Tucson Weekly: “Well, it seems Gov. Jan and her crew may have toppled their medical-marijuana man, and they might be out of the game. A federal judge seemingly ripped the state a new one on Dec. 12 in the first oral arguments in the governor’s lawsuit that stalled Arizona’s MMJ program.”
Following Federal Judge’s Advice that She Not Vote Present in Her Medical Marijuana Lawsuit Arizona Governor Brewer Choses to Oppose Voters
Yuma Sun: “Gov. Jan Brewer decided Wednesday to ask a federal judge to overturn a key portion of the state’s voter-approved medical marijuana law. The move comes two days after Bolton told attorneys for the state she would throw out Brewer’s original lawsuit which simply asked the judge to decide if state employees can be prosecuted under the federal Controlled Substances Act for processing permits. Bolton said the state has to pick a side: Either federal law trumps last year’s initiative, or the state can implement its law despite federal statutes. . . . Brewer has chosen the former position, even though that’s contrary to what voters mandated.”
Governor Brewer has taken the exact opposite position with respect to Arizona’s Proposition 1070, the anti-illegal immigration law that will be considered by the United States Supreme Court. In the SB 1070 case Governor Brewer is asking the Supreme Court to rule that Arizona can implement its law despite federal statutes. Isn’t it the job of the Governor to enforce the laws of Arizona rather than making a personal choice as to which laws she will enforce?
Arizona Republic: “U.S. District Court Judge Susan Bolton tore apart the state’s medical-marijuana lawsuit Monday, saying Arizona has to pick a side in the conflict over state and federal law. Bolton stopped short of dismissing the case, saying she would issue a ruling later. But she told Assistant Attorney General Lori Davis she would throw it out unless the state decides whether or not to support its own law. ‘That’s how lawsuits work,’ Bolton said. ‘The plaintiff takes a position’.”
Phoenix New Times: “Governor Jan Brewer’s lawsuit against Arizona’s medical marijuana law took a beating today in federal court, where a judge told the state’s lawyers to pick a side on the issue. . . . Brewer and Horne, however, don’t have the chutzpah to actually argue against the voter-approved law — something that could be politically dangerous. . . . Their lawsuit relies on the creation of 20 fictitious defendants — 10 who believe the new state law violates federal law, and 10 who don’t believe it — to bolster their position that a dispute exists. But Bolton said today that she planned to dismiss all of the fictitious defendants, adding that the tactic cannot ‘persist’ in federal court. Arizona would need to choose which side it’s on before the suit can proceed, Bolton told Lori Davis, an assistant attorney general.”
East Vally Tribune: “A federal judge chided Attorney General Tom Horne Monday, saying he was asking her to do his job: advising state agencies on the law. . . . ‘You don’t come to court and say, ‘Well, this our best advice, you give it a shot,” she told Assistant Attorney General Lori Davis. Davis protested that the state finds itself in ‘an impossible position,’ being told by voters to license dispensaries but fearing that the workers who process the applications can be charged with helping facilitate the distribution of marijuana. She said Bolton should tell the state – and the governor – whether it’s OK to proceed. ‘That’s what the AG is for, Bolton responded. ‘It’s not the courts that give (legal) advice’.”
East Valley Tribune: “Attorneys for would-be marijuana dispensaries asked a state judge Wednesday to order Gov. Jan Brewer to follow the law approved by voters and begin issuing licenses as the statute directs. ‘I don’t care whether she likes it or doesn’t like it,’ Ty Taber told Maricopa County Superior Court Judge Richard Gama. ‘Her sole job and responsibility is to implement that act.’ Assistant Attorney General Lori Davis did not dispute that last year’s voter-approved law requires the state Department of Health Services to license about 125 dispensaries where certified medical marijuana users can obtain the drug. And she conceded that Brewer has, in fact, directed the Department of Health Services not to issue any of those licenses.”
Sedona Red Rock News: “While medical marijuana possession and use was legalized by voters in November 2010, one local woman said she was fired earlier this year simply for being a cardholder. Now she is suing Verde Valley Community Hospice, a company located in Old Town Cottonwood, for wrongful termination and defamation.”
Probation Officer Fired for Statement in Support of Marijuana Legalization, Launches Lawsuit With ACLU’s Help
Phoenix New Times: “Maybe one reason marijuana prohibition is still in effect is this: Law officers face being fired merely for stating publicly their views on legalization. That was the case for Joe Miller, a former Mohave County probation officer whose supervisors terminated him after his name appeared on a letter — with 31 other law officers — in support of the 2010 California ballot proposal that would have made pot as legal as booze and cigarettes. Now Miller is suing for damages in a federal complaint with the help of the American Civil Liberties Union of Arizona.
East Valley Tribune: “The lawyer for one of the state’s medical marijuana clubs accused the governor and state attorney general on Friday of conspiring to undermine the voter-approved initiative making the drug legal for some ill people. ‘We believe that there’s a clear and blatant pattern that has transpired over the last few months,’ said Thomas Dean. He said that directly includes both Gov. Jan Brewer and Attorney General Tom Horne. ‘There’s plenty of evidence that was done in a way that was conspiratorial, fraudulent,’ Dean told Maricopa County Superior Court Judge Dean Fink.”
Azfamily.com: “In what could be a first-of-its-kind case here in Arizona, a nurse is planning to file a wrongful termination lawsuit, claiming she was fired for being a medical-marijuana card holder. Her former employer says that’s not exactly what happened. Esther Shapiro said she was fired two months ago after telling her bosses at the Verde Valley Community Hospital in Cottonwood that she held a medical-marijuana card as a result of Arizona’s recently passed and much-debated medical-marijuana law.”
Pure Medical Marijuana & Wellness Center II Sues Fountain Hills Over Medical Marijuana Dispensary Zoning
Arizona Republic: “A non-profit corporation has filed a lawsuit against Fountain Hills, claiming the town’s medical-marijuana ordinance ‘unreasonably restricts’ potential locations for a dispensary. Pure Medical Marijuana & Wellness Center II filed the civil suit in Maricopa County Superior Court. The town and Town Council are named as defendants. . . . One medical-marijuana dispensary will be allowed within the town”
Query: Are Pure Medical Marijuana & Wellness Center II, Inc., and its attorney unaware that the medical marijuana industry in the United States is dead. See “Medical Marijuana Dispensaries are Dead in the United States.”
Los Angeles Times: “Appellate court voids Long Beach marijuana dispensary law. The panel rules that the city authorized distribution of pot in violation of federal law. The decision could force Los Angeles to rewrite its medical marijuana ordinance. In a decision that could upend the way California cities regulate medical marijuana, a state Court of Appeal has ruled that Long Beach’s ordinance regulating dispensaries violates federal law.”
Read the California Court of Appeals decision in Ryan Pack vs. City of Long Beach.
Nearly a year after being approved by voters, the Arizona Medical Marijuana Act has proven popular with patients, yet much of the Act remains on rocky legal ground.
Six active lawsuits confirm early predictions that such a significant social policy change would engender substantial court action. What wasn’t known was how patients, caregivers and the business community serving these individuals would respond when the State once again attempted to scuttle the will of the voters.
In January of this year Attorney General Tom Horne offered anti-Prop 203 leader Carolyn Short a gift: he could disembowel significant portions of the Act by pitting Arizona’s new law against the Department of Justice, the Drug Enforcement Administration, and last but not least, the Controlled Substance Act of 1970, Nixon’s reaction to the social unrest being fomented by the era’s youth - and still the underpinning of Federal law. Once Governor Jan Brewer finally browbeat Arizona Department of Health Services Director Will Humble into being the State’s Plaintiff, Horne petitioned the federal court for a “Declaratory Judgement” stating that the Act did or did not conflict with federal statutue – which of course it does, as it has in every state with a medical marijuana law.
Horne had to know his abuse of the judicial system wouldn’t yield a favorable ruling, but he also knew this: the suit would create confusion and doubt about the Act, weakening public support for a ballot initiative that won by only the slimmest of margins. This would buy opponents time to create a “sky is falling” narrative, dutifully reported by an obedient press: that “medical” marijuana is a sham, a cover for what in actuality is a recreational users program; that dispensaries would attract crime and blight to neighborhoods; that cartels would move in under the guise of being legal dispensaries; and, that medicating patients would cause trouble in the workplace, etc, etc ad nauseum.
This storyline failed during the 2010 election cycle, but could now have the effect sought by opponents. Why? Because due to the Act’s passage and the government’s failure to fully stop its implementation, there are patients legally using marijuana for medicinal purposes, patients and caregivers cultivating crops, and compassion clubs and collectives opening up across the State to provide patients with access to the medicine they voted for – all activities in which just a few wrong steps, misjudgements, foolish or criminal acts might be enough to turn the tide of public opinion towards the opponent’s desired goal – repeal of the Act.
Unsurprisingly, some regretable incidents have occurred. The press, rarely missing an opportunity to cast MMJ in a bad light, reports each incident with just enough objectivity to mask its underlying Reefer Madness bias, confirming the worst fears of opponents while stirring doubt among casual supporters of Prop 203 last November.
So,we have a hostile government (with the Legisature reconvening in January), media outlets continually sensationalizing the subject, and well-connected private citizens whose overriding life goal is re-criminalizing personal behaviors we’ve just determined should be legal.
What is IN our favor is significant, if utilized with direction and purpose. Raw assets include 13,000+ patients and caregivers, whose numbers grow daily; responsible business owners whose fledgling enterprises are starting to bear fruit; a nationwide network of supporting advocates who have been down this same rough road; and, the knowledge that a majority of Arizonans from across the political spectrum support the right of patients to have this medicine if they so choose.
Next: An actionable plan for advocates.
[Note] Although many know me as an insurance agent providing coverage for compassion clubs and grows, in a former life I worked ten years for an elected official. My political experience also includes advising local and state candidates and non-profit lobbying. From these experiences I learned that even underdogs can win – but only if they are in the game.
The following is a list of the six lawsuits now pending in Arizona courts that involve Arizona’s medical marijuana laws enacted as a result of Proposition 203.
1. Arizona vs. United States – U.S. Federal District Court
Plaintiffs: STATE OF ARIZONA; JANICE K. BREWER, Governor of the State of Arizona, in her Official Capacity; WILL HUMBLE, Director of the Arizona Department of Health Services, in his Official Capacity; ROBERT C. HALLIDAY, Director of the Arizona Department of Public Safety, in his Official Capacity
Plaintiffs’ Attorneys: THOMAS C. HORNE, Attorney General, Firm Bar No. 14000; Kevin D. Ray, No. 007485; Lori S. Davis, No. 027875; Aubrey Joy Corcoran, No. 025423; Assistant Attorneys General; 1275 West Washington Street; Phoenix, Arizona 85007-2926; Telephone: (602) 542-8309; Facsimile: (602) 542-8308; Email: EducationHealth@azag.gov
Defendants: UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF JUSTICE; ERIC H. HOLDER, JR., Attorney General of the United States of America, in his Official Capacity; DENNIS K. BURKE, United States Attorney for the District of Arizona, in his Official Capacity; ARIZONA ASSOCIATION OF DISPENSARY PROFESSIONALS, INC., an Arizona corporation; JOSHUA LEVINE; PAULA PENNYPACKER; DR. NICHOLAS FLORES; JANE CHRISTENSEN; PAULA POLLOCK; SERENITY ARIZONA, INC., an Arizona nonprofit corporation; HOLISTIC HEALTH MANAGEMENT, INC., an Arizona nonprofit corporation; JEFF SILVA; ARIZONA MEDICAL MARIJUANA ASSOCIATION
2. Arizona vs. The 2811 Club, LLC – Arizona Superior Court
Plaintiffs: STATE OF ARIZONA and WILL HUMBLE, Director of the Arizona Department of Health Services, in his Official Capacity
Plaintiffs’ Attorneys: THOMAS C. HORNE, Attorney General, Firm Bar No. 14000, Michael Tryon (#003109); Evan Hiller (#028214); Assistant Attorneys General Office of Senior Litigation Counsel; Kevin D. Ray (#007485); Lori S. Davis (#027875); Aubrey Joy Corcoran (#025423); Assistant Attorneys General; Education and Health Section; 1275 West Washington Street, Phoenix, Arizona 85007-2926; Telephone: (602) 542-8328; Facsimile: (602) 364-0700; Email: EducationHealth@azag.gov
Defendants: THE 2811 CLUB, LLC, an Arizona limited liability company; THE ARIZONA COMPASSION ASSOCIATION, INC., a pending Arizona non-profit corporation; MICHAEL R. MILLER, Director of the Arizona Compassion Association, Inc.; YOKI, INC. d/b/a YOKI A MA CLUB, an Arizona non-profit corporation; ARIZONA COMPASSION CLUB, LLC, an Arizona limited liability company
3. Sobol vs. Arizona – Arizona Superior Court
Plaintiff: Alan Sobol
Plaintiff’s attorney: none
Defendants: State of Arizona; Janice K. Brewer, Governor of the State of Arizona; Will Humble, Director of the Arizona Department of Health Services in his official capacity.
4. Elements Therapeutic Dispensary vs. Humble – Arizona Superior Court
Plaintiffs: ELEMENTS THERAPEUTIC DISPENSARY, an Arizona Non-Profit Corporation; ARIZONA DISPENSARY SOLUTIONS, LLC, an Arizona Limited Liability Company; ARIZONA ALTERNATIVE RELIEF CENTERS, INC., an Arizona Non-Profit Corporation dba MEDICAL MARIJUANA DISPENSARIES; PROTECT ARIZONA PATIENTS, INC., an Arizona Non-Profit Corporation; CULTIVATION MANAGEMENT SERVICES, an Arizona Limited Liability Company; HEATHER TORGERSON, a married woman; STEPHEN JOHNSON, a single man; ROBERT LILES, a married man; GREGORY DELUCA; a single man, HEIGHTENED HEALING, LLC, an Arizona Limited Liability Company; ALAN J. CITRIN, M.D., P.C.
Plaintiffs’ Attorney: David W. Dow; Law Office of David Dow; 3104 E. Camelback Rd., #281; Phoenix, AZ 85016-0001; (602) 550-2951; AZ State Bar#: 007377; ddowhiw I @gmail.com
Defendants: WILL HUMBLE, Director of the Arizona Department of Health Services, in his Official Capacity; THE ARIZONA DEPARTMENT OF HEALTH SERVICES, a political subdivision of the State of Arizona
5. Serenity Arizona, Inc. vs. Arizona Department of Health Services – Arizona Superior Court
Plaintiffs: SERENITY ARIZONA, INC., an Arizona nonprofit corporation; and MEDZONA GROUP, INC., an Arizona nonprofit corporation; JANE CHRISTENSEN, a married woman.
Plaintiffs’ Attorney: Ken Frakes, #021776; Ryan Hurley, #02460; ROSE LAW GROUP PC, 6613 N. Scottsdale Road, Suite 200, Scottsdale, Arizona 85250, (480) 5o5-3931; (480) 951-6993; Fax: firstname.lastname@example.org; email@example.com.
Defendants: THE ARIZONA DEPARTMENT OF HEALTH SERVICES, an agency of the State of Arizona; WILL HUMBLE, Director of the Arizona Department of Health Services, in his Official Capacity
6. Compassion First, LLC vs. Arizona – Arizona Superior Court
Plaintiffs: COMPASSION FIRST, L.L.C., dba Compassion First, an Arizona limited liability company; SCOTT TIDEMANN, a single man; KIMBERLY REARDON, a single woman, MARK BROOKMAN, a married man; KEITH LOWELL RABIN, a single man and DANIEL MEDINA, a single man.
Plaintiffs’ attorney: AIKEN SCHENK, HAWKINS & RICCIARDI P.C., 4742 North 24 Street, Suite 100, Phoenix, Arizona 85016-4859; Telephone: (602) 248-8203; Facsimile: (602) 248-8840; E-Mail: firstname.lastname@example.org; E-Mail: email@example.com; E-Mail: firstname.lastname@example.org; E-Mail: jc@ashrlaw .com; J. Tyrrel Taber; Alfred W. Ricciardi; James M. Cool; THE LAW OFFICES OF JEFFREY J. HERNANDEZ 7047 East Greenway Parkway, Suite 140, Scottsdale, Arizona 85254; Telephone: (480) 624-2765; Facsimile: (480) 607-2215; jjhernandez@az-law .net.
Defendants: STATE OF ARIZONA a governmental entity; JANET K. BREWER, Governor of the State of Arizona, in her official capacity; ARIZONA DEPARTMENT OF HEALTH SERVICES (ADHS), an Arizona administrative agency; and WILLIAM HUMBLE, Director of ADHS, in his official capacity.
Arizona Republic: “As if medical marijuana wasn’t being litigated enough in Arizona, yet another lawsuit takes aim at the rules governing dispensaries. The special action, among six suits involving the state’s fledgling program, claims the rules give unfair advantage to local businesses in violation of federal law and the state and federal constitutions.”
The new lawsuit was filed by Compassion First, LLC, dba Compassion First AZ. Gerald Gaines is the manager of the company.
We’ve predicted that somebody would sue because DHS’s dispenary rules violate the U.S. constitution.
The following is the text of a motion filed by Alan Sobol in his lawsuit against Arizona to establish the legality of his cannabis club.
1. Plaintiff Allan Sobol, pro/per files this brief memorandum as his Motion for Immediate Summary decision or in the alternative Expedited Hearing on his Complaint for Declaratory Judgment. This motion is filed because of the extreme controversy that is effecting the community at large and which demands immediate Court resolution.
2. Summary decision is appropriate because the facts are clear and undisputed that the Plaintiffs 2811 Club business model is not in violation or conflict with any Arizona Laws.
3. Moreover, summary decision is appropriate because of the significant amount of Arizona citizens that are being adversely effected by the on going controversy.
4. On November 2, 2010, Arizona voters were asked to consider whether the State should decriminalize medical marijuana. Proposition 203, an initiative measure identified as the “Arizona Medical Marijuana Act” (“The Act” or “AMMA”), envisioned decriminalizing medical marijuana for use by people with certain chronic and debilitating medical conditions. Qualifying patients would be able to receive up to 2 ½ ounces of marijuana every two weeks from medical marijuana dispensaries or to cultivate their own plants under certain conditions. Proposition 203 provided that its purpose “is to protect patients with debilitating medical conditions, as well as their physicians and providers, from arrest and prosecution, criminal and other penalties and property forfeiture if such patients engage in the medical use of marijuana.”
5. Arizona voters passed Proposition 203 in November 2010; the Governor signed it into law on December 14, 2010.
6. The defendants in this Action have been very vocal in their opposition to Prop 203, and apparently are displaying sour grapes over the voters choice.
7. Defendant Brewer, as Governor, is vested with the supreme executive power of Arizona and regardless of her personal beliefs, she is responsible for the faithful execution of all laws, including the Arizona Medical Marijuana Act,
8. Furthermore, The Act requires the Arizona Department of Health Services (“ADHS”) to be responsible for implementing and overseeing the Act.
9. Specifically, the Act provides for the registration and certification by the, ADHS of “nonprofit medical marijuana dispensaries,” “nonprofit medical marijuana dispensary agents,” “qualifying patients,” and “designated caregivers.”\
10. On April 14, 2011, the ADHS began accepting applications from persons who sought to be certified as Qualifying Patients and Designated Caregivers. As of August 15, 2011, there were over 8000 Qualifying Patients certified by the ADHS including the plaintiff herein.
11. However, on or about June 1, 2011, in an attempt to thwart the will of the voters and impose her own personal beliefs on the citizens of Arizona, defendant Brewer suspended the dispensary portion of the ACT. This represents a bad faith abuse on the part of the Governors authority.
12. Defendants suspension of the dispensary program effectively denied most qualified patients the ability and right to obtain the medical marijuana authorized under the ACT.
13. The very purpose of the Act was to provide for a qualifying patient, who has a “debilitating medical condition” to obtain an “allowable amount of marijuana” from a nonprofit medical marijuana dispensary” and to possess and use the marijuana to treat or alleviate the serious debilitating medical condition or symptoms associated with the medical condition
14. Denial of relief to these seriously ill patients equates to cruel and unusual punishment , a violation of the Voter Protection Act and a clear abuse of the Governors authority.
15. The majority of qualified patients are some of the most vulnerable members of our society. Many are confined to wheel chairs with disfigurements, missing limbs or simply weak and frail resulting from their debilitating conditions. These individuals suffer daily from chronic pain and other ailments that this Act was intended to alleviate. Absent a safe and legal way to acquire their medication these qualified patients are forced into the very risky black market to acquire the medication they so desperately desire. This exposes many qualified patients to the criminal elements including con artist and robbers.
16. Absent a viable dispensary program where a qualified patient could purchase affordable small quantities of medical marijuana as needed, denies these patients the right under the Act to possess and use medical marijuana.
17. The only recourse available to these disfranchised qualified patients is to seek and acquire free quantities of medical marijuana from other qualified patients who are willing to donate their excess marijuana as it may be available.
18. Under the ACT, (36-2811 B-3), “patient to patient” transfers of medical marijuana is specifically permitted provided nothing of value is exchanged.
19. The inherent problem is the fact that under the ACT all qualified patient records maintained by AHDS are confidential. In fact, the ACT makes it a crime for any AHDS employee to release patient information to a third party. Consequently, there is no way, other than high risk internet Craigslist type classified advertising, for a patient looking to acquire free marijuana to locate another donating patient with excess marijuana.
20. In an effort to assist qualified patients, plaintiff Sobol developed a business model concept intended to provide qualified patients with a venue to network. A place they could come to meet other qualified patients. The 2811 Club, LLC, (Named after the provisions of the Act which allow patient to patient transfers ), The 2811 Club, hereinafter referred to as the” CLUB”, is a is a professionally operated, membership only entity.
21. For marketing purposes the business is called a club, However, the Club’s primary function is that of a Educational and Resource center for qualified patients. Through the Club’s affiliation with Plaintiff Sobol’s other business, the Arizona Cannabis University, ( previously known as the Arizona Dispensary University) , the Club offers extensive educational services to qualified patients. The Arizona Cannabis University has been offering classes to the general public since September 2010, and has built a credible reputation for providing one of the most extensive marijuana related curriculums in the country. The University has been repeatedly featured on all local TV and print media and some national news organizations. The University has from time to time offered classes across the state utilizing hotel conference rooms as needed. Additionally, like most Universities, the Arizona Cannabis University comes complete with a private campus. The physical, permanent classroom and campus is located at 17233 N. Holmes Blvd Suite 1615, Phoenix AZ 85053 and features, extensive on-line research services, free wi-fi, an extensive marijuana related book and video library, daily entertainment, a school discount store, pain management demonstrations, political advocacy programs, even spiritual sermons but most importantly, a lounge area for qualified patients to interact and network together. This is a closed campus where only qualified patients who possess a AZDHS medical marijuana card are permitted to enter. The University and Club interact together in a clean, professional and safe environment to provide much needed services to qualified patients. This unique one-of-kind facility provides professional armed security and a state of art surveillance system together with patient verification and tracking to assure full compliance with the ACT.
22. The Facility charges a yearly membership fee of $25.00 to qualified patients. Thereafter, the Club/University charges a usage fee of $75.00 per day which entitles the patient/member to full access of the facility and all it’s services. The Club maintains a policy of fee waivers for individuals with limited income. This fee pays for the overhead, (cost of operations), of the facility including the rent, electric, security, insurance, payrolls, educational services, etc.
23. The word “Club” is merely the vessel that brings qualified patients together. The Club facility is simply a venue for qualified patients to interact with other qualified patients. Contrary to the allegations of the Defendant, the Club does not sell, produce, transport, transfer or distribute Marijuana in any form. The defendants have produced no evidence that suggest otherwise. The Club does allow qualified patient/members, pursuant to ARS 36-2811 B-3, to exchange their own marijuana with other patients. Everyone in the club facility is a qualified patient. These are direct “ patient to patient” transfers that are in no way associated with the Club management or the usage fees charged. The Club has strict written rules that limit marijuana transfers to no more than 2.5 ounces and there can be no exchange of any value. Violation of these rules mean immediate and permanent expulsion from the Club.
24. Additionally, the Club donates space to a private not-for-profit Association; The Arizona Compassion Association, Inc. This association is not a collective. The association is comprised of approximately 50 qualified patients who each, individually, grow their own medical marijuana. This association was formed to advance their mutual beliefs to share knowledge and otherwise network together for the betterment of the industry. This association is protected under the First and Fourteen amendment of the US Constitution.
25. The qualified patients of the association, who are all members of the club, bring very limited amounts of their excess marijuana into the club and transfer it “FREE OF CHARGE/VALUE” to any Club member that request it. These are also direct “patient to patient” transfers as permitted under the ACT and are in no way connected to the operation of the Club, or the fees that are charged. Again, the Defendants have produced no evidence to suggest otherwise. These transfers are not conditioned upon payment of entry to the club. If two qualified patients are enrolled in ASU, or perhaps a local community college, and conducted a patient to patient transfer in the lounge of that school, would the Attorney General threaten to criminally prosecute and close down the School? . In fact, the Act does not limit where such patient to patient transfers can take place. Qualified patients could meet on a street corner, a movie theater, or even a Mcdonalds. These transfers can take place outside of the Clubs facilities, however, our patient/members voluntarily elect to conduct the transfer in the Club while enjoying the Clubs facilities, services and security.
26. The club owners, and the plaintiff have no legal affiliation with the association, other than a simple agreement that provides some donated space and the requirement that the association conduct themselves in a professional business-like manner, in full compliance with Arizona Law. Any perceived benefit the association may receive from the donated space is being realized by the legal entity ( The Association) and not by any individual patient/member. There simply is nothing of value being exchanged directly from the Club to any individual qualified patient.
27. For these reasons the Club is operating within full compliance of the law.
28. Having effectively stopped the Dispensary portion of the law, the defendants are now unjustly taking aim at the only remaining option qualified patients have to obtain their medication.
29. While the defendants have not produced one scintilla of evidence demonstrating any illegal activity at the 2811 Club, the defendants have nevertheless threathen the club owners with criminal arrest and prosecution. This Club/university is being singled out for prosecution because of its marijuana curriculum. The defendants have relied on marketing materials, news reports, hearsay, and speculation. But have not presented this Court with any substantive evidence to support their allegations. In fact, the marketing materials produced by the Defendants supports the argument of the Plaintiff.
30. Moreover, the plaintiff has been completely transparent and forthright in the development and operation of the Club. The Plaintiff has made numerous good faith efforts to explain and demonstrate the operation of the Club to the Defendants. Sobol has invited the defendants to visit the club on at least three separate occasions for a first-hand on-site inspection, the defendants have ignored all such requests. The plaintiff has repeatedly conveyed the following proposition to the defendants; that if defendant can produce a specific Arizona Statute showing that the Club is in violation of the law, Sobol will agree to withdraw his license and close the Club. The defendants have failed to respond to this request The defendants have failed to present any specific Arizona Statute whereby they can support their allegations that the Club has violated any State law. (Ubi jus incertum, ibi jus nullum). The fact is, the Club is a legally registered, fully compliant, and legitimate business operation
31. The defendants have clearly voiced their personal opposition to The Medical Marijuana Act. The defendants, acting in concert with each other, are conspiring to use the power of their office to further their personal beliefs and agenda regarding marijuana, all in dereliction of their official duties. As Governor Brewer is vested with the supreme executive power of Arizona and is responsible for the faithful execution of all laws, including the Arizona Medical Marijuana Act. Instead, the Governor and Mr. Humble are abusing their authority by threatening and intimating legitimate business owners out of existence in an effort to thwart the will of the Arizona voters.
32. The Club operation is fully compliant with Arizona State Law and the Defendants have produced no evidence to suggest otherwise.
WHEREFORE, Plaintiff Sobol respectfully requests declaratory relief as follows:
A. Grant Summary Decision in this matter or, in the alternative, Grant an Expedited hearing in this matter.
B. Deny all the Defendant requests.
C. Find in favor of Plaintiff, that Sobol’s specific 2811 club business model is not in violation of any Arizona State Laws.
D. That the Court grant such other and further relief as it deems appropriate and proper.
Dated this 15th day of August, 2011.
ALLAN SOBOL pro per
/s Allan Sobol___________
CERTIFICATE OF SERVICE
I certify that on this 15th day of August 2011. I electronically transmitted a PDF version of this document to the Office of the Clerk of the Superior Court, Maricopa County, using Turbo Court ECF System, with a copy also mailed to :
Office of the Arizona Attorney General
Att: Lori Davis
1275 W Washington Street
Phoenix, AZ 85007-2926
INDEX OF EXHIBITS
- Sobol’s Medical Marijuana card issued by AZDHS
- Arizona Cannabis University media publicity
- 2811 Club Marketing Materials
- Memorandum of Agreement between 2811 Club and Arizona Compassion Association, Inc.
- Communications from 2811 Club to Law Enforcement
- Letter to Attorney General offering to close 2811 Club
- Defendants opposition to Prop 203 and medical marijuana.
Arizona Republic: “White-collar crime has been eradicated in Arizona. There are zero violations of civil rights. Not a single consumer in the entire state is being ripped off. There is no public corruption. No environmental laws are being broken. . . . Otherwise, Attorney General Tom Horne (and Gov. Jan Brewer) couldn’t spend so much time and energy trying to delay, disrupt and demolish Arizona’s medical-marijuana law.”
AZ Journal: “Attorney General Tom Horne is taking aim at cannabis clubs with his civil filing this week asking the courts to shut down four clubs and one individual claiming to be operating under the Arizona Medical Marijuana Act (AMMA). In July, the Arizona Department of Health Services (ADHS) asked Horne to review the legality of cannabis clubs, which provide venues for medical marijuana patients to share private supplies of marijuana.”
Arizona Attorney General Tom Horne Denied Extra-Long Court Filing in Federal Medical Marijuana Lawsuit
Phoenix New Times: “Give me the short version, a federal judge told Arizona Attorney General Tom Horne today in a ruling on the state’s lawsuit against medical marijuana. Yesterday, Horne had asked U.S. District Judge Susan Bolton if he could exceed the 17-page limit for his arguments on why the lawsuit shouldn’t be dismissed. He even included the proposed response in a separate, 23-page filing. (See below) . . . . Skimming through Horne’s proposed response, though, we noticed a couple of things that should actually be added. For instance, in giving the run-down on how Arizona officials ended up suing their own state instead of defending a voter-approve state law, there’s no mention of the January meeting between Horne and the law’s most vocal opponent, Carolyn Short of Keep AZ Drug Free. We also think Horne’s proposed motion should have mentioned that Arizona U.S. Attorney Dennis Burke reminded the public, through a reporter, that his May 2 letter to the state about the new law didn’t threaten state workers with prosecution.”
Here is Arizona’s Response in Opposition to Defendant’s Motion to Dismiss
The text of Arizona Attorney General Tom Horne’s August 8, 2011, press release states:
“PHOENIX (Monday, August 8, 2011) — Attorney General Tom Horne today filed a civil action against four Phoenix-area cannabis clubs and one individual that falsely claim to be operating lawfully under the Arizona Medical Marijuana Act (AMMA). The action is for declaratory judgment and injunctive relief and is filed on behalf of the State and the Arizona Department of Health Services.
“The law permits one card holder to give marijuana to another card holder. But is does not permit the activities of these Defendants, who charge fees to members. These private entities and individuals are in no way permitted to legally transfer marijuana to anybody,” Horne said. “The operators of these clubs claim that they are protected under the Arizona Medical Marijuana Act when they are not registered as non-profit medical marijuana dispensaries as required under that law. These people are marketing themselves as being able to lawfully transfer marijuana, and that type of deception and blatantly illegal activity must be stopped.”
The filing in Maricopa County Superior Court claims that The 2811 Club, The Arizona Compassion Association, Yoki A Ma’ Club, the Arizona Compassion Club and Michael R. Miller are all private cannabis clubs or owners/operators of clubs that have claimed they are able to lawfully participate in the possession, production, transportation, sale, or transfer of marijuana in accordance with A.R. S. § 36-2801 et. seq., the Arizona Medical Marijuana Act. However the Act does not offer legal protection to cannabis clubs, cooperatives or any other person, association or entities that are not registered nonprofit medical marijuana dispensaries. Nor does the act decriminalize the possession, production, transportation, sale, or transfer of marijuana by or through those entities.
This action asks the court to issue a declaratory judgment that each of the Defendants is violating the AMMA and prohibit them from engaging in activities that involve selling, producing, transporting, transferring or possession of marijuana.”
Arizona vs. The 2811 Club Complaint
The Attorney General’s complaint in the matter of State of Arizona vs. The 2811 Club, The Arizona Compassion Association, Yoki A Ma’ Club, the Arizona Compassion Club and Michael R. Miller follows:
Pot Complaint 1
Arizona vs. The 2811 Cannabis Club Motion to Show Cause & Application for Injunction
On August 9, 2011, Alan Sobol sent the following message to the public.
The 2811 Club Welcomes the Court Challenge
Phoenix August 8, 2011. Arizona Attorney General Tom Horn issued a news release yesterday announcing that he filed a complaint for Declaratory Judgement asking the Courts to rule on the legitimacy of Cannabis clubs. What Mr. Horn did not say was that Mr. Sobol, the marketing agent who developed the Cannabis Club business model in question, filed for a Declaratory Judgment weeks ago, also asking the Court to render a decision on whether or not the 2811 Club business model was legal under Arizona State law . Sobol’s Action is still awaiting a response from the Attorney General’s office. The 2811 Club welcomes this Court intervention.
The 2811 Club, LLC opened it’s doors for business on July 4th 2011. This Club was Arizona’s first Cannabis Club. The 2811 Club is an Educational and Resource facility with a campus intended as a venue for qualified patients to learn, share knowledge, exchange medication and network together. “This is a membership only club, you must be a qualified patient and possess a Arizona medical marijuana card issued by the AZDHS to enter” says Sobol.
Once inside, the club provides a safe, clean, well managed facility which includes an array of services designed to meet the needs of Patients including, extensive educational classes, a comprehensive marijuana Library, and on-line research services, pain management services and demonstrations, daily entertainment, specialized discounts on various marijuana related products and services, marijuana testing services, strain consulting, and perhaps most importantly the unique ability to safely network with other qualified patients.
Patient to patient transfers are permitted under the law so long as nothing of value is exchanged. In fact the Club is named after the provision of the law that specifically allows such exchanges: A.R.S 36-2811. Both Horn and Sobol agree, that the Arizona Medical Marijuana Act does permit qualified patients the right to freely exchange their medication. However, the law does not specify where such exchanges must take place. For example, the law does not require such exchanges to take place in a Dispensary. The 2811 club does not sell or distribute marijuana whatsoever. The club simply provides a safe venue for qualified patients to freely exchange marijuana among themselves, so long as it is done in full compliance with the law. Any membership fees charges are for use of the facility and its extensive services, and not for the sale of marijuana as alleged by Horn.
Additionally, In the good faith and spirit of the law the Club provides free space to a Compassion Association comprised of qualified patients and caregivers who also distribute free samples ( approx 4 grams) of their own individually grown, very high quality, medical grade marijuana. This medication is independently tested ,professionally labeled and packaged. Other then the space it donates, The 2811 Club has no affiliation with this private not-for-profit compassion club. Qualified, credible and highly skilled caregivers who are associated with the Compassion group, make themselves available to qualified patients who wish to register them through the AZDHS program. There is simply no safer way for qualified patients to obtain the medication they voted for.
Moreover, any qualified patient is welcome to visit the club and exchange their medication with other club members. Qualified patients do not have to utilize the 2811 Club to exchange their marijuana, however, they choose to visit this facility because they know that all members of the Club are qualified patients, the facility offers extensive security, provides numerous other services including extensive education and marijuana testing, and it’s simply a great place to meet other qualified patients. In the absence of such a facility, qualified patients would be forced into the streets, or risky Craigslist advertising to attract other patients. Sobol says the club fill a niche, it is the merely the vessel that brings qualified patients together and is absolutely legal. Some patients join the club just to take advantage of the extensive educational services provided by the Arizona Cannabis University, which is included in the membership fees. The club maintains strict membership rules to assure full compliance with the law. The 2811 Club is presently the only safe, dignified and legal way for qualified patients to comply with the law.
We believe Mr. Horn’s Compliant is in Violation of the Arizona Voter Protection Act, is an abuse of his authority, and moreover is further evidence of the bad faith efforts on the part of Arizona government officials to thwart the will of the Arizona Voters. In an apparent attempt to justify a repeal of the Medical marijuana Act in 2013 some of our elected officials are apparently trying to create mayhem in this industry. The Governors actions are merely a self filling prophecy. Mr. Horn’s Civil Action alleges that there is no provision in the law that allows for this type of Cannabis Club. The fact is, there is no provision in the law that specifically precludes it either. The fact is qualified patients can legally meet in practically any venue to exchange their medication. For example, If two qualified patients were to meet at a Movie theater to exchange their medication, would Mr. Horn move to close down all theaters? We believe that government officials have a obligation to uphold the laws of this state. They should be exerting their energies on how to safely implement the Arizona Medical Marijuana law rather than conspiring to to stop it. Properly managed facilities like the 2811 Club can provide qualified patients statewide with an organized, professional and fully compliant network of patient and caregiver exchanges sufficient to meet the needs of this program.
It is outrageous for Mr. Horn to suggest that the 2811 club is some how deceptive. We have been totally transparent in the development and operation of our Club. The 2811 Club has repeatedly invited all law enforcement, including Mr. Horn, to visit our facility. In fact, on August 1, 2011 we sent the Attorney General a request for a meeting to discuss the legal issues concerning Cannabis Clubs. The e-mail stated in part;
“It has always been my intent to operate in full compliance with the law, therefore, if there is some specific legal statute, or compelling and meritorious argument that would preclude such business operations in Arizona then, in that case, I would most definitely withdraw my proprietary licenses and cease all marketing efforts. Absent such specific limitations or regulations, I believe it would be in our mutual interest to meet and review Cannabis Club operations. I look forward to hearing from you.”
There was no response from Mr. Horn!
We adamantly believe that our 2811 club business model is in full compliance with State Laws and we welcome the opportunity to expedite this matter in the Courts.
We again extend an invitation to all law enforcement and government officials to come visit our facility. We have nothing to hide. We take great pride in the fully compliant facility we have developed, and the services it provides to our members.
We thank our members for their continued support, and encourage all those who suffer with the qualifying conditions to apply for a Medical Marijuana Card. We have a Doctor on site who will review your records and, if qualified, write you the required recommendation. In a further effort to demonstrate our true desire to help we are again lowering our price for Doctor Evaluations to $65.00. (The Lowest evaluation price in the State).
Please feel free to contact us directly with any questions, 602-993-5600 or visit our website for more information: the2811club.com.
Allan Sobol, Marketing Director
The 2811 Club, LLC
Attorney General Tom Horne agrees with me. Read my article called “Are Arizona Cannabis Clubs Legal Under Arizona’s Medical Marijuana Laws?” The following is the text of an August 8, 2011, blog post by Arizona Department of Health Services Director Will Humble.
“A couple of weeks ago I wrote a post expressing serious concerns about the legality of so-called cannabis clubs that have been popping up recently. It appeared to me that the clubs are distributing marijuana to customers in a way that’s inconsistent with the provisions of the Arizona Medical Marijuana Act- and the persons involved could be conducting illegal marijuana transactions… which is why we asked the Arizona Attorney General’s Office for review and analysis.
“The Arizona Attorney General has completed their analysis of “cannabis clubs” and have concluded that the clubs and the folks working in them aren’t allowed to legally transfer marijuana. The Attorney General filed a civil action in Maricopa County Superior Court today against four Valley cannabis clubs. Today’s action asks for a “declaratory judgment and injunctive relief” meaning that we’re asking the court to stop the cannabis clubs from operating and claiming that they’re able to operate under the protection of the Arizona Medical Marijuana Act.
Phoenix New Times: “Tom Horne, State Attorney General, Asks Court to Shut Down Cannabis Clubs; Says He’s Taking “Softer Approach” by Not Ordering Arrests” – Arizona Attorney General Tom Horne asked a court today to shut down cannabis clubs, claiming they’re ‘blatantly illegal’ under Arizona’s medical marijuana law. The motion, filed in Maricopa County Superior Court, names four clubs and an individual: ‘The 2811 Club, The Arizona Compassion Association, Yoki A Ma’ Club, the Arizona Compassion Club and Michael R. Miller.’ Horne wants a judge’s ruling that the clubs aren’t legal and an injunction to stop them from the ‘selling, producing, transporting, transferring or possession of marijuana’. . . . We asked Horne if he was just passing the buck on this decision. If he’s so sure the clubs are acting illegally, why not just have the clubs raided and their staffs arrested?
‘I’m taking a softer approach,’ Horne tells us.”
Phoenix New Times: “Al Sobol, Pot Club Manager, “Happy” to Have Court Decide on Clubs’ Legality” – “Al Sobol, a prominent medical marijuana marketer, says he’s “happy” that state Attorney General Tom Horne seeks to have a court review the legality of cannabis clubs. Sobol is the manager of the 2811 Club, LLC, one of the businesses named in the legal actions filed in the Maricopa County Superior Court today by state Attorney General Tom Horne.”
East Valley Tribune: “Horne asks judge to shut down Arizona’s ‘marijuana clubs’” – “Calling them illegal drug dealers, Attorney General Tom Horne asked a judge on Monday to shut down the ‘marijuana clubs” that are opening up around the state. In legal papers filed in Maricopa County Superior Court, Horne said the medical marijuana law that voters approved last November has no provision for the kind of clubs where members, after paying a fee, can get access to free drugs. More to the point, he said the exceptions in the law that club owners say permit what they do does not exist.”
Examiner.com: “Despite Colorado’s precedent, Arizona Governor Jan Brewer wants to know if state employees may be exposed to prosecution for drug offenses by working to license medical marijuana. Until she finds out, Arizona’s medical marijuana program is on hold. Meanwhile untaxed, unregulated collectives are being formed. This has evoked a response from US Attorney Scott Risner who filed a motion asking the federal judge to dismiss the case saying,
“Their complaint presents no actual controversy, instead asking this Court for an advisory opinion as to a hypothetical dispute in which Plaintiffs [State of Arizona] themselves pick no side but rather resort to a purported disagreement among various fictional Defendants [State Employees].”
Marijuana Policy Project: “A funny thing happened on Monday. The Department of Justice filed a brief regarding state medical marijuana laws in Arizona . . . and it was a good thing, and was met with appreciation from the medical marijuana movement! Seriously. . . . Apparently, the DoJ also thinks Brewer’s claims are ridiculous, and it said as much in its withering Motion to Dismiss brief, in which it took apart each of the state of Arizona’s arguments, urging the court to dismiss the case. . . . Throughout its brief, the DoJ basically said that the state of Arizona has no case and that plaintiffs Gov. Brewer and AG Horne have invented a controversy where none exists. Further, the brief notes that a state is not allowed to bring a case asking two sides to fight it out, without taking a position on the law in question”
Here are some interesting statements made in the Department of Justice’s Motion to Dismiss:
“Plaintiffs identify no controversy between the parties on that issue. That is most clear from the fact that Plaintiffs’ complaint never identifies which side of the supposed dispute Plaintiffs are on. Indeed, even their prayer for relief does not identify whether they believe the AMMA is preempted by federal law. Instead, Plaintiffs attempt to manufacture disputes among theother parties. They name as defendants various individuals and organizations whom Plaintiffs contend support the implementation and enforcement of the AMMA”
“Plaintiffs even create twenty fictitious defendants – ten who contend that the AMMA “does violate federal law” and ten who contend that it does not – and then rely on the purported disagreement ‘among Defendants’.”
“there is no actual controversy herebecause Plaintiffs can point to no threat of enforcement against the State’s employees.”
“Plaintiffs lack standing to raise their claim. As discussed above, Plaintiffs rely on manufactured disputes between various defendants, even referring to one defendant’s ‘standing and legal position’ relative to other defendants.”
“Plaintiffs identify no prior instances in which the federal government hassought to prosecute state employees for the conduct vaguely described in Plaintiffs’complaint. Without evidence of such prior prosecutions, Plaintiffs cannot credibly showa genuine threat of imminent prosecution in this case,”
East Valley Tribune: “Federal attorneys asked a judge on Monday to throw out a lawsuit filed by Gov. Jan Brewer seeking a ruling about the legality of the state’s medical marijuana law. Deputy U.S. Attorney Scott Risner said there is no legal basis for the lawsuit. Risner told U.S. District Court Judge Susan Bolton in legal papers filed in her court that, absent some actual threat of prosecution under federal drug laws by his office, the question is purely academic and therefore not a proper subject for litigation.”
Courthouse News: “The ACLU asked a federal judge to dismiss Gov. Jan Brewer’s lawsuit seeking declaratory judgment on whether the state’s voter-approved Medical Marijuana Act is pre-empted by federal law and should be struck down. The ACLU claims Arizona’s lawsuit should be dismissed for lack of jurisdiction or failure to state a claim because “state officials cannot use the federal courts as a vehicle either to validate, or to attack, their own laws.”
ACLU Asks Federal Judge to Throw Out Arizona Governor’s Lawsuit Challenging State’s Medical Marijuana Law
ACLU: “The American Civil Liberties Union today asked a federal judge to throw out a lawsuit filed in May by Arizona Gov. Jan Brewer that seeks to have her state’s medical marijuana law struck down. In a motion filed today in the U.S. District Court for the District of Arizona, the ACLU charges that the lawsuit should be dismissed because, among other reasons, there has been no threat that state employees charged with carrying out the state’s law would be prosecuted by federal authorities. ‘On the pretext of protecting her state employees, Gov. Brewer is simply seeking to thwart the will of Arizona’s voters and unconscionably block sick people from accessing their vital medicine’,””
Read the ACLU’s Motion to Dismiss.
One of the plaintiffs in the O.F. & C., Inc. vs. Humble lawsuit filed in the Arizona Court of Appeals is an organization called Protect Arizona Patients, Inc. This nonprofit corporation is leading the fight to force Arizona to comply with and fully implement Proposition 203. If you agree with this position, you should consider making a contribution to the O.F. & C., Inc. vs. Humble legal fund. Litigation is not cheap and every dollar counts. For more about this Protect Arizona Patients and its fight to force DHS to implement the medical marijuana dispensaries, go to its website.
Lawsuit Filed in Court of Appeals to Force Arizona Department of Health to Implement Medical Marijuana Dispensaries
PRWeb: “Will Humble, the Executive Director of the Arizona Department of Health Services (ADHS) was served last Tuesday with a copy of a Special Action filed in the Arizona Court of Appeals (No. 1 CA-SA 11-016). The lawsuit was the first of two actions filed against ADHS seeking judicial relief. The second action (LC2011-000410) was filed in Maricopa County Superior Court. Both lawsuits are seeking a court order directing Will Humble and the ADHS to fully implement the licensing of the Medical Marijuana Dispensaries.”
Read the Complaint.
Inside Tucson Business: “A group of would-be medical marijuana dispensary operators have filed a lawsuit against the state of Arizona in an effort to force the state to issue dispensary licenses. Scottsdale-based Rose Law Group filed the complaint for special action in Maricopa County Superior Court on Tuesday (June 14) on behalf of Serenity Arizona, Inc. and Medzona Group, Inc., both non-profit organizations intent on entering the state’s nascent medical marijuana industry.”
Dispensaries Sue ADHS in Arizona Court of Appeals Seeking an Order that State Implement Arizona’s Medical Marijuana Laws
Yesterday attorney David Dow filed an Emergency Petition for Special Action re: Writ of Mandamus in the Arizona Court of Appeals. The lawsuit ask the Court to issue an Order:
“A. In the form of an emergency Writ of Mandamus commanding Respondent [Will Humble as ADHS Director] to fully implement the AMMA by accepting dispensary applications within thirty (30) days of the execution of this Writ, and to process those applications and issue licenses within the timeframes outlined in the AMMA;
B. To find that Respondents’ action in refusing to accept and process such dispensary applications, and to issue dispensary licenses is arbitrary and capricious and an abuse of discretion;”
The plaintiffs in the lawsuit are: (1) O.F. & C., INC., an Arizona Non-Profit Corporation, d/b/a THE VIRTUE CENTER; (2) ELEMENTS THERAPEUTIC DISPENSARY, an Arizona Non-Profit Corporation; (3) ARIZONA DISPENSARY SOLUTIONS, L.L.C., an Arizona Limited Liability Company; (4) ARIZONA ALTERNATIVE RELIEF CENTERS, INC., an Arizona Non Profit Corporation d/b/a MEDICAL MARIJUANA DISPENSARIES; (5) PROTECT ARIZONA PATIENTS, INC., an Arizona Non-Profit Corporation; (6) CULTIVATION MANAGEMENT SERVICES, an Arizona Limited Liability Company; (7) HEATHER TORGERSON; and (8) STEPHEN JOHNSON.
Tom Horne, Arizona Attorney General, Worked With Anti-Prop-203 Leader Carolyn Short on Federal Lawsuit Idea
Phoenix New Times: “Arizona Attorney General Tom Horne discussed a plan to launch legal action against the state’s medical marijuana law during a January sit-down meeting with the law’s biggest opponent. Carolyn Short, who led last year’s unsuccessful campaign to defeat Proposition 203, refers to the meeting in a February 16 letter to state Department of Health Services Director Will Humble . . . . Instead, the governor and AG appear to be working in concert with Proposition 203′s opponents to defeat the law by any means necessary.”