Protecting Prop 203 – With Success Comes Danger

Nearly a year after being approved by voters, the Arizona Medical Marijuana Act has proven popular with patients, yet much of the Act remains on rocky legal ground.

Six active lawsuits confirm early predictions that such a significant social policy change would engender substantial court action.  What wasn’t known was how patients, caregivers and the business community serving these individuals would respond when the State once again attempted to scuttle the will of the voters.

In January of this year Attorney General Tom Horne offered anti-Prop 203 leader Carolyn Short a gift: he could disembowel significant portions of the Act by pitting Arizona’s new law against the Department of Justice, the Drug Enforcement Administration, and last but not least, the Controlled Substance Act of 1970, Nixon’s reaction to the social unrest being fomented by the era’s youth – and still the underpinning of Federal law.  Once Governor Jan Brewer finally browbeat Arizona Department of Health Services Director Will Humble into being the State’s Plaintiff, Horne petitioned the federal court for a “Declaratory Judgement” stating that the Act did or did not conflict with federal statutue – which of course it does, as it has in every state with a medical marijuana law.

Horne had to know his abuse of the judicial system wouldn’t yield a favorable ruling, but he also knew this: the suit would create confusion and doubt about the Act, weakening public support for a ballot initiative that won by only the slimmest of margins.  This would buy opponents time to create a “sky is falling” narrative, dutifully reported by an obedient press: that “medical” marijuana is a sham, a cover for what in actuality is a recreational users program; that dispensaries would attract crime and blight to neighborhoods; that cartels would move in under the guise of being legal dispensaries; and, that medicating patients would cause trouble in the workplace, etc, etc ad nauseum.

This storyline failed during the 2010 election cycle, but could now have the effect sought by opponents.  Why? Because due to the Act’s passage and the government’s failure to fully stop its implementation, there are patients legally using marijuana for medicinal purposes,  patients and caregivers cultivating crops, and compassion clubs and collectives opening up across the State to provide patients with access to the medicine they voted for – all activities in which just a few wrong steps, misjudgements, foolish or criminal acts might be enough to turn the tide of public opinion towards the opponent’s desired goal – repeal of the Act.

Unsurprisingly, some regretable incidents have occurred.  The press, rarely missing an opportunity to cast MMJ in a bad light, reports each incident with just enough objectivity to mask its underlying Reefer Madness bias, confirming the worst fears of opponents while stirring doubt among casual supporters of Prop 203 last November.

So,we have a hostile government (with the Legisature reconvening in January), media outlets continually sensationalizing the subject, and well-connected private citizens whose overriding life goal is re-criminalizing personal behaviors we’ve just determined should be legal.

What is IN our favor is significant, if utilized with direction and purpose.  Raw assets include 13,000+ patients and caregivers, whose numbers grow daily; responsible business owners whose fledgling enterprises are starting to bear fruit; a nationwide network of supporting advocates who have been down this same rough road; and, the knowledge that a majority of Arizonans from across the political spectrum support the right of patients to have this medicine if they so choose.

Next: An actionable plan for advocates.

[Note] Although many know me as an insurance agent providing coverage for compassion clubs and grows, in a former life I worked ten years for an elected official. My political experience also includes advising local and state candidates and non-profit lobbying.  From these experiences I learned that even underdogs can win – but only if they are in the game.

Doug Banfelder is a commercial insurance specialist.  Reach him at 480-315-9051, dougb@psigllc.com, or at www.PremierDispensaryInsurance.com

ADHS Refuses to Accept an Application for an Arizona Medical Marijuana Dispensary License

Arizona Department of Health Services Director Will Humble wrote the following on his blog on June 1, 2011:

“A prospective dispensary applicant came to our offices this morning in an effort to submit an application for a dispensary registration certificate.   We declined to accept the application because, as I wrote on Friday, we won’t be accepting dispensary registration certificate applications until the outcome of legal action filed last week.

There were several members of the media present when the prospective applicant arrived.  One of the reporters asked me a question about how the decision was made to halt the acceptance of dispensary registration certificate applications.  I want to clarify my answer to that question.  The decision to halt the acceptance of dispensary registration certificate applications was collaborative.  It was the result of multiple discussions that followed the May 2 letter from the U.S. Attorney for Arizona – including conversations involving myself, the Governor, legal counsel and staff.  It’s most accurate to say that the Governor and I reached the decision to suspend the acceptance of dispensary applications in consultation and coordination, as is typical for an issue of this significance.”

By |2011-06-05T08:42:17-07:00June 1st, 2011|AZ Marijuana Law Lawsuits, Stories & Articles, Will Humble Speaks|Comments Off on ADHS Refuses to Accept an Application for an Arizona Medical Marijuana Dispensary License

Department of Health Services Issues Proposed Medical Marijuana Rules

Proposed Arizona Medical Marijuana Rules / Regulations Issued by the Arizona Department of Health Services on December 17, 2010

Arizona Governor Jan Brewer signed a proclamation on December 14, 2010, that caused Arizona Proposition 203 to become law as of the following day.  The Arizona Department of Health Services now has 120 days ending on April 14, 2010, to prepare regulations that govern Arizona’s brand new medical marijuana patients and the dispensing and growing industry.  Today, December 17, 2010, DHS issued the first draft of its proposed Title 9, Health Services Chapter 17.Department of Health Services – Medical Marijuana Program.  Here are some of the interesting revelations I found in my quick skim through the proposed regulations:

  • “Entity” means a person as defined in A.R.S. § 1-215., which states:

“Person” includes a corporation, company, partnership, firm, association or society, as well as a natural person. When the word “person” is used to designate the party whose property may be the subject of a criminal or public offense, the term includes the United States, this state, or any territory, state or country, or any political subdivision of this state that may lawfully own any property, or a public or private corporation, or partnership or association. When the word “person” is used to designate the violator or offender of any law, it includes corporation, partnership or any association of persons.”

  • Each dispensary must have a “Medical director” who is a doctor of medicine who holds a valid and existing license to practice medicine pursuant to A.R.S. Title 32, Chapter 13 or its successor or a doctor of osteopathic medicine who holds a valid and existing license to practice osteopathic medicine pursuant to A.R.S. Title 32, Chapter 17 or its successor and who has been designated by a dispensary to provide medical oversight at the dispensary.
  • Dispensary registration fee = $5,000
  • Dispensary renewal fee = $1,000
  • Fee to change the location of a dispensary = $2,500
  • Fee to change the location of a cultivation site = $2,500
  • Fee to get or renew a qualifying patient card = $150
  • Fee to get or renew a designated caregiver card = $200
  • Fee to get or renew a dispensary agent card = $200
  • A registration packet for a dispensary is not complete until the applicant provides the Department with written notice that the dispensary is ready for an inspection by the Department.
  • Officers and board members of a dispensary must give DHS a copy of their Arizona driver’s license
  • Number of working days applicable to applications for a dispensary:  overall time frame = 90; time for applicant to complete application = 90; admin completeness 30; substantive review time = 60

Regulations Applicable to Arizona Medical Marijuana Dispensaries

  • Dispensaries can be individuals, corporations (for profit and nonprofit), limited liability companies, partnerships, joint ventures and any other business organization
  • Each principal officer or board member of a dispensary is an Arizona resident and has been an Arizona resident for the two years immediately preceding the date the dispensary submits a dispensary certificate application.”  I am very surprised by this requirement.  Proposition 203 does not contain any language that restricts who can own a dispensary or that requires owners be residents of Arizona or any other state or country.
  • The application must state whether a principal officer or board member:

1.  Is a physician currently making qualifying patient recommendations

2.  Has not provided a surety bond or filed any tax return with a taxing agency – This does not make any sense.

3.  Has unpaid taxes, interest, or penalties due to a governmental agency.

4.  Has an unpaid judgment due to a governmental agency.

5.  Is in default on a government-issued student loan.

6.  Failed to pay court-ordered child support.

7.  Is a law enforcement officer.

8.  Is employed by or a contractor of the Department

  • The application must state the name and license number of the dispensary’s medical director
  • The application must state if the dispensary and, if applicable, the dispensary’s cultivation site are ready for an inspection by the Department
  • The application must state if the dispensary and, if applicable, the dispensary’s cultivation site are not ready for an inspection by the Department, the date the dispensary and, if applicable, the dispensary’s cultivation site will be ready for an inspection by the Department
  • The application must state the name and title of each principal officer and board member
  • The application must contain a copy of the business organization’s articles of incorporation, articles of organization, or partnership or joint venture documents, if applicable.
  • The application must contain an attestation signed and dated by the principal officer or board member that the principal officer or board member is an Arizona resident and has been an Arizona resident for at least two consecutive years immediately preceding the date the dispensary submitted the dispensary certificate application.
  • The application must include a copy of the certificate of occupancy or other documentation issued by the local jurisdiction to the applicant authorizing occupancy of the building as a dispensary and, if applicable, as the dispensary’s cultivation site.
  • The application must include a copy of the dispensary’s by-laws containing provisions for the disposition of revenues and receipts.
  • The application must include a business plan demonstrating the on-going viability of the dispensary as a non-profit organization.
  • The application must state whether a registered pharmacist will be onsite or on-call during regular business hours and if the dispensary will provide information about the importance of physical activity and nutrition onsite.
  • The dispensary must employ or contract with a medical director.
  • A dispensary shall cultivate at least 70% of the medical marijuana the dispensary provides to qualifying patients or designated caregivers.  This is a surprise and probably a problem and increased costs for many dispensaries.
  • A dispensary shall not provide more than 30% of the medical marijuana cultivated by the dispensary to other dispensaries.  Another surprise!
  • A medical director may only serve as a medical director for three dispensaries at any time.
  • The building used by a dispensary or the dispensary’s cultivation site shall have a flushable toilet with running water, soap in a dispenser and toilet tissue.
  • DHS will deny an application for a dispensary if a principal officer or board member:

1.   Is not a resident of Arizona or has not been a resident of Arizona for at least two consecutive years immediately preceding the date the application for the dispensary registration certificate is submitted.

2.  Is a physician currently making qualifying patient recommendations.

3.  Is a law enforcement officer.

4.  Is an employee of or a contractor with the Department.

  • The Department may deny an application for a dispensary registration certificate if a principal officer or board member of the dispensary:

1.  Has not provided a surety bond or filed any tax return with a taxing agency.

2.  Has unpaid taxes, interest, or penalties due to a governmental agency.

3.  Has an unpaid judgment owed to a governmental agency.

4.  Is in default on a government-issued student loan.

5.  Failed to pay court-ordered child support.

6.  Provides false or misleading information to the Department.

By |2017-02-12T07:05:50-07:00December 17th, 2010|Dept Health Services, DHS Rules, Legal Issues|Comments Off on Department of Health Services Issues Proposed Medical Marijuana Rules

Arizona Department of Health Services Director on Implementing Proposition 203

Here are some interesting statements from Will Humble, the Director of the Arizona Department of Health Services, the agency that will oversee Arizona’s medical marijuana law.

On how DHS will determine which applicants get one of the 124 dispensary licenses:

“There are probably a number of ways to do it, but 3 come to mind right away.  We could, for example:

  1. Use some kind of first-come first-served process and simply approve the first 124 complete dispensary applications;
  2. Place the complete applications in a pool and have some kind of random drawing on a particular date; or
  3. Evaluate the complete applications using some kind of objective criteria (such as the professional quality of their business model, security plan, customer validation and inventory system etc) and select the best applications from the stack for approval.

Method 3 is probably the best because we’d be able to select the best of the qualified applicants”

On the proposed implementation schedule:

“Implementing the Act will take at least 4 months… and we expect to be able to accept our first applications for medical marijuana (Cannabis) cards and dispensaries in early April, 2011.  In the mean time, we’ll be developing the Administrative Code (Rules) for actually operating and regulating the program.  Here is our schedule for Rule development:

December 17, 2010: ADHS posts an initial informal draft of the Rules.

December 17, 2010 – January 7, 2011: ADHS receives informal (electronic) public comment on the initial informal draft Rules.

January 31, 2011: ADHS posts official draft Rules for public comment.

January 31, 2011 – February 18, 2011: ADHS receive public comment on a revised draft of the Rules.

February 15 – 17, 2011: ADHS holds 3 public meetings about the draft Rules

Tuesday, February 15, 2011 – 1 pm, 250 N 17th Ave., Phoenix

Wednesday, February, 16, 2011 – 1 pm, 400 W. Congress, Room 222, Tucson

Thursday, February 17, 2011 – 1 pm, 250 N 17th Ave., Phoenix

March 28, 2011: ADHS publishes the final Rules that will be used to implement the Act.”

By |2010-12-19T17:31:35-07:00November 29th, 2010|Dept Health Services, Will Humble Speaks|Comments Off on Arizona Department of Health Services Director on Implementing Proposition 203
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