PHOENIX — Two men are saying the state can’t tell them what they can farm.
Keith Floyd and Daniel Cassidy contend that requiring them to obtain medical marijuana from a state-regulated dispensary instead of being able to grow their own is unconstitutional and detrimental to patients’ well-being.
Floyd and Cassidy filed a notice of claim and a complaint for declaratory judgment seeking a permanent injunction in Maricopa County Superior Court on Aug. 15, after previous attempts to renew their cultivation status on their medical marijuana identification cards failed.
The state of Arizona and Arizona Department of Health Services Director Will Humble are named as the defendants. The ADHS runs the state’s medical marijuana program.
The complaint requests the court order the defendants to not enforce a 25-mile prohibition provision precluding medical marijuana patients from being able to cultivate their own medicine.
Dispensary certificates for Graham and Greenlee counties and Gilbert are held by Holistic Patient Wellness Group. Ultra Health Clifton, the dispensary for the Community Health Analysis Area in Greenlee County, is set to have a soft opening Sept. 3, according to Duke Rodriguez, one of the principals for the dispensaries.
The Arizona Medical Marijuana Act initially allowed every qualified patient to cultivate up to 12 cannabis plants because there were no licensed dispensaries in operation. Caregivers who could supply up to five patients were allowed to cultivate up to 60 plants. Once the dispensaries began to open, however, patients’ and caregivers’ cultivation rights were removed from their identification cards upon their annual application for renewal.
On Aug. 29, United States Attorney General Eric Holder notified governors in Colorado and Washington that the federal government will not seek to pre-empt those states’ laws allowing for the recreational use of marijuana nor will it seek prosecution to those in compliance with state laws regarding medical marijuana. Colorado and Washington approved recreational-use measures last fall and 19 states and the District of Columbia allow the use for medicinal purposes.
According to the AMMA, patients who live within 25 miles of a dispensary cannot grow their own and therefore must obtain their required cannabis from either a dispensary or caregiver. According to a July 31 newsletter from Humble’s department, 48 dispensaries have opened throughout the state and more than 90 percent of the roughly 40,000 patients live within 25 miles of a dispensary. Since the newsletter was sent, the number of dispensaries that have received their approval to operate certificates has risen to 55, including Ultra Health Clifton, and an additional 38 are scheduled for inspections that precede approval, including Ultra Health Safford.
The crux of the plaintiffs’ argument centers around Proposition 106, which, like the AMMA, was voted into law in 2010. The measure inserted a provision into Article 27 section 2 of the Arizona State Constitution, which overrides any law, rule or regulation that requires individuals or employers to participate in a particular health-care system. The proposition was intended to thwart the federal Affordable Care Act — known colloquially as ObamaCare — but Floyd and Cassidy are using it to support their claim.
Humble replied that he doubted the constitutional provision can be interpreted to let people make their own medications and gave an example that individuals are not permitted to grow their own amoxicillin, which is an antibiotic available only by prescription.
The plaintiffs’ attorney, Michael Waltz, argued that medical marijuana is only made available through a doctor’s recommendation and not a prescription. He said it is a plant and that it would be no different if the government were to ban people from growing their own aloe vera plants to treat burns and instead required them to purchase aloe vera lotion from a local pharmacy.
Rodriguez said while he respects individual caregivers’ desire to grow cannabis, he lauded Arizona’s model for the dispensaries and said no matter what ruling came about in the suit, the retail stores would still be successful.
“In the end, the patients will likely migrate to delivery systems that have been sanctioned by the state and probably have more evidence of standards of how a product was cultivated, how it was harvested and how it was delivered,” he said. “I think, for the lion's share of patients, they will remain with the licensed dispensaries . . . It may work out for an individual caregiver (to grow his or her own), but it probably doesn’t serve the best interests of patients or the needs of the state of Arizona.”
A cursory glance at Holistic Patient Wellness Group’s business model for the dispensaries in Safford and Clifton may seem to be an unprofitable one due to the lack of qualified patients in the area. However, one cultivation center is allowed per dispensary, and Rodriguez is betting that by having three cultivation centers, he and his business partners will be able to recoup their investment and then some by selling their cannabis to other dispensaries throughout the state. Dispensaries are strictly regulated on how they can procure cannabis, and it must come from their own cultivation sites, donations from qualified cultivator patients and caregivers, or be purchased from other dispensaries. All cannabis must be locally grown in Arizona.
“The largest challenge right now for any dispensary opening in the state is securing enough cannabis inventory,” Rodriguez said. “There is a tremendous shortage statewide.”
While Ultra Health Clifton’s product will initially come from a variety of approved suppliers, it is in the final stage of securing a cultivation site of about 5,000 square feet, according to Rodriguez.
Safford location still under construction
A ruling in July by Maricopa County Superior Court Judge Randall H. Warner precluded the Arizona Department of Health Services from denying a timely application for renewal of dispensary certificates and has given the Holistic Patient Wellness Group more time to construct Ultra Health Safford.
The group is renovating the old Mt. Graham Discount Plumbing Supply building on U.S. Highway 70 at South 14th Avenue.
“Because of the extension, we’re going to take a more deliberate process and do a more extensive rehab on that building,” Rodriguez said. “I think we were all trying to race just to meet the deadline, and now that everybody can breathe a sigh of relief, I think we’re looking to do this with a more permanent, more thought- out buildout.”
Construction plans have been initially approved by the city of Safford, and the group is beginning to accept bids for contracting services. When the final general contractor is chosen, it will be presented to the city for its consent and acceptance of final contracting plans.
Rodriguez said, unlike medical marijuana programs in California and Colorado, Arizona has kept its program well-controlled and managed. When all the dispensaries are initially opened, there will be less than 100 in operation statewide.
“Compare that to Denver proper; you’ve got more dispensaries in Denver than you have Starbucks,” Rodriguez said. “So we don’t have that kind of challenge of the genie coming out of the bottle. In our case, if anything, it’s been very managed (and) very controlled. The communities will have time to adopt and understand how to work with the dispensaries. And the dispensaries will be able to grow in a more managed fashion.”