Judge denies Montgomery's effort to delay marijuana dispensary paperwork - East Valley Tribune: Politics

Judge denies Montgomery's effort to delay marijuana dispensary paperwork

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Posted: Thursday, December 13, 2012 4:57 pm | Updated: 7:34 pm, Fri Jan 4, 2013.

A judge on Thursday rebuffed efforts by Maricopa County Attorney Bill Montgomery to further delay the paperwork necessary for opening a marijuana dispensary.

Maricopa County Superior Court Judge Michael Gordon said he heard nothing from Montgomery during the half-hour hearing to convince him to stay his ruling earlier this month ordering the county to provide the necessary zoning documentation the would-be operators of a Sun City dispensary need to get the required state permit. Montgomery wants to keep that shop from opening while he seeks review from the state Court of Appeals.

But the legal fight has implications far beyond whether this one shop gets to open its doors: Montgomery said the appellate ruling he hopes to get, unlike Gordon's narrow decision here, could determine what action police officers can take against dispensary operators.

"It does not give me the information I need to provide guidance to law enforcement with respect to any other dispensary in Maricopa County or any activity related to it,'' Montgomery said after the hearing. "As long as the implementation of the Arizona Medical Marijuana Act is unclear, we need an appellate review that will provide binding precedent that applies beyond just the parties to this action and the location in question.''

In fact, state Attorney General Tom Horne is also working to block the dispensary under the same grounds of federal preclusion. And if what is likely a test case of the law gets to the state Supreme Court, as is eventually anticipated, that ruling will set the fate of dispensaries statewide.

The 2000 voter-approved law allows individuals with a doctor's recommendation and a state-issued ID card to obtain up to 2 1/2 ounces of marijuana every two weeks. While that initially meant people growing their own, the plan is to have more than 125 state-regulated dispensaries around Arizona.

State regulations require would-be dispensary owners to file a statement from local authorities showing the site they want to operate is properly zoned.

This fight stems from the refusal of county officials, on Montgomery's advice, to provide that certification for the owners of White Mountain Health Center so they could open a shop at 99th Avenue and Greenway Road in Sun City. Montgomery contends that Arizona cannot license people to sell marijuana because it remains illegal under federal law.

The owners sued. And earlier this month Gordon agreed with Jeffrey Kaufman, their attorney, that the county had to provide the documentation.

On Thursday, Montgomery asked Gordon to delay implementation so he could appeal -- and do that before the dispensary opened.

"If we have to move forward and take action on something that obviously we're advocating we believe is in violation of federal law, we will have effectively done what we're trying to avoid doing,'' Montgomery said.

And Montgomery said later than Kaufman and his client may regret pushing ahead with their clinic plans while he seeks appellate court review.

"Their haste to open could very well result in the equally quick loss of their investment and liberty,'' he said.

But Emma Andersson, an attorney with the American Civil Liberties Union, told Gordon there's no danger to county employees for just processing paperwork even though marijuana possession and sale remain illegal under federal law.

"The county cannot be federally prosecuted for issuing a zoning compliance statement at all, much less against its will, as would be the case here,'' she said.

Montgomery, however, said he does not see it that way.

"Mere compliance with state law is not a defense to federal prosecution,'' he said.

Andersson, however, said Montgomery's fears are overblown and without basis.

She pointed out that officials in other cities and counties had issued the necessary zoning certification without any federal prosecutors showing up at their doors. In fact, Andersson noted, there already is one dispensary actually selling marijuana in Glendale, with sales to start soon at sites in Tucson and Dragoon.

Maricopa County officials are involved in this issue because Sun City is in an unincorporated area.

As it turns out, Kaufman told the judge his clients have to move the location of their dispensary since the Greenway Road site "is no longer available.''

Kaufman declined to say where they intend to go, saying he fears people opposed to the dispensary might harass that landlord into making that storefront off limits, too. Instead, he described it as being about a mile north of the original site.

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