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Dark Clouds Loom Over

Arizona Marijuana Lottery

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Arizona Department of Health Services Director Will Humble.
Despite Several Legal Challenges, Some In County And State Law Enforcement Cast A Pall Over AMMA Dispensary Certificate Lottery

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By John Guzzon
Modern Times Magazine

Aug. 8, 2012 — Ninety-seven certificates authorizing a non-profit group to prepare to open a medical marijuana dispensary were issued by the Arizona Department of Health Services Tuesday morning — the next step in the state’s implementation of the voter approved Arizona Medical Marijuana Act.

But nearly a year after dispensaries were to be awarded, even the director of the Department of Health Services, or DHS, is unsure if they will actually begin selling marijuana to state residents.

“There are wild cards out there. The third branch of government, the judicial branch is a part of this that probably will become increasingly involved over time. What they are going to decide, I don’t know. But I have committed to taking this one day at a time. Today we issued the registration certificates. If at some point in the future this whole program or the dispensary part ends up in court of law and the judge orders us to stop, because of the conflict, then we’ll stop,” Humble said.

The “conflict” to which Humble was referring is the Controlled Substances Act, the latest attempt by Arizona Attorney General Tom Horne and law enforcement agencies throughout the state to stop the program. The act, which was passed in 1970, classified certain substances as “controlled” and placed those substances into five schedules. Marijuana is currently a schedule one drug, which means it is considered to have a high potential for abuse, has no medicinal value and that there is a lack of safety when used under medical supervision.

Horne preempted the lottery Monday, issuing an opinion that stated his office expected a pending court case based on the argument that since the Controlled Substances Act forbids selling marijuana, the state must ask a court to stop it from enforcing a voter-approved ballot initiative.

In his press release announcing his opinion, Horne warned that while the state was obligated to move forward with the program by awarding registration certificates, would-be dispensary operators might lose their investments.

“The receipt of a registration certificate does not give a certificate holder permission to open or operate a dispensary. Certificate holders must subsequently apply for approval to operate after having completed a number of additional requirements,” Horne said. “Dispensary certificate holders are advised that it would be prudent to delay additional work and expenditures pending resolution of the preemption issue by a court, which I expect will be resolved in an accelerated manner.”

Horne and Gov. Jan Brewer have been attempting to halt the implementation of the program since before it was passed in November 2010 — both campaigned against the ballot initiative — but were hamstrung by the Arizona Voter Protection Act, which restricts the state's ability to circumvent voter-approved ballot initiatives. Instead, the state was forced to try to get a court to rule that the act was flawed, filing a federal lawsuit in May 2011. In early January, however, U.S. District Judge Susan R. Bolton threw out the federal lawsuit that Brewer used as justification for blocking the program.

Consequently, the Department of Health Services began accepting dispensary applications for each of the 126 Community Health Analysis Areas that the department uses to collect health information from every corner of the state. Humble said Tuesday that 404 applications were approved through “administrative and substantive” review, meaning they met most of the requirements outlined by the state.

He said the process was an arduous one, causing, among other things, the state to be sued by two hopeful applicants who were rejected when the county governments refused to accept their zoning queries, thereby not qualifying them for a registration certificate. However, Humble asserted that the DHS reached were able to assist many applicants to move to Tuesday’s lottery.

“We had requirements that folks get documentation from their local jurisdictions and not every jurisdiction provides the same sort of guidance and in that sense there was some shades of grey throughout making some of these final decisions,” Humble said. “That is not to say that there are not people out there who disagree with some of the  decisions we made throughout this registration process. But I am comfortable that we made a real, true effort to do the right thing to let the right candidates through, to be fair to everybody and to give folks an opportunity to correct deficiencies in their application along the way.”

According to the DHS, 404 non-profit organizations competed in the lottery Tuesday and 68 were awarded a dispensary registration certificate. In total, 97 registration certificates were awarded Tuesday, the remaining 29 coming in those CHAAs that received only one qualifying application. The CHAAs on Native American lands did not receive a dispensary certificate application.

The lottery process was broadcast live and witnessed by members of the media. A precise set of protocols was established in order to maintain the impartiality of the process, where the winners of certificates were determined by a ball blowing machine.

The protocols survived a possible snafu when a ball escaped the sealed envelope with too much momentum, causing it to bounce off of the blowing surface and onto the floor. Fortunately, the DHS had prepared for the contingency, and a staff member retrieved the ball with sterile gloves.

Humble said the protocols were in direct response to probable legal action over the impartiality of the lottery.

“I expect to get sued, I just wanted to protect ourselves for when, or hopefully if, that happens,” he said.

The next step for those who were awarded certificates is to have a member of their organization apply for, and receive, a dispensary agent license. After that license is awarded, an organization is free to apply for a license to operate.

Humble said if Horne is unsuccessful in court this month, the first dispensary might open its doors before the end of the summer.

“I don’t expect anything until the end of August,” Humble said.

John Guzzon is editor of Modern Times Magazine.
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