Attorney Tom Dean Rejects Anti-Prop 205 Propaganda of 'Fake Legalization' Campaign

A group of Proposition-205-hating cannabis consumers has long relied on the opinions of a single attorney to back up their criticisms of the marijuana-legalization measure: Tom Dean.

But in a recent interview with New Times, Dean emphasized that he encourages cannabis consumers to vote yes on Prop 205, and he debunked key arguments of the No Fake Legalization campaign.

Prop 205 is "not going to be able to fundamentally change the Medical Marijuana Act." — Attorney Tom Dean

tweet this
The pro-marijuana, anti-205 campaign evolved from Arizonans for Mindful Regulation, a group started by Jason Medar, a former California medical-marijuana dispensary owner who helped sink that state's 2012 recreational law. In July, Medar and his followers kept their word and launched their "vote no" campaign after their own Arizona initiative failed to gather enough signatures to make the November ballot.

The registered political committee Marijuana Consumers Against Fake Marijuana Legalization has made some of the same arguments as the prohibitionist group Arizonans for Responsible Drug Policy, such as the fact that medical-marijuana dispensaries stand to make a fortune from Prop 205. Also like the ARDP, Medar's message uses misinformation and exaggeration to bolster its argument. One local pro-cannabis organization, Safer Arizona, has helped promote Medar's campaign, as have several local smoke shops. Along the way, they've distorted some of Tom Dean's positions.

The Fake Legalization website, for instance, states that "Dean explains why the MPP initiative would actually INCREASE the amount of people who will be arrested and thrown in jail for non-violent marijuana offenses." Yet Dean doesn't say that in either of the two videotaped interviews provided on the site (though he does says Prop 205 could cause an increase in possession-for-sale cases.)

Polls show Prop 205 could have a razor-thin margin for victory on Tuesday, meaning that cannabis consumers who vote no could tip the balance toward defeat. Those same cannabis consumers, unless they're qualified patients under the Medical Marijuana Act, would then continue to risk felony arrest for their use of cannabis.

That's the main reason Dean says he supports Prop 205: to prevent the arrests of tens of thousands of Arizonans for no reason other than their decision to consume marijuana.

But Dean, who was previously a supporter of Medar, also pushes back against most of the "vote no" arguments.

Medar's website claims that Prop 205 only offers "fake marijuana grow rights," for example, despite the fact that Prop 205 authorizes adults 21 and older to grow up to 6 plants each, with a maximum of 12 per household. Another part of Prop 205 says that municipalities can adopt "reasonable" restrictions for cultivation operations that present a "nuisance to a considerable number of people."

Dean says Medar's supporters should stop claiming that growing up to six plants would violate state criminal code if voters pass Prop 205. If cities and counties could try to place restrictions on home grows based on the "nuisance" language, those restrictions would be based on city or county codes. Failure to adhere to code could result in a misdemeanor violation — but it takes a number of assumptions to get to that theoretical step, he says.

"I'm not saying [that] because of this you should vote no," he adds.

Cities may or may not try to ban home grows — but the effort would be tough to enforce, Dean says. And that's if the ban would be allowed under Prop 205. A new Arizona law prevents cities from passing ordinances more restrictive than state laws.

In fact, Dean goes on, passage of Prop 205 would almost certainly mean a subsequent court ruling that the odor of marijuana smoke, dried buds, or live plants, could no longer be used as probable cause for a search warrant, as courts have ruled in Colorado and other recreational-pot states.

His points on cultivation have been "taken and conflated" by the Fake Legalization campaign, he says, melding into the "fake marijuana grow rights" argument that isn't accurate.

Other Fake Legalization points Dean debunks:

Prop 205 "could destroy the Arizona medical-marijuana program."

"I disagree," Dean says. "It's not going to be able to fundamentally change the Medical Marijuana Act."

Under 205, oversight of the medical program would shift from the Arizona Department of Health Services to a new Department of Marijuana Licenses and Control, but Dean says the new agency couldn't approve any new rule that contradicts medical-marijuana law, which voters approved in 2010.

He agrees that, as New Times reported in August, the medical program could shrink post-205. Fewer patients will decide to pay up to $150 for a doctor's recommendation and another $150 for the medical license if they can buy legal marijuana products without those fees, for instance. But a medical program would remain, he predicts, because some patients will prefer the higher statutory possession limits of the medical-marijuana program, or perhaps for other reasons. (Under Prop 205, adults 21 and older could legally possess up to an ounce of marijuana, or five grams of concentrated marijuana. Medical-marijuana patients can possess up to 2.5 ounces of marijuana, whether in flower or concentrated form.)

• Prop 205 "could destroy Arizona's smoke shops."

Dean's not buying that one, even though Prop 205 gives the new marijuana agency the power to regulate "marijuana accessory" shops.

In theory, the new agency could try to restrict the way a smoke shop advertises or displays its products. But even then, it's a stretch to say 205 "could destroy" smoke shops.

"That was an interpretation that Jason Medar came up with," Dean says.

Marijuana-smoking paraphernalia is already against federal and state law, he points out. Smoke shops walk a fine legal line by claiming their products are for tobacco use only.

"It could be like it's been for decades," Dean says. "There could be some impact and confusion at first, but it will really impact it significantly? I don't think so."

Possession of more than one ounce would be a felony.

Prop 205 makes clear that possession of between 1 ounce and 2.5 ounces of marijuana would be only a minor civil offense.

The misconception stems from a 2013 Arizona appeals-court ruling that allowed authorities to cancel the right to possess cannabis legally if patients stray beyond the limits of the medical program. For example, the court said in 2013, if the state can prove the use of cannabis wasn't for medical reasons, the presumption of legal immunity "disappears and the cardholder may be charged with marijuana-related offenses."

But that ruling wouldn't apply under Prop 205, Dean explains, because no limitation for medical use would exist for adults. For example, if a consumer without a medical card possesses a quarter-ounce of marijuana buds and 10 grams of shatter (a product made of concentrated marijuana resin), the consumer could be prosecuted for possessing more than five grams of concentrate. But, Dean says, the person would still have the right to possess the quarter-ounce of buds, and couldn't be prosecuted for that.

Medar didn't return message on Friday.

Medar and Safer Arizona vow to launch a new legalization campaign immediately if Prop 205 fails. But their effort for this year, called the Campaign to Legalize and Regulate Marijuana, failed to raise more than a few thousand dollars. The campaign fractured and many volunteers were left bitter after Medar decided in July that he would not collect petitions gathered by hundreds of unpaid campaign workers around the state, instead putting all of his energy into the "vote no" campaign.

UPDATE: Medar called back later in the afternoon, saying he disputes some of what Dean says here.
"Prop 205 specifically allows the marijuana department and cities and counties to regulate marijuana accessories including smoke shops," he says, adding that he disagrees with Dean's opinion that it wouldn't impact smoke shops significantly.

However, he also admits that if smokes shops are to be "destroyed," then the newly created marijuana department would need to pass a rule that bans them — a rule on which public hearings would be held. Then, a court would have to rule eventually that the "tobacco accessories" they sell are, in fact, marijuana accessories. He acknowledged that police could raid smoke shops under the same theory now, shutting them down and seizing their property. But he believes police don't have the same financial incentive to shut down smoke shops that dispensary owners would have if Prop 205 passed.

Below are two of the latest ads by the Prop 205 campaign and its main opposition, Arizonans for Responsible Drug Policy:

KEEP PHOENIX NEW TIMES FREE... Since we started Phoenix New Times, it has been defined as the free, independent voice of Phoenix, and we'd like to keep it that way. With local media under siege, it's more important than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" program, allowing us to keep offering readers access to our incisive coverage of local news, food and culture with no paywalls.
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