State Health Director Will Humble turned away a request by doctors Wednesday to operate a marijuana dispensary, paving the way for a lawsuit.
Humble acknowledged that his refusal to even accept an application comes despite a voter-approved law requiring his agency to license about 125 dispensaries around the state. And it is directly contrary to the department's own rules that say the first requests would be considered Wednesday.
But Humble said the Attorney General's Office, which provides legal advice for his agency, said all applicants should be turned away until a federal court rules on whether Arizona can enforce its voter-approved medical marijuana law despite federal statutes making possession of the drug a felony.
"I'm a public health official. I'm not a lawyer," he said. "So I have to rely on the lawyers to provide me with good advice on actions we should take where public health issues intersect with the law."
But Ryan Hurley, the attorney for the Virtue Center, said he thinks Humble's actions are both illegal and bad public policy.
"At the end of the day, what's happening is the law voters enacted is not going into place," he said. "Patients are going to suffer."
With a formal rejection of the application, Hurley said he will now start working on a legal challenge. But he said it remains unclear what will be the next step.
On one hand, state law generally requires someone who is denied a permit to file an administrative appeal. That involves an administrative law judge hearing the evidence and issuing a finding.
But there is no requirement for Humble to obey that finding. That would allow a further appeal into Maricopa County Superior Court.
But Hurley said a case can be made for arguing that Humble has no legal authority to even refuse to accept applications. And that would allow him to seek a court ruling mandating Humble's agency to act as required by the initiative passed by voters.
Hurley said the doctors he represents already have invested "significant" time and financial resources in planning the dispensary. He declined to provide a figure or say whether the medical group had already purchased or leased a site.
Dr. Richard Strand, a radiologist, said he and his two partners, also physicians, are approaching retirement age and saw the dispensary as an opportunity to "give something to the community." And Strand said dispensaries are a necessary part of making the program work.
"We want to allow patients in need and their caregivers not to have to go to the dark streets and back alleys to find medical marijuana," he said.
Under the voter-approved law, individuals with specific medical conditions can seek a doctor's recommendation to use marijuana. That recommendation, if approved by the health department, allows the person to obtain up to 2 1/2 ounces of marijuana every two weeks from a state-regulated non-profit dispensary.
Dispensary owners could seek to grow their own marijuana or arrange to purchase it from other dispensaries that operate cultivation sites.
Humble said, though, that his decision to not accept or process applications for dispensaries does not leave marijuana patients without recourse.
He said one provision of the law allows anyone with a state-issued "qualified patient" card to grow up to 12 plants if there is no dispensary within 25 miles. And, at the moment, that means every one of the nearly 4,400 people who have those cards.
There are rules, though, with the plants either having to be grown indoors in a locked room, or outdoors behind a concrete wall with a locked gate.
That same right exists for more than 100 individuals who are certified as "designated caregivers."
But Humble had no answers to the question of where the patients or the caregivers would get the seeds to start a crop.
"There are hydroponic stores around town that give advice for people on how to grow for their own benefit," he said.
"I did go incognito to a hydroponic store over the weekend," Humble said. "And I asked a few questions about how it all works."
One thing he did learn is that a plant can be started from cuttings.
"Apparently it's like cactus where you can snip off a branch and put it in the dirt," Humble said. But here, too, Humble had no answers where to get a cutting in the first place.
Laura Oxley, spokeswoman for the health department, said the law is silent on the question of where people - including not just individuals but state-regulated dispensary owners - get a start for their crop. While there are medical marijuana shops in more than a dozen other states, bringing the product across state lines is a separate violation of federal laws.
Humble said he had been prepared to proceed with licensing dispensaries.
Last month, Dennis Burke, the U.S. Attorney for Arizona, sent him a letter detailing that while going after medical marijuana patients was not a priority for his office, the possession, sale and transportation of the drugs remains illegal under federal law. And Burke said he could not offer immunity to anyone even if that person is acting in strict accordance with Arizona's medical marijuana law.
Even then, Humble was going to go ahead. But all that changed last week when Gov. Jan Brewer directed Attorney General Tom Horne to ask a federal court to decide if Arizona could implement its medical marijuana law despite federal statutes. Brewer also said she was halting the health department from issuing dispensary permits until there is a ruling.
Humble said he wasn't going to quibble with that.
"Near as I can tell, this is a responsible decision for now," he said.
Despite the concerns over conflicts with federal law, the health department continues to take applications for qualified patient cards. Humble said one reason is that refusal to do so would be meaningless: A provision in the law spells out that if an application has not been acted on within 45 days, it is automatically considered approved.
"We'd lose all oversight regarding the qualified patient process," he said.