Tom Horne, State Attorney General, Asks Court to Shut Down Cannabis Clubs; Says He's Taking "Softer Approach" by Not Ordering Arrests

Arizona Attorney General Tom Horne asked a court today to shut down cannabis clubs, claiming they're "blatantly illegal" under Arizona's medical marijuana law.

The motion, filed in Maricopa County Superior Court, names four clubs and an individual: "The 2811 Club, The Arizona Compassion Association, Yoki A Ma' Club, the Arizona Compassion Club and Michael R. Miller." Horne wants a judge's ruling that the clubs aren't legal and an injunction to stop them from the "selling, producing, transporting, transferring or possession of marijuana."

Horne was asked to look into the legality of clubs last month by Will Humble, director of the state Department of Health Services, who reportedly became concerned about the clubs after reading a New Times article.

We've been telling you since June about places like the Arizona Compassion Club, both in this blog and in our July 14 feature article about the state of Arizona's medical marijuana law. The clubs operate out of offices around the Valley, charging members who are qualified patients under the law a fee to join. As part of the member benefits, the club staffers say, patients can obtain "free" medical pot products.

We asked Horne if he was just passing the buck on this decision. If he's so sure the clubs are acting illegally, why not just have the clubs raided and their staffs arrested?

"I'm taking a softer approach," Horne tells us.

Horne denies that he's going the court route because of doubts about the legality of the clubs, explaining that because the law is new and there are many different "interpretations" of it, he believed involving the court system was more "prudent" than directing police to bust the club operators.

"I'm trying to be a good guy," he says.

The AG's office based its legal analysis on media reports about the clubs' activities and conducted no independent research, Horne acknowledges. But he adds that the scenario seems clear to him: "The problem is they are charging fees. If they did it all for free, it would be legal."

The Arizona Medical Marijuana Act states that qualified marijuana patients and caregivers can't be prosecuted for giving pot to another patients or caregiver "if nothing of value is transferred in return..."

Since a qualified patient can grow up to 12 plants, and a registered caregiver up to 12 plants for each of five patients under their care, that could create a lot of excess marijuana that could then be given away.

Horne says he doesn't buy into the idea that the "free" medical marijuana is simply part of the overall benefits of being in the club. Nor does he believe that caregivers, who can grow up to 12 plants for each of five patients, can legally charge a fee to help with growing expenses or other costs associated with producing or distributing any "excess" pot.

Though the civil lawsuit filed by Horne targets only four clubs, a ruling against them would "send a message" to any other clubs in the state.

If a judge agrees with Horne and declares the clubs illegal, Horne says his office would likely set a deadline for the clubs' staff members to get out of the business or face arrest.

This is the second request Horne's made to a court for a declaratory judgment relating to the new medical pot law.

In May, Horne and Governor Jan Brewer filed a lawsuit in federal court that asks a judge to rule whether Arizona's voter-approved law is legal or not.

The U.S. Justice Department has arguably sided with Arizona voters in that case, recently filing a motion that seeks to have Brewer and Horne's lawsuit dismissed.

Horne tells us that he expects to file a response to that motion within the next several days.

UPDATE: Read Horne's two court filings, plus response by Al Sobol of the 2811 Club, LLC.

Below is the full text of a news release Horne sent out today on the issue:

PHOENIX (Monday, August 8, 2011) -- Attorney General Tom Horne today filed a civil action against four Phoenix-area cannabis clubs and one individual that falsely claim to be operating lawfully under the Arizona Medical Marijuana Act (AMMA). The action is for declaratory judgment and injunctive relief and is filed on behalf of the State and the Arizona Department of Health Services.

"The law permits one card holder to give marijuana to another card holder. But is does not permit the activities of these Defendants, who charge fees to members. These private entities and individuals are in no way permitted to legally transfer marijuana to anybody," Horne said. "The operators of these clubs claim that they are protected under the Arizona Medical Marijuana Act when they are not registered as non-profit medical marijuana dispensaries as required under that law. These people are marketing themselves as being able to lawfully transfer marijuana, and that type of deception and blatantly illegal activity must be stopped."

The filing in Maricopa County Superior Court claims that The 2811 Club, The Arizona Compassion Association, Yoki A Ma' Club, the Arizona Compassion Club and Michael R. Miller are all private cannabis clubs or owners/operators of clubs that have claimed they are able to lawfully participate in the possession, production, transportation, sale, or transfer of marijuana in accordance with A.R. S. § 36-2801 et. seq., the Arizona Medical Marijuana Act. However the Act does not offer legal protection to cannabis clubs, cooperatives or any other person, association or entities that are not registered nonprofit medical marijuana dispensaries. Nor does the act decriminalize the possession, production, transportation, sale, or transfer of marijuana by or through those entities.

This action asks the court to issue a declaratory judgment that each of the Defendants is violating the AMMA and prohibit them from engaging in activities that involve selling, producing, transporting, transferring or possession of marijuana.

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