Wednesday December 5, 2012

PHOENIX (AP) -- Arizona’s medical marijuana law is constitutional and federal drug laws don’t stand in the way of public officials implementing it, a judge said Tuesday in a ruling that sets the stage for the opening of the state’s first pot dispensary.

"This court will not rule that Arizona, having sided with the ever-growing minority of states and having limited it to medical use, has violated public policy," wrote Judge Michael Gordon of Maricopa County Superior Court.

The case started over a dispute over whether Maricopa County had to approve zoning for a dispensary in Sun City. It grew to include the larger legal question of whether federal drug laws pre-empt Arizona’s medical marijuana law.

Gordon ruled that the state law only provides a narrow allowance for use of marijuana for medical allowances under a tightly regulated state system, and as a result is not pre-empted by the federal law criminalizing marijuana sale and possession. "No one can argue that the federal government’s ability to enforce the (Controlled Substances Act) is impaired to the slightest degree," the judge said.

Jeffrey Kaufman, a lawyer for White Mountain Health Center, the proposed dispensary that was the subject of the court fight, hailed the ruling.

"It’s great news -- unequivocal," he said.

Arizona Attorney General Tom Horne and Maricopa County Attorney Bill Montgomery said they would appeal.

"As the trial court notes, the questions of law presented in this case and the analysis utilized by the trial court are not well settled or universally accepted. Accordingly, we will seek appellate review of the trial court’s decision," Montgomery said.

In the meantime, Horne said, "the medical marijuana program will continue."

Under Gordon’s ruling, county officials must provide White Mountain with documentation that it complies with local zoning restrictions.

During an Oct. 19 hearing, attorneys for the American Civil Liberties Union and its Arizona affiliate argued that the state law is not pre-empted by federal regulations.

They said the state is allowed to make policy decisions on medical marijuana.

Lawyers for Arizona and the county argued that the state law cannot be fully implemented because federal drug laws make it a crime to possess, grow or distribute marijuana and because federal laws are considered supreme over state statutes. Arizona allows use of medical marijuana for such conditions as cancer, chronic pain and muscle spasms.

Arizona health officials have started licensing dispensaries, and the first one is expected to open Thursday in suburban Glendale.

Ben Myers, a director for Arizona Organix, said the pending ruling "was a big factor" in the nonprofit waiting several weeks to open its dispensary after it was inspected and licensed by state officials.

Federal authorities remain a concern, but Arizona Organix believes it won’t be targeted because it will carefully follow state law while avoiding doing things that have attracted federal attention in other states, such as shipping marijuana out of state and growing hundreds of pounds of marijuana monthly, Myers said.

White Mountain won’t be able to open its health center for some time because it was focused on the court fight and a location it planned to rent is no longer available, Kaufman said. More than 30,000 people already have cards authorizing them to possess and use medical marijuana in Arizona.

Most of those people also had authorization to grow marijuana, but that permission gets phased out once a dispensary is licensed in their area and their card with current growing authorizing comes up for renewal annually.

Montgomery told Gordon during the Oct. 19 hearing that county employees could face prosecution by the federal government for aiding and abetting drug crimes if the dispensaries open.

But Gordon ruled that public employees wouldn’t be violating federal law because they had no stake in dispensaries and would just be doing their administrative jobs.

White Mountain Health Center sued the county after it rejected the facility’s registration certificate, which is part of the state requirement to become a medical-marijuana dispensary applicant.

The case took on broader focus when Montgomery and Horne made separate but coordinated requests in the court case, specifically targeting the Arizona law’s dispensary provisions.

Gordon had already ruled that state health officials could not decline to award a dispensary license to White Mountain because of the county’s inaction, but Horne and Montgomery asked the judge to dismiss White Mountain’s lawsuit on grounds that Arizona’s law is illegal.