Judge Orders Arizona to Implement Medical Marijuana Act, Tosses Out Four Rules for Dispensary Applicants

Categories: Medical Weed

compassion first logo.JPG

Arizona needs to start up the 2010 Medical Marijuana Act as voters intended, but without several of the rules designed to restrict dispensary applicants, a judge has ordered.

Maricopa County Superior Court Judge Richard Gama ruled on the Compassion First, LLC, lawsuit yesterday, noting that voters wanted the Act implemented 120 days after it passed and that "this has not been done."

The reason it wasn't done is that in May, Governor Jan Brewer -- who spoke out against Proposition 203 before voters approved it in November of 2010 -- halted the dispensary portion of the new law at the same time she filed a federal lawsuit against it.

State Attorney General Tom Horne had discussed the concept of such a lawsuit a few months earlier with representatives of the group that had lobbied against Prop 203, Keep AZ Drug Free.

On January 4, U.S. District Judge Susan Bolton tossed out the lawsuit, which had asked the court to decide whether the new law was legal.

Brewer decided on Friday that she wouldn't re-file the lawsuit and that the state Department of Health Services should begin accepting applications for dispensaries once the Compassion First, LLC, lawsuit was resolved.

Gama, in issuing his summary judgment against the state, has now resolved it.

But it will still be a few months before the state's 18,000-plus registered medical marijuana patients can walk into a pot store for their medicine.


los angeles dispensary.jpg
Medical marijuana dispensaries, like this one in Los Angeles, should be open by now in Arizona, says a Maricopa judge who ordered the state to implement the 2010 law.

Will Humble, director of the DHS, told us last night, (before we learned of the ruling), that the rules his agency came up with to administer the medical marijuana program need to be tweaked, because they contain old dates for the process. For instance, the rules state that DHS will accept applications between June 1 and June 30 of 2011.

The process to change those dates officially, though, will take about six months, Humble said.

After Gama's ruling, however, it's clear the DHS will need to tweak more than the dates.

Gama nixed the rules that require dispensary applicants to:

* Have been an Arizona resident for three years

* Have filed personal income taxes in Arizona for the previous three years

* Have never before filed for personal or corporate bankruptcy

* Not be delinquent on child support, taxes, parking tickets, student loans or other unpaid debts to the government.

Those rules are "onerous and substantively alter the requirements of the Act," Gama wrote in his minute entry. "DHS cannot bootstrap substantive regulations of who may apply..."

But Gama decided several other rules opposed by Compassion First, LLC,
are good to go because they help protect against diversion and theft of
the marijuana. Those require:

* That an individual with 20 percent or more interest in the dispensary
be the applicant or principal officer or board member of the dispensary

* Documentation that the applicants owns or has permission to use the property intended for the dispensary

* An application "to comply with state law."


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107 comments
Eric
Eric

The 25 mile rule is completely ridiculous and should go, it was only designed to create state backed monopolies and gouge patients. 

All qualified patients should boycott the dispensaries once they open, grow illegally, score on the street, whatever you have to do.  Within a few months, the urban area dispensaries will have to close or sell their inventory illegally on the black market.  If all patients only purchased meds at dispensaries located in rural areas, the number of people that will have their rights stolen by the 25 mile scam will be minimal.  

If patients stick together we can teach the well connected vultures that came up with that rule a lesson and make their investments in dispensaries designed to ripoff people virtually worthless.

Albert
Albert

Hmm.. I wonder what RULES were being disputed??? Because almost all of the health departments rules are invalid...  The health department is not given"FULL" authority by the law (prop 203)... oh...and the exemption doesn't matter.. They have to create rules that are authorized by prop 203.. and not just a book of rules that politicians, and health department officials want. Its all in the rule making section ARS 41-1001... (41- 1030) Invalidity of rules not made according to this chapter; prohibited agency action. They had an exemption to the rule making process, but they still have to follow the law as far as the authority granted by prop 203. They had about a full and a half for rule making authority...

 The biggest part against the forcing patients to use dispensaries is PROP 106.....

James
James

The Prop 106 angle is a non-starter, because MMJ dispensaries do not fall under its definitions.  Under 106, you have the right not to buy marijuana from a dispensary.  That's it.  You can't be fined for not buying from the dispensary.  It does not magically construct a right to cultivate.  I'd love to see the argument that gets you to your premise, but I don't think it's possible, and I certainly don't think it will happen until someone with standing gets a suit past the first hearing.  I have not heard of anyone who is considering it, have you?

Albert
Albert

full page and a half.... oops

charlie_oscar
charlie_oscar

Ohhh the irony!    
 
Scene:  Jan's Central Ave luxury apartment 3 am: Tammy Wynette playing on a classic 8-track player - Jan’s sits in a silk "nightie" talking Prop 203 in slurred fashion as Tom sits with his eyes closed sipping the 4 finger slug of straight scotch...nodding his head to the music - Jan stops rambling and lets her robe fall to the floor - Censorship (and compassion) requires the rest of the horror to be deleted from this point forward.

12 hours later - Tom and Jan are having eggs and bacon and Pabst Blue Ribbon...Eyes all puffy; Jan's voice box is in its usual rasp...  " Tom, what are we gunna doo about this wacky backy bunch a sunsabitches"? Tom rolls his puffy eyes and says...Deal with it Jan...Deal with it!

http://www.youtube.com/watch?v...

Jim Kay
Jim Kay

Why did you people ever elect this broad to run your state. She would rather let the mexico drug kingpins get rich instead of taxing something that is not going away. I guess she thinks its better to go somewhere and get smashed and drive home drunk rather that smoke some pot and go to bed. For some reason these wackos keep getting elected and thats because most people dont even vote.     

teknik1200
teknik1200

she signed 1070, that makes her a true american hero after all!

AZCS CEO
AZCS CEO

There are still some "rules" that need to be "tweaked" lol...start with 36-2806 C which states a "dispensary shall have a single secure entrance."

Does DHS really expect us to ask our patients to walk in to a death trap of a fire hazard, or perhaps a guaranteed robbery with no escape route?

How many more flaws would you like me to point out for you?

Expect more litigation or another set of Rules and review session coming to a media outlet near you;)

Harold J Morales
Harold J Morales

One idea to get around the ridicules 25 mile radius rule, would be for the 'Med MJ Movement' and 'Cannabis Law Reform' activists come together as a whole, to simply not apply for a single dispensary license... or have them built out in the boonies far enough away to still have large grow operations to satisfy the demand, yet not interfere with the caregiver /patient rules providing a true win /win situation.

This would surely fill more job opportunities in the long run and keep grow shops from having to shut down but rather flourish.

Until the current rules can be reevaluated down the road to serve everybody's best interest, taking care of patient needs should be the primary focus. 

Just a thought :-]

pEACE

Albert
Albert

I know its a possible buzz kill for those who wanted to take ownership of a dispensary.. But from the start.. the 25 mile halo was a nothing more than a "financial/greed" issue.  Humble has taken his minimal authority granted by law, and tried to turn into more Invalid/illegal regulations... things that they feel are missing from prop 203(restriction-wise). And this is why the legislature passed HB2541 and HB2585... which both are also illegal, and should be made invalid, but that's just another court battle the legislature and governor are going to loose.    Prop 203 actually states what the health department is allowed to create...SPECIFIC "rules" for the program. I'ts not just a free pass to do what ever they want. The CHAA areas are not within the scope of their rule making authority. That responsibility fell to the cities, and counties.. ARS-2806.01- Dispensary locations. And as most of us know the Voter Protection Act of 1998.. prohibits any laws, or even rules to be passed by the legislature or even a state agency, or any law the weakens, or even changes the protections or exclusions of voter approved legislation. And there is a possible issue with being unfair to people who don't live near a dispensary, and NOT being able to provide medicine at a substantial lower cost. You have to realize, our law lets the dispensary program "winners" deduct everything as expenses, so all of those costs are going to be tied directly into he cost of the medicine. So under the equal protection section, it seems that 25 mile halo exclusion zone would  fit into that category. Thats why Humble came out with the CHAA areas... that way you have the entire state completely "halo'd" out. Which blocks out every caregiver, and patient from growing their own, and forcing them into the dispensary program. Which leads me to the last part... PROP 106. (Which was passed with Prop 203) The way that was written it includes all residents of the state not being able to be forced into ANY kind of HEALTHCARE decision. So those 2 words ANY, and HEALTHCARE fits directly into the forced dispensary program.(FROM ANY LAWS OR RULES FROM THE STATE OR THE FEDS) The state should follow the will of the voters and start the process, but only if a patient decides they want to utilize the dispensary system. And since we (the voters) approved it, that is the Law.. we are the only ones to change that decision.  So people can still grow their own medicine if they so choose, and also use the dispensary system if they choose to utilize those options. Here's the thing the law doesn't say people have to do one or the other....  And the legislature's hands are tied from changing anything related to prop 203. Unless it furthers and increases the purpose of the law. NO Restrictions, or steps back. 

James
James

So Albert, do you have standing, and will you personally be party to a lawsuit?  Or are all your optimistic words just talk? 

Harold J Morales
Harold J Morales

Thanks for the info Albert.  If what you say is TRUE.  I highly suggest that you publish this information to the masses at large, because for myself, I've never heard it worded this way before.  Thanks!

James
James

So have you filed a motion in an AZ court challenging the CHAA exclusion rule on the basis of Prop 106?  Because I haven't heard of anyone who has standing who could actually make this happen, it's just talk, but not action.

Albert
Albert

No problem... I'm not an attorney, or have anything to do with the legal arena. I just read too much. And remember odd, and random things.  As you can tell my writing skills aren't the best, but I can usually get my point out there.  1. People just need to repeat that the health department doesn't have the "free pass" on making rules they want .. Just from the process of making, developing. They still have to follow what list of items they can develop. 2.  And that a person who lives 25 miles will get their medicine at a substantial lower price. (remember... dispensaries can deduct ALL expediences according to prop 203. This be an unfair and possible illegal practice) 
3.  And of course passing PROP 106.. which prevents the state from making any law or rule...or enforcing a federal law.... that forces a resident into ANY type of HEALTHCARE decision. It also went into effect on January 1, 2009.. (backdated legislation)   It's kind of funny... I guess the MPP, and AZMPP didn't realize that we were simultaneously passing a law that would invalidate the required use of dispensaries portion of prop 203.  GOOD JOB ARIZONA!!!!!!

Harold J Morales
Harold J Morales

I can dense at times understanding the obvious.  Thanks again for posting.

Albert
Albert

hmm... which part health dept. not having all this authority  they claim they have??? Being unfair to people living near a dispensary, and having to pay for heavily inflated medicine prices. Or prop 106...  that's one of the biggest things against the forcing patients to use a dispensary. It was the "block" to mandated health care, but it was worded vaguely  is includes all, and ANY HEALTHCARE.....  I posted the first few lines from the law.. from the secretary of states website..... I'd post a link, but for some reason it doesn't work?????  Just put the address together below and it will take you to the secretary of state site to view the entire law...
                        www.azsos.       gov/election/2010/info/pubpamphlet/english/prop106.htm

TEXT OF PROPOSED AMENDMENTBe it resolved by the House of Representatives of the State of Arizona, the Senate concurring:1. Article XXVII, Constitution of Arizona, is proposed to be amended by adding section 2 as follows if approved by the voters and on proclamation of the Governor:2. Health care; definitionsSECTION 2. A. TO PRESERVE THE FREEDOM OF ARIZONANS TO PROVIDE FOR THEIR HEALTH CARE:1. A LAW OR RULE SHALL NOT COMPEL, DIRECTLY OR INDIRECTLY, ANY PERSON, EMPLOYER OR HEALTH CARE PROVIDER TO PARTICIPATE IN ANY HEALTH CARE SYSTEM.

Rebmeir
Rebmeir

the part of the law the judge wants redone should include a removal of the 25 mile restriction for a patient to cultivate if a dispensary is within that area. why should we have to pay those expenses .lets keep costs down for the everyday american. we should not have to go in hock for meds , mmj or any other.keep government out and regulations will be few helping to lower prices.......

James
James

Removing the 25 mile rule is not so simple.  Either the 25 mile rule has to be interpreted the other way (patient cultivars preclude dispensary locations!) or else a proposition has to be put on a ballot for the voters (because the AZDOH cannot change rules that are derived from the letter of the law!) 

I think a lot of people are sitting in their gardens right now, complacent about this, not thinking that they are going to have to destroy their plants and do something else with their equipment, come April 2013, or sooner. 

teknik1200
teknik1200

yup, it doesn't seem fair.  I wonder what we can do to challenge this. $30 a month is a lot less then $800.00.  There will be more then enough people out there that don't want to go through the trouble and the dispensaries will be fine.

Wanumba
Wanumba

The Gov will comment, but she is out drinking her ass off and passed out 2 hours ago.  Guess what Jan?  You screwed up, you made it "worse".

Bad Governor, no more whiskey for you.

Angelssmoke
Angelssmoke

 Any patched member of the 81 Hells Angels MC 81 can get you all the weed you want and its the best there is out there. walk up to any HA and ask him if they got any weed for sale. they will  say yep I do and sell it to you. they grow it themselves indoors and they never run out of it and its tax free.they are 1%er outlaws and selling pot is one of their big money makers. thats why none of them work or have a job but still own big nice new homes and 3+ harley davidson or victory motorcyles. 1661 AZ. SUPPORT YOUR LOCAL HELLS ANGELS MC ARIZONA

James
James

There is a specific strain that helps me.  I don't want any other cannabis.  I want the strain that I have carefully cultivated.  Dispensaries won't have it, it doesn't bloom in commercial quantities or make the really dense flowers that the pros want.  I have it, in a legal grow, and I never want to destroy my mothers.  I will go as far as to move to Casa Grande or whatever, but I really hope I don't have to do that.  Have till April 2013 I guess.

AZCS CEO
AZCS CEO

not very bright, nuff said

Joyfully1
Joyfully1

I can "tweak" the changes in about 10 minutes. More delay tactics !!

Jim
Jim

 A tweeker is a meth addict.

PTCGAZ
PTCGAZ

and to make tweaks to something is to fix them, much like Jim said.. it started in radios in WWII when they would fix the channels, ie the frequencies.

AZCS CEO
AZCS CEO

actually no, the term was first coined by "radio men" in WWII  Words are powerful, learn their meanings

PTCGAZ
PTCGAZ

me too. My tweaks would be simple. Anyone who wants to smoke up can, anyone who wants to grow can..

Royalphoenix2
Royalphoenix2

Drunk Jan, banned for life by SEC Horne, and I'll do anything to keep my job Humble, don't like the rule of law decided at the ballot box. peace

A SPADE CAT
A SPADE CAT

 Its PEACE AND LOVE not just peace. get it together man.

Hipster Doofus
Hipster Doofus

Pot laws took effect for me back in 1967. I been smoking it since then.you guys are running just a bit way behind the hippie generation by 40+ years. you squares and straights sure are slow catching up to us hipsters.

A SPADE CAT
A SPADE CAT

 The Beatniks , Hippies and Black Jazz artist started the whole pot thing back in the 1950s. glad to see society is finally catching up to those that have come before.

James
James

I'm pretty sure the Hindus have a 4000+ year jump on jazzers in the '50s.

AZCS CEO
AZCS CEO

actually it was slightly before that lol

Just because Cab Calloway had a "reefer man" song doesn't mean it started there. It runs much deeper than that. Try the Dupount family, plastics, Henry Ford and the Hemp car, etc etc...

PTCGAZ
PTCGAZ

no, but William R. Hearst had a huge interest in making sure some plants were kept from making paper.

Seedy Ward
Seedy Ward

I've heard the allegations about the DuPonts and Ford, but have yet to see any primary source documentation on those allegations. IMO, that shit is interesting speculation, but not a matter of fact.

PTCGAZ
PTCGAZ

hate to burst your bubble but Pot has been smoked since before the 1950s.

James
James

George Washington made a diary entry about going down to the river to separate the male plants from the female on his hemp farm.  Apparently it's a job to be done one's own self, not to be delegated to a farmhand or slave.  That one note tells me everything I need to know. 

Jason
Jason

I can grasp quite a bit mentally. I served in the U.S. Army, so I must be mentally tough.

PTCGAZ
PTCGAZ

then you missed my point lol..

Guest23
Guest23

Actually it has been used since 3 millinium BC.

Jason
Jason

Gee really ya think?  your a fucking genius. that wasn't his point anyway. it goes much deeper than you can mentally grasp you square straight geek.

Mescalito Eater
Mescalito Eater

I already have plenty of pot and natural desert grown Arizona peyote so whats the big deal? pot and natural desert grown Arizona  peyote  is available all over the place and is easy to find buy and smoke. I dont understand what the big fuss is all about.

PTCGAZ
PTCGAZ

and I am smart enough to know that Peyote isn't naturally from Arizona.

Jason
Jason

 Most of these local yokel uneducated white trash desert hicks dont even know what free desert peyote is. this is the dumber generation of  2012 not the more intelligent generation of the 1960s. these guys on here are still arguing  and fighting about pot in 2012 like its some big deal. that should tell you some thing right there. they are way behind the times and also behind in their thinking. its real easy to buy pot and get stoned. you guys are way over rating this whole pot law crap.

AZCS CEO
AZCS CEO

really? So "we" should just stand by idle while patients continue to get incarcerated for "victimless crimes" one of the many things that has led us down the path to what we have now, the NDAA.
"Dumbed up" US citizens NOT standing up for what's right and remaining complacent is what caused this problem. Ignorance, such as that in which you are displaying here, is part of the problem, not part of the solution.
Try turning the TV off for a minute and log on to youtube or google and search "True history of marijuana in the US" see what you can absorb.

Jason
Jason

FYI, I didn't write what you responded to.

Seedy Ward
Seedy Ward

Everyone who wants to grow for a while (or a while longer) should get their applications into the DHS ASAP. Licenses to grow are good for a year, caregiver or patient level.

James
James

And when your renewal comes up, the strain that you carefully cultivated for a year, which is not available at any dispensary, what happens to that valuable resource?  This is a serious question. 

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