Arizonans ended their state's archaic, overly punitive, and arguably racist felony marijuana laws on Tuesday, election tallies show — a history-making vote that came as the old-guard Republicans lost power.
By an overwhelming victory of 60-40, Proposition 207, the Smart and Safe Arizona Act, will be law of the land unless voters decide to replace it. Because of the 1998 Voter Protection Act, initiatives approved by voters cannot be changed by the Legislature without a three-quarters majority vote, and even then, the change must further the purpose of the law. So, Prop 207 is very likely here to stay.
The dense, 17-page law does a whole lot of things. (Click here to read the final version that was approved by voters.) Instead of facing felony arrest for any testable amount of marijuana, adults 21 and older in Arizona will now be able to possess up to an ounce of "flower" and up to five grams of concentrates. They can also grow up to six plants, or 12 if they have two people living on one property.
The state's medical marijuana dispensaries will, in a few months, begin selling their products to all adults old enough to buy liquor. People who got busted in the past for 2.5 ounces or less will be able to erase their criminal records from public view.
Those are the broad strokes. But such a seismic shift in the justice system is inevitably accompanied by all kinds of new issues, problems, and ideas. There are questions within questions, and it'll be months before the state has all the answers.
Meantime, though, we had a few things we wanted answered right away. So we called up a few knowledgeable individuals — local attorneys Tom Dean, Laura Bianchi, and Gary Smith, and Raul Molina, senior vice president of operations for the Mint Dispensary chain — in an attempt to get to the bottom of some pressing questions regarding the new law.
Can I possess marijuana now (or begin growing it) starting today if I'm 21 or older but don't have a medical marijuana card?
The short answer: No, but sort of. Not all of the votes have been counted; the measure hasn't been technically approved by voters yet. Successful initiatives need to be certified by the state. That'll happen on November 30.
But realistically, what would happen to people who get busted today for a small amount of marijuana? Can't people just start toking up or planting seeds right now without fear?
"Everybody's thinking about that," Smith said. "I would say, wait until certification. Because until then, it's not certified and is not official. Once the vote is certified, it is the law here in Arizona."
"Technically, you can't just be in possession of an ounce or start growing marijuana today under the provision," Dean warned. "But part of the expungement section says if you were charged with a [cannabis crime under the legal threshold], you are eligible for immediate dismissal. So, in a practical sense ... I wouldn't tell you to start growing marijuana, but why would cops go after it if it'll be dismissed in a month?"
Still, felony arrests can be ugly affairs. It's probably good to be discreet until certification. Even after the law is approved, consumers will need to be careful not to get caught smoking in public, which will still be forbidden, albeit subject to a far lesser penalty than before.
"People gotta be careful because, look, they're going to enforce the law," Dean said.
Home-grow is discreet. And it takes time to get going. Should hopeful green thumbs order their seeds from Amsterdam today?
Smith said he was spending part of the day shopping for "equipment to scrub the stink out of my house" after he's allowed to grow. "I'm learning everything I can about carbon-activated Hepa filters."
As the president of the Arizona Cannabis Bar Association, Smith has many friends in the industry. He's going to be "fortunate" enough to obtain quality seeds.
"Find a friend in the state," he urged.
Here's why: You can't mail these seeds. You're tripping into federal territory there — and marijuana still isn't legal federally.
That being said: Absolutely, there are seed providers who will mail you seeds.
Of course, if residents did happen to come upon seeds through black market means, they'd be doing the exact same thing Arizona dispensaries did to get started in the medical marijuana industry back in 2011. Smith said insiders joke about how the seeds that powered today's multi-million-plant industry "blew in the wind from California."
Dean cautioned that while the DEA might have better things to do than target individuals for a few mailed seeds, the state crime of importation of marijuana, a Class 2 felony, remains on the books. Prop 207 doesn't specifically legalize the importation of marijuana, so "that remains a crime, and it's a serious felony."
Some dispensaries are likely to sell seeds or even live plants, now that cultivation is legal, the experts said.
Molina said the Mint Dispensary isn't likely to sell seeds, but he's heard some shops intend to do so.
When will dispensaries begin to sell marijuana to all adults?
Probably around mid-March, according to Molina.
Selling cannabis under Prop 207 requires a license from the state Department of Health Services. Existing medical marijuana dispensaries get preference, so the Mint will be among the first to offer legal weed to adults.
"We have every intention of putting in our application the first moment the state allows us to," Molina said.
License applications can be submitted starting January 19, he said. The state has 60 days to answer. Molina said he believes the Mint will begin selling recreational marijuana the week of March 19.
If the DHS doesn't create the new rules necessary to allow licenses to be issued by mid-April, dispensaries can begin selling recreational marijuana without the special license, Dean said.
"They're not going to let that date pass, I'm sure," he said.
Dean said some who hoped to begin sampling marijuana from dispensaries sooner might feel the Prop 207 win is "anti-climatic." But the vacuum between now and April will be filled by the black market, Dean predicted.
"There will be a proliferation of [unlicensed] delivery businesses. They are going to take off," he said. "Whether enforcement decides it's a priority to go after them depends a lot on the county attorney's race."
That race still hangs undecided as of Wednesday. Incumbent Republican Allister Adel is slightly behind in the vote count, but also tragically hospitalized with bleeding on the brain, according to her office. Her challenger, Democrat Julie Gunnigle, has pledged to reform marijuana enforcement in a significant way.
If someone is currently being prosecuted for possession of marijuana, what will happen now?
Anyone caught recently enough to have their possession cases still wending through the court system can file a court motion to get their case dismissed, if it meets the statutory threshold of less than 2.5 ounces for flower, 12.5 grams for concentrates, or involves paraphernalia used for storing or using pot.
The law specifically says that the motion to dismiss can be filed immediately. If a conviction isn't imminent, Smith said it might be worth waiting to see how the state Supreme Court addresses new rules for Prop 207 expungements. It might create a "check-the-box" form that'll make it simple for the hundreds of defendants now being prosecuted under the current system to have their cases dismissed, he said.
How the process unfolds will also depend on the county attorney in each of Arizona's 15 counties. Prop 207 gives the state Supreme Court the option to create rules that facilitate possession dismissals and past convictions.
What about people currently being prosecuted for a marijuana DUI? Will Prop 207 help their case?
Prior to Tuesday's election, anyone without a medical marijuana card could be prosecuted for a marijuana DUI if active marijuana metabolites are found in their system. Cardholders can use an "affirmative defense" at a DUI trial to argue that while they had active metabolites in their system, they were not impaired while driving.
Prop 207 changes things up. While it prohibits driving while impaired on marijuana, it allows the Legislature, with a three-quarters majority, to enact a law that puts a threshold on the active metabolites allowed in the bloodstream, similar to a blood-alcohol-content limit. The catch is that it can only enact that law "when scientific research on the subject is conclusive and the National Highway Traffic Safety Administration recommends the adoption of such a law." The question of how any level of metabolites relates to actual driver impairment has been debated for many years and isn't likely to be resolved soon.
"This tremendously helps DUI defendants who face charges for alleged cannabis driving," Smith said. "This should help them with the defense."
Dean agreed, saying, "You might see a relaxed attitude in the city attorney's offices, which typically prosecute these DUI cases."
But Dean added that the law isn't retroactive when it comes to the DUI portion, but will only apply to new DUI cases after its enactment.
What will happen to my medical card, and the medical marijuana program?
For the most part, nothing. Many fine reasons exist for certain consumers to maintain a medical card, which costs about $250-350, including the state fee of $150 plus the doctor's exam. The card is good for two years.
Recreational marijuana purchasers will pay an excise tax of 16 percent in addition to state and local sales tax. If a consumer spends an average of $100 a month at a dispensary on recreational cannabis, that would be $16 a month, or $384 over two years. Cardholders don't pay that excise tax.
The Arizona Medical Marijuana Act, put in place by voters in 2010 by a slim margin, "doesn't go away" because of Prop 207, Smith said.
Besides the direct tax savings, "you can write off your meds" on your state taxes if you're a cardholder, he said. And people with children or jobs they care about who use marijuana may want to think twice about not renewing their cards now that Prop 207 has passed.
"Because it's purely recreational, [a recreational consumer] doesn't necessarily enjoy all the protections AMMA gives," Smith said.
The state's 130-or-so medical-marijuana dispensaries will soon convert to be able to sell to non-cardholders, but Molina said the process isn't quite as easy as the state waving a green flag. Dispensaries like Mint need to get direction from the state in the form of formal rules that have yet to be written. They'll let Mint know if medical and recreational inventory needs to be physically separated, whether the store will need two separate entrances and exits, and other details. He expects that many dispensaries will face "challenges," whatever happens.
"We want to make sure we don't lose track of our medicinal patients," Molina said. "More people will be coming through the door."
Will there be supply shortages because of Prop 207?
Molina said the public, and patients, should expect some shortages in March or April, just like were seen in other states when their recreational programs went online.
"You're going to see a slight shortage right now, because of testing," Molina said.
The state's new medical-marijuana testing program began November 1, officially, though some aspects of it have been delayed for a few months. Prop 207 also requires testing products for potency and contaminants. Besides potential hiccups with the testing system, new customers will be walking through the doors, many "looking for their first-time experience," Molina said. The Mint, like other dispensaries, wants to accommodate them without alienating their cardholding clientele.
"'We'll try to have enough product for our medical patients," he said.
What kind of new job opportunities will Prop 207 create?
Demand for cannabis jobs is great, and Prop 207 definitely will open doors for people who want to get into the industry, Molina said.
Right now, there are about 5,500 dispensary agents in the state. The designation allows residents to sell, cultivate, transport, or do other things with large quantities of marijuana for a dispensary that average consumers can't do. Molina believes that number will likely double by the end of next year.
Many of these "are good-paying jobs. Jobs for people who have certain talents that were not viable a few years ago and are now in high demand," he said.
New jobs will come about indirectly, too, he said, noting that a new cultivation facility the company is building in Phoenix will require about 50 new employees alone.
"We're not the only ones building out our cultivation," he said.
How does someone go about owning their own dispensary, now that Prop 207 has passed?
Most of the recreational licenses under Prop 207 go to existing medical marijuana license holders. Those licenses, most of which were obtained in a DHS lottery for a mere $5,000 bet, are being traded for $5 million to $10 million apiece these days, insiders say. With Prop 207, they are now worth many times their previous value.
But a few new licenses will probably be left over after the first round of applications is processed by the state, said lawyer Laura Bianchi, who works with dispensaries and other marijuana businesses. The first available will go to counties with no dispensaries, or just one dispensary, she said.
Such counties lack dispensaries for a reason, though: Lack of people for customers. To get a license for a recreational dispensary that could be really hopping, Bianchi suggests utilizing the part of the law that allows for 26 "social equity" licenses, to be distributed to groups disproportionately affected by anti-marijuana laws. But it doesn't define exactly what that means.
Once again, that's where the rule-making will come in. Bianchi said that for would-be entrepreneurs interested in a social-equity license, it's imperative to get involved in the rule-making process when the DHS opens it up for public comment. She said she guesses that this process may begin by summer 2021. The law gives no deadline to DHS as to when to complete the social-equity program.
[Update: That answer needs more nuance, as Bianchi pointed out after the article was published. The new law states that the social equity licenses should be handed out no later than six months after the rules for the social equity license program are written. But it's unclear if there's a deadline for writing those rules. Bianchi said she believes it would be six months after the initial rules are enacted, and those need to be done before the January 19 application start date. New Times has a call out to DHS on this question today and will update the article again as necessary.]
"It can go very well," she said. "It can give us the opportunity to build out a quality equity program that actually makes a difference, or it can go the way of other states — not so great."
The key is constructive feedback — giving DHS regulators detailed ideas they could use, which can in turn help the entrepreneur's goals.
Beyond helping make the rules, Bianchi said entrepreneurs who offer strong skillsets will find loads of opportunities in the new law. Naturally, "capital is always the first thing you want to have, so you have a lot of runway."
Cultivation experts will always be in high demand. But real estate professionals, scientists, marketing gurus, inventors, and people in other fields may find that Prop 207 is just what they've been waiting for. Cannabis-related brands and businesses from other states may find Arizona fertile ground, she said.
Indeed, the industry grew by more leaps and bounds with Tuesday's election. New Jersey also voted for recreational marijuana, South Dakota approved both recreational and medical, and Montana and Mississippi were still counting votes for their legalization ballot measures.
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