One of the first things you learn in law school is the importance of making sure that any case you cite as legal precedent is still good law. This process is called Shepardizing, because some guy named Shepard published the reference guides that allow you to determine whether the same court or a higher court had issued a later opinion questioning the validity of the earlier one. Shepardizing once was a tedious process of checking sometimes dozens of volumes of books and pamphlets. Today, however, it is a one-click process on the leading legal publishers’ websites.It appears, however, that the
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A Closer Look at AG’s Opinion
In an August 10, 2012 post, Arizoneout reported on the formal Attorney General’s Opinion that has put the whole dispensary licensing process in jeopardy once again. In the press release announcing the opinion, Arizona Attorney General Tom Horne emphasized that the opinion was “without regard to my views,” as Horne is on record opposing the Arizona Medical Marijuana Act (AMMA). Instead, Horne characterized the opinion as being “prepared by professional attorneys entirely on the basis of legal precedent, without regard to policy consideration.” The press release went on to state that the opinion was based on two recent cases
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A Pot Policy Paradox
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.
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Catch-22 Accurately Describes Science of Medical Marijuana
Two different commentators to the Arizona Department of Health Services (ADHS) invoked the same literary reference while stating their views on whether four conditions should be added to those for which the Arizona Medical Marijuana Act (AMMA) legalizes the medical use of pot. As we reported in a July 23, 2012 post, ADHS Director Will Humble denied all of the petitions this first time around.In Joseph Hellerʼs satirical novel Catch-22, the title was an absurd military rule that prevented the World War II bomber pilot protagonist from ever avoiding combat missions. It has come to mean any circular, self-contradictory
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Humble Wonʼt Grant Any New Conditions
As Arizoneout predicted in the July 16, 2012 post, the University of Arizona (UA) evidence review gave Arizona Department of Health Services (ADHS) Director Will Humble all the justification he needed to deny the four petitions seeking to add debilitating medical conditions whose sufferers can become certified cannabis users under the Arizona Medical Marijuana Act (AMMA).Humble announced his decision to deny all four petitions on Thursday, July 19, 2012, just two days after ADHSʼ Medical Advisory Committee issued its recommendation that he do so. Based on the UA medical reviews, the committee concluded: “Because marijuana has not been subjected
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PTSD Petitioners Will Attract Sympathy
Post traumatic stress disorder (PTSD) is by far the most sympathetic of the pending petitions to add to the list of debilitating medical conditions for which medical cannabis can be prescribed under the Arizona Medical Marijuana Act (AMMA). Arizoneout discussed the petition procedures in a July 5 post.The Arizona Department of Health Services (ADHS) has not posted the actual petitions on its website. The written public comments ADHS has received, however, are overwhelmingly in support of adding PTSD. Many of the supportive comments come from military veterans. One of the scientific articles in support of allowing medical cannabis to treat
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July Is Pivot Point For Scope Of AMMA Impact
The Arizona Medical Marijuana Act (AMMA) as adopted by the voters contained a limited universe of debilitating medical conditions that patients had to have to become Qualified Patients (QP) legally authorized to possess and use cannabis. That universe included eight specific diseases and five symptoms that could be caused by any chronic disease or condition or the treatment of any of them. Arizoneout detailed the specifics in a June 6, 2011 post.But that universe was not static, as the AMMA itself requires a process where the citizens can petition the Arizona Department of Health Services (ADHS) to add new debilitating
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Broad Access to Retail Pot Likely in Urban Areas
The two-week application period for medical marijuana dispensaries closed at the end of last month, and the results bode well for most Qualified Patientsʼ (QPs) ability readily to access to consumer cannabis products within the year.The Arizona Medical Marijuana Act (AMMA) authorizes a limited number of non-profit dispensaries that can cultivate marijuana and sell it to QPs in various forms. Implementation of this part of the AMMA was on hold for more than nine months, thanks to litigation initiated first by the State and then another suit filed by would-be dispensary applicants, who challenged parts of the regulatory scheme implemented
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Timely Court Ruling Keeps Dispensary Application Process on Track
The Honorable Richard Gama, Judge of the Maricopa Superior Court, has again acted again to ensure Arizona voters that the Arizona Medical Marijuana Act (AMMA) will be implemented. In a February 2, 2012 post, we highlighted Judge Gama’s first in the state interpretation of the AMMA in the Compassion First v. Arizona case.It was Judge Gama’s ruling, issued in January 2012, that cleared the way for the dispensary process to begin. He ruled again in that case on May 8, 2012. In that case, he characterized his earlier ruling in his own words. In January, he did “precisely” what
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Employers May Determine Marijuana Impairment Based On Symptoms
Employers do not have to tolerate marijuana impairment on their premises or during work hours even when their workforce contains Qualified Patients (QPs) who are authorized to use pot for medical purposes under the Arizona Medical Marijuana Act (AMMA). The AMMA protects QPs and other licensed cardholders against employment discrimination, but the law specifically states that employers do not have to allow their employees to work under the influence of marijuana.The problem for employers, then, is how to determine when a QP on the payroll comes to work impaired. For Arizona employers who adopt a drug testing policy that complies
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Employer Must Act on Good Faith Belief to Claim Liability Shield
When the Arizona Legislature first adopted the Drug Testing of Employees Act in 1994, employers had to act based on a good faith belief to claim the liability shield that was the key benefit of that law. When lawmakers expanded the Act in 2011 to give employers tools to ease their implementation of the Arizona Medical Marijuana Act (AMMA), they also fine tuned the meaning of good faith.Arizoneout explained in detail in a December 9, 2011 post how the liability shield can be used by employers when they act in good faith to exclude Qualified Patients (QPs) from safety-sensitive positions
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Medical Marijuana Fuels Lottery Fever For Dispensary License
A birthday present from Arizona Department of Health Services (ADHS) Director Will Humble awoke Arizoneout from its long winter’s nap with a newfound commitment to keep those posts coming on a more regular basis. Humble’s blog post on April 11, 2012 − yes, that is the anniversary of Dinita James’ birth − said his agency was dropping the flag on the race to apply for a dispensary license.The demands of my law practice and other professional commitments seemed to call me away from blogging about the Arizona Medical Marijuana Act (AMMA) and its impact on workplaces in the state during
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“Current use” is trigger for excluding cannabis QPs from safety-sensitive positions
The Arizona Medical Marijuana Act (AMMA) allows employers to prohibit Qualified Patients (QP) in their work force from being impaired by medical pot during work hours or on the premises. The 2011 amendments to the Drug Testing of Employees Act is designed to let employers be more aggressive in excluding QPs from performing safety-sensitive positions if they are engaged in the “current use” of medical cannabis.
The way the Arizona Legislature has done this is by expanding the immunity from litigation offered to employers who comply with the Drug Testing of Employees Act, as we explained in a February 13,
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Expansion Of Employer Immunity For Actions To Keep Medical Cannabis Users Out Of Safety-Sensitive Positions
In a post late last year, Arizoneout explained how broadly the state legislature reached in giving employers discretion to attach the safety-sensitive label to certain job positions. Despite the broad protections against workplace discrimination that the Arizona Medical Marijuana Act (AMMA) provides to Qualified Patients (QPs), the legislature wants employers to be able to keep QPs out of safety-sensitive positions when they reasonably believe the QPʼs use of medical cannabis might subject the employer to liability.Hereʼs how the legislature has tried to give employers this ability to do what the AMMA seems to prevent employers from doing, and why
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ADHS Avoids Groundhog Day By Signaling Dispensaries By Summer
Happy Groundhog Day! The 1993 movie bearing that name is a favorite. Arizoneout has something of that same, deja vu feeling that Bill Murray had, because the last post was an admission of error on a prediction, and this post starts with the same confession.When Arizona Department of Health Services (ADHS) Director Will Humble said the dispensary application process might be further delayed by a pending lawsuit challenging his agencyʼs regulations implementing the Arizona Medical Marijuana Act (AMMA), even after the State’s federal lawsuit was dismissed, Arizoneout predicted the dispensaries’ legal limbo would extend for many months.Wrong, wrong.Under the headline
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Wrong On Appeal, Not On Length Of Dispensary Limbo
In a January 5, 2012 post, Arizoneout predicted that the state would appeal the dismissal of its lawsuit against the U.S. Government, and that the status of the 126 dispensaries that voters authorized when they passed the Arizona Medical Marijuana Act (AMMA) would remain in limbo for many months.As it turns out, Arizoneout was wrong about the appeal. Last Friday, which happened to be a Friday the Thirteenth and the eve of a three-day holiday weekend, Governor Jan Brewer issued a press release announcing that the state was not going to refile in federal district court, and that she
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