Arizona Medical Marijuana Act's 25-Mile Ban on Growing Pot Challenged in Lawsuit; Another Suit Seeks Different Rule Change

A new lawsuit over Arizona's Medical Marijuana Act targets the provision that bans patients and caregivers from growing pot within 25 miles of an open dispensary.

Bill Hayes, a marijuana activist and qualified patient who lives in Surprise, argues in a federal complaint filed yesterday that the provision violates the equal protection clause of the state constitution. He wants to be able to keep growing pot even if a dispensary opens nearby. (See the lawsuit below).

An amendment to another lawsuit in Maricopa Superior Court, meanwhile, seeks to further alter the rules regarding dispensaries created last year by the state Department of Health Services.

The marijuana law, approved narrowly by voters in November of 2010, states that patients and caregivers can't grow pot if a dispensary is open within 25 miles. So far, that hasn't been a problem because the medical-pot stores, which at one point were expected to be open by last fall, have been seriously delayed.

Arizona Governor Jan Brewer stalled the dispensary portion of the law last May with her own federal lawsuit and an order to the state DHS to reject all dispensary applications. Brewer and state Attorney General Tom Horne were thwarted in their efforts to thwart voters, though, when the federal lawsuit was thrown out and a Maricopa Court Superior Judge Richard Gama, in a lawsuit filed by Gerald Gaines of Compassion First, ordered Brewer to roll out the program in its entirety.

Since then, the DHS has been revamping the dispensary rules to comply with Gama's ruling.

Officials predict some pot shops could be open as soon as July. Under state law, the stores could sell a maximum of two-and-a-half ounces of marijuana to each qualified patient every two weeks.

Whenever they open, Hayes' lawsuit states, growers will be in immediate jeopardy of being arrested and prosecuted under state law. The legal penalties stand in "stark contrast to the voter intent to protect qualified patients," the suit notes.

We can't vouch for voter intent, but we get the part about "stark contrast."

If the average Arizona grew 12 marijuana plants, his or her house could be raided by the SWAT team. The cops would take you to county jail, where you'd be strip-searched, forced to eat garbage and denied humane medical care. If convicted, a first-timer like you would probably get probation, but prison time would also be possible.

On the other hand, if you're a qualified patient who lives more than 25 miles from a dispensary, under state law you might as well be growing tomatoes.

Hayes, who was a volunteer for the Arizona Compassion Club when we met him back in June, now runs the Arizona Cannabis Society, a medical-marjiuana company that wants to start up its own dispensary. Hayes acknowledges that voters did, in fact, approve the 25-mile rule. But the way he sees it, his proposal only bolsters the original Proposition 203.

"To some extent, the majority of people voted for that law simply to get something started" in terms of a marijuana program in Arizona, he tells New Times. "I think people should have the ability to choose whether they want to go to a dispensary, or whether they're going to grow their own."

Hayes is representing himself in the case.

In the other lawsuit we mentioned, philanthropist Gerald Gaines wants the court to throw out a DHS rule -- the one that requires a licensed physician to be a medical director on a dispensary company's board of directors.

Gaines' lawsuit was the one that cleared the way for dispensaries last month, following Judge Gama's ruling. Gaines is hoping the amendment to his lawsuit gets the judge to further tweak DHS' rules.

In other Arizona medical marijuana news today:

* The state House of Representatives approved a bill that aims to ban qualified patients from using or possessing medical marijuana on school campuses. The bill would require a 3/4ths majority in the State Legislature to pass due to the 1998 Voter Protection Act.

* Gaines' company, Compassion First, will have a grand opening tomorrow for its first caregiver facility tomorrow. The Compassion First Caregiver Circle, located at 21421 North 11th Avenue in Phoenix, houses growers, bakers and quality testers who will help patients obtain registration cards and medical marijuana products.

Hayes' lawsuit:

Click here for full-screen version.

Hayes Bill Pot Lawsuit

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Ray Stern has worked as a newspaper reporter in Arizona for more than two decades. He's won numerous awards for his reporting, including the Arizona Press Club's Don Bolles Award for Investigative Journalism.
Contact: Ray Stern