Will Humble’s blog: “Under the provisions of the Arizona Medical Marijuana Act we had 120 days to get the entire program up and running. A short timeframe for this complex program (to say the least). That gives us until close of business on April 13, 2011 to have everything ready.” He says that applications for patients, caregivers and dispensary agents will be 100% electronic online and will begin April 13, 2011.
Sonoran Star Remedies: “Whoa, hold on there, cowboy!!! . . . There are severe ramifications to having DHS backpedal on the requirement (January 31 draft rules) to have each dispensary be in compliance with local zoning restrictions. I suggest that we take a step back and consider what it would mean to strip away the rights of local municipalities to determine and drive their own zoning process.”
This interesting blog post is apparently in response to “Alan Sobol Adds the Rose Law Group to His List that Includes DHS, MPP & AzMMA” that discusses Alan Sobol’s March 14, 2011, letter to Arizona Department of Health Services Director Will Humble in which he complains about the uncertainty and problems caused by the DHS rules and city zoning ordinances. The author disagrees with Alan Sobol and suggests that the cities should be able to pick who gets a dispensary license rather than DHS.
Daily Miner: “After a lengthy discussion and a few comments from the public, the city of Kingman Planning and Zoning Commission agreed on a set of zoning ordinances for medical marijuana dispensaries Tuesday evening.”
Arizona Republic: “A former NASCAR driver and two businessmen are seeking [Scottsdale] city approval for a medical-marijuana dispensary near Via de Ventura and Pima Road. The Kush Clinic LLC has filed for a use permit to operate the dispensary in a 3,300-square-foot building at 8729 E. Manzanita Drive”
Arizona Republic: “Whenever Mesa Police Chief Frank Milstead speaks of medical marijuana dispensaries coming to the city, he does so with two fingers gesturing quotations around the “medical” aspect of the industry. ‘If you say they didn’t legalize marijuana, they just legalized medical marijuana, that’s a complete hoodwink,’ Milstead said in a recent meeting with the Mesa Republic.”
Arizona State Press: “A Republican state legislator who openly admits to smoking cannabis in the past is backing a measure that would reduce the penalty for possessing less than two ounces of marijuana. Rep. John Fillmore, R-Apache Junction, introduced House Bill 2228 in January.”
The California State Board of Equalization is auditing California medical marijuana dispensaries and ordering many to pay sales tax on sales of marijuana products that the businesses did not collect from patients or pay to the state. The Berkeley Patients Group did not start collecting and paying sales tax until 2007 and now the “State Board of Equalization is ordering the Berkeley facility to pay $6.4 million in back taxes and interest on $51 million in pot sales between 2004 and 2007.”
Phoenix New Times: “Arizona’s new medical-marijuana law protects qualified patients from discrimination by their employers, a progressive feature that sets it apart from similar laws in other states. A legislative bill we told you about last month aims to dilute that protection, however, and it has solid support among state lawmakers. The Patient Discrimination Act, is it might come to be called, gives employers immunity they don’t need from lawsuits that might result from the firing or reassignment of a worker who uses medical marijuana or any other illegal drug.”
The proposed law the passed the House is HB 2541.
From Arizona Department of Health Services Director Will Humble’s blog: “As I was looking through a weekly publication in the Phoenix area I noticed that there are several physicians that are already advertising their services for medical marijuana evaluations and certifications for a fee. Some of the ads and websites seem to imply that the certifications that physicians are writing right now will be valid for getting a medical marijuana registry identification card from the Arizona Department of Health Services once the law takes effect on April 14. This is not the case.”
Arizona Republic: “The rush is on to open medical-marijuana dispensaries. On Thursday, a Phoenix hearing officer will consider nine requests for use permits to open medical-marijuana operations. Eight of the applications are for dispensaries and one is for cultivation.”
Wow! After all this time only eight dispensary zoning applications for Arizona’s largest city. DHS: Take note. Your rules and the CHAAs coupled with city zoning is making it impossible for would-be dispensaries to find a site to operate an Arizona medical marijuana dispensary.
Los Angeles Times: “Measure M on Tuesday’s ballot would add a 5% marijuana tax to sales at pot dispensaries. Owners of the collectives once supported the idea but are now angry about the upcoming lottery to decide which ones can remain open. . .. Measure M would require the city’s dispensaries to pay a 5% business tax on gross receipts, which is 10 times more than the city’s highest tax.”
Arizona Republic: “The Cave Creek Town Council will discuss the drafting of a medical-marijuana ordinance at Monday’s meeting. Town Clerk Carrie Dyrek said no decisions will be made about the ordinance, but the council will focus on how to regulate medical marijuana
in Cave Creek.”
Arizona Republic: “Gila River Indian Community officials have asked Pinal County supervisors not to locate pot dispensaries within a mile of their borders because they don’t recognize medical marijuana and will prosecute anyone who tries to sell or use it on tribal land.”
West Valley News: “Avondale is prepared for pot. The City Council on Tuesday approved a resolution and ordinance establishing regulations and zoning for medical marijuana dispensaries and related uses. . . . Research conducted by the city of Avondale shows five general locations within the city where medical marijuana facilities could locate. Those vicinities are:” The story also lists ten negative secondary effects of medical marijuana dispensaries, but none of the statements is supported by any studies or evidence that the alleged effects are common.
AltnerNet: “We should be very wary about the DEA allowing regulation and marketing of pharmaceutical products containing plant-derived THC. ‘Marijuana has no scientifically proven medical value.’ So stated the United States Drug Enforcement Administration (DEA) on page six of a July 2010 agency white paper, titled “DEA Position on Marijuana. Yet only four months after the agency committed its ‘no medical pot’ stance to print, it announced its intent to allow for the regulation and marketing of pharmaceutical products containing plant-derived THC — the primary psychoactive ingredient in cannabis.
Arizona employment law attorney Chris Mason discusses how the Arizona medical marijuana law affects employers and employees with KJZZ DJ Dennis Lambert.
Arizona State Press: “Although medical marijuana will be regulated for the most part at a state level, cities face challenges with zoning laws and proximity to dispensaries. Most have held open city council meetings allowing the public to voice their opinion on this controversial change. The City of Tempe passed all of its regulation restrictions nearly a month ago, Senior Planner at the city of Tempe Ryan Levesque says.”
Eastern Arizona Courier: “Arizona is doing everything possible to avert problems with the controversial new law. The Arizona Department of Health Services completed public hearings for its draft rules for selling and dispensing medical marijuana. The city of Safford has given a first reading of its policy regulating where medical marijuana dispensaries and cultivation centers may operate.”
On February 25, 2011, the Arizona Department of Health Services published comments from the public on the January 31, 2011, second draft of the proposed rules that implement Arizona’s new medical marijuana laws. Here are the links to the comments.
The Department also received the comments below at the four public meetings held during February 14 to 17, 2011: Written Comment Forms
In addition, the Department received the following written comments: Group A and Group B
What follows are some comments I found interesting from the written comments submitted to the DHS.
“Probably the most unconstitutional provision of the 2nd draft of rules is contained in R9-17-303, where it requires each principal officer or board member of a dispensary to have been an Arizona resident for the three years immediately preceding the date the dispensary submits an application. Such residency requirements have repeatedly been held unconstitutional by the Supreme Court of the United States and other federal courts.”
“R9-17-303(B) Inset!: (9) A letter from a licensed financial institution indicating that the entity applying for the license has an open account with not less than $750,000.00 in cash (this is an estimated average cost associated with implementing the rigorous requirements of build-out, including all health and safety/security considerations, in compliance with DHS requirements and to operate over the fits! year of business) in an account. The letter must be updated one time and provided to the Department at the time the Department requests it prior to final approval of any Application. If the letter is not timely updated pursuant to this section then the application will be deemed incomplete.”
She also wants local sheriff’s department to approve the dispensary’s security plan after paying a fee. In addition, she said, the rules should “require that the appropriate jurisdiction complete a form certifying that the applicant’s location meets all of the local jurisdiction’s zoning restrictions necessary to operate as a medical marijuana dispensary including if applicable a use permit and any other special requirements under that jurisdictions land use regulations.”
Here email message to DHS’ Tom Salow ends with this curious statement:
“The information contained in this message is privileged and confidential It is intended only to be read by the individual or entity named above or their designee If the reader of this message is not the intended recipient, you are on notice that any distribution of this message, in any form is strictly prohibited If you have received this message in error, please immediately notify the sender by telephone at 480 505 3939 or by fax 480 505 3925 and delete or destroy any copy of this message Thank you”
I wonder if anybody will notify Ms. Rose about getting her message on the DHS website?
Arizona Republic: “The Glendale City Council on Tuesday unanimously passed regulations for medical marijuana facilities that operate in the city. . . . Glendale’s restrictions, which will take effect in 30 days, will put dispensaries in general office and certain commercial zones and cultivation and manufacturing facilities in light and heavy industrial zones.”
The title of this post if the title of an article published on Will Humble’s blog. His post starts:
“As we get closer to implementing the AZ Medical Marijuana Act in mid-April, I thought it might be a good idea to post some information that may be helpful to physicians and prospective qualifying patients. Over the last weeks, I’ve been sent a number of articles and sources of information about the medical use of marijuana. Probably the most comprehensive and well researched (and readable) reports I’ve seen was published in 2000 from the Institutes of Medicine called Marijuana as Medicine-The Science Beyond the Controversy.”
Today the State Bar of Arizona’s Committee on the Rules of Professional Conduct issued Ethics Rule 11-01 in which it said the following:
A lawyer may ethically counsel or assist a client in legal matters expressly permissible under the Arizona Medical Marijuana Act (“Act”), despite the fact that such conduct potentially may violate applicable federal law. Lawyers may do so only if: (1) at the time the advice or assistance is provided, no court decisions have held that the provisions of the Act relating to the client’s proposed course of conduct are preempted, void or otherwise invalid; (2) the lawyer reasonably concludes that the client’s activities or proposed activities comply fully with state law requirements; and (3) the lawyer advises the client regarding possible federal law implications of the proposed conduct if the lawyer is qualified to do so, or recommends that the client seek other legal counsel regarding those issues and appropriately limits the scope of the representation.
NOTE: This opinion is limited to the specific facts discussed herein. Because the opinion is based on the Act as currently in effect, subsequent legislative or court action regarding the Act could affect the conclusions expressed herein.
FACTS
In the 2010 general election, Arizona voters approved Proposition 203, titled “Arizona Medical Marijuana Act” (“Act”), which legalized medical marijuana for use by people with certain “chronic or debilitating” diseases. The proposition amended Title 36 of the Arizona Revised Statutes by adding §§ 36-2801 through -2819 and also amended A.R.S. § 43-1201. Arizona became the 16th jurisdiction (15 states and the District of Columbia) to adopt a medical-marijuana law.
Despite the adoption of Arizona’s Act, 21 U.S.C. § 841(a)(1) of the federal Controlled Substances Act (“CSA”) continues to make the manufacture, distribution or possession with intent to distribute marijuana illegal.
In an October 19, 2009, memorandum (“DOJ Memorandum”), the U.S. Department of Justice advised that it would be a better use of federal resources to not prosecute under federal law patients and their caregivers who are in “clear and unambiguous compliance” with state medical-marijuana laws. The DOJ Memorandum indicates that federal prosecutors still will look at cases involving patients and caregivers, however, if they involve factors such as unlawful possession or use of a firearm, sales to minors, evidence of money-laundering activity, ties to other criminal enterprises, violence, or amounts of marijuana inconsistent with purported compliance with state or local law.
Although characterizing patients and their caregivers as low priorities, the DOJ Memorandum does not characterize commercial enterprises the same way. In fact, the DOJ Memorandum says that the “prosecution of commercial enterprises that unlawfully market and sell marijuana for profit continues to be an enforcement priority” of the DOJ. [1]
The DOJ Memorandum explains that the DOJ’s position is based on “resource allocation and federal priorities” and
does not “legalize” marijuana or provide a legal defense to a violation of federal law, nor is it intended to create any privileges, benefits, or rights, substantive or procedural, enforceable by any individual, party or witness in any administrative, civil, or criminal matter. Nor does clear and unambiguous compliance with state law or the absence of one or all of the above factors create a legal defense to a violation of the Controlled Substances Act. Rather, this memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion. (more…)
This fact sheet prepared by the City of Tucson gives a good summary of Tucson’s medical marijuana dispensary and cultivation site zoning requirements.
As I said on February 8, 2011, a “Prospective Dispensary’s Single Most Important Task Before April 30, 2012 is to find a site to operate the dispensary and enter into a lease with the landlord that ties up the site. The must read article linked to below describes the difficulty would-be-dispensary owners are having finding a site in Tucson. No site, no application, no dispensary!
Arizona Daily Star: “Now that Arizona voters have decided to allow the use of medical-marijuana, just where will those who qualify be able to buy it? With strict regulations set by Tucson and other local municipalities layered on top of state rules, that question has become a nagging one for potential dispensary operators. . . . An initial challenge – before talking to a potential landlord – is finding a bit of real estate. . . . So far, the city has received three official requests from operators looking to open up pot dispensaries, he said. All three were sent back to the applicants because they had problems that would have kept them from getting approved,”
Modern Times Magazine: “Now That Absolute Prohibition of Marijuana Has Ended, The Battle For Legal Profits Has Begun. . . . Nearly four months after the passage of the initiative that legalized medical marijuana dispensaries, three issues have dominated the debate: licensing requirements and eligibility, out-of-state participants, and the requirement that a licensed medical professional must be involved in the operation.”
Arizona Republic: “the [Peoria] council voted unanimously to allow dispensaries in areas zoned for commercial use. That is similar to zoning for pharmacies, medical offices and bars. Cultivation sites would be restricted to industrial areas.”
Eastern Arizona Courier: “To stay abreast of regulating where medical marijuana dispensaries and cultivation centers may locally operate, the city of Safford gave a first reading of its policy at its meeting Feb. 14. City Manager David Kincaid urged the council to begin action to implement the city’s regulations to avoid giving the opportunity for people to open such businesses for lack of city regulation.”
The East Valley Tribune is conducting an online poll on if people are for or against medical marijuana and the total legalization of marijuana. As of February 23, 2011, 53% voted for total legalization, 24% for medical marijuana and 23% opposed to the use of marijuana for any purpose. Take the poll.
ABC 15: “The ABC15 Investigators have discovered some patients currently seeking medical marijuana evaluations are getting the wrong information about our state’s new law. . . . ‘Rather than spend time trying to get a (qualified patient) card, which is really a waste of time right now, (patients) ought to spend time looking at the rules,’ [Arizona Department of Health Services Director Will] Humble said.”