Fri, Feb. 28

Appeals Court won't delay marijuana dispensary

PHOENIX -- The state Court of Appeals ebuffed a request by Maricopa County to delay a medical marijuana dispensary.

In a brief ruling, the judges said they would not interfere with an order by Maricopa County Superior Court Judge Michael Gordon giving the county until Monday to provide the certification necessary to show whether a proposed Sun City dispensary has the proper zoning.

A spokesman for the county attorney's office said late Thursday the paperwork requested by the White Mountain Health Center will be provided by that Monday deadline.

But that does not end the legal fight.

Maricopa County Attorney Bill Montgomery said he still believes that there is an "obvious conflict between state and federal law.' And while the county will comply with this court order, Montgomery said he intends to pursue the underlying lawsuit which ultimately seeks a ruling that all dispensaries throughout Arizona are preempted by federal drug laws and therefore illegal.

The lawsuit is an outgrowth of the 2-year-old Arizona Medical Marijuana Act which permits those with a doctor's recommendation to obtain up to 2 1/2 ounces of marijuana every two weeks. The law also requires the Department of Health Services to license and regulate dispensaries to sell the drug to the more than 33,000 Arizonans who have state-issued ID cards.

Health department rules require those who want to operate a dispensary to provide certification from the local government that the planned location complies with zoning laws and is not near schools.

But county officials refused to provide that paperwork to White Mountain because Montgomery advised them that would put county employees at risk of being prosecuted for helping someone violate federal laws that still make possession and sale of marijuana illegal. Montgomery told Gordon those federal laws trump the 2010 voter-approved law.

Gordon rejected that argument.

With the Monday deadline for compliance approaching, Deputy County Attorney Tom Liddy on Thursday asked the appellate judges to put Gordon's ruling on hold.

"We have civil servants, career civil servants, working for Maricopa County who show up every day, work 9 to 5,' he told the three-judge panel Thursday morning.

"All they want to do is their job,' Liddy said. "And their job is to abide by all the laws of the state and the United States.'

But appellate Judge Michael Brown said that following Liddy's logic, someone who collects the dispensary's trash would be equally liable for facilitating the sale of marijuana -- and equally at risk of winding up facing federal criminal charges.

"It can get a little bit ridiculous on the line drawing how far you take this, and whose fingerprints might be on all these documents.

Kelly Flood of the American Civil Liberties Union, arguing on behalf of the would-be dispensary operator, also pointed out to the court that other states have had medical marijuana laws for years.

"In the time that such laws have been in operation in the various states in the nation there has been no prosecution of any state or state-level employee by the federal government for just complying with the state's laws,' she said.

Pressed by the appellate judges, Liddy acknowledged that officials elsewhere have provided the same kind of zoning certification for dispensaries in their own Arizona communities that his office contends it cannot legally provide. And he said none of them have run into legal problems, either.

In fact, Liddy conceded he could not find a single case anywhere in the United States where a public employee processing medical marijuana paperwork had ever been charged with facilitating the illegal possession or sale of marijuana, much less been convicted. Instead, he told the court that there had been some "saber rattling' by various officials of the U.S. Department of Justice who have said, in letters and memos, they remain free to prosecute anyone they believe is aiding anyone to violate federal drug laws, regardless of any state's medical marijuana statutes.

Flood told the appellate judges that, at least in this case, there's another legal protection against such federal prosecution for county employees who will handle this particular certification: They will be complying with a specific order from Gordon to provide the documentation.

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