Alan Sobol and his 2811 Club are breaking unchartered ground by creating an organization where card-carrying Arizona medical marijuana patients can pay a fixed fee of $75 to enter the club’s facility and obtain “free” marijuana.  Sobol claims his cannabis club is legal under Arizona’s medical marijuana laws, but he filed a lawsuit in Maricopa County Superior Court to get a court ruling on the legality of his cannabis club under Arizona’s law.

Arizona Revised Statutes Section 36-2811.B, states:

“A registered qualifying patient or registered designated caregiver is not subject to arrest, prosecution or penalty in any manner, or denial of any right or privilege, including any civil penalty or disciplinary action by a court or occupational or professional licensing board or bureau . . . For offering or providing marijuana to a registered qualifying patient or a registered designated caregiver for the registered qualifying patient’s medical use or to a registered nonprofit medical marijuana dispensary if nothing of value is transferred in return and the person giving the marijuana does not knowingly cause the recipient to possess more than the allowable amount of marijuana.”

This statute apparently protects a registered Arizona medical marijuana patient from violating Arizona’s criminal marijuana laws if the patient gives not more than 2.5 ounces of marijuana (or less if the recipient has additional marijuana) to another Arizona medical marijuana patient.  Stated another way, this statute protects registered Patient A if Patient A gives an allowable amount of marijuana to registered Patient B and nothing of value is received by Patient A.

If a cannabis club wants to be protected by ARS Section 36-2811.B then the events that occur at the club must be limited to registered Patient A or registered caregiver C giving an allowable amount of marijuana to registered Patient B.  Here are some potential problems that could cause a cannabis club to not be protected from Arizona state prosecution:

• Charging patients a fee when the club is involved in the marijuana gift transaction.  If a patient pays $75 to enter the club’s facility will a judge or jury find that the charge is for something other than to obtain marijuana?  If a cannabis club charged $75 to get in its door would anybody pay that amount if the club did not provide free marijuana?  Can you think of any business establishments that charge $75, $50 or $25 to get in the door?  Private country clubs charge a lot, but they provide golf and other amenities.  There are also private clubs that charge a high membership fee, but these cannot survive unless they provide value in return for the fee.  Yes amusement parks charge big admission fees, but cannabis clubs are not amusement parks or country clubs.  The best argument a cannabis club would have to avoid prosecution for violating Arizona’s criminal marijuana laws is if the club merely charges a fee for the use of its premises and the club is not involved in any way in the marijuana gift transaction.  Example 1:  Consider Cannabis Club 1 that charges $75 for a registered patient or caregiver to enter its premises.  It does not store or possess marijuana or assist donors and donees in finding each other or in consummating a marijuana gift transaction.  The donor must find a donee while both are in Club 1’s premises and the donor personally gives the donor’s marijuana to the donee.  Example 2:  Compare that scenario with Cannabis Club 2 that charges the same premises entry fee, but it accepts marijuana from patients and caregivers who then depart the premises and are not thereafter involved in the gift transaction.  Club 2 holds the marijuana and gives it to a patient.  Neither the marijuana donor nor the donee ever meet or are involved in consummating the gift transaction.  I do not believe Club 2 will be protected by ARS Section 36-2811.B.

• Who is making the gift of marijuana?  ARS Section 36-2811.B protects Patient A who gives marijuana to Patient B in exchange for nothing of value.  The cannabis club must be able to prove that the marijuana transaction involved Patient A giving to Patient B.  The transaction cannot be cannabis club giving marijuana to Patient B.  The club must keep detailed records to show the source of all marijuana given to patients.  If a person wants to be able to rely on the protection provided by ARS Section 36-2811.B that person must be able to prove that a gift of marijuana complied with the requirements of ARS Section 36-2811.B.  If Patient A merely gives marijuana to Patient B how does Patient A prove the gift complied with ARS Section 36-2811.B?  At a minimum, the club should have a document signed by Patient A (or Caregiver C) and Patient B in which it states that on a certain date Patient A (or Caregiver C) gave Patient B a specified amount of marijuana for free.  The document should contain a statement that the recipient represents and warrants to the giver that acceptance of the marijuana will not cause the recipient to possess more than 2.5 ounces of marijuana.  Donor and donee must sign the document.  Although not required, the signatures should be acknowledged before a notary public.  The document should contain proof of the identity of the parties such as the party’s Arizona driver’s license number and patient or caregiver ADHS registration numbers.  I also recommend the parties make a photo copy of each party’s Arizona driver’s license and patient or caregiver card and attach the copies to the acknowledgment of gift document.

• Does a registered patient or caregiver make the gift of marijuana or is the gift made by a third party?   For ARS Section 36-2811.B to apply, Patient A or Caregiver C must make a gift to Patient B.  If neither Patient A or Caregiver C is at the club’s facility to actually make the gift and the gift is made by club personnel, then a court could find that Section 36-2811.B does not apply.

• What is the source of the marijuana that is given to a patient?  The cannabis club must be able to prove that the marijuana that was actually given by Patient A to Patient B was Patient A’s marijuana.  This means that at a minimum the club must have an inventory system to track the source and disposition of all marijuana.  It must also have a system to segregate each patient’s and caregiver’s marijuana so it can show the source of the marijuana when another patient receives a gift of marijuana.

• Does Arizona law allow the cannabis club to possess Patient A’s marijuana?  I don’t think so.  Arizona’s medical marijuana law allows registered patients and caregivers to possess marijuana, but it does not allow a third party like a club to possess a registered patient’s or caregiver’s marijuana.  If the club rather than the registered patient or caregiver possess marijuana, those involved with the club could be charged with violating Arizona’s criminal marijuana laws.

I am sure there are other potential problems that I have not addressed, but the ones listed above are the most obvious.  Another issue involves registered caregivers who cannot be a caregiver for more than five registered patients.  A registered caregiver’s marijuana must go to one of the caregiver’s five registered patients.  Is that what happens at a cannabis club?

KTAR.com:  “The founder of a Phoenix cannabis club is suing Gov. Jan Brewer and State Health Services Director Will Humble.  Al Sobol, owner of the 2811 cannabis club, said Humble ‘threatened’ his club last week after being asked if he felt the clubs were legal.”  See “Confusion abounds in Arizona’s tricky medical marijuana marketplace” and “Marijuana club owner sues to keep doors open.”