There was an interesting paradox in the news about the Arizona Medical Marijuana Act (AMMA) this week.  As Arizoneout reported in a June 7, 2012 post, Tuesday, August 7,  2012 was the day the Arizona Department of Health Services (ADHS) conducted a lottery to determine who would get the chance to open dispensaries in areas where there were multiple qualified applicants.

The Arizona Republic ran a piece on August 7 under the headline, “Big day for medical pot,” featuring a photo of a 30-year-old Qualified Patient (QP), Scott, hanging long stems of cannabis on a line like laundry.  Scott and his girlfriend, Jody, 44, also a QP, invested $5,000 to turn a spare bedroom of their “nondescript, tan stucco home in a booming Maricopa neighborhood” into a grow-room for marijuana.

Scott and Jody smoke marijuana throughout the day to ease chronic pain caused by vehicle and other accidents.  Scott apparently is employed as an ironworker.  (Sounds safety-sensitive, donʼt you think?) He and Jody were complaining to the Republic that the opening of dispensaries would be a financial hardship to them, because then they would lose their cultivation privileges when they next renewed their QP ID cards.

Thatʼs because the AMMA was designed to restrict dispersed urban cultivation of the kind that is going on all over Phoenix, Tempe, Scottsdale, Tucson, Flagstaff, and Prescott today.  The drafters of the AMMA crafted it so that QPs who live within 25 miles of a dispensary must  buy their pot from a dispensary.  The folks who put the AMMA on the ballot thought it was better to have the cultivation and sale of marijuana tightly controlled and strictly regulated.

Governor Jan Brewer and Attorney General Tom Horne delayed the implementation of the dispensaries envisioned by the act for a year by suing on the eve of the original “go” date, and ultimately had their lawsuit dismissed.  On Monday, August 6, 2012, the eve of the dispensary lottery, Horne issued a formal “Attorney Generalʼs Opinion,” declaring that the AMMA provisions authorizing dispensaries were preempted by federal law.  The other parts of the AMMA, such as those giving QPs and their caregivers the right to possess and use marijuana and making it a violation of Arizona law for employers to hold that against them, are not preempted, however, according to Horneʼs formal opinion.

The dispensary lottery went forward as scheduled, with AG Horneʼs blessing, because having a dispensary registration certificate is not state permission to open and start selling pot.  There are other steps that have to be completed, including a state inspection, and dispensaries must have an operating certificate to open.

So now there are 68 folks who are the proud holders of dispensary certificates, thanks to the bounce of the bingo ball.  Another 29 have certificates because they were the only qualified applicants in the areas.  (Two areas have would-be dispensaries, but the issue is tied up in litigation.  Naturally.)

ADHS Director Will Humble at one point was predicting there could be dispensaries open by September.  But who knows now how long the legal wrangling will block them.  Horne ended his press release about the formal legal opinion by advising dispensary certificate holders “that it would be prudent to delay additional work and expenditures pending resolution of the preemption issue by a court.”

So once again the stateʼs top lawyer has moved to block the full implementation of the AMMA and put the dispensaries in limbo.  And all the while, ADHS will continue to license QPs, and they will be working for you and buying from criminal drug dealers or growing their own in homes scattered across the state.  Because Horne thinks thatʼs better?