State health officials issued the first 97 allocations Tuesday to operate medical marijuana dispensaries amid threats of litigation on multiple fronts.
The random selection process culled 404 applicants who were in competitive bids to get licensed in 68 of the state’s “community health analysis areas.” Slots for another 29 areas drew only one applicant each.
Two areas remain under legal dispute and the balance, mainly tribal lands, had no applicants at all.
By law, the state cannot identify the successful applicants or even the locations where they plan to operate.
The only people who will get a list are the nearly 30,000 Arizonans who have state-issued cards allowing them to obtain up to 2 1/2 ounces of marijuana every two weeks to treat specified medical conditions.
Health Director Will Humble said he believes the first shops could have their doors open by the end of the month. He said some applicants, though, will face delays in getting leases and setting up security and inventory systems and may not be open until the spring.
But if Maricopa County Attorney Bill Montgomery gets his way, there won’t be any dispensaries by that point.
In fact, Montgomery told Capitol Media Services on Tuesday he hopes to get a court ruling that makes the entire 2010 voter-approved medical marijuana program disappear. That would mean marijuana cardholders would either have to give up the drug or face the risk of arrest.
Montgomery said the first step will be to get a trial judge to rule that the state law is preempted by the Controlled Substances Act which makes it a federal crime to possess, sell or transport marijuana.
Most immediately, he said that would allow county officials to refuse to process the local zoning permits necessary to open a dispensary.
That, however, is just the beginning.
“Once I get that ruling, what I’m going to then do is I’m going to turn around and issue guidance to law enforcement agencies within Maricopa County that medical marijuana cards are no longer a defense to the personal possession, and that we will move forward and prosecute those cases,” Montgomery said.
Ultimately, Montgomery figures the case will wind up at the Arizona Supreme Court. And if the justices side with him, that will mean marijuana sale and possession by anyone in the state is once again a felony.
On the other side of the equation, a Flagstaff lawyer is threatening his own lawsuit against the state because his clients were not awarded allocations.
Lee Phillips said the process was tainted because the random selection for some areas included organizations that were not legally qualified to be in the process. He said that illegally diluted the chances of his clients to get a shot at operating a dispensary.
Humble said he expects similar complaints from elsewhere. But he defended the procedures used and said they will withstand a legal challenge.
“Our whole team did their very, very best to make sure that everybody who made it to today’s lottery was qualified to get into the lottery according to the regulations that we put forward,’’ he said Tuesday. And Humble said staffers were checking as recently as Monday to keep the list fresh.
Still, he acknowledged that some of the successful applicants may end up being unable to ultimately comply with all of the requirements to actually open their doors. That includes everything from having a lease for the space where the dispensary was promised to proving to health inspectors they have an adequate inventory control system.
It is that situation that concerns Phillips. He said if someone who got an allocation Tuesday does not qualify, “that leaves people up here without a dispensary for another year.’’
Humble acknowledged that one or more of the community health areas could end up with no dispensary despite Tuesday’s lottery, at least for the time being. But he pointed out that the law allows marijuana cardholders to shop at any dispensary anywhere in Arizona.
The opening of the dispensaries — if that occurs — will mean another big change in how the law operates in Arizona.
The initiative spelled out that those who live at least 25 miles from a dispensary are entitled to grow their own marijuana. Backers of the measure said they inserted that to prevent hardships for those living in rural areas.
But the state began issuing user cards last year even as Gov. Jan Brewer directed Humble not to process dispensary applications while she sought a court order overturning that part of the law. Humble said the result has been that the state granted more than 25,000 of the card users permission to cultivate the drug.
Those permits, Humble said, will remain legal until the annual review of each user’s card. He said if the person is then within 25 miles of an open dispensary, the permission will be revoked; otherwise it will be renewed.
Humble was an opponent of the 2010 initiative, at least in part because of the same concerns being raised by Montgomery and state Attorney General Tom Horne about the conflicts with federal law.
But Humble said Tuesday that once it was approved by voters, he went about putting together the program in the best way he could to keep it from becoming just an excuse for recreational use. And he said he has no intention of allowing the threat of litigation to bring the program to a halt unless forced to do so.
“If at some point in the future this whole program, or the dispensary part of it, ends up in a court of law, and a judge orders us to stop because of conflict, then obviously we’ll stop,’’ he said. Humble also said he would pull the plug if there were any indication that his staff was in danger of being prosecuted for facilitating the ability of marijuana vendors and users to violate federal drug laws.