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Dispensary opens amid court battles over medical marijuana

Dispensary opens amid court battles over medical marijuana

Ruth Horner shows off the bag of marijuana she purchased minutes earlier from the first marijuana dispensary to start selling pot in Arizona. (Photo by Evan Wyloge/Arizona Capitol Times)

Bill Myer paces, watching the crowd grow outside his Glendale storefront’s floor-to-ceiling windows. His son Ben is in the back, behind bulletproof walls and windows, preparing for a long-awaited opening.

Outside, people are joking about Sheriff Joe Arpaio coming to arrest them when sirens are momentarily heard in the distance. Many had wondered whether police would show up on this brisk December morning.

None do.

In a few minutes, the Myers will be the first Arizonans to sell marijuana legally in a retail store.

For the Myers, who own the Arizona Organix medical marijuana dispensary, the opening marks the end of a long and tumultuous process, but also a new beginning in Arizona’s ongoing medical marijuana saga.

While they’re happy finally to open the doors of his medical pot shop, Ben has said he’s anxious — and rightly so — about the future of Arizona’s nascent medical marijuana program.

Court challenges to Arizona’s medical marijuana system — led by Attorney General Tom Horne, Maricopa County Attorney Bill Montgomery and Gov. Jan Brewer — have delayed the program’s implementation, but have failed to stop it. Pending appeals, however, still hold uncertainty for hopeful marijuana moguls like the Myers, as well as for the more than 30,000 certified marijuana users in the state.

If appeals courts, and perhaps even the Arizona Supreme Court, continue to uphold the system, other marijuana dispensaries like the Myers’ will open throughout the state. The law allows anyone with a doctor’s recommendation to buy up to two and a half ounces (roughly two full sandwich bags) of pot every two weeks.

If those courts, however, reverse the approval of the system, dispensary owners like Myer could quickly find themselves in trouble or have to shut down overnight. Medical marijuana users would have to go back to growing their own marijuana, joining co-ops of patients who share marijuana among themselves or obtaining it on the black market, as they’ve had to do since patient certification began in April 2011.

“I just don’t know what’s going to happen next,” Ben Myer said.

• • •

Montgomery, who has led the charge in challenging Arizona’s medical marijuana program, says it’s his duty to sue aggressively to bring clarity to the interplay between federal drug laws and the Arizona law, which passed by just a hair in 2010.

Montgomery’s contentions have been twofold.

He’s argued that government employees who process zoning applications or other administrative approvals for dispensaries could become targets for federal drug enforcement prosecution, simply for assisting in the opening of dispensaries.

That hypothesis was refuted, however, by a trial court this week.

After Maricopa County, on Montgomery’s advice, refused to process the White Mountain Health Center dispensary’s zoning permit application, the owners sued the county.

Maricopa County Superior Judge Michael Gordon said the county could not deny the zoning review, that government employees do not need to worry about prosecution and that the county must issue the dispensary a zoning permit.

Montgomery has also argued that the Arizona Medical Marijuana Act is preempted by federal drug laws and that it should be ruled unconstitutional.

He argued that point in the same White Mountain Health Center case, but lost on that issue as well. Gordon said the Arizona law does not prevent the federal government from enforcing federal drug laws, if they choose to do so. A carefully monitored and regulated Arizona system would even facilitate swift prosecution of the federal Controlled Substance Act as well, since detailed records are kept by the state about patients and the dispensaries.

• • •

At 10 a.m., Bill Myer swings open the door to Arizona Organix at 5301 W. Glendale Ave., Glendale. He smiles and shakes the hands of his new customers.

A crowd of about 30 men and women of all ages file into the lobby and line up at a service window as if they were customers at a bank.

Peoria resident Michael Cardenas, 19, said he’s happy to finally have a place he can purchase medical marijuana. Cardenas was one of several people waiting Dec. 6 to buy pot from Arizona Organix, the state's first medical marijuana dispensary. (Photo by Evan Wyloge/Arizona Capitol Times.)

Peoria resident Michael Cardenas, 19, said he’s happy to finally have a place he can purchase medical marijuana. Cardenas was one of several people waiting Dec. 6 to buy pot from Arizona Organix, the state's first medical marijuana dispensary. (Photo by Evan Wyloge/Arizona Capitol Times.)

The patients slide their card to one of the dispensary’s employees, who verifies each patient’s certification. Then Ben Myer brings the customers to the secure cardholder-only section of the dispensary so they can peruse the different marijuana strains and make their purchase.

Ruth Horner, a Peoria woman who uses marijuana to alleviate pain in her legs and feet caused by small tumors, is among the first cardholders to emerge with her pot.

Horner said she doesn’t smoke marijuana, but instead cooks it into butter that she can use in other foods.

Horner, 63, defies the fear that lots of young males are using the system for recreational use.

Minutes later, Michael Cardenas, a 19-year-old Peoria resident emerges with his marijuana, showing it off for TV news cameras with a large smile. Cardenas said he suffers chronic pain following knee surgery that left him with two pins in his legs. He then left on his skateboard.

• • •

To the legal rebukes he’s sustained, Montgomery says he is undeterred.

“We’re going to see this through,” Montgomery said.

And he specifically takes issue with Gordon’s notion that enforcement of federal drug laws would be aided by the Arizona law.

“I disagree with that conclusion wholeheartedly. I find the goals of the Arizona Medical Marijuana Act in direct contradiction with the federal Controlled Substance Act,” Montgomery said.

He said he intends to appeal the White Mountain Health Center case, and that he expects the case to eventually be appealed to the Arizona Supreme Court.

While Montgomery had hoped this entire process would have moved more quickly, this is playing out in accordance with the way the legal system is designed to handle these sorts of questions.

Another case, coming from a Yuma County Superior Court, ruled similarly that the Arizona law is not preempted. That case is also being appealed.

Jeffrey Kaufman, the attorney who represented the White Mountain Health Center dispensary, predicted the appellate court will not overturn the lower courts’ decisions because of a 2007 case from California, Garden Grove v. Superior Court of Orange County. That case found the California medical marijuana laws were not preempted by federal law. The case went to the U.S. Supreme Court, but the court declined to put it on its docket.

“The Garden Grove case stands at the pinnacle of this issue, and the U.S. Supreme Court had the opportunity to lop the head off this issue and they didn’t even take it,” Kaufman said. “Obviously they were not offended by the Garden Grove decision and so they chose not to do anything about it.”

Montgomery stresses that for state medical marijuana programs to be completely aligned with federal drug laws, the federal laws would have to change.

“You have to reschedule it (marijuana) from a Class 1 to Class 2 drug,” Montgomery said. “No matter how we frame the conversation, it comes back to the Controlled Substance Act.”

Arizona Department of Health Services Director Will Humble, whose department has been assigned to facilitate the state medical marijuana program, is careful not to be too critical of the legal battles Montgomery and Horne have led.

But he often repeats observations he’s made during the past two years, which suggest that Montgomery and Horne are causing more problems than they’re solving.

The Arizona Medical Marijuana Act specifies that authorized patients who live more than 25 miles from an authorized dispensary must be allowed to grow their own pot. And since there have not been any dispensaries open until now, the state Health Department has approved all authorized patients who have asked to grow their own marijuana.

Once a dispensary opens, patients within 25 miles are not able to renew their self-growing authorization. But the widespread growing that the program has, until now, allowed to take place could lead to problems that a robust dispensary network would ameliorate, advocates of the program say.

Most notably, the self-growing permitted by the system has led to a gray market of co-ops, where authorized patients can share marijuana among themselves, but without any oversight by the state.

Without any regulation of this gray market, Humble is sure some marijuana is being diverted into the hands of non-patients or simply making its way to the black market on the streets.

“The potential for diversion is much higher with self-grow… I know there’s some being diverted,” Humble said. “With dispensaries, we have very good inventory control.”

If the regulated dispensary system is able to blossom, Humble said, his department will know who is growing, who is selling and who is buying medical marijuana.

• • •

Within an hour, the crowd inside and outside Arizona Organix has winnowed. Only a few cardholders still wait to get marijuana.

Bill Myer bounces around the lobby of the dispensary, smiling, still shaking hands.

“I see absolute joy on the faces of these patients,” Myer says. “They don’t have to worry about where they will get their medicine anymore.”

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