Arizona Republic: “The first and so far only appeal of a use permit for a medical-marijuana dispensary has been postponed. The permit was granted to applicants Michelle Gilmore and Joseph Butler over the objections of Stephen Earl, a zoning attorney who represented Ping”
Arizona Republic: “Ahwatukee Foothills entrepreneur Dave Levine wants to take the inconvenience out of medical-marijuana use. . . . he invented the Cannabis Container Vending Machine and a heavy plastic container called the ‘Cann Can’ – short for ‘cannabis can’.”
Arizona Republic: “More than 700 patients applied for Arizona’s medical marijuana program since the state health department began accepting applications last week, and about 80 percent of them were approved, according to statistics released Friday by the Arizona Department of Health Services.”
Arizona Medical Marijuana Medical Director:
What will you get sued for?
Can You Protect Yourself and Your Family from Financial Ruin?
Disclaimer: I am not an attorney. I am the business manager for Arizona Medical Marijuana Medical Directors: AZMMMD.com. This article is strictly my opinion. It is not, nor should it be construed as offering: Advice, Instructions, Solutions, or anything other than my opinion on a subject: a subject that is changing everyday!
When I first examined the issue of the potential liability of the Medical Director of an Arizona medical marijuana dispensary I thought the answer was simple. I mean since the start of legalized medical marijuana in California, not one dispensary has been sued by a patient! In fact the only lawsuits I could find were municipalities suing dispensaries.
Unfortunately, after reviewing the final rules and having conversations with the Arizona Department of Health Services (ADHS) I now know the issue of Medical Director liability is complicated and may contain insurmountable problems for medical directors!
When you first read the job of the Medical Director it appears to be similar to a vendor providing a system for dispensary application and subsequent operation; similar to inventory control or security. However, on closer inspection of the rules and discussions with the ADHS it is MUCH, MUCH more then that!
First ask yourself: Why did Arizona require a Medical Director’s involvement in the dispensary application and operation process, but California and Colorado DID NOT?
We know the reason from discussions with the ADHS. It is control. ADHS wants someone with a license at stake (the Medical Director) to be responsible for certain elements of the dispensary application and operation process. How is this accomplished? What follows is the text of the ADHS rules that specify the duties of the Medical Director or that have an affect the Medical Director.
i. Availability of different strains of marijuana and the purported effects of the different strains;
ii. Information about the purported effectiveness of various methods, forms, and routes of medical marijuana administration;
iii. Methods of tracking the effects on a qualifying patient of different strains and forms of marijuana; and
iv. Prohibition on the smoking of medical marijuana in public places;
These sections of the ADHS rules make a Medical Director responsible for activities that if not performed properly could result in the closure of the Dispensary. The Medical Director is responsible not only for development of educational materials and training, but also the “oversight” of the specific sections of the Qualifying Patient Records. The Qualifying Patient Records may be examined for compliance at anytime by ADHS. If the records are found non-compliant:
What is the biggest problem? A dispensary agent may knowingly or unknowingly dispenses medical marijuana to an unqualified person. If that were to happen, the dispensary agent will lose his/her dispensary agent license. R9-17-323.C.2. The Most Important Question: Is this activity Criminal? If it is who will the Attorney General of Arizona or County Attorneys prosecute? Will it be the dispensary agent, owners of the dispensary entity and/or the Medical Director???
I see this as the Medical Director’s biggest liability! Unless there is a law passed to specifically address this question. It is still illegal to sell marijuana in Arizona except when a licensed medical marijuana dispensary sells to a qualified patient who has a valid registry identification card. This is Arizona not California. It is not unreasonable to expect everyone involved with the dispensary to get arrested for selling medical marijuana to an unqualified person.
Jim Mc Cready
602 578-4385
[email protected]
NJ.com: “The debate over the legality of medical marijuana in two western states has prompted State Attorney General Paula Dow to ask the Obama administration whether New Jersey’s future program could violate federal law. Dow’s office sent a letter late today to U.S. Attorney General Eric Holder asking him to clarify whether those licensed to grow or sell pot — as well as the state workers who will administer the program when it launches later this year — could face arrest.” The letter said in part:
“As the state’s chief legal adviser to all of the departments in the Executive Branch, many of which are participating in carrying out the medical marijuana legislation, it is critical that I properly advise them as to the potential criminal and civil ramifications of their actions in carrying out their duties,” according to Dow’s letter. Accordingly, I ask that you provide me with clear guidance as to the enforcement position of the Department of Justice relative to New Jersey’s medical marijuana legislation and the scope of the entities and individuals who may be subject to civil suit or criminal prosecution,”
This request is a major development in the state legal medical marijuana industry. Will the U.S. Attorney General answer the questions posed by the N.J. Attorney General? If so, the U.S. Attorney General’s answer could potentially kill the entire industry. Eric Holder is being asked to fish or cut bait. The Arizona Attorney General Tom Horne and the Attorney Generals of the other states that have legalized medical marijuana should get on the band wagon and send similar requests to Eric Holder.
A related story in the Arizona Republic today headlined “Medical marijuana: Federal pressure stirs legal confusion” discusses the implications arising from the fact that people involved in state legal medical marijuana industry are also violating federal criminal marijuana laws.
“Threatened medical-marijuana crackdowns by federal prosecutors in other states have stoked fears about whether state employees, dispensary owners and others could be punished for operating under Arizona’s fledgling law. . . . Arizona U.S. Attorney Dennis Burke’s office says it will offer guidance this week for state officials. . . . The uncertainty surrounding the new state law increased reluctance for landlords to lease to dispensaries and unsettled state Department of Health Services workers. . . . Washington’s U.S. attorneys said the legislation appears to violate federal law and could put state workers at risk for prosecution. . . . Earlier this month, Michael Ormsby, U.S. attorney for Washington’s Eastern District, sent notices to 40 property owners that house dispensaries, warning that they could be violating drug-trafficking laws. Ormsby told the landlords to evict the tenants within 30 days or face the risk of prosecution.”
The U.S. Attorney should not leave the state legal medical marijuana industry in the dark. Too many people have invested their valuable time, money and resources in the states that have legalized marijuana and they deserve to know if they will be prosecuted or not. The need to know is especially important in a state like Arizona that recently legalized medical marijuana, but has not yet have any dispensaries. Mr. Holder, if you intend to prosecute owners of Arizona medical marijuana dispensaries and their employees, tell them now before they spend substantial amounts of money and violate the law. It’s your duty! If you intend to prosecute dispensary owners and/or state employees involved in implementing or administering state legal medical marijuana laws, tell them now and you will be preventing the future violation of federal laws and the need to prosecute violators.
The Sacremento Bee: “Sacramento County District Attorney Jan Scully’s probe into Isleton’s licensing of a medical marijuana farm has hardened into a legal war of wills as city officials say they’ll refuse to testify when called before a grand jury next week. Scully subpoenaed City Council members and the city manager of the Delta hamlet April 13, after declaring in a letter that the city’s agreements with the medical marijuana grower likely ‘violate state and federal statutes’ and could subject local officials to prosecution.”
CNN Money: “in 2010 Colorado tightened the screws. New laws imposed tough and often expensive standards on how business could run. Suddenly owning a pot dispensary. . . became no more profitable than owning a liquor store.” The story says:
“The new rules include minimum distance requirements between MMCs and sensitive community areas like schools and churches; a minimum two-year residency requirement for MMC owners; restrictions on felons working at or owning MMCs; and detailed control measures for every seed grown and every ounce of bud sold throughout the state. . . . Dispensary owners in Denver, which has the highest concentration of marijuana operations, laugh at the perception that they’re raking in dough.”
The above rules are similar to the tough rules promulgated by Arizona Department of Health Services. The article also says, “Perhaps worst of all for business owners is a provision that allows local communities to adopt even stricter standards than the state,” Arizona cities are doing the same.
The Marijuana Lawyer Blog says:
“Despite it being a multi-billion industry, abuses by state regulators and local politicians can cripple or kill a dispensary. . . . the IRS can create tax and accounting nightmares for legitimate businesses operating under state medical marijuana laws. Our Los Angeles medical marijuana attorneys believe there is something more sinister at work than the commonplace ineptness of politicians. We believe the greed factor will continue to ensure dispensaries and collectives are hounded by local, state and federal officials”
TriValleyCentral.com: “But not all in the medical profession are onboard with writing certifications for their patients, even if those patients have an approved medical condition. Because marijuana is still classified as an illegal drug by the federal government, doctors at Sun Life Family Health Centers will be among the area physicians who will not write medical marijuana certifications for their patients, said Dr. Robert Babyar, medical director of Sun Life.”
Phoenix Business Journal: “The Arizona Senate passed House Bill 2541 Tuesday afternoon, giving employers more protection in their drug testing policies when it comes to dealing with employees using medical marijuana. If signed by Gov. Jan Brewer, this bill will go a long way in protecting employers and avoiding a lot of potential problems.”
See “Bill lets employers act against medical marijuana patients.” Read the text of HB 2541.
As you may know we called for the Resignation or removal of Mr. Humble last week, (See April 11th 2011 seed2successblog.com.)
On April 15 2011 Mr. Humble was questioned by the Arizona Business Journal concerning our removal demands. His peculiar response raises legitimate questions of his competency. When asked about our resignation demands Mr. Humble responded;
“My staff screens a group’s reputation before accepting any engagements, I have received numerous requests for speaking engagements but there is one group I have rejected: the Arizona Association of Dispensary professionals, Inc. led by Director Allan Sobol”.
Now Mr. Humble did not elaborate on his reasons but in contradiction to that statement he did acknowledge that he agreed to speak at the Green Relief Expo, an event whose primary sponsor was Marijuana Marketing Strategies, llc, also Directed by yours truly, Allan Sobol. What Humble failed to tell the press was that when he was first asked to speak at The Green Relief Expo back in February he REFUSED. Only after we accused him of special treatment for his friends at MPP and AZMMA did Humble reverse himself and agree to speak. However, his offer to speak was made with conditions, (conditions not required with MPP and AZMMA).
Apparently afraid of what might be asked from a group not controlled by his friends; his terms to attend the event were that he would not take any verbal questions from the audience. (The only speaker at the EXPO with that condition). Instead, Humble stated, he would only answer written questions submitted by the audience, AND ONLY after the questions were screened and censored by his handlers. Humble’s behavior and comments are further evidence of his bias. Clearly these comments were intended to promote the interest of his friends at AZMMA.
Let’s get the facts straight. In November 2010 I asked Mr. Humble to speak at a FREE educational seminar. The response I received from his staff was that Humble would not meet with anyone who has a financial interest in the Dispensary program. ( Although I explained to them that we would not be applying for a license.)
The Arizona Association of Dispensary Professionals, Inc is a legally formed legitimate Association authorized under the laws of the State Of Arizona. We are in fact Arizona’s largest Medical Marijuana Industry Trade Association consisting of over 7000 members.
On the other hand, The Arizona Medical Marijuana Association, AZMMA, is an offshoot of MPP, and the only action ever taken by that Association was when, on March 8th 2011, Joe Yuhas reserved the name of the proposed entity with the Arizona Corporation Commission. This name filing was submitted two (2) days after we filed a complaint with the Arizona Attorney General’s office alleging that the AZMMA was committing criminal fraud by charging seminar fees and claiming that the monies collected were tax deductable. This was fraudulent: AZMMA is not a legally registered corporation, and surly is not a 501c3 (not for profit entity ). The act of reserving a name with the Arizona Corporation Commission in no way establishes AZMMA as a legal entity authorized to do business in Arizona. It is merely a precursor to filing Corporate Documents. AZMMA’s representations that they are authorized to do business in this state, or that they are a Not-for-profit entity may very well represent criminal fraud.
It appears that Mr. Humble needs a new PR Company! Let us all understand what is taking place here. Mr. Humble tells the press “that his staff screens the reputation of a group before accepting any engagement”, nevertheless, he will speak with, and associate with a fee based function promoted by AZMMA, (illegally operated by his long time friend and and former MPP operative Joe Yuhas), which is an unlicensed, unauthorized non-entity making fraudulent claims. However, he refuses to speak at a FREE function sponsored by a legitimate Arizona Industry Association. This clearly creates an appearance of impropriety. Additionally, It appears that we must question the competency of his staff’s ability to review these agenda requests. If that is so, how can we trust this same staff to review applications for Dispensary operators!!! Will the same bias apply?
It should also be noted that at that same event, Mr. Humble’s other close friend, Andrew Meyer, was plying the trade of a new, also unregistered, illegal company called 203organics.
It appears to me that the Director of a AZDHS was endorsing and associating himself with a number of schemes not authorized to do business in this State. Is this the guy we want regulating the Medical Marijuana Industry?
It’s obvious that Mr. Humble is uncomfortable with the truth we bring to this process. His remarks are without merit and solely intended to damage the good work and reputation of our Association.
Mr. Humble does not need an army of security guards to protect him from us; we are a professional organization merely attempting to assure fairness in this process. Instead of fearing us he should embrace us. Associations like ours and many others across the state can bring a wealth of knowledge, information, positive impute and balance to this process. It is truly unfortunate that Mr. Humble is too biased to understand that.
Not to be distracted, there is one significant issue in the Final Rules which still needs immediate clarification. In order to provide a level playing field for all potential applicants Mr. Humble, or his replacement, must identify who will actually choose the Dispensary winners. Will it be the local zoning jurisdictions or the AZDHS? Mr. Humble continues to do the CHA CHA with respect to this very important question. While the final rules dictate that you will only need a letter from the local zoning jurisdiction stating that the proposed dispensary location meets the required zoning rules. What happens if you cannot get that letter?? Humble has already stated that you will not need a Special Use Permit ( SUP) or Temporary Use Permit, (TUP) with your initial Dispensary Application. However, What Humble has consistently ignored and danced around is the important question; what happens if a local jurisdiction refuses to give you such a letter? Many of you may be aware of the fact that some jurisdictions have conducted “pre-zoning-registrations”. In some cases these “Pre-zoning-registrations” were conducted without advance public notice. Certain select applicants with “inside” information were first in line months ago to pre-register. Some local jurisdictions are refusing to accept other applicants, or have indicated they will not write letters of compliance for those that did not “pre-register”. I believe that this is a pre-mediated effort on the part of some influential individuals to win dispensary licenses for their clients. If that local jurisdiction does not provide you with a letter stating that your property meets the requirements of local zoning requirements, will the AZDHS deny your application solely on that basis???. If that is the case then only applicants previously approved by their local zoning authority will be granted AZDHS Dispensary Licenses. In that event AZDHS is acquiescing to local jurisdictions it’s authority under Title 36 to select the Dispensary Applicants.
So, Mr. Humble, we know you are reading this, we are asking you to clarify this issue.
We believe AZDHS has no authority to assign it’s authority under Title 36 to Local Zoning Jurisdictions. In fact, to do so would be actionable by any applicant damaged by that process. A simple solution to this issue would be to forgo any zoning requirements till after the Dispensary Applicants have been chosen. It is very likely at that time many of the approved applicants may elect to move their facility to better locations within their CHAA. These new better locations will become available when the non-selected applicants terminate their lease agreements.
Additionally, considering all the rumors , allegations, and other suggestions of impropriety surrounding this process it appears that the only fair way to review and select Dispensary Applicants would be establish a review board comprised of members from the general public, the legal community, the Medical Marijuana industry and of course AZDHS.
In the interest of making this a fair and equal process to all we encourage Mr. Humble to work with all legitimate Organizations.
Sincerely,
Allan Sobol, Director
Arizona Association of Dispensary Professionals, Inc.
Arizona Republic: “A business consultant whose zoning-verification request for a medical-marijuana dispensary was denied by Fountain Hills is threatening legal action to challenge the “reasonableness” of its zoning restrictions. Ingrid Jolya, a member/manager of Phoenix-based ETD Systems, submitted an application for two suites in the strip center at 17005 E. Colony Drive. . . . There have been three denied and one has been issued . . . . The ordinance is so restrictive that there are only two possible locations for a medical-marijuana dispensary, a public storage area and a vacant lot”
This is an example of how the cities rather than Arizona Department of Health Services are now able because of the change made to the rules on April 14, 2011, to determine who gets a medical marijuana dispensary in their jurisdictions. Without a comfort letter from the city, a prospective dispensary owner cannot file an application for a dispensary license.
Phoenix Business Journal: “It’s a busy week for Will Humble, director of the Arizona Department of Health Services, who’s putting the final touches on the application process for medical marijuana cardholders. At the same time, one group is calling for his resignation.”
KOLD News: “Hundreds of patients applied Thursday for permission to buy medical marijuana, but there’s still no place to buy it. And it won’t be easy to open one, the requirements are strict. If you’re interested, before you even submit your application you’d better be able to prove that you have $150,000 in your bank account. . . . So far, 19 applications have been submitted to the city’s [Tucson] zoning office, and 14 of them have been approved.”
Arizona Daily Sun: “Tom Schwerin . . . . the owner of the Arrowhead Lodge wanted to transform his business on the corner of East Route 66 and Arrowhead Avenue into a full-fledged medical marijuana dispensary later this year.
From Will Humble’s blog: “Today was Opening Day for the Arizona Medical Marijuana Act. We rolled out our brand-new website at 8 a.m. today and began processing applications for Qualifying Patient and Designated Caregiver Registry Identification Cards. The system went live at 8:00 a.m. and we completed our first qualified patient card at about 8:30. Our first applicant was a 60 year-old gentleman from Scottsdale living with Crohn’s Disease.”
See “Arizona health director: First-day stats for medical marijuana promising,” “State now defining landscape on medical marijuana” and “Applications open for medical marijuana cards.”
Detroit Free Press: “Federal agents raided at least five properties in Oakland County and Detroit this morning. U.S. Drug Enforcement Administration agents were at two marijuana facilities in Walled Lake and Novi, a home in Commerce Township and the Bayside Sports Grill in Walled Lake. They also raided Coliseum Bar and Grill strip club on Eight Mile in Detroit.”
As Will Humble said last week, the March 28, 2011, “final” version of the rules have been changed. Today the Arizona Department of Health Services submitted to actual final rules to the Arizona Secretary of State. Here is the Department of Health Services summary of the changes made to the March 28, 2011, rules.
R9-17-302(A)(5) and R9-17-304(D)(1)(f)(ii)
The 03/28/11 rules allowed applicants for a dispensary registration certificate to submit documentation of $150,000 available to begin operating. The rule was clarified by requiring the documentation to be dated within 30 days before submitting the application, the monies to be under the control of the entity submitting the application or a principal officer of the entity, and the documentation to demonstrate that the monies had been under the control of the entity or principal officer for at least 30 days before the application was submitted.R9-17-304(D)(1)
Two subsections were added: One subsection requires an applicant for a dispensary registration certificate to submit documentation from the local jurisdiction where the proposed dispensary is located that the local jurisdiction does not have any zoning restrictions or that the proposed dispensary location complies with the zoning restrictions. A second subsection requires an applicant for a dispensary registration certificate to submit documentation that the applicant owns the location of the proposed dispensary or has permission from the owner of the location to operate a dispensary at the location.R9-17-313(E)
The 03/28/11 rules prohibited a medical director from providing a written certification for medical marijuana for a qualifying patient obtaining marijuana from the dispensary associated with the medical director. Because there is no way for a medical director to ensure that a qualifying patient would not obtain medical marijuana from the dispensary associated with the medical director, the rule was amended to prohibit a medical director from providing written certifications for medical marijuana to any qualifying patient.
Arizona Daily Star: “The competition for locations that meet the city’s [Tucson] zoning requirements has been fierce . . . . the rules don’t require any verification from the jurisdiction itself in the application. But that may change, said Tom Salow, rules administrator with the Arizona Department of Health Services. By Thursday, the state may require applicants to provide documentation from the municipality that their address meets zoning requirements, Salow said. The state also will likely require verification that the operator has permission from the property owner to run a dispensary at that site, Salow said.”
Phoenix New Times: “On Thursday, April 14, the Arizona Department of Health Services will begin accepting applications for medical marijuana patient and caregiver cards. The ADHS will review and approve or deny each application within 10 business days. So, in just a couple of weeks, some Arizonans will be able to legally possess and use pot, provided they stay within ADHS guidelines. The department won’t begin accepting dispensary applications until June, so all patients issued cards before a dispensary opens within 25 miles of their home can grow their own weed, if they indicate on their applications that they want to cultivate.”
Today is the day that Arizona’s medical marijuana law becomes effective. As of today, doctors can issue certifications to patients and patients can apply for their patient cards. Because there are no medical marijuana dispensaries at this time and will not be for until the fall, patients who receive a medical marijuana patient card from Arizona Department of Health Services will be able to legally grow up to twelve marijuana plants. Although a patient with a DHS card may grow and use medical marijuana in Arizona legally under Arizona law, the growing and possession of marijuana remains a violation of federal criminal law.
“Since the application for a medical marijuana card is electronic, anyone hoping to apply in person or by phone with the Arizona Department of Health Services will be turned away. . . . Patients first will have to do about a half-hour of data entry with things like their age, address and medical condition. They’ll then have to attach documents to their applications that include a photograph of themselves, a photo ID, and a signed doctor’s ‘attestation’ that the patient needs medical marijuana and will not give or sell it to anyone else.”
Arizona Republic: “”Medical-marijuana-dispensary applicants are having trouble securing lease agreements for suitable dispensary sites, Phoenix-area commercial-real-estate brokers and observers say. The challenge is twofold, they say: State-imposed restrictions limit the locations and types of real estate in which a dispensary can operate, and many commercial-property owners don’t want marijuana-dispensary tenants.”
Alan Sobol and his Arizona Association of Dispensary Professionals are demanding that there be an investigation of Will Humble and the Arizona Department of Health Services with respect to their implementation of Arizona’s medical marijuana laws. In a blog post Mr. Sobol makes various allegations about Will Humble and concludes:
“The people of Arizona are initialed to a fair and impartial administration of the program. Mr. Humble’s actions demand a through external investigation. The implementation of the Dispensary Application process should be delayed until such time as the rules and their development process can be reviewed by outside counsel. We respectfully request that your office conduct a full investigation into this matter.”
Toke of the Town: “An overwhelming number of studies exist to firmly support cannabis as all-purpose medicine and very possibly a strong candidate as a cure for cancer as was originally reported by the National Cancer Institute. There has never been a single documented primary human fatality from overdosing on cannabis in its natural form in any amount. How’s that for safety!”
Arizona Daily Sun: “When Thomas Dean was in high school, he watched his friends get in trouble for smoking marijuana and didn’t see any reason for it. Some were expelled from school, while others ended up in juvenile detention. As he got older, Dean became passionate about reform, and in college he got involved with the National Organization for the Reform of Marijuana Laws. Those experiences steered him toward a life spent challenging the status quo on marijuana law.”
Arizona Republic: “Those who choose to use, grow or sell marijuana under Arizona’s ‘medical’ marijuana law might not care that they are violating federal law. On the other hand, Arizona Department of Health Services employees who implement these laws very well might care that they are violating federal law, but they are faced with a dilemma.” This story was written by Carolyn Short, chairwoman of an anti-Proposition 203 campaign and Ed Gogek, a Prescott psychiatrist who specializes in addictions.
The story links to a “legal memorandum” that states:
“Based on our review of Arizona and federal statutes and case law, (1) Arizona citizens who use, possess, cultivate or distribute marijuana, or facilitate such use, possession, cultivation or distribution, including Department of Health Services (“Department”) and other State employees or agents, acting in accordance with the provisions of the Act, could be subject to federal prosecution under the CSA [Controlled Substances Act]; and (2) the Act [Arizona’s medical marijuana laws] is preempted by the CSA and thus is null and void.”
Arizona Republic: “Gayle Palms says she has a team of legal and medical experts, a business plan and the $150,000 Arizona requires to open a medical-marijuana dispensary. She knew it would be a challenge to win one of about 125 certificates for a facility that the state is expected to issue this year. But what Palms didn’t expect were challenges from her own community – and the absence of a local landlord willing to rent to her.”
Arizona Republic: “After a marathon meeting Tuesday night, the Paradise Valley Planning Commission unanimously decided that it needs more information before it can allow the Town Council to review the first special-use permit application to dispense medical marijuana. A small but vocal group’s main concerns during the 5 1/2-hour meeting were security and applicant Mountain View Medical Center’s proximity to a residential area near Tatum and Shea boulevards.”
Arizona Republic: “Two groups competing to become Gilbert’s first medical-marijuana dispensary unveiled their plans to the Planning Commission this week and both could get a use-permit early next month. Sonoran Star Remedies and Beleaf, Inc. hope to set up in Gilbert’s northwestern corridor, where most of the town’s industrial parks are. Gilbert prohibits dispensaries outside of industrial districts.”
East Valley Tribune: “Arizona’s first medical marijuana will sprout from the ground this fall, but the industry around the drug is already yielding lots of something else green: Money.”