Arizona Counties Try but Fail to Restrict Home Medical-Marijuana Cultivation

As cannabis advocates debate whether a proposed Arizona legalization law allows counties or towns to ban home growing, attempts to regulate home cultivation of medical marijuana have failed.

The inability of counties to control home cultivation by qualified medical-marijuana patients gives insight into how the planned legalization measure may work for those who want to grow their own.

The Campaign to Regulate Marijuana Like Alcohol is expected to put a ballot measure before voters this November that would legalize small amounts of marijuana for adults 21 and older, establish a system of retail shops where cannabis products could be purchased, and allow adults to grow up to six plants each in their homes, with a maximum of 12 plants per household.

If the CRMLA measure fails, growing or possessing any amount of marijuana in Arizona will remain a felony. But supporters of Arizonans for Mindful Regulation, a group that still hopes to put its own measure on the ballot this year, say even if voters approve the CRMLA, many counties or cities in Arizona simply will ban the right to home cultivate, a situation that would help keep pot prices sky high. 

The text of the CRMLA measure allows for "reasonable" limitations on home growing "when it is injurious to the environment or otherwise is a nuisance to a considerable number of persons."

After voters passed the Arizona Medical Marijuana Act in 2010, several counties tried to restrict home cultivation in ways that weren't envisioned by the act. The primary restriction under the law, and one that keeps most of the about 90,000 cardholders from cultivating, is that a patient's residence can't be closer than 25 miles to an operating dispensary. Patients in the remaining rural areas who qualify are allowed to grow up to 12 plants, with the only requirement being that the indoor farm be in an enclosed, locked area that's out of public view.

The rural counties of Apache and Gila approved ordinances in 2011 that also require patients to obtain a permit even when growing discreetly in their own homes.

Yet, as officials confirm, no patient in either county ever applied for a permit.

In Apache County, an update to the medical-marijuana ordinance scheduled to be discussed at a hearing in May would eliminate the provision. Milton Ollerton, director of community planning for the county, tells New Times that the county's lawyer believes the county's ordinance might not hold up to legal scrutiny.

In any case, if either county found out that a patient was growing marijuana at home without a permit, the consequences likely wouldn't be severe.

"We would probably require them to get a permit," says Scott Buzan,  a Gila County building official.

Officials add that they haven't advertised the permit rule for medical home-grows,so most people probably don't know about it.

Maricopa County's medical-marijuana ordinance doesn't attempt to restrict home cultivation. But the state's second-largest county, Pima, has a few rules for patients that go beyond the state Medical Marijuana Act.

Pima County doesn't require a permit in most cases, but a property owner would have to get a permit to grow in an addition to a home. The county's ordinance also mandates that homeowners cultivate an area no larger than 50 square feet. If someone were found to be violating that, which hasn't happened yet, the county simply would work with the patient to get him or her in code, says planning official Chris Poirier.

The county also requires that a grow be at the patient's primary residence. Poirier could recall only one case in which a patient's home-cultivation project turned out to be a problem. In that case, a couple of patients rented a home that was used exclusively as a grow room. County officials called the property owner, who terminated the patients' lease, Poirier says.

"If someone wants it away from their home, we don't want them putting it next to someone else's home," he says.

Whether the 50-square-feet ordinance or the one disallowing offsite cultivation for individual patients would stand up to legal scrutiny is another story.

But as with Apache and Gila counties, Pima doesn't hear much, if anything, about these legal, medical home-grow operations, Poirier says, because such patients tend to be very discreet.

The number of patients who can legally grow in Arizona is expected to expand over the next year or two as dispensaries that previously were restricted to rural areas are allowed to move closer to population centers.