Medical marijuana: Ariz. turns away application for dispensary

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by Paul Davenport, Associated Press Writer and Catherine Holland

azfamily.com

Posted on June 1, 2011 at 10:30 AM

Updated Wednesday, Jun 1 at 4:59 PM

PHOENIX (AP) -- An Arizona official has refused to accept an application from prospective operators of a medical marijuana dispensary, setting the stage for a possible legal challenge.

Health Services Director Will Humble on Wednesday met with members of a group that wants to establish a dispensary in Scottsdale, but he declined to accept a binder with their application papers.

Humble said at least for now he won't accept the application because of uncertainty about the legality of Arizona's medical marijuana law. He cites a recent letter from the U.S. attorney for Arizona and the state's lawsuit filed Friday against the U.S. Department of Justice.

"The CSA [Controlled Substances Act] may be vigorously enforced against large marijuana-production facilities," U.S. Attorney Dennis Burke wrote to Humble in early May.

It was that letter that prompted Arizona Attorney General Tom Horne and Gov. Jan Brewer to file  a suit seeking a declaratory judgment on the voter-approved medical marijuana program.

One phrase in Burke's letter particularly concerned them.

"This compliance with Arizona laws and regulations does not provide a safe harbor, nor immunity from federal prosecution," Burke wrote.

“You can’t have people subject to two competing sovereignties – the state sovereignty that says it’s OK [and] the federal sovereignty that says it’s not OK, we’ll prosecute it,” Horne said prior to filing the suit last week. “In that kind of a situation, you need to go to a federal judge and say, ‘OK, who prevails and what’s going to happen?’”

Based on Burke's letter, it would seem that state law and federal law are in conflict. The suit filed by Horne seeks clarity on that issue.

Until there's an answer, however, nothing can move forward, much to the dismay of medical marijuana supporters, some of whom have formed an organization called Don't Let Medical Marijuana Die, with the specific goal of seeing the Arizona law implemented.

It's not clear how long the dispensary program will be on hold.

"The length of the suspension will probably be directly related to what happens in the court system," Humble said. "As this federal case, and potentially any state cases, press forward, we'll have a clearer picture ...."

A lawyer for the applicants, Ryan Hurley, says they'll review options that include an administrative appeal or a lawsuit to compel state action.

It's also possible that the state couple be sued for failing to implement the law as approved by voters in November.

While the dispensary program is in limbo, patients can still apply for medical marijuana cards. If approved, they can grow as many as four plants of their own until the federal court issues its ruling on the issue.

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