A county judge has put a halt to a state Department of Health Services rule that is preventing the approval of a would-be medical-marijuana dispensary.
White Mountain Health Center wants to open a dispensary in Sun City, but it can't get the county to acknowledge or reject its request for zoning information. A state DHS rule requires such information for its dispensary applications.
Today, Maricopa County Superior Court Judge Michael Gordon put that state rule on hold for White Mountain, enjoining the state from rejecting the company's application for not complying with that rule.
Gordon's ruling is also something of a rude awakening for County Attorney Bill Montgomery, a conservative opponent of medical marijuana, and the Board of Supervisors.
In September of 2011, acting on advice from Montgomery, the five-member Board of Supervisors voted to disallow zoning for any marijuana dispensaries unless the plant is approved by the feds. The county refuses to set any zoning regulations for dispensaries, inspect any potential dispensary sites or even provide documentation acknowledging the dispensary's request. Montgomery told reporters just last month that if SB1070 is unconstitutional, so is the medical-marijuana law.
Without any zoning info, White Mountain had no way to complete its application, and the clock is running: The DHS is currently evaluating the applications it received and hold a drawing for the competitive districts on August 7. So, the company sued.
Gordon, unlike Montgomery or Governor Jan Brewer, is treating the Arizona Medical Marijuana Act like the state law that it is.
Gordon wrote in his ruling that he has "serious questions" about whether DHS director Will Humble or his agency have the legal authority to deny White Mountain's application based on the zoning rule.
Yet Gordon notes that it's the county causing this "incurable" deciency.
The county doesn't dispute that it has "categorically refused to examine whether Plaintiff's proposed site meets zoning requirements or if there are such requirements at all," Gordon wrote. "Thus, it will not provide any documentation. Without the documentation, Plaintiff cannot cure its deficient application."
The injunction against the state will apply until further court order.
Presumably, this means that when White Mountain's clinic gets approved by the state, it'll be rammed down the county's yaw, like it or not, and zoning be damned.
According to Humble's DHS blog, the state is finalizing the review process for 460 applications, out of the 486 it had originally received. Only three applications have been denied, and five were withdrawn. The other 18 applications are on temporary hold as the applicants attempt to comply with various rules, such as the one that encourages a dispensary company to have $150,000 in the bank.
Last week, Humble told New Times that several applicants were allowed some time to transfer the $150,000 from investment accounts to a bank in order to comply with the state's request. Having the money isn't a requirement, but companies that do have that much cash will be favored during the selection process, Humble says.
It seems likely that more lawsuits will crop up by the losers in this process, and Gordon's ruling implies that the state's rules might not be on solid ground.
In any case, Humble says that, in theory, one or more dispensary companies might meet all the requirements and be ready for a DHS inspection by late August, meaning that the state could see its first open dispensary as soon as September 1.
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