Hemp, Hemp, Hooray

Hungry for a career change? Perhaps you dream of trading in your nine-to-five for the excitement and glamour of selling pot? Or maybe you'd just like to keep a few well-cured grams of Maui Wowee around the house for those occasional Cartoon Network marathons, but don't want to break the law to do it.

If so, AZ4NORML--the Arizona chapter of the National Organization to Reform Marijuana Legislation--has some hot news for you: "It is now legal to possess cannabis in Arizona--as long as you pay the tax," states a December 4 letter to AZ4NORML members from chairman Peter Wilson.

"By the same token, it is legal to sell cannabis in Arizona," says the notice, which AZ4NORML has distributed at public meetings and pro-pot rallies in recent weeks.

The flier goes on to claim it is also legal to grow pot in Arizona, and even to import it "... as long as you are lawfully licensed to do so by the Arizona Department of Revenue."

The tax and license referred to in the AZ4NORML letter are pivotal points in a recent justice-court ruling that--at least temporarily--has thrown the legal status of marijuana in Maricopa County into limbo.

The root of the confusion is a 1983 law enacted by the Arizona Legislature that made it a felony to sell or possess for sale any amount of marijuana without first purchasing a cannabis dealer's license and tax stamps from the Arizona Department of Revenue.

The price of the license was set at $100, and the tax on retail pot was established at 38 cents a gram, or about $10 an ounce. The current street price for marijuana in Maricopa County varies from $100 to $300 an ounce, depending on quality.

Conservative legislators saw the law as a way to twist the knife in busted pot dealers, who would still be subject to separate prosecution and penalties under pot laws already on the books.

AZ4NORML chairman Wilson, however, saw the law as a possible loophole when he came across it 11 years later, and, in July of 1994, he purchased a cannabis dealer's license and enough tax stamps to cover 50 ounces. Wilson didn't set himself up to be a test case, he says, he just wanted to bolster his legal defense in the event he ever got busted.

Which, last summer, he did.
According to police records and court documents, on August 18, 1995, Wilson called police to his Phoenix home in an attempt to quell a domestic dispute. Wilson's wife, Barbara, suffers from Alzheimer's disease and apparently had become irrational and violent. While officers were in the house, Wilson's wife went to his bedroom and returned with a plastic bag of marijuana bearing an Arizona Department of Revenue tax stamp. When the officers questioned Wilson about the bag of pot, he produced his Department of Revenue license and pointed out the stamps. The cops gave the marijuana back to Wilson and left.

Four days later, however, they came back--this time with a drug task force. After Wilson admitted he still had the marijuana, his house was searched and he was arrested. At a November 1 pretrial hearing, however, northwest Phoenix Justice of the Peace John Barclay dismissed charges against Wilson.

"In this instance, the same government authority that legitimized the cannabis license and imposed the cannabis tax stamps also criminalized the activity," Barclay wrote inhis decision. The judge ruled that this apparent conflict in the laws "...created an abuse if not a confusing paradox."

Barclay opined that because Wilson had already paid a penalty by paying a tax on his pot, further prosecution would constitute double jeopardy. The judge cited a June 1994 U.S.Supreme Court decision which held that a similar marijuana tax in Montana was unconstitutional.

Since Barclay's ruling made the news, 71 people have obtained cannabis dealer licenses from the Department of Revenue, according to Marquitta White, administrator of the office's division of licenses and registration.

The Department of Revenue is prohibited by law from turning over a list of licensed dealers to any police agency. "We keep them under lock and key," says White. "We've received no requests for that information."

White refused to disclose how many tax stamps had been purchased, and Department of Revenue public information officer Dan Zemke did not respond to numerous requests for that information.

At least some of those 71 licenses, however, are being put to use. In recent weeks, several pot activists and entrepreneurs have been selling "legal" marijuana out of traveling dispensaries that make regularly scheduled stops outside grocery and department stores, coffee houses, the State Capitol, and on campus at Arizona State University.

Sales outside the NFL Experience in Tempe the day before the Super Bowl appeared to be brisk--at least 40 sales of one- or two-gram packets were made in fewer than 45minutes.

At AZ4NORML's monthly meeting in the Tempe Public Library on January 22, two licensed cannabis dealers announced to the more than 80 attendees that they would be selling marijuana after the meeting in aparking lot across thestreet.

Ten minutes after the meeting concluded, a line of at least 50 people formed behind a vehicle emblazoned with pro-pot stickers and a painted "Hemp Museum" logo. For 15 minutes, two men openly sold marijuana from the back of the van as shoppers from the nearby stores looked on in curiosity. Two shoppers even joined the line.

The price was $20 a gram--nearly double the going street rate--for high-grade marijuana supposedly imported from the Emerald Triangle, a region of northern California known as a hotbed for marijuana cultivation.

Every bag sold bore tax stamps and came with a sample of hemp fabric, a pamphlet describing the medical and industrial uses for hemp, and the brand logo "Liberty Cannabis Flower." Other brand names for pot recently sold with tax stamps have included "RATF" (or "Restore America Through Farming"), "Supherb Bowl" and "Sedona Sativa," a regional favorite.

Michael Walz, a Phoenix defense attorney who specializes in marijuana cases and who argued Wilson's case, cautions that anyone who buys pot from a licensed dealer has no legal protection unless he or she has a cannabis license and stamps as well. "I'd never go so far as to say that marijuana is now legal in Arizona," Walz says.

"The farthest I'm willing to go is that the law appears to be that if you possess a license and stamps, the only court that's ruled on that issue has declared that to be protection from criminal prosecution in the state of Arizona."

AZ4NORML is less cautious. "If the police ever try to arrest you for marijuana crimes, just show them the 'trinity': license, stamps, and legal precedent," reads a flier encouraging people to purchase licenses. "The police should then say to you something like, "Well, sir [ma'am], I see you are lawfully inpossession of marijuana. Have a good day."

Maricopa County law enforcement officials say that's not what will happen.
Spokesmen for the Tempe, Phoenix and ASU police departments say they'll arrest anyone seen selling or purchasing marijuana. And the Maricopa County Attorney's Office, which is appealing Justice of the Peace Barclay's ruling, promises to keep putting pot dealers and smokers in jail.

"Our belief is that the judge is 100 percent in the wrong on this and the case will be overturned on appeal," says Bill FitzGerald, a spokesman for the County Attorney's Office. "But for now, we will continue to make arrests. Anyone who sells, purchases or possesses marijuana will be prosecuted, tax stamp or not."

Tempe police made good on FitzGerald's warning January 27 when they arrested hemp activist Richard Davis for selling pot out of the "Hemp Museum" van near Sun Devil Stadium. Davis was charged with three counts of selling marijuana and two counts of possession.

Each of the "Liberty Cannabis Flower" packets sold after the AZ4NORML meeting had "R.M. Davis Cannabis Hemp Co." printed in small type, along with a Phoenix post office box address.

Walz, who says he will represent Davis and any other person arrested for selling or possessing cannabis after he or she purchases a license, criticized the police and Maricopa County Attorney Rick Romley for the arrest. "I find it very disturbing that our county attorney ignored a judiciary ruling," he says.

"One issue is that they need to reorganize their time and resources and spend less time prosecuting marijuana users and more time prosecuting people who are going out and breaking people's heads and taking their money.

"Another, arguably more important, issue is that we have a county attorney who seems to have no respect for the American system of checks and balances. If the Legislature passes two laws that may be in conflict, it's up to the judiciary system to interpret the laws and rule on them, not the county attorney."

No date for the state's appeal of Barclay's ruling has been set.

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David Holthouse
Contact: David Holthouse