Suit and Countersuit Delay Implementation

Last November, voters in Arizona approved a new medical cannabis law, making it the 15th state to remove criminal penalties for patients. But state officials in May asked a federal court to clarify whether its medical cannabis law conflicts with federal prohibition and have delayed implementation of the law while the suit is pending.

The legal process promises to be lengthy and has already spawned at least one counter-suit last month from a group representing medical cannabis dispensaries that are now prevented from operating.

Currently, qualified patients and their caregivers may grow up to 12 plants per patient. Arizona has so far licensed nearly 2,700 people to cultivate. Once the distribution centers mandated by the initiative are established, only patients who live more than 25 miles from a dispensary will be permitted to grow their own medicine. Qualified patients from out-of-state are permitted to possess and use cannabis, though they will not be allowed to purchase it in Arizona dispensaries, once they are licensed.

The licensing process for distribution centers under Proposition 203 was halted by an executive order from the governor.

Governor Brewer and state Attorney General Tom Horne say they filed suit in response to a threatening letter from the local U.S. Attorney to the state health director. As with the other threats sent to state officials around the country, the letter warns that those involved with distribution or programs that facilitate it may be criminally prosecuted in federal court.

The message from federal authorities has been mixed at best. President Obama promised during his campaign to end federal interference in state medical cannabis programs, a promise reiterated by U.S. Attorney General Eric Holder. A Department of Justice memo to federal prosecutors in 2009 suggested they not expend resources targeting medical cannabis patients or providers, but that was contradicted by a new DOJ memo released last month that urged prosecution even for individuals in full compliance with state medical cannabis laws.

That confusion was compounded by official statements from the Arizona U.S. Attorney, who said, “We have no intention of targeting or going after people who are implementing or who are in compliance with state law. But at the same time, they can’t be under the impression that they have immunity, amnesty or safe haven.”

The suit by prospective dispensary operators asks that Governor Brewer’s suit be dismissed and state law be implemented. With a June deadline of applications looming, many potential operators, who are required by state rules to show at least $150,000 in startup funds, had already arranged leases, began local zoning processes, and hired employees.

“We’d like to believe Governor Brewer has the best interest of Arizonans at heart,” said ASA executive Director Steph Sherer. “But her opposition to medical cannabis is well known, and this is a convenient way to stall implementation.”

In addition to allowing the use and cultivation of cannabis by qualified patients, Arizona’s new law also includes explicit civil rights protections for patients. Schools and landlords will not be able to discriminate against medical cannabis users, and a positive drug test will no longer be grounds for denying or terminating employment for patients. Patients’ parental rights will also be protected, and medical treatments such as organ transplants can no longer be denied solely because a person uses cannabis therapeutically.

Arizona’s Proposition 203, which passed by a razor-thin margin of just 0.2%, is the third medical cannabis initiative to be approved by the state’s voters, but the previous measures proved impossible to implement.

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