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Arizona’s medical marijuana program not preempted by federal law, judge rules

In this Tuesday Jan. 26, 2010 file photo, a pedestrian walks past a marijuana leaf neon sign advertising a medical marijuana provider along a street in the Sherman Oaks section of Los Angeles, Calif. States may be saying yes to medical marijuana, but local governments are increasingly using their laws to keep dispensaries out. In California, nearly 200 city and county governments have banned marijuana dispensaries over the last eight years. That?s three times as many as have adopted regulations for them. (AP Photo/Richard Vogel)

Arizona’s medical marijuana laws are not preempted by federal drug laws, a Maricopa County Superior Court judge ruled today, and cities or counties cannot block marijuana dispensaries from obtaining zoning permits.

Most narrowly, the decision, issued by Superior Court Judge Michael Gordon in the case of White Mountain Health Center Inc. v. Maricopa County, orders the county to issue zoning authorization to the center’s  dispensary in Sun City.

On the legal advice of Maricopa County Attorney Bill Montgomery, the county had refused to do so, arguing that federal drug laws make even the authorization of a dispensary by the county illegal.  Montgomery said he plans to appeal the decision.

Montgomery, who defended the county in court, said county employees would be complicit in violating federal drug laws by issuing zoning authorization to dispensaries.

Gordon disagreed in his ruling.

READ THE RULING

“The Court finds that the employees are not violating federal law. Their specific intent is to perform their administrative tasks. They have no interest in whether the dispensary opens, operates, succeeds or fails. They are wholly unconnected to and separate from the person(s) or entity that will purportedly be completing the substantive offense,” Gordon wrote.

The court ordered Maricopa County to issue a zoning permit to the dispensary within ten days.

More broadly, the decision is another step toward settling a longstanding dispute over whether the Arizona Medical Marijuana Act, passed narrowly by voters in 2010, would be preempted by federal drug laws.

Gordon said that Arizona’s law does not stop federal law enforcement officers from arresting and prosecuting any of the dispensary owners for violating federal drug laws, and that the Arizona program would even make easy targets for such prosecution, if federal authorities were to choose to pursue them.

Montgomery, who has argued that federal drug laws make portions of the Arizona program illegal, has unsuccessfully fought to stop the opening of dispensaries in other courts as well.

In 2011, Montgomery, along with Gov. Jan Brewer and Attorney General Tom Horne, asked a federal court to evaluate the same question of preemption.  That court said it could not rule on the question since nobody had been charged with a crime.

 

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