ever thought that a blawg about medical marijuana in the workplace would take off and reach such dizzying heights? The blawg is indeed creating quite a buzz among Arizona employers and employment law attorneys. Each new installment creates a stash of valuable information that readers can put in their pipe and smoke.” <br />
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The Blawg 100 has 12 categories. Arizoneout is in the category for labor and employment law blogs. Blawg 100 is also a contest, with the top blogs in each category to be determined by online voting. Arizoneout would appreciate your vote. The shield at the right will take you to the voting site, or you can <a href="http://www.abajournal.com/blawg100">click here</a>. Registration is required to vote, but it is relatively painless. Voting ends December 30.<br />
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Arizoneout attributes its Blawg 100 honors to the heightened interest in medical marijuana nationally, and especially here in Arizona, as we implement the Arizona Medical Marijuana Act (AMMA) that Arizona voters adopted in November 2010. It is one of the very few compassionate use laws around the country that includes employment protections for Qualified Patients.<br />
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Another sign that medical cannabis is a hot topic nationally: the medical marijuana industry is now featured on reality TV! On Thursday, December 1, 2011, the Discovery Channel aired the debut episode of “Weed Wars.” The show features a California marijuana dispensary, Harborside Health Center in Oakland, CA.<br />
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Several versions of the opening episode are available on You Tube. I’m not sure about the copyright legalities, so I won’t link to those. The Discovery Channel has lengthy excerpts on its <a href="http://dsc.discovery.com/tv/weed-wars/%20">website</a>. <br />
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Harborside Executive Director Steve Angelo says the dispensary, which opened in 2006, is the largest on the planet, with more than 94,000 legal patients, and gross sales of $21 million in 2010. Another interesting tidbit from the opening episode: all of the employees of Harborside are themselves legal cannabis patients in California. Now that’s an interesting twist on medical marijuana in the workplace!<br />
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Arizoneout will be watching future episodes of “Weed Wars” and in future posts or Tweets will share the highlights that Arizona employers should not miss.Dinitahttp://www.blogger.com/profile/11742899995938493477noreply@blogger.com1tag:blogger.com,1999:blog-4668480778655729516.post-46944652430179482282011-11-11T09:00:00.004-05:002011-12-05T17:46:15.999-05:00Public Employers Face Extra Drug Testing Limits<div style="font-family: Times; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal; margin: 0px;"><span style="font-family: Arial, Helvetica, sans-serif;">Over several recent posts, Arizoneout has been examining the state Drug Testing of Employees Act, as the Arizona Medical Marijuana Act (AMMA) has made adopting a compliant policy a high priority for many employers. That’s the case thanks to amendments the state legislature made to the Drug Testing of Employees Act earlier this year to ease implementation of the AMMA in Arizona workplaces.</span></div><div style="font-family: Times; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal; margin: 0px; min-height: 14px;"><span style="font-family: Arial, Helvetica, sans-serif;"><br />
</span></div><div style="font-family: Times; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal; margin: 0px;"><span class="Apple-tab-span" style="white-space: pre;"></span><span style="font-family: Arial, Helvetica, sans-serif;">The Drug Testing of Employees Act applies both to public and private employers. One of the ways the legislature amended the Act was to add into the definition of “employer” subject to its provisions the state of Arizona and all of its political subdivisions.</span></div><div style="font-family: Times; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal; margin: 0px; min-height: 14px;"><span style="font-family: Arial, Helvetica, sans-serif;"><br />
</span></div><div style="font-family: Times; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal; margin: 0px;"><span class="Apple-tab-span" style="white-space: pre;"></span><span style="font-family: Arial, Helvetica, sans-serif;">Before the amendment, the definition explicitly excluded the state and all of its agencies, except for the departments of public safety, corrections, and juvenile corrections, and all political subdivisions of the state. Thus, public employers are especially new to the Drug Testing of Employees Act’s many technical requirements. </span></div><div style="font-family: Times; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal; margin: 0px; min-height: 14px;"><br />
<span style="font-family: Arial, Helvetica, sans-serif;">A </span><a href="http://arizoneout.blogspot.com/2011/09/written-policy-must-address-whos-whens.html"><span style="font-family: Arial, Helvetica, sans-serif;">September 29, 2011</span></a><span style="font-family: Arial, Helvetica, sans-serif;"> post discussed the circumstances under which the Drug Testing of Employees Act permits an employer to require employees to submit a sample for drug testing. The Act specifically authorizes random testing. In that post, Arizoneout noted that public employers must be aware of additional limits on random testing, and promised to devote another post to that topic.</span></div><div style="font-family: Times; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal; margin: 0px; min-height: 14px;"><span style="font-family: Arial, Helvetica, sans-serif;"><br />
</span></div><div style="font-family: Times; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal; margin: 0px;"><span style="font-family: Arial, Helvetica, sans-serif;">This is that post. Before we move on to the other AMMA-specific amendments to the Drug Testing Act that the legislature adopted earlier this year, let’s close this loose end.</span></div><div style="font-family: Times; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal; margin: 0px; min-height: 14px;"><span style="font-family: Arial, Helvetica, sans-serif;"><br />
</span></div><div style="font-family: Times; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal; margin: 0px;"><span style="font-family: Arial, Helvetica, sans-serif;">Thanks to a 2004 Arizona Supreme Court case coming out the City of Mesa, public employers know that it is a violation Fourth Amendment to the U.S. Constitution to require public employees to undergo random testing. The case is <i>Petersen v. City of Mesa. </i> Random testing also may be a violation of Article II, Section 8 of the Arizona Constitution, which provides that “no person shall be disturbed in his private affairs . . . without authority of law.” The Arizona Supreme Court did not decide that question.</span></div><div style="font-family: Times; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal; margin: 0px; min-height: 14px;"><span style="font-family: Arial, Helvetica, sans-serif;"><br />
</span></div><div style="font-family: Times; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal; margin: 0px;"><span style="font-family: Arial, Helvetica, sans-serif;">The City of Mesa implemented a drug testing program for its Fire Department in 2001. The City tested firefighters in four circumstances: (1) upon reasonable suspicion the individual firefighter has abused drugs or alcohol; (2) after an on-the-job accident involving the firefighter; (3) upon the firefighter’s return to duty from an injury or a substance abuse diversion; and (4) “on an unannounced and random basis spread reasonably throughout the calendar year.”</span></div><div style="font-family: Times; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal; margin: 0px; min-height: 14px;"><span style="font-family: Arial, Helvetica, sans-serif;"><br />
</span></div><div style="font-family: Times; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal; margin: 0px;"><span style="font-family: Arial, Helvetica, sans-serif;">Craig Peterson, a city of Mesa firefighter, filed a pre-emptive lawsuit, challenging only the random testing requirement. </span></div><div style="font-family: Times; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal; margin: 0px; min-height: 14px;"><span style="font-family: Arial, Helvetica, sans-serif;"><br />
</span></div><div style="font-family: Times; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal; margin: 0px;"><span style="font-family: Arial, Helvetica, sans-serif;">The Arizona Supreme Court rejected the argument that firefighter was a sufficiently safety-sensitive position to permit suspicionless, unannounced drug testing, when the City of Mesa had offered no evidence of any drug problem among its firefighters.</span></div><div style="font-family: Times; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal; margin: 0px; min-height: 14px;"><span style="font-family: Arial, Helvetica, sans-serif;"><br />
</span></div><div style="font-family: Times; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal; margin: 0px;"><span style="font-family: Arial, Helvetica, sans-serif;">The City of Mesa argued that the safety-sensitive nature of the position gave it a special need to invade firefighters’ privacy by conducting random testing, based on two U.S. Supreme Court cases. One of them, <i>National Treasury Employees Union v. Von Rabb, </i>authorized suspicionless testing of U.S. Customs employees, not on a random basis but upon promotion or transfer to a position directly involved in drug interdiction or requiring the carrying of a firearm. The other, <i>Skinner v. Railway Labor Executives Ass’n</i>, authorized suspicionless drug testing of railway employees because of their diminished expectation of privacy from working in an “industry that is regulated pervasively to ensure safety, a goal dependent, in substantial part, on the health and fitness” of railway employees.</span></div><div style="font-family: Times; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal; margin: 0px; min-height: 14px;"><span style="font-family: Arial, Helvetica, sans-serif;"><br />
</span></div><div style="font-family: Times; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal; margin: 0px;"><span style="font-family: Arial, Helvetica, sans-serif;">According to the Arizona Supreme Court, the Mesa firefighters had a similar diminished expectation of privacy because their job involves safety risks, they are entrusted with protecting the community and their colleagues from danger, and their ability to do their jobs depended on their own health and fitness. Nevertheless, the court found that the City of Mesa’s generalized interest in deterring and detecting alcohol and drug use among its firefighters was not a sufficiently strong interest to overcome even the lessened privacy interests of the firefighters.</span></div><div style="font-family: Times; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal; margin: 0px; min-height: 14px;"><span style="font-family: Arial, Helvetica, sans-serif;"><br />
</span></div><div style="font-family: Times; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal; margin: 0px;"><span style="font-family: Arial, Helvetica, sans-serif;">If the safety-sensitive nature of firefighting is not enough to justify random drug testing, then it is hard to imagine a public employee job outside of law enforcement and corrections that would qualify for random drug testing. As future posts will address, the Arizona Legislature has a vastly different view of what counts as a safety-sensitive position than the state’s highest court.</span></div><div style="font-family: Times; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal; margin: 0px; min-height: 14px;"><span style="font-family: Arial, Helvetica, sans-serif;"><br />
</span></div>Dinitahttp://www.blogger.com/profile/11742899995938493477noreply@blogger.com0tag:blogger.com,1999:blog-4668480778655729516.post-41083155901052996122011-11-03T09:00:00.001-04:002011-11-03T15:36:31.455-04:00AMMA After A Year -- Just As Confusing As Last YearAs November 3, 2010 dawned, the electoral fate of the Arizona Medical Marijuana Act (AMMA) was officially too close to call. The "No" side on Proposition 203, the voter initiative that made the AMMA law, held a 6,000-vote lead. More than a week later, when all the votes were counted, the "Yes" side led by fewer than 5,000 votes. <br />
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By November 29, just 27 days after the last vote was cast, the Prop 203 victory was certified as official. Marijuana would be legal for medical purposes in the state.<br />
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Upon the anniversary of the AMMA's passage, the AMMA's fate is just as much up in the air, and it does not appear that a resolution will come anywhere nearly as quickly as the 27 days it took to tally the vote with finality.<br />
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In the October 27, 2011 issue of the monthly <em>Phoenix New Times</em>, Ray Stern offers a fine summary of the recent federal attacks on the medical marijuana industry in an article titled, <a href="http://www.phoenixnewtimes.com/2011-10-20/news/in-a-strange-about-face-the-president-tries-to-hack-medical-marijuana-off-at-the-knees/">"Obama's War on Weed: In a strange about-face, the President tries to hack medical marijuana off at the knees."</a> As this post was written, it was the most popular story on the <em>Phoenix New Times</em> website.<br />
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<em>Phoenix New Times</em> sells ads to the medical marijuana industry, and discloses that fact in the article. It is a Village Voice publication, and its perspective is decidedly liberal. The article's take on the politics -- partisan and not -- rolled up in the medical marijuana debate makes it an entertaining read no matter your political stripe.Dinitahttp://www.blogger.com/profile/11742899995938493477noreply@blogger.com0tag:blogger.com,1999:blog-4668480778655729516.post-26195995221577175042011-10-26T09:00:00.003-04:002011-10-26T14:58:05.022-04:00Two Sides Of Prop 203 Debate Hold Diametrically Opposed Views On Future Of AMMAThe <em>Arizona Republic</em> published an interesting <a href="http://www.azcentral.com/arizonarepublic/local/articles/2011/10/23/20111023arizona-medical-marijuana-pros-cons.html">point-counterpoint</a> on Sunday about the half-way implementation of the Arizona Medical Marijuana Act (AMMA). In Q and A format, the Republic polled two of the leaders of the groups that supported and opposed Proposition 203 in the run up to the November 2010 election.<br />
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Representing the victorious Arizona Medical Marijuana Association was Joe Yuhas. For its victory, his Association finds itself a defendant in the federal lawsuit that Governor Jan Brewer filed in April that brought a halt to implementing the dispensary system that is an integral part of the AMMA.<br />
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On behalf of the losing political action group in the Prop. 203 fight, Keep AZ Drug Free, was Carolyn Short.<br />
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On this Q, their respective answers definitely showed their political stripes:<br />
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Q. Will Arizonans ever see full implementation of Prop. 203?<br />
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Yuhas' A: Yes. . . . The pace of it is debatable.<br />
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Short's A: Not a chance. Pretty much everybody thinks that.<br />
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Yuhas' message is one that Arizoneout has delivered a few times. The current situation is the worst of all worlds. In Yuhas' words, "At some point the piecemeal implementation of Prop. 203 is going to be recognized as adverse to the overall interest of patients and the community."<br />
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Most of the 13,000-plus Arizonans who have been granted a state license to use marijuana to treat a debilitating medical condition or symptom also have been granted permission to grow their own. The AMMA would permit 126 dispensaries, which would be required to have security, inventory control, and otherwise be subject to state monitoring.<br />
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According to Yuhas: "Arizonans would prefer to have a dispensary in their community that's regulated than to have an unlimited number of people growing it themselves."<br />
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Short does not argue to the contrary. Instead, she sees medical marijuana as a ruse that uses physicians and sick people to facilitate recreational use. "If people want to have marijuana in this country for recreational use, then they're going to have to change federal law. And I don't think that's going to happen," she says.<br />
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Short may want to be a little less certain of the future of federal legislation. On October 17, 2011, the Gallup organization announced that according to its annual data, <a href="http://www.gallup.com/poll/150149/record-high-americans-favor-legalizing-marijuana.aspx">50% of Americans</a> now say that the use of marijuana should be made legal.<br />
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Gallup has asked the question every year since 1969, when the polling was 84% against legalization. The trend in favor of legalization has picked up speed over the years, hitting 30% in 2000, and 40 percent in 2009. In 2010, Gallup's data showed 46 percent of Americans favored legalization.<br />
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Another Gallup survey in 2010 found that fully 70 percent of Americans support the medical use of marijuana if recommended by a doctor.<br />
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What that says to Arizoneout is that legal medical marijuana is here to stay in workplaces all around the state. The dispensary skirmish is likely to play out for months or years, but Arizona employers need to come to grips now with the fact that legal marijuana users exist in their current or future workforce, and they are not going anywhere.<br />
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<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgRC0-fxpvhY_lBC_tA-gADB1Dxb6QSzwu1hmTCTSthgDSOqadnglAbSVHo1OOrIL4ckUa3ZRCJqfdQfrU8YeSPhnEbzVKLbUJKG4Lpn55-_f3lwm4DV5A7CEzI-nYifG2HwxBHnU-FByU/s1600/Gallup+chart.gif" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="220px" ida="true" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgRC0-fxpvhY_lBC_tA-gADB1Dxb6QSzwu1hmTCTSthgDSOqadnglAbSVHo1OOrIL4ckUa3ZRCJqfdQfrU8YeSPhnEbzVKLbUJKG4Lpn55-_f3lwm4DV5A7CEzI-nYifG2HwxBHnU-FByU/s400/Gallup+chart.gif" width="400px" /></a></div>Dinitahttp://www.blogger.com/profile/11742899995938493477noreply@blogger.com1