Maricopa County can't block a medical-marijuana dispensary from opening just because of a federal prohibition on marijuana, a county judge has ruled.
This is a big court ruling for the 2010 Arizona Medical Marijuana Act, and the one would-be operators of dispensaries have been waiting for.
The decision by Superior Court Judge Michael Gordon is a green light for dispensaries to open. It's also a resounding approval of voters' wishes.
Read Gordon's ruling below.
The judge has ordered that Maricopa County must make allowances for the White Mountain Health Center, a planned Sun City medical-marijuana dispensary that had been stymied by the county's refusal to release zoning information required by the state.
Advised by County Attorney Bill Montgomery, a staunch social conservative, the Board of Supervisors agreed that the county should not release the zoning info to White Mountain, blocking the dispensary from moving ahead with its plans. White Mountain sued, declaring that voters were getting stiffed.
Montgomery teamed up with state Attorney General Tom Horne's office to argue the federal preemption angle -- that is, Arizona couldn't possibly legalize or authorize the use of marijuana, because the federal government says marijuana is illegal.
Gordon rejected that argument, writing:
... in the final analysis, the Court finds that federal law does not preempt the AMMA. In so doing, the Court notes that Arizona, if it had wished to do so, could have fully decriminalized the possession, use and sale of marijuana under State law. In its wisdom, Arizona took a far narrower and deliberative course opting to allow only the chronically ill access to it and only after a licensed physician certified that it might well relieve its citizens of suffering.
The reason the Arizona law's not unconstitutional, as Montgomery and Horne had maintained, is because the feds are free to enforce federal law if they choose to. Arizona hasn't preempted the federal government from doing anything, in other words.
Gordon goes even further on this point, saying that Arizona's system gives the feds a "roadmap" to enforcement, if the feds choose to close down or bust operations that sell marijuana. The dispensary locations will be easily identified.
Arizona's law might even assist the federal Controlled Substances Act in its goals, Gordon says:
Clearly, the mere State authorization of a very limited amount of federally proscribed conduct, under a tight regulatory scheme, provides no meaningful obstacle to federal enforcement. No one can argue that the federal government's ability to enforce the CSA is impaired to the slightest degree. Indeed, the United States Supreme Court has been unequivocal on this point. See generally Gonzales v. Raich.
Instead of frustrating the CSA's purpose, it is sensible to argue that the AMMA furthers the CSA's objectives in combating drug abuse and the illegitimate trafficking of controlled substances.
The county and state may appeal, but in the meantime, the dispensaries will open. Arizona Organix, the first dispensary to be approved by the state Department of Health Services, is scheduled to open on Thursday. A dispensary in Tucson opened today.
Despite Gordon's invitation for federal enforcement, it seems the Obama Administration is unlikely to put a halt to Arizona's burgeoning medical-marijuana industry, judging by the flourishing industry in Colorado, which has a system similar to that of Arizona's. Meanwhile, raids of dispensaries in California, which doesn't have a state law authorizing the sale of marijuana at dispensaries, continue to occur.
The decision by the Arizona judge follows landmark elections for legalized marijuana in Colorado and Washington. All the news about marijuana this year has only stoked Americans' interest in legalizing weed nationally, recent polls show.
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