No one knows for sure where a dispensary will open in Payson, but one thing is clear — if you have a medical marijuana identification card in Gila County, you won’t be prosecuted.
On Tuesday, despite serious legal concerns, the state Department of Health Services selected more than 100 dispensary operators throughout the state.
Health Services issued a dispensary certificate for Payson to one of the nine applicants, giving them authority to grow medical marijuana and sell it. However, the identity of the winner of the dispensary certificate in northern Gila County remains confidential for the moment.
None of the dispensaries seem likely to operate until a judge rules on the conflict between state and federal law.
That means hundreds of local residents with identification cards permitting them to use marijuana to treat certain medical conditions could grow their own.
State law currently allows them to grow up to 12 plants for their own use or get it from a caregiver, an authorized grower.
Gila County Attorney Daisy Flores says her office has not prosecuted anyone for possessing or growing marijuana if they had a valid medical marijuana card and complied with the Arizona Medical Marijuana Act (AMMA).
Flores said she would likely not go after dispensaries when they open, but would evaluate prosecution “on a case by case basis.”
“Arizona voters determined that dispensaries should be permitted if in compliance with our Arizona law, as county attorney, I must respect the will of the people,” she said.
The four-hour, lottery-style drawing Tuesday came a day after Attorney General Tom Horne issued an opinion that dispensaries violate federal law.
However, issuing identification cards to patients and caregivers is OK.
“Essentially, the issuance of the registry identification is not pre-empted, as it is not authorizing any violation of federal law,” Flores said. “Therefore, while we have decriminalized for Arizona law the offenses of possession, use, or cultivation of marijuana for someone who lawfully holds a registry identification card, state law is pre-empted by federal law and it is still a federal crime to cultivate, sell, dispense, possess or use marijuana.”
Flores is among 13 state county attorneys that asked Horne earlier this month to offer his opinion on the AMMA before Tuesday’s drawing.
Horne’s opinion did not prevent the health department from proceeding with the lottery.
Will Humble, the health department’s director, said in a blog post that it is unclear what impact it will have on issuing operating licenses for those that are allocated a dispensary certificate.
“The impact of Horne’s opinion will be minimal at this point as it is non-binding and the real repercussions of the pre-emption issue will arise once a court rules on it or the federal authorities take action,” Flores said.
Any dispensary that proceeds at this time takes a gamble both monetarily and legally.
“AG Horne warned dispensaries it would be prudent to delay any work and expenditures until the pre-emption issue is resolved by the courts,” Flores said.
In the meantime, the nearly 30,000 Arizona residents that have medical marijuana cards will have to source their “medicine” from their own plants or from one of 800 authorized caregivers. Nearly 86 percent of cardholders are approved to grow and cultivate their own plants.
Flores said she would not prosecute a cardholder growing plants securely for their own use.
When and if dispensaries open, cardholders living within 25 miles could no longer grow their own plants.
“Many towns and law enforcement recognize the one benefit of a dispensary located in their area is it limits the ability of cardholders to cultivate their own marijuana in private residences,” Flores said.
On Tuesday, in a drawing broadcast live online, a half dozen state employees dutifully plucked bingo balls from a machine, issuing one dispensary license for each of the 68 competitive districts.
There were 404 applications considered in the drawings.
In 29 districts, only one application was received and in 27 areas, no applications.
The results of the drawing were posted online. A confidentiality clause in the AMMA requires the state to identity “winners” only by application number. In Payson, the lucky number is 327.
The health department plans to notify successful applicants by mail, afterward, they will have less than a year to build and get approval from the state to operate.
Tuesday’s drawing drew strong comments from both sides.
Andy Tobin, Arizona House of Representatives speaker, said in a press release that state agencies and their employees are in danger of violating federal law by complying with the AMMA. He urged the state to abandon its involvement with the sale and distribution of marijuana.
“Today marks another disappointing chapter in our state’s ill-advised experiment with so-called “medical” marijuana. The issues here are simple: federal law clearly prohibits both possession and distribution of marijuana regardless of the intent,” he said.
Attorney Ryan Hurley, whose firm represents 30 dispensary applicants, said lawsuits and politics have delayed dispensaries opening since the act passed 18 months ago. This has made it hard for patients to find a “safe and reliable source of medicine.”
What impact dispensaries will have remains unknown for now.
“Looking to what has occurred in other states, I and many other Gila County citizens, are concerned as to the impact on our communities when and if a dispensary opens in our local area,” Flores said.