Christian Palmer

Arizona Capitol Times

12/7/09

Supporters of an effort to legalize medical marijuana in Arizona have taken steps to avoid some of the problems that have riddled California since voters there passed Proposition 215 in 1996.

Californians approved a seven-paragraph initiative that protects physicians, caregivers and medical marijuana patients from prosecution. But it led to a massive outgrowth of doctors who prescribe the drug for just about any malady, a burgeoning and, in some cases, unchecked industry of growing and selling cannabis. It also led to follow-up legislation to provide stricter rules for medical marijuana dispensaries and “caregiver” growers, but even those rules cause confusion.

Since then, 12 more states passed laws authorizing medical marijuana use. Most instances of legalization came at the ballot, but a handful of state legislatures have passed such laws without going to voters.

Many of the states that followed California’s lead learned a few things from watching what happened in the Golden State and created additional checks and balances to regulate the growing, selling, licensing and use of medical marijuana.

In contrast to the one-page initiative passed in California, the proposal from the Arizona Medical Marijuana Policy Project is a 35- page document that outlines how supervision and regulation would take place regarding marijuana distribution and the registration of patients who would receive a doctor’s recommendation to use marijuana.

“It’s the endpoint of a long evolution and I think it’s the culmination of about a decade and a half of medical marijuana laws,” said Bruce Mirken, a communications director for the Washington, D.C.- based Marijuana Policy Project, the prime sponsor of the Arizona effort.

Supporters in Arizona said it addresses precisely the concerns of those who want stiff regulation and those who intend to seek medical marijuana treatment.

“It has the best of all worlds,” said Andrew Myers, a consultant who works for the campaign. “It has the best regulation and it has the best for patient access. It has nonprofit dispensaries so it should be the best for price controls. I think we are going to see a very effective, well-run program in Arizona.”

Arizona voters gave their blessing to medical marijuana use in 1996, but the measure was quickly repealed by the Legislature. Next year, Arizona could join the ranks of several other states expected to have marijuana-related ballot initiatives, including medical marijuana measures in Florida, South Dakota and Minnesota. Legislatures in Pennsylvania and New Jersey also are considering legalizing medical marijuana use. And outright repeals of marijuana criminalization will be on the ballots in California, Colorado and Oregon.

Under Arizona’s ballot proposal, people with certain medical conditions and symptoms would be permitted to qualify with the Arizona Department of Health Services to obtain limited amounts of marijuana for personal use from state-regulated dispensaries.

If the measure passes, people diagnosed with cancer, AIDs, HIV, Alzheimer’s, Hepatitis C and amyotrophic lateral sclerosis would qualify for protection under state law.

Other people who would be permitted to use marijuana include those suffering from glaucoma and patients with “debilitating medical conditions” brought on by diseases or treatments that cause severe and chronic pain, nausea, seizures, muscle spasms and severe loss of muscle mass.

To obtain marijuana legally, patients would need a recommendation from a doctor and consent from the state Department of Health Services.

Doctors would be required to conduct a full patient examination and medical history assessment before issuing recommendations for marijuana.

The Department of Health Services also would be required to operate a computer system to track licensing of patients and designated caregivers. The department also would be charged with registering owners and employees of dispensaries. The database would be available to law enforcement agencies and dispensaries.
Medical marijuana users would be permitted to keep as much as two-and- a-half ounces of marijuana at a time. Licensed caregivers would be free to grow as many as 12 marijuana plants.

The possession mandates under the proposal would put Arizona roughly in the middle of the pack, compared to restrictions in other states.

For instance, California allows patients to possess as much as eight ounces of marijuana. Other states allow a maximum of one ounce, according to the National Organization for the Reform of Marijuana Laws.

The language in Arizona’s pending ballot measure also aims to restrict prosecution under federal law, but it’s unclear whether that language would have any impact on federal decisions to seek prosecution.

For now, U.S. Attorney General Eric Holder has made it clear that federal authorities will avoid prosecuting medical marijuana users or dispensaries if they are operating according to their state laws. A new administration could choose to proceed differently.

One significant and unique detail of the Arizona proposal is the inclusion of what Myers refers to as a marijuana-cultivation “halo” that prohibits patients from growing their own pot if a dispensary is within 25 miles of their home.

Another provision would tie the number of licensed dispensaries to the number of pharmacies operating in the state. The ratio is set at one dispensary for every 10 pharmacies. That would cap Arizona’s registered dispensaries at approximately 125, although the Arizona State Board of Pharmacy reports more than 100 new pharmacies are licensed each year.

The state regulation, “halo” cap, and dispensary limit were intended to ward off much of the confusion, or, in some instances, lawlessness that critics say has pervaded California’s adoption of medical marijuana use.
One opponent, John Lovell, a lobbyist for the California Peace Officers’ Association, said California’s Prop. 215 preyed on voters’ sympathy for the terminally ill, but in reality created a vehicle to practically decriminalize the drug.

“The California law has been a disaster,” he said. “They dressed up their initiative with enough medical lipstick to put on the decriminalization pig.”

The National Organization for the Reform of Marijuana Laws estimates there are 800 dispensaries in California, an explosion that Lovell said has brought organized crime into the business and an increase in burglaries and other crimes in communities with dispensaries.

The total absence of meaningful regulations on doctors and patients has created a booming industry that often operates on fraudulent cash- only transactions and can result in pot prescriptions for laughable ailments, he said.

Lovell said an undercover San Diego police officer went to a doctor in 2008 and secured a doctor’s recommendation for marijuana to alleviate the symptoms of menstrual cramps. The officer was a man, he said.

Dale Gieringer, an author of California’s Prop. 215, said the criticism is unfounded.

“We did not try to address distribution because that is a complicated situation that needs to be addressed by the Legislature,” he said. He said the Legislature’s failure to do so has prompted local governments to go “every which way” when it comes to regulation.

“It’s a complicated mess,” he said. “But the initiative isn’t written too broadly. United States laws are written too strictly. They are not compatible with a free society.”

California’s open-ended initiative language was somewhat clarified by a legislative amendment passed in 2003 that set limits on personal possession amounts, but authorized local governments to permit possession of larger quantities. The law also ordered the state health department to create a voluntary registry of medical marijuana patients and allowed individual and cooperative marijuana cultivation.

The rapid rise in California of so-called “grow-houses” used to cultivate large quantities of pot is also widely attributed to the passing of Prop. 215. The emergence is most notable in Humboldt County.

Paul Gallegos, Humboldt County’s district attorney, said he voted for the measure to advance individual liberties and to support his sister, who has since died from a terminal illness. Humboldt County, he said, still faces “greater ancillary issues” with alcohol and prescription- drug abuse.

The transformation since the law passed has brought about other problems, he said. Home invasions are a good example. He said more inner-city criminals visit the region to buy from or simply rob local growers.
Gallegos said the most aggravating part is that the initiative lacked details and state lawmakers have been unwilling to implement uniform laws to distinguish appropriate medical use from crime deserving of prosecution.

“It’s piecemeal throughout the state, and it makes everyone prosecuting look either like fools or hypocrites,” he said. “There are more regulations for owning a dog.”