One Day at a Time

August 6th, 2012 by Will Humble Leave a reply »

The AZ Attorney General issued an Opinion and a media release this afternoon about the Arizona Medical Marijuana Act.  The Opinion states, in part, that the voter approved Act is pre-empted by Federal Law – specifically the part that allows the cultivation, selling or distribution of marijuana.  It references 2 recent court cases that states cannot ‘authorize’ actions that are forbidden under federal law.

Today’s Opinion is just that, an Attorney General Opinion…  not a court order, and a court (or courts) may or may not agree.  Attorney General Horne has said in his media release today that he expects that there will be a motion for accelerated resolution of this issue in a pending court case.

The AGs Office also advised us this afternoon that today’s Opinion doesn’t prevent us from proceeding with tomorrow’s planned lottery on Tuesday, August 7, and the issuance of Registration Certificates- so we’ll be proceeding tomorrow as planned at 9 a.m.  I’m not sure how or whether today’s Opinion will impact the issuance of subsequent Operating Licenses for the folks that are allocated a Registration Certificate tomorrow morning. 

 So, at least for now, we’ll take it one day at a time.



  1. Henry Bowman says:

    “just pick one”. You guys are screwed. Can’t you do anything right?

    • Will Humble says:

      Henry… I’m sorry that you’re disppointed with our performance. Our team has been doing the best that they can to put together a responsible program. Remember- while we have had a fair amount of discretion when putting the regulations together- we were also tied to the plain reading of the statutory language approved by the voters. Perhaps you can point to another state that has been able to walk the medical marijuana tightrope better than our team. I guess you’re entitled to your own opinion.

  2. Sheree Culbertson says:

    I’ve been waiting for this shoe to drop. It is immoral to keep so many suffering patients dangling like this over and over. Shameful! This should have been done long before the eve of the lottery. Nothing but a political strategy.

    My disgust for all politicians grows.

  3. M.A. says:

    The list of dispensary applications on the AZ DHS website Tucson E Central CHAA has a list of 5 applications, however the drawing was out of 6. Can you clarify what happened?

    • Will Humble says:

      Please refer to the latest version of the eligibility report, which reflected the correct number of eligible applications (6), which were based on the dispensary’s proposed physical addresses, that were submitted for CHAA 109 (Tucson E Central) as of this morning at 8:15 a.m.

  4. Just a question says:

    I don’t understand why no one has pointed out to the attorney general that the pain pills they prescribe is way worse then the medical marijuana and with the state regulating this and keeping a good eye on things it may help make our state better!! Since half the narcotics that are abused are a synthetic heroin, and create a bigger drug problem then the ones that already exist, they can get a lot f people off these meds and able to eat and function and have a chance at life since they won’t be all drugged up due to the large amounts of narcotics they are given or what about all the cancer patients that can’t eat and end up getting sucker cause all the meds they are on!!!!! I have had serious migraines for over 14 years and been on every drug possible that have horrible side effects and then on numerous narcotics(which caused a pill addiction) now with medical marijuana my migraines have gotten better(manageable) and I can go through a day without horrible side effects due to narcotics and pharmaceutical drugs, with the medical marijuana I have hardly any side effects and go by the laws since I am a card holder!!!!! What is the issue?????? I need answers on why we can be prescribed every other drug and it be ok but not this!!!!!

  5. Henry Bowman says:

    Mr. Humble,

    You misinterpret my “Just pick one” comment. Please watch the replay of the live feed of the lottery drawing. After the first intermission there seems to be some confusion amongst the staff. One of the women working says in a low voice “there are two number twenty sevens”. She was referring to the pre labeled bags of balls. Then the other woman not realizing that she had a microphone on whispered very quietly yet still clear as a bell to everyone watching the live feed “just pick one”. Then all microphones were turned off and the camera was moved to a screen so we could not see what your lottery officials were doing. About 2 minutes later a lady was brought back on screen and she said they would be taking a break for a few minutes. There was obvious confusion. The screen then went blank. When the process resumed there was no explanation of what just happened.

    As a viewer I can only give my interpretation. Someone screwed up. Even worse, your employee then whispered “just pick one”. Then to top it all off your camera man shuts off the live audio feed and moves the camera off screen.

    This is all TRUE. Just watch the video yourself. Your whole lottery process just opened itself up to being shredded by any first year law school student. It reeked of incompetence.

    Now as the Director of the department I would expect you to defend your employees by saying that anyone can make mistakes and in the end it was corrected. What you would fail to realize are the thousands of hours of work that each of those lottery balls represent to each applicant. Not to mention the 10s and in some cases 100s of thousands of dollars spent to get there. People are skeptical of this process. This type of mistake and then cover up only adds fuel to that skepticism.

    As for your discretionary authority to implement the program rules, that I’ve never challenged. I just wish you would have actually followed the rules that you created. You blatantly broke your own rules with a good portion of the applications. I am referring to the proof of funds requirement. YOUR rules stated that proof of funds letters SHALL be dated by a specific date and shall contain specific information. Then when some people submit proof of funds that clearly did not meet the rules you set, you let them slide and their applications were processed as if complete. You broke your own rules.

    Then to top it all off, you didn’t give public notice as to why some applications were required to follow the rules while others were allowed to slide through. It appeard to be a very “behind the scenes” decision that was deliberately kept quiet.

    I think I know why you allowed to allow the proof of funds requirement to slide through. Very simple. Poor execution. Many applicants were unsure of the requirement. Some even went so far as to formally request clarification. The response your department delivered was less than acceptable. Those people were told that the “department was not authorized to provide ‘interpretation’ of the rules”. They weren’t asking for interpretation. They were asking for clarification of an unclear definition. It was a non responsive response. Then only when a significant number of applicants provided proof of funds that were incorrect, you made the decision to allow a breaking of your rules to satisfy those that you refused to previously provide good information too.

    Now that the lottery process is complete I have a request. Please work with dispensary operators to ensure we have a fully compliant and legitimate industry. The key word is “with”. The heavy hand of government in this situation is unlikely to create a satisfactory result for all parties involved. Making threats about the non-profitability of these dispensaries only demonstrates your departments lack of knowledge of either tax/corporate law, non profit statutes and requirements, or the requirements of the AMMA. For example, the AMMA does not require that dispensaries are non profit entities. It only requires that dispensaries have non profit provisions in their by laws as to the disposition of receipts and revenues. In short this means that dispensaries cannot have a return on capital (ie. dividends) to its shareholders. Nor does it mean that the department can limit the amount of salaries paid to its principal officers. This is outside the purview of the department or it’s rules. It falls under the non profit statutes.

    Perhaps it makes sense to conduct an open house type forum for all lottery winners to ask open and honest questions. This could even be done with an online forum. Let lottery winners use their application numbers as a login code and ask questions. The questions could then be made available to other lottery winners as well as the department responses. Since this will be done in writing and not in real time, it will allow the department to give well thought out and complete answers. Because the questions and answers are available for all lottery winners, it will save your department the hassle of answering the same question repeatedly from different operators.

    I understand that you may not be happy with every comment I’ve posted to you. This is understandable given that I’ve questioned the integrity of your department as well as you personally. Let’s see if we can move forward as the model medical marijuana example that can set the standard for the country. Let’s do this thing well. Let’s work together as an industry and government service working toward the same goals and objectives. An adversarial relationship does not benefit DHS, the medical marijuana industry or, most importantly, the patients that both parties are trying to serve.

    Henry Bowman

  6. Bonita says:

    When will the Legislators and State Government workers grow a backbone? The Original Intent of our Constitution and Amendments 1-10 guarantee the states and the people of the states Sovereignty! Amendments 9 and 10 give us the authority to Nullify any and all Federal Laws that usurp their boundaries! We the people can and must insist that our State pass the Intrastate Commerce Act! It is time for Arizona to have compassion! You keep taking our hard earned money and we all comply with the rules that have been set down in order to use medical marijuana yet drag your heels in implementing the program. Since I have been using marijuana for my muscle spasms it has kept me off all the poisoning pharmaceuticals and I have been able to live more of a normal life and able to be productive! This is messing with not only our lives but the emotional stress doesn’t help not knowing if the state will pull the program or not. Quit fearing the Defacto Government!

  7. Jim Clifford says:

    Here is part of the syllabus of Raich . Gonzales, which deals with the intra vs inter state conflict. I was disappointed in Justice Scalia’s opinion, but he doesn’t waver much from his views:

    (b) Congress’ power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce is firmly established. See, e.g., Perez v. United States, 402 U. S. 146, 151. If Congress decides that the ” ‘total incidence’ ” of a practice poses a threat to a national market, it may regulate the entire class. See, e.g., id., at 154-155. Of particular relevance here is Wickard v. Filburn, 317 U. S. 111, 127-128, where, in rejecting the appellee farmer’s contention that Congress’ admitted power to regulate the production of wheat for commerce did not authorize federal regulation of wheat production intended wholly for the appellee’s own consumption, the Court established that Congress can regulate purely intrastate activity that is not itself “commercial,” i.e., not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. The similarities between this case and Wickard are striking. In both cases, the regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity. In assessing the scope of Congress’ Commerce Clause authority, the Court need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a “rational basis” exists for so concluding. E.g., Lopez, 514 U. S., at 557. Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, 21 U. S. C. §801(5), and concerns about diversion into illicit channels, the Court has no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA. Pp. 12-20.

    (c) Respondents’ heavy reliance on Lopez and Morrison overlooks the larger context of modern-era Commerce Clause jurisprudence preserved by those cases, while also reading those cases far too broadly. The statutory challenges at issue there were markedly different from the challenge here. Respondents ask the Court to excise individual applications of a concededly valid comprehensive statutory scheme. In contrast, in both Lopez and Morrison, the parties asserted that a particular statute or provision fell outside Congress’ commerce power in its entirety. This distinction is pivotal for the Court has often reiterated that “[w]here the class of activities is regulated and that class is within the reach of federal power, the courts have no power ‘to excise, as trivial, individual instances’ of the class.” Perez, 402 U. S., at 154. Moreover, the Court emphasized that the laws at issue in Lopez and Morrison had nothing to do with “commerce” or any sort of economic enterprise. See Lopez, 514 U. S., at 561; Morrison, 529 U. S., at 610. In contrast, the CSA regulates quintessentially economic activities: the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational means of regulating commerce in that product. The Ninth Circuit cast doubt on the CSA’s constitutionality by isolating a distinct class of activities that it held to be beyond the reach of federal power: the intrastate, noncommercial cultivation, possession, and use of marijuana for personal medical purposes on the advice of a physician and in accordance with state law. However, Congress clearly acted rationally in determining that this subdivided class of activities is an essential part of the larger regulatory scheme. The case comes down to the claim that a locally cultivated product that is used domestically rather than sold on the open market is not subject to federal regulation. Given the CSA’s findings and the undisputed magnitude of the commercial market for marijuana, Wickard and its progeny foreclose that claim. Pp. 20-30.

    The best way to approach this situation is by special legislation in the US congress designed to exempt provisions of State laws allowing medical use from federal regulations, as long as all acts are intra state. Direct attacks trying to overturn Raich are not going to work. O.K., Chief Justice Roberts was wonderfully creative recently on health care, but that means nothing in this context. Congress must send it’s clear message, or medical MJ on the state level is in deep trouble, if not indirectly quashed by the evil DEA. In this circumstances, my own personal hope is that Obama gets beat, but issues an executive order to the Department of Justice that causes them to stand down. The next administration could cancel the order w/ one of it’s own, but could easily be reminded of it’s state’s rights position. One can hope something will happen.

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