Federal Attorneys Even Question Arizona Governors Bizarre Medical Marijuana Lawsuit

 By Howard Fischer

Federal attorneys asked a judge on Monday to throw out a lawsuit filed by Gov. Jan Brewer seeking a ruling about the legality of the state’s medical marijuana law.

Deputy U.S. Attorney Scott Risner said there is no legal basis for the lawsuit. Risner told U.S. District Court Judge Susan Bolton in legal papers filed in her court that, absent some actual threat of prosecution under federal drug laws by his office, the question is purely academic and therefore not a proper subject for litigation.

But state Attorney General Tom Horne, who filed the lawsuit in May on the governor’s behalf, said Risner is telling only part of the story.

The fight surrounds the decision by Arizona voters last year to set up a system allowing those with a doctor’s recommendation and a state-issued ID card to purchase marijuana from state-regulated dispensaries.

Since that time, several federal prosecutors, including Dennis Burke, the U.S. Attorney for Arizona, warned that possession and sale of the drug remains illegal under federal law. Brewer then directed Horne to ask a federal court whether Arizona could implement its program anyway.

In the interim, the state health department, at Brewer’s direction, decided not to license any dispensaries, though they have continued to certify patients as medical marijuana users.

Risner said the problem with Horne’s lawsuit is that no state employee involved in issuing licenses — those that Brewer said she was most concerned about — is facing prosecution.

But Horne said that’s not exactly true.

He pointed out that federal prosecutors, in their letters to state officials in Arizona and elsewhere, essentially said that medical marijuana users have nothing to fear. It’s what those letters did not say, Horne said, which amounts to a threat.

“They gave no assurance to state employees, they gave no assurance to dispensaries,’’ he said.

“And they said they were going to vigorously prosecute anyone who is involved in the distribution of marijuana,’’ Horne continued, a category that could include state workers. “What unbelievable hypocrites!’’

Horne also brushed aside Risner’s argument that there can be no risk of prosecution to state health workers since they are neither accepting nor processing applications from those who want to operate dispensaries.

“We asked for the court decision and we said we’ll hold it up until there is a court decision,’’ Horne complained. He called it “sophistry’’ for the Department of Justice to now argue that the state, by putting the license-issuing process on hold, is now not entitled to a ruling on the very issue that is holding up the process in the first place.

Risner did not return a call to his office seeking comment.

It’s not just the Department of Justice trying to have the governor’s lawsuit dismissed. Would-be dispensary operators and the American Civil Liberties Union are making similar arguments in their own legal filings.

Bolton has not set a date for a hearing.

-Article From East Valley Tribune

Medical Marijuana Clubs Pop Up As Arizona Law is Debated

by Emily Holden

Medical-marijuana dispensaries can’t yet operate in Arizona pending a judge’s ruling on Proposition 203. But that doesn’t necessarily keep cardholders from finding pot.

At least a handful of clubs that provide patients with medical marijuana have opened up in the Valley to fill that void.

Because the new state law allows most medical-marijuana cardholders to grow their own pot and share it with each other – as long as there are no dispensaries near – these clubs have developed as a go-between.

Joe Yuhas, a spokesman for the Arizona Medical Marijuana Association, which led the campaign for Prop. 203, said the law was meant to create a “regulated industry” of dispensaries. Instead, Yuhas said, the pot clubs are an unintended consequence of the state and federal dispute over whether Arizona’s new law conflicts with federal statutes banning marijuana.

“We’re going to see more and more developments like this,” Yuhas said.

The development of marijuana clubs has raised questions about their legality in two areas: the payment for the product and local zoning of the clubs.

The state Department of Health Services said it has “serious concerns about the legality of so-called cannabis clubs.” Health officials have asked the Attorney General’s Office to determine if the clubs are legal.

Maricopa County Attorney Bill Montgomery agreed the clubs are an “untested area” but said he will prosecute anyone trying to operate outside the narrow provisions of the law.

However, club owners said they’re operating legally.

Dispensaries stalled

In November, voters approved Prop. 203, which legalized medical-marijuana use for people with certain debilitating conditions. The law allowed patients – as long as they don’t live within 25 miles of a dispensary – and caregivers to grow marijuana.

The state was expected to issue up to 126 dispensary permits by August.

But U.S. Attorney Dennis Burke, following the lead of other federal prosecutors, warned prospective pot growers and sellers that they could be prosecuted under federal drug-trafficking laws.

Gov. Jan Brewer

In response to the warning, Gov. Jan Brewer and Arizona Attorney General Tom Horne filed a lawsuit in late May asking a federal judge to determine whether compliance with the law would leave state employees, dispensary owners and patients vulnerable to prosecution for violating federal drug statutes.

The ADHS then halted its dispensary-licensing process.

Meanwhile, the state has licensed 5,697 patients with medical-marijuana cards to grow their own.

The department also has approved 270 caregivers to grow marijuana for their patients.

Under the law, medical-marijuana patients can grow up to 12 plants of their own. Patients and caregivers can share it with other cardholders “if nothing of value is transferred in return.”

Patients can pay caregivers for the costs and materials they use to grow pot but not for their work.

Inside the clubs

Caregivers can grow up to 72 plants total for themselves and five others. Some have given excess marijuana to these new clubs.

Since the clubs aren’t regulated, there is no way to say for sure how many operate in the Valley.

But at least seven advertise and operate openly. Others are underground and recruit patients by word of mouth.

Owners of the 2811 Club in Phoenix have heavily promoted their club. Founder Al Sobol said hundreds of people have visited.

Tucked away in a shopping center off Bell Road, members of the 2811 Club lounge on plush-leather couches and gather around small coffee tables to read about strains of marijuana. Smoking is not allowed in the club.

In a back room, an instructor demonstrates how to make Italian salad dressing with pot. And, at a glass display counter, a volunteer hands out 3-gram samples of marijuana to cardholders.

The club scans the cards and verifies the patients’ identity with a thumb-print machine. An armed security guard stands by.

Sobol said that most members are older than 50 and that only a few are in their 20s. Members can consult with volunteers to find the best sample for insomnia or chronic pain.

Mike Miller said he spends his days at the 2811 Club so he can be around people who understand his health problems.

Miller, a diabetic, had to have a leg amputated five years ago after a wound in his foot never healed. He said he has been on painkillers and other medications since then. Miller said he hardly left his house until he got his medical-marijuana card and found the 2811 Club.

“I’m hoping that the only time I would ever need a pain pill again is aspirin,” Miller said.

Donating for pot

There is no set payment arrangement for the various clubs.

The 2811 Club charges members an initial application fee of $25 and a $75 entry fee each visit to attend classes and get a free sample.

The club offers marijuana through the Arizona Compassion Association, a co-op of patients and legal caregivers that has a display in the club. Sobol said the 2811 Club makes donations to the growers to help with expenses of growing marijuana.

Sobol said as long as patients aren’t directly paying for pot, the 2811 Club and the Arizona Compassion Association aren’t acting as dispensaries.

“We don’t sell marijuana here,” Sobol said, adding that clubs that do sell are “absolutely wrong” in their interpretation of Prop. 203.

Yoki A Má, another club in Mesa, has a similar payment arrangement, charging a $65 visit fee and giving members an eighth of an ounce of pot.

Club President Craig Scherf also said he is confident that his club is operating within the confines of the law.

But state and local authorities have not yet determined whether this arrangement constitutes transferring something of value.

Montgomery, the county attorney, said he hasn’t received any cases about medical-marijuana clubs, but he wouldn’t be surprised to get some soon. He said he can’t determine whether they’re all illegal because each case is unique.

“It sounds to me like someone is asking for something of value in order to participate,” Montgomery said. “The closer you get to asking someone to provide money to receive marijuana sounds like a salient violation of the statute.”

Ryan Hurley, an attorney who represents potential dispensary owners for Rose Law Group, said he would advise the potential medical-marijuana dispensary owners he represents against opening clubs.

“At best, it’s a stretch under the law,” Hurley said. “I think it’s very, very risky.”

Local zoning

Aside from the legality of payment issues, there are also some questions about where medical-marijuana clubs can operate.

Because clubs aren’t dispensaries, zoning regulations don’t apply to them.

Ken Strobeck, executive director of the League of Arizona Cities and Towns, worked with localities earlier this year to set up dispensary-zoning laws. Strobeck said he hasn’t heard of anyone trying to zone a medical-marijuana club.

Scherf said he is trying to open a second Yoki A Má club in Tempe.

Tempe Planning Manager Lisa Collins said she isn’t sure how local law enforcement would react to a medical-marijuana club, but the club would not need special approval to open.

She said a club might need a sales-tax license to operate as a retail business, but it wouldn’t need one if it was only providing a service for a fee.

A club would need to get construction plans approved, but it probably wouldn’t need to disclose the nature of its business, she said.

Because clubs aren’t regulated like dispensaries, they’re easier to open and run.

Sobol said he initially meant for the 2811 Club to someday become a dispensary, but he has changed his mind, in part, because there are no zoning laws about clubs.

Still, Scherf said clubs are setting up far from residential areas, schools, churches and parks to avoid trouble. His club in Mesa is surrounded by industrial businesses.

Enforcing the laws

Because there’s so much ambiguity, Phoenix police said it’s still too premature to determine whether the clubs are operating legally.

Sgt. Steve Martos, a police spokesman, said his agency hasn’t made any arrests relating to medical-marijuana clubs.

“We are looking into whether or not they are covered by the new law,” Martos said.

Gilbert police have arrested several cardholders for possession but said those arrests involved other crimes.

Robbie Sherwood, spokesman for the U.S. Attorney’s Office for Arizona, recently reiterated his agency’s stance on medical marijuana: Nobody is safe from prosecution.

 

Article From The Arizona Republic

Arizona AG Worked With Anti-Marijuana Leader On Lawsuit

Photo: James King/Phoenix New Times

Whack-job Arizona Attorney General Tom Horne started working on a nefarious plan to stop medical marijuana almost as soon as voters had approved it last November.

​

Elected state officials busily working to defeat the will of their state’s own voters — it’s an unseemly spectacle, and it’s unfolding as we speak in Arizona. Making the entire scene even more ugly is the fact that seriously ill patients are needless suffering as a result.

Within weeks of Arizona voters approving medical marijuana in their state, the top law enforcement official in the state was devising ways to stymie the will of the people. Whack-job Arizona Attorney General Tom Horne discussed a plan to launch legal action agains the state’s medical marijuana law during a January meeting with the law’s biggest opponent, it has been revealed.

Carolyn Short, who led last year’s unsuccessful campaign to stop Proposition 203, which legalized medical marijuana in Arizona, refers to the meeting in a February 16 letter [PDF] to state Department of Health Services Director Will Humble, reports Ray Stern at Phoenix New Times:

On January 10, 2011, [former Arizona U.S. Attorney] Paul Charlton and I met with Attorney General Horne to discuss our conclusion that implementation of Prop 203 would subject you and other ADHS employees to federal prosecution for violating the Controlled Substances Act (“CSA”).

AG Horne suggested that he could file a declaratory judgment action, asking a court to determine whether the implementation of Arizona’s law would subject you and other ADHS employees to the risk of federal prosecution under the CSA.

Horne and Governor Jan Brewer put that idea into action last month, filing a lawsuit in U.S. District Court. The suit asks the court to make a “declaratory judgment” on the legality of Arizona’s new law.

State officials claimed at the time that a letter to Humble by U.S. Attorney Dennis Burke prompted them to file the lawsuit. Though both Horne and Brewer openly opposed Prop 203 before voters approved it, Horne claimed to reporters last month that he and the Governor were taking a “neutral” (yeah, right) stance on the new law.

“Short’s letter lays rest to the notion of neutrality,” Stern reports in the New Times. “And it makes Burke’s May 2 letter, which merely reiterated that marijuana was against federal law, (okay, there was some new stuff about the potential risk to property owners, landlords and financiers), appear to be little more than political cover for Horne and Brewer to launch a pre-planned attack.”

Besides mentioning Horne’s idea for a federal lawsuit, Short’s letter lays the groundwork for the theory that state employees are at risk of being federally prosecuted for simply carrying out the wishes of Arizona’s voters.

Horne and Brewer claimed last month that their lawsuit — in which they are plaintiffs attempting to defeat the will of the voters — that they’re “concerned” about state employees being prosecuted.

Yet, according to New Times, U.S. Attorney Burke never threatened state employees in his own letter, and the idea that the Obama Administration would arrest state officials in Arizona (or in Washington, where Governor Christine Gregoire used an almost identical excuse to gut a law which would have legalized dispensaries there) is simply far-fetched — as in, it has never happened, anywhere, ever.

“Brewer and Horne could have let Burke and the DEA make the first move against Arizona voters, then defended the medical marijuana law as vigorously as they’re defending the immigration laws,” Stern writes. “Instead, the governor and AG appear to be working in concert with Proposition 203′s opponents to defeat the law by any means necessary.”

Flagstaff Nixes Pot Dispensay Next To Pot-Themed Restaurant

Photo: Jesse Kasten/The Lumberjack

Flagstaff, Arizona’s Cheba Hut is a friendly haven for the high and hungry. But plans to located a medical marijuana dispensary next door have been derailed by city officials.

​Aw, man. It would have been so perfect.

Locating a medical marijuana dispensary next to a sandwich shop known for its stoner-friendly atmosphere and its subs named after strains of cannabis? Genius idea, and good for both businesses.

Several ganjapreneurs evidently had the same idea, even going to far as to secure a letter of intent from the landlord to rent them the commercial space next to the Cheba Hut in Flagstaff, Arizona. Cheba Hut markets to stoners, winkingly putting in quotes “Toasted” Subs and featuring “palm trees” in its logo that look quite a bit like cannabis leaves. Oh, and check out alllll that smoke pouring out the chimney.

Graphic: Cheba Hut

“Toasted” Subs, get it? And look at those palm tree leaves. And allll that smoke comin’ out the chimney…

​

But, alas: City officials have rejected one formal zoning application and have “informally discouraged” others from submitting similar applications, arguing the site is too close to a nearby Montessori preschool, reports Joe Ferguson at the Arizona Daily Sun.

City zoning requirements for medical marijuana dispensaries require the shops to be located at least 500 feet away from the nearest school, college, alcohol/drug abuse rehabilitation facility, library, childcare center or park.

But how Flagstaff measures the distance from any of those facilities has come under attack from a local attorney representing several prospective dispensaries, including one business that wanted to open next door to Cheba Hut.

Flagstaff calculates the distance by measuring from the parcel boundary of the entire shopping center, and attorney Lee Phillips has asked the city to instead measure from where the dispensary would be located — a perfectly logical and reasonable request.

In the case of the strip mall where the Cheba Hut franchise is located, it will make the difference between “yes” and “no” with city officials.

Photo: Super Lawyers

Attorney Lee Phillips has asked the City of Flagstaff to to recalculate its measurement to reflect where the dispensary would actually be located

​ The southern edge of the property is less than 500 feet from the school, while the northern edge where the dispensary wants to locate would be far enough away to get city approval.

No fewer than a dozen different applicants have received a letter of intent from the landlord to rent out the commercial space if they receive a dispensary license from the state late this year, according to Phillips.

Because only one dispensary license will be awarded for west Flagstaff, the property can issue multiple letters of intent for the same site to different businesses.

Phillips sent a letter Thursday asking the city to immediately review its procedures. He noted dispensaries have only until June 30 to get a letter from the city confirming that their proposed location would comply with the zoning ordinance and send it to the Arizona Department of Health Services.

The ADHS is expected to issue, by mid-August, one license for each of 126 designated areas in Arizona, with two inside the city and another near Flagstaff in the county.

City Manager Kevin Burke said he was “aware” of the Phillips’s letter and said the zoning policies are “now being reviewed” by planning staff.

At least one other proposed dispensary location was nixed by the city for being too close to a school in the past few weeks. The city rejected a concept plan to open a dispensary in the Kachina Square Shopping Center on Steves Boulevard because it was too close to the College America campus in the same strip mall.

Only three possible medical marijuana dispensary sites have so far been approved by Flagstaff:

• 4401 North Highway 89

• 1110 East Route 66

• 2010 East Route 66