8/27/2013 1:24:00 PM New legal fight opens on the medical marijuana front
Howard Fischer Capitol Media Services
PHOENIX -- Two Arizona men are arguing that a 2010 voter-approved measure designed to attack the federal Affordable Care Act gives them a constitutional right to grow their own medical marijuana.
Keith Floyd and Daniel Cassidy contend in a lawsuit filed in Maricopa County Superior Court that the state cannot require that medical marijuana recipients can obtain their drug only from a dispensary if they live within 25 miles of any of the state's licensed facilities. Their attorney, Michael Walz, argues that requirement runs afoul of language now in the Arizona Constitution which prohibits any law that requires anyone to "participate in any health care system.'
Walz said it's a matter of free choice.
A ruling in his favor could have broad effects.
Most immediately, it would mean that the approximately 95 percent 40,000 medical marijuana cardholders who now live near a dispensary would not need to pay the $250 an ounce -- or more -- now being charged by dispensaries. Instead, they could grow up to 12 plants for their own use right at home.
It also could undermine the financial plans of those who have invested thousands of dollars to get one of the limited number of dispensary licenses the state is granting, and many times more than that to set up shop.
But Walz said patients should have that right. More to the point, he said it's constitutionally guaranteed.
His ammunition is Proposition 106. That measure put a provision into the Arizona Constitution overriding any law, rule or regulation that requires individuals or employers to participate in any particular health-care system.
Sponsors said it was aimed directly at the plan Congress enacted requiring individuals to obtain health coverage or pay a fine. But Walz said the language is broad enough to cover what his clients want.
The Arizona Medical Marijuana Act, also approved by voters in 2010, allows those with a doctor's recommendation to obtain up to 2 1/2 ounces of marijuana every two weeks. The idea was to have that sold through state-regulated dispensaries.
But the law also provided an exception for anyone living at least 25 miles from such an outlet, with cardholders allowed to grow up to 12 plants at any one time.
With no dispensaries until this year, both men initially had been granted the right to grow. But that was rescinded by the state Department of Health Services when they renewed their medical marijuana user cards.
Walz contends that move is illegal in light of the constitutional amendment.
"The state does have a reasonable right to regulate medicine,' he said. "It's just that they can't compel citizens to go to one particular system or one particular outlet for the medications that they're legally entitled to.'
State Health Director Will Humble said he's simply enforcing the law as approved by voters. But Humble said he doubts that the constitutional provision can be interpreted to let people make their own regulated medications.
"Are people allowed to grow their own amoxicillin?' he asked, referring to the antibiotic that now is available only by prescription -- and only through a state-regulated pharmacy. "I mean, this is medication.'
Walz, however, insists this is different.
"You're dealing with a plant,' he said.
"Should those be regulated as much as pharmaceutical drugs?' Walz continued. "I would say probably not.'
He said it would be no different if the state were to ban people from growing their own aloe plants used by some to treat burns and instead require Arizonans to buy aloe lotion from a local pharmacy "with God-knows what preservatives in it.'
Multiple dispensaries have been licensed for the state's largest urban areas.
But residents of some communities will not have the luxury of shopping around for the best deal. For example, the state has allocated only one dispensary for Lake Havasu City, though there always is the option to drive to Kingman, Bullhead City -- or even Flagstaff or Phoenix.
Humble said, though, it makes sense to have most medical marijuana users obtaining their drugs through a state-regulated system of growers and dispensaries rather than an unregulated system of individuals growing their own.
That system requires those with licenses to account for what they have grown or sold. Humble said there is no way to determine whether home-grown marijuana is being diverted to some use beyond that of the cardholder.
"We were really clear-headed about putting regulations together that prevented diversion and theft,' he said.
"That's why the inventory controls are so tight,' Humble continued. "You tell me what the inventory controls are in somebody's house who's got 12 plants?'
Ryan Hurley, an attorney who represents dispensary owners, said he does not believe the lawsuit has any merit.
And Hurley said he doubts there would be much loss of business for dispensaries even if Walz were to get a judge to decide in favor of his clients. He said most cardholders will find it more convenient to buy the ready-to-use weed from a dispensary than go through the hassle of nurturing a mature plant from seeds.
"It's legal to brew your own beer in this country, but very few people actually do it,' Hurley said. Anyway, he said, it's not really easy to grow the plant, "especially high-quality cannabis, particularly if you're old, elderly or very sick.'
Morgan Fox, spokesman for the Marijuana Policy Project that crafted the Arizona initiative, said that 25-mile rule was intentional, even if it does limit patients in many areas to getting their drugs from dispensaries.