There was an interesting paradox in the news about the Arizona Medical Marijuana Act (AMMA) this week. As Arizoneout reported in a June 7, 2012 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.
The Arizona Republic ran a piece on August 7 under the headline, "Big day for medical pot," 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.
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.
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.
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 "Attorney Generalʼs Opinion," 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.
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.
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.)
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 press release 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."
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?
Showing posts with label cultivation. Show all posts
Showing posts with label cultivation. Show all posts
Friday, August 10, 2012
Monday, October 10, 2011
California Federal Prosecutors Taking Aim At Pot Business, Scattershot In Approach
What was always an uneasy truce between federal drug enforcement authorities and the thriving medical marijuana industry in the 16 states that have some version of the Arizona Medical Marijuana Act (AMMA) now appears completely shattered.
The U.S. Attorneys for the four California federal districts held a joint press conference in Sacramento on October 6, 2011 to announce a crackdown on the state's medical marijuana industry, which the prosecutors claim has corrupted the intent of the 1996 compassionate use voter referendum, the first such law in the nation.
The prosecutors are using a variety of tactics. In Orange County, prosecutors have brought a criminal indictment against a strip mall operator who leased 11 suites to marijuana stores. In Sacramento, prosecutors have filed criminal charges against operators of a large-scale dispensary that allegedly took in $30,000 to $50,000 a day from marijuana sales and had nearly $600,000 and more than 250 pounds of pot on hand.
Also indicted was a Los Angeles attorney who allegedly has pocketed millions of dollars by organizing growing schemes for marijuana dispensaries. The attorney formed a management company and hired two prize-winning tomato growers to convert their greenhouses to cultivating thousands of marijuana plants.
Federal prosecutors around the state also have sent letters to landlords of major dispensaries and cultivators, ordering them to evict their tenants within 45 days or face 40 years in prison, forfeiture of the property, and any rents paid. A recent Bloomberg.com report quotes a San Francisco woman who claims to be the first dispensary operator in the United States describing the letter her landlord received as "very ominous."
The top federal prosecutor for Los Angeles, Andre Birotte, stated at the press confernce that the California law did not permit the types of businesses the feds were targeting. "While California law permits collective cultivation of marijuana in limited circumstances, it does not allow commercial distribution through the store-front model we see across California,” he said.
One big difference between the Arizona and California laws is that the AMMA expressly permits and regulates non-profit dispensaries and cultivation sites. Of course, those are not yet up and running because of litigation Governor Jan Brewer filed back in June.
Arizona citizens are left to wonder whether the higher degree of state regulation would make a difference to federal prosecutors here. That likely would depend on whether Arizona's detailed regulatory scheme achieves its aim of keeping the focus on medical use, as opposed to recreational use. But with the AMMA only partly implemented, the efficacy of that scheme has yet to get a fair test.
The U.S. Attorneys for the four California federal districts held a joint press conference in Sacramento on October 6, 2011 to announce a crackdown on the state's medical marijuana industry, which the prosecutors claim has corrupted the intent of the 1996 compassionate use voter referendum, the first such law in the nation.
The prosecutors are using a variety of tactics. In Orange County, prosecutors have brought a criminal indictment against a strip mall operator who leased 11 suites to marijuana stores. In Sacramento, prosecutors have filed criminal charges against operators of a large-scale dispensary that allegedly took in $30,000 to $50,000 a day from marijuana sales and had nearly $600,000 and more than 250 pounds of pot on hand.
Also indicted was a Los Angeles attorney who allegedly has pocketed millions of dollars by organizing growing schemes for marijuana dispensaries. The attorney formed a management company and hired two prize-winning tomato growers to convert their greenhouses to cultivating thousands of marijuana plants.
Federal prosecutors around the state also have sent letters to landlords of major dispensaries and cultivators, ordering them to evict their tenants within 45 days or face 40 years in prison, forfeiture of the property, and any rents paid. A recent Bloomberg.com report quotes a San Francisco woman who claims to be the first dispensary operator in the United States describing the letter her landlord received as "very ominous."
The top federal prosecutor for Los Angeles, Andre Birotte, stated at the press confernce that the California law did not permit the types of businesses the feds were targeting. "While California law permits collective cultivation of marijuana in limited circumstances, it does not allow commercial distribution through the store-front model we see across California,” he said.
One big difference between the Arizona and California laws is that the AMMA expressly permits and regulates non-profit dispensaries and cultivation sites. Of course, those are not yet up and running because of litigation Governor Jan Brewer filed back in June.
Arizona citizens are left to wonder whether the higher degree of state regulation would make a difference to federal prosecutors here. That likely would depend on whether Arizona's detailed regulatory scheme achieves its aim of keeping the focus on medical use, as opposed to recreational use. But with the AMMA only partly implemented, the efficacy of that scheme has yet to get a fair test.
Tuesday, September 6, 2011
What Are They Thinking? Maricopa Supervisors Create Grow-Your-Own Havens
The Maricopa County Board of Supervisors on August 31, 2011 undid the work it invested late last year in creating a zoning classification for medical marijuana dispensaries and cultivation sites in the unincorporated areas of the giant, most-populous county in Arizona.
The Arizona Medical Marijuana Act (AMMA), adopted by the voters in November 2010, allows cities and counties to impose reasonable zoning restrictions on dispensaries and cultivation sites. Maricopa County was quick to act, with its Board of Supervisors taking action to amend its zoning ordinance on November 17, 2010, only days after the unofficial election results showed that Proposition 203 had passed. Supervisor Mary Rose Wilcox lauded the staff for their "proactive move that will be good for the community," and the Board unanimously adopted a text amendment that provided the requirements and regulations for dispensaries in the unincorporated "county islands" whose development it governs.
That was then. Bill Montgomery was elected Maricopa County Attorney in the same election, and he was one of the most vocal opponents of Proposition 203. On May 26, 2011, he issued a formal legal opinion advising the Board to take no steps to implement the AMMA. His opinion coincided with the announcement that Governor Jan Brewer was going to sue the federal government in federal court, the first of a flurry of lawsuits that brought a halt to the dispensary application process.
The recent Board action -- again unanimous with Commissioner Fulton Brock absent -- was in response to Montgomery's legal opinion. Maricopa County did away with the zoning definitions it adopted just after the AMMA's passage, instead reclassifying dispensaries and cultivation sites as ones which must not be in conflict with any federal law. So as long as marijuana is an illegal drug for all purposes under the federal Controlled Substances Act, no one can set up a dispensary in unincorporated Maricopa County.
That means that when and if the dispensary application process gears up again, the county islands of Maricopa won't be getting any. And Qualified Patients (QPs) who live in those areas -- and have no dispensary within 25 miles -- will be able to grow their own so long as the zoning classification remains in place.
One of the purposes of the AMMA and the detailed implementing regulations developed and adopted by the Arizona Department of Health Services (ADHS) was to give QPs -- and only QPs and their Designated Caregivers -- safe and legal access to medical marijuana at tightly regulated dispensaries.
ADHS Director Will Humble even touted the incentives built into the regulations to encourage dispensaries to locate in rural areas. "We made sure that inventory could be transferred between dispensaries (and their cultivation facilities) by allowing for a wholesale market. That way, dispensaries in rural Arizona that may have a limited number of qualified patients can decide that a core part of their business plan is to cultivate for the wholesale market and sell their inventory to dispensaries in urban Arizona," Humble said in a March 2011 blog post.
Surely having marijuana growing in homes scattered all over unincorporated Maricopa County is a worse option than having QPs in those areas able to buy medical cannabis products at a few well-controlled, non-profit dispensaries. Arizoneout certainly thinks so.
The Arizona Medical Marijuana Act (AMMA), adopted by the voters in November 2010, allows cities and counties to impose reasonable zoning restrictions on dispensaries and cultivation sites. Maricopa County was quick to act, with its Board of Supervisors taking action to amend its zoning ordinance on November 17, 2010, only days after the unofficial election results showed that Proposition 203 had passed. Supervisor Mary Rose Wilcox lauded the staff for their "proactive move that will be good for the community," and the Board unanimously adopted a text amendment that provided the requirements and regulations for dispensaries in the unincorporated "county islands" whose development it governs.
That was then. Bill Montgomery was elected Maricopa County Attorney in the same election, and he was one of the most vocal opponents of Proposition 203. On May 26, 2011, he issued a formal legal opinion advising the Board to take no steps to implement the AMMA. His opinion coincided with the announcement that Governor Jan Brewer was going to sue the federal government in federal court, the first of a flurry of lawsuits that brought a halt to the dispensary application process.
The recent Board action -- again unanimous with Commissioner Fulton Brock absent -- was in response to Montgomery's legal opinion. Maricopa County did away with the zoning definitions it adopted just after the AMMA's passage, instead reclassifying dispensaries and cultivation sites as ones which must not be in conflict with any federal law. So as long as marijuana is an illegal drug for all purposes under the federal Controlled Substances Act, no one can set up a dispensary in unincorporated Maricopa County.
That means that when and if the dispensary application process gears up again, the county islands of Maricopa won't be getting any. And Qualified Patients (QPs) who live in those areas -- and have no dispensary within 25 miles -- will be able to grow their own so long as the zoning classification remains in place.
One of the purposes of the AMMA and the detailed implementing regulations developed and adopted by the Arizona Department of Health Services (ADHS) was to give QPs -- and only QPs and their Designated Caregivers -- safe and legal access to medical marijuana at tightly regulated dispensaries.
ADHS Director Will Humble even touted the incentives built into the regulations to encourage dispensaries to locate in rural areas. "We made sure that inventory could be transferred between dispensaries (and their cultivation facilities) by allowing for a wholesale market. That way, dispensaries in rural Arizona that may have a limited number of qualified patients can decide that a core part of their business plan is to cultivate for the wholesale market and sell their inventory to dispensaries in urban Arizona," Humble said in a March 2011 blog post.
Surely having marijuana growing in homes scattered all over unincorporated Maricopa County is a worse option than having QPs in those areas able to buy medical cannabis products at a few well-controlled, non-profit dispensaries. Arizoneout certainly thinks so.
Thursday, June 16, 2011
Lawsuits Pepper ADHS Director Will Humble
Back on June 2, I wrote that the lawsuits were “flying” as Governor Jan Brewer filed a federal lawsuit, ADHS Director Will Humble halted the dispensary application process, and dispensary advocates announced their own plans to sue. That was a bit of an overstatement, as only the Governor’s federal suit had been launched.
It took the dispensary advocates another couple of weeks, but two suits were filed on Tuesday, June 14. One suit was filed in Maricopa County Superior Court against ADHS and Director Humble. The other was filed in the Arizona Court of Appeals, also against Director Humble. Both are “special actions” with special Arizona procedures, not your ordinary civil lawsuits.
Essentially, both suits are asking the courts to order Director Humble and ADHS to do the job voters tasked them with when they passed Proposition 203 – set up an application program and issue licensing certificates to non-profit medical marijuana dispensaries.
What this means for Arizona employers is that their workers may continue to be able to grow their own, or grow marijuana for others, for many months to come. Until the dispensaries are up and running, any Qualified Patient (QP) who asks will get an ADHS card permitting cultivation of up to 12 marijuana plants, by the QP or his or her Designated Caregiver (DC).
Proposition 203 set out a detailed control system designed both to give QPs ease of access to marijuana for medical use and to restrict access to recreational users. A limited number of dispensaries was the linchpin of the scheme.
The current state of affairs – no dispensaries but pot gardens in thousands of Arizona homes – appears to me to be much riskier for employers and all Arizona citizens than the law the voters adopted.
It took the dispensary advocates another couple of weeks, but two suits were filed on Tuesday, June 14. One suit was filed in Maricopa County Superior Court against ADHS and Director Humble. The other was filed in the Arizona Court of Appeals, also against Director Humble. Both are “special actions” with special Arizona procedures, not your ordinary civil lawsuits.
Essentially, both suits are asking the courts to order Director Humble and ADHS to do the job voters tasked them with when they passed Proposition 203 – set up an application program and issue licensing certificates to non-profit medical marijuana dispensaries.
What this means for Arizona employers is that their workers may continue to be able to grow their own, or grow marijuana for others, for many months to come. Until the dispensaries are up and running, any Qualified Patient (QP) who asks will get an ADHS card permitting cultivation of up to 12 marijuana plants, by the QP or his or her Designated Caregiver (DC).
Proposition 203 set out a detailed control system designed both to give QPs ease of access to marijuana for medical use and to restrict access to recreational users. A limited number of dispensaries was the linchpin of the scheme.
The current state of affairs – no dispensaries but pot gardens in thousands of Arizona homes – appears to me to be much riskier for employers and all Arizona citizens than the law the voters adopted.
Friday, June 10, 2011
Qualified Patients Growing Their Own and Trading Among Themselves for Now
With no dispensaries in operation now or likely to be anytime soon, Qualified Patients (QP) have only a couple of legal options for obtaining medical marijuana in Arizona. They can grow their own, if they sought permission to cultivate as part of their application for a marijuana ID card.
Through June 1, 2011, 3,218 QP applicants have asked for permission to cultivate, or 70.8 percent of all applicants.
A QP licensed to cultivate can possess 2½ ounces of usable marijuana and 12 plants at any given time. A QP also can legally obtain medical marijuana from another qualifying patient.
A QP can have a Designated Caregiver who cultivates legal marijuana for him or her. It is also possible that you have Designated Caregivers among your employees. We will turn to that category of protected marijuana ID cardholders in an upcoming post.
Through June 1, 2011, 3,218 QP applicants have asked for permission to cultivate, or 70.8 percent of all applicants.
A QP licensed to cultivate can possess 2½ ounces of usable marijuana and 12 plants at any given time. A QP also can legally obtain medical marijuana from another qualifying patient.
A QP can have a Designated Caregiver who cultivates legal marijuana for him or her. It is also possible that you have Designated Caregivers among your employees. We will turn to that category of protected marijuana ID cardholders in an upcoming post.
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