State health officials are facing a new legal challenge over a provision in the voter-approved Medical Marijuana Act that bars those who live within 25 miles of a dispensary from growing their own plants.
The lawsuit filed in Maricopa County Superior Court contends that giving some the right to grow but not to others is a violation of the Equal Protection Clause of the U.S. Constitution. Billy B. Hayes, who is not an attorney but filed the legal papers on behalf of himself and others, also contends the system gives dispensary operators a monopoly in violation of state constitutional provisions.
Hayes, a resident of El Mirage, wants Judge Arthur Anderson to rule that all of the more than 50,000 medical marijuana patients in Arizona are eligible to grow their own plants without fear of prosecution. Recognizing the case could take months, if not longer, Hayes is asking Anderson to block state health officials from enforcing the no-grow provisions while the lawsuit is proceeding.
The 2010 voter-approved Arizona Medical Marijuana Act allows those with specified medical conditions and a doctor's recommendation to obtain up to 2 1/2 ounces of the drug every two weeks. The law required the state to set up a system of privately run but state regulated dispensaries to sell the drug.
But the law also says those not within 25 miles could grow up to 12 plants of their own.
Initially that meant all marijuana patients, as there were no dispensaries when the law was approved. But state health officials, in renewing the annual permits for users, have rescinded their growing privileges when a dispensary opened nearby.
Health Director Will Humble acknowledged the law does create a disparity between those who can continue to grow their own drugs and those forced to purchase what they need from a dispensary, but he said the argument of challengers is not with him or his department, but with the people who crafted the 2010 initiative — and the voters who decided they wanted a restrictive system limiting use for medical purposes.
“The voters were told that this is a dispensary based system that has inventory controls to prevent diversion of marijuana to non-cardholders,” he said. “That the program we delivered.”
Humble said this lawsuit seeks to undermine that with more of a free-for-all approach.
“One of the fundamental things that you lose in that kind of a system are the inventory controls that prevent diversion of marijuana to non-cardholders,” he said.
“When somebody's growing 12 of their own plants in their own house, they could share it with anybody, not legally,” Humble continued. “But for all practical purposes, the inventory controls are lost.”
Humble said he's not a lawyer and cannot address the legal questions being raised.
“But I can tell you we're going to go toe-to-toe with the plaintiffs on this case and defend the law that the voters approved,” he said.
This is not the first challenge to the 25-mile restriction. Last year Maricopa County Superior Court Judge Katherine Cooper rejected arguments by two men that the limit on growing marijuana violated a state constitutional provision which guarantees patients the right to decide their own health care. She also said nothing in the law forces them into any compulsory program.
But Cooper may have provided the roadmap for this lawsuit.
“The 25-mile provision does appear to create two groups of Arizona Medical Marijuana Act participants based on residence,” she wrote. But Cooper said the two men never raised that issue and she would not rule “in a vacuum as to its validity.”
No date has been set for a hearing.