An attorney who represents some would-be marijuana dispensaries is taking the first steps he believes will convince a state judge to force Department of Health Services to issue the necessary permits.
Ryan Hurley said Tuesday he is working with clients to get one of them to submit an application this week to the health department. State health officials had said the first requests would be accepted Wednesday.
And Laura Oxley, spokeswoman for the department, confirmed that any requests will be turned away.
Once that happens, Hurley said, there are grounds for demanding in court that state officials comply with the law that voters approved in November. Hurley said while the state has gone to federal court to seek a declaration of the legality of that law, at the moment it is still the law of this state.
Once an application is denied, he said, that provides the legal precursor to demanding in court that state health officials obey the law as approved by voters, a law that has never been declared illegal.
That could pave the way for a state judge forcing Arizona to implement the medical marijuana law even as the federal court decides whether it is in conflict with federal law.
The process is known as “mandamus.” In essence, it is a request that a judge issue an order to a public official to perform a duty that is required.
In this case, the voter-approved law requires the health department to issue licenses for one dispensary for every 10 pharmacies in the state. That computes out to about 125.
State Health Director Will Humble said he was prepared to start taking applications now. But that was before Gov. Jan Brewer, working with Attorney General Tom Horne, directed him to stall.
“On advice of our attorney, our program has been suspended,’’ Oxley said. In fact, her agency will not even make application forms available.
Oxley acknowledged that what’s needed for an application already is spelled out in both state law and the rules the health department already enacted. And she said someone could prepare an application of sorts with all the necessary information.
But she said anyone who walks in the door with such a form will be turned away, and anything submitted by mail will be returned.
Hurley said once someone’s completed application is rejected, the first step may be having to file an administrative appeal. But the final decision on that still rests with Humble as health director.
That then paves the way to ask a judge to order Humble to act.
Horne told Capitol Media Services he is not directing Humble and his department to disregard what voters mandated.
“We’re not ignoring the law,’’ he said.
“We’re just asking a (federal) judge to let us know how we should do it before we proceed further,’’ Horne continued. “I think that’s very reasonable.’’
He said it would be just “a slight delay.’’ But Horne said he cannot predict how long that would take but said legal questions like these take preference over other lawsuits.
The health department continues to issue cards for “qualified patients’’ who have a doctor’s recommendation to use marijuana for a specific medical condition. Those cards allow the individual to purchase up to 2 1/2 ounces of marijuana every two weeks from a state-regulated nonprofit dispensary.
Those who have one of these cards to grow enough for his or her own use until dispensaries are available.
Horne said he is not worried that prospective dispensary owners will get a ruling forcing the health department to start issuing the dispensary licenses.
“If you sue me about it, by the time you get a decision (from a state judge) I’ll have a decision out of federal court,’’ he said. “So it won’t make any difference.’’
That lawsuit Horne filed on behalf of the governor asks a federal judge whether the state marijuana law is pre-empted by the federal Controlled Substances Act, which makes possession of the drug a felony. If a federal judge rules the laws conflict, that could allow Brewer, who opposed the initiative, to shut down the program.