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As Ballot Deadline Looms, Arizona’s Marijuana-Legalization Initiative Survives Court Challenges From Both Sides

Wednesday, August 31, 2016 at 2:37 p.m.

J.P. Holyoak, chairman of the Campaign to Regulate Marijuana Like Alcohol in Arizona, speaks at a press conference earlier this year.

J.P. Holyoak, chairman of the Campaign to Regulate Marijuana Like Alcohol in Arizona, speaks at a press conference earlier this year.

Nate Nichols

Proposition 205, Arizona’s controversial recreational-marijuana initiative, was the subject of yet another lawsuit this week.

Last week a judge threw out a suit filed by opponents of the initiative who alleged that the 100-word summary on the petition to get the measure on the November ballot was misleading and fraudulent. 

This week it was the proponents’ turn to sue. And they won…sort of.

On Monday, August 29, the Campaign to Regulate Marijuana Like Alcohol (CRMLA) and its chairman, J.P. Holyoak, filed a complaint against Secretary of State Michele Reagan and Attorney General Mark Brnovich.

The CRMLA was unhappy with how Reagan boiled down the 19-page initiative for the ballot and for a pamphlet that will be distributed to the public in advance of the November election.

“The description is deficient and erroneous,” CRMLA spokesman Barrett Marson told New Times. “It needs to be fixed so voters get accurate information.”

The CRMLA contends that the summary misstates the age at which it would be legal to use, grow, possess, and purchase marijuana; that it contains misleading language regarding proposed criminal statutes; and that it fails to state how tax revenue from recreational marijuana would be spent.

As it stands, the ballot text reads:

“A ‘yes’ vote shall have the effect of permitting individuals over 21 years old to privately use, possess, manufacture, give away, or transport up to 1 ounce of marijuana and grow up to 6 marijuana plants at the individual’s residence; generally declaring violations of the Act (including public use) a petty offense punishable by no more than a $300 fine; creating the Department of Marijuana Licenses and Control, which includes a 7-member Marijuana Commission appointed by the Governor, to regulate and license entities involved in cultivating, manufacturing, distributing, selling, and testing marijuana products; granting local jurisdictions limited authority to enact ordinances and rules to regulate marijuana and marijuana products; establishing licensing fees for marijuana establishments and levying a 15% tax on all marijuana and marijuana products; and declaring all marijuana establishment contracts enforceable notwithstanding any conflict with federal law.

“A ‘no’ vote shall have the effect of retaining existing law, which prohibits individuals from using, possessing, growing or purchasing marijuana unless the individual is authorized by and doing so in compliance with the Arizona Medical Marijuana Act.”

The CRMLA argued that the initiative allows use by those who are 21 and older and that it keeps certain marijuana offenses punishable as felonies, not just petty offenses. The group also contended that voters should be made aware that proceeds from the 15 percent tax will benefit education (after funding the administration of the program). The non-partisan Tax Foundation estimates revenues could reach $113 million a year.

The complaint points out that previous ballot initiatives that included new revenue sources explained both the revenue source and the use of the funds in the “yes vote” ballot language in 11 of 13 instances since 1998.

These changes were all addressed in a proposed correction the CRMLA sent to the Secretary of State’s Office. Reagan declined to make any changes to the ballot language.

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The complaint had sought an immediate injunction, because the deadline for finalizing the public pamphlet is today, Wednesday, August 31.

Earlier this afternoon Maricopa County Superior Court Judge James Blomo sided with the plaintiffs on the “over 21” issue but refused to compel the state to change the two other disputed passages.

Ryan Anderson, a spokesman for the Arizona Attorney General’s Office, tells New Times his office reviewed the summary submitted by the Secretary of State’s Office, as required by law, and determined that it was not false or misleading. “We don’t draft the language, we just review it,” Anderson says.

The Secretary of State’s Office did not respond to requests for comment.

Meanwhile, the initiative’s opponents appealed last week’s decision. This afternoon the Arizona Supreme Court ruled to keep Proposition 205 on the ballot.

Marijuana News

Prop 205 Could Lead to ‘Thinner’ Network of AZ Medical-Marijuana Stores

Arizona’s medical-marijuana program could be in for substantial changes if voters approve Proposition 205, which makes marijuana legal for all adults 21 and older.

Will Humble, former director of the Arizona Department of Health Services, says the impact on patients will depend largely on the director of the Department of Marijuana Licenses and Control, a new agency that would be created under the proposed law.

Besides making personal amounts of marijuana legal, Prop 205, also known as the Regulation and Taxation of Marijuana Act, would establish a system of cannabis-retail stores within existing medical-marijuana dispensaries. But that’s just the start of the renovations to the medical program. Another fundamental difference is that oversight of the medical-marijuana program would transfer from the state DHS to the new agency.

The overall number of marijuana stores in Arizona won’t be one of the big changes. Existing nonprofit medical-marijuana dispensaries would get first dibs on the approximately 150 retail-marijuana licenses. Under Prop 205, the 99 dispensaries now operating, along with 31 more the state is in the process of adding, would convert to “reorganized” marijuana establishments — businesses that could sell retail or medical weed.

Card-holding patients wouldn’t have to pay the 15 percent excise tax on the sale of retail marijuana. But obtaining a medical-pot card from the state costs about $300 annually — $150 to the state and another $150 on average to the referring physician who writes the recommendation. That means patients will have a decision to make. One possibility: The number of patients plummets as light users decide it’s cheaper to skip the fees and pay the tax. If that happens, the nonprofit medical program and the products it offers could be reduced simply owing to the laws of supply and demand.

That’s just one way that medical-marijuana patients could see fewer options, Humble says.

“Some of the future retail stores would probably elect not to continue the program, so the network of medical dispensaries would probably be thinner,” he predicts.

The biggest factor in the decision of business owners to provide both a retail and a medical system or ditch medical would be the new marijuana department’s governing rules, Humble says.

Rules for the medical-marijuana program as it is now were created by the state DHS in 2011, a few months after voters approved the program in a statewide election. About 100,000 Arizonans participate in the program, possessing and using marijuana legally under state law and buying it at the dispensaries.

The rule-making portion of Prop 205 is one of its lengthiest sections. Under the proposal, the Marijuana Licenses and Control agency could ditch the current medical-marijuana rules or continue using a modified version to govern medical sales. It could create new sets of rules for both retail and medical, or one new set of rules that governs both medical and retail sales.

The new rules would have to be adopted no later than September 1, 2017, and would take shape under the leadership of the agency’s director, who would be appointed by the governor. The rules would dictate everything about marijuana sales in Arizona: security, transportation, advertising, pesticide testing, the type of inventory-control system used by the stores, and much more. The department, adhering to typical rule-making procedures, would release a draft for public review, then hold public hearings and take recommendations before approving a final version.

Humble says local leaders, activists, and anyone else concerned about the retail-marijuana system would work should get involved in the rule-making process if Prop 205 passes.

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In Colorado and Oregon, retail and medical sales are often conducted side by side in the same shop. Washington, though, drew criticism in July when it shuttered medical-marijuana facilities that had not been licensed under the state’s new recreational-marijuana law.

If the new director of the Arizona marijuana agency adopts roughly the same rules for the medical program it has now, then Humble foresees minimal impact.

Another possibility is that the new agency puts together new regulations that make it difficult for dispensaries to retain their medical-side sales. Out of convenience or because the money-making potential would be higher, most dispensaries might elect to go strictly retail, Humble says.

Under that scenario, patients would be forced to drive much farther for their cannabidiol-heavy weed or medicated skin lotion, only to be hit with the insult-to-injury excise tax.

Of course, patients could choose to grow their own marijuana, freed from the existing restriction that prohibits personal cultivation within 25 miles of an operating dispensary. And if demand dictated a need, for-profit retail stores likely would begin carrying a wide variety of products to attract customers — meaning medical patients would be able to find what they need.

Jason Medar, leader of a pro-cannabis, anti-Prop 205 campaign, states on his website and in official campaign literature that the medical-marijuana program “could be DESTROYED in 2016!” Medar notes that the new, seven-member Marijuana Commission, of which three members must be principals in Arizona dispensaries, would help run the department.

“Allowing the people who make the MONEY to also make the RULES is a serious CONFLICT OF INTEREST!” Medar’s literature blares.

But in reality, the Marijuana Commission would have no power to veto or approve the rules. Its role is explicitly defined in the law and is restricted, for the most part, to approving or denying retail licenses.

Humble believes the new law could not dismantle the 2010 law, the essentials of which are protected by the 1998 Voter Protection Act.

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Despite Judge’s Blistering Dismissal, Legalization Foes Vow to Take Lawsuit to State Supreme Court

Friday, August 19, 2016 at 1:33 p.m.

J.P. Holyoak, chair of the group that put Prop 205 on the November ballot, gives Arizona State Rep. Juan Mendez a tour of the cultivation facility for the dispensary he operates. (2014 file photo)

J.P. Holyoak, chair of the group that put Prop 205 on the November ballot, gives Arizona State Rep. Juan Mendez a tour of the cultivation facility for the dispensary he operates. (2014 file photo)

Andrew Pielage / New Times

On Thursday, a Maricopa County judge threw out a  lawsuit challenging the pending Arizona ballot initiative to legalize marijuana for recreational use. Maricopa County Superior Court Judge Jo Lynn Gentry ruled that the plaintiffs had no legal standing and made no legitimate claims.

The ruling appears to clear the way for the initiative, officially designated Proposition 205, to appear on the November 8 ballot. 

The case’s merits aside, if the plaintiffs — a group of headed by members of the anti-legalization group Arizonans for Responsible Drug Policy (ARDP) — were only after publicity, they accomplished their mission.

But radio talk-show host Seth Leibsohn, who along with Yavapai County Attorney Sheila Polk heads ARDP, vows to appeal the case to the state supreme court.

“We thank Judge Gentry for her time, but we respectfully disagree with her ruling,” Leibsohn said in a statement released to media outlets. “Despite today’s ruling we still believe this initiative perpetrates a fraud on the electorate for the reasons outlined in our complaint and oral argument, which is why we will be seeking an appeal on the ruling we received today.”

In her 12-page ruling, Judge Gentry systematically dismantled the plaintiffs’ case. (Editor’s note: Scroll down to read Judge Gentry’s ruling in its entirety.)

Citing a 2015 amendment to Arizona law that “unambiguously” restricts lawsuits against ballot initiatives to cases in which the Secretary of State has refused to accept and file a petition or impeded a petition by refusing to transmit copies of signature sheets, Gentry ruled that “such is not the case in this instance.”

As to plaintiffs’ attorney Brett Johnson’s contention that the case should be an exception to that rule, Gentry said no  dice.

In the event that a higher court were to reverse her reliance on those statutory grounds, Gentry addressed specifics of the suit.

She dismissed the plaintiffs’ argument that the ballot measure’s title, “The Regulation and Taxation of Marijuana Act,” does not adequately convey the scope of the law. Ditto the required 100-word summary of the measure.

Nor was the judge swayed by the argument that Proposition 205 should be kept off the ballot because Arizona voters would be confused by the “misleading” measure.

“At oral argument, both sides acknowledged their confidence in the ability of the voters to read and discern the merits of the Initiative,” Gentry writes.

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The judge also addressed the plaintiffs’ contention that the measure fails to meet the Arizona Constitution’s Revenue Source Rule, which demands that initiatives requiring funding must provide for those funds immediately. (Proposition 205 would use existing money from the state’s Medical Marijuana Fund in order to create a Marijuana Licenses and Control agency.)

On that matter, Gentry essentially punted, noting that the state Supreme Court has previously ruled that courts can’t adjudicate Revenue Source Rule issues until after voters approve a ballot measure.

J.P. Holyoak, chair of the Campaign to Regulate Marijuana Like Alcohol in Arizona — the group that put Proposition 205 on the ballot — said on Friday that the plaintiffs should be made to pay the campaign’s legal fees as punishment for having filed a frivolous suit.

“The judge said there was zero merit here in any way, shape, or form,” Holyoak told New Times. “I think we can all agree that people should be allowed to vote on this important issue, and the concept of a politician saying, ‘No, voters, you’re too stupid to vote on this,’ is insulting and a slap in the face.”

Read Judge Jo Lynn Gentry’s ruling dismissing the lawsuit against the authors of Proposition 205:

Read the initial lawsuit here:

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It’s Cheaper to Grow Pot in Arizona in Greenhouses Than Indoors, But Is It Better?

Inside a cannabis greenhouse.

Inside a cannabis greenhouse.

Nate Nichols

You would be forgiven for not recognizing the nondescript brick warehouse in Phoenix’s Grand Avenue industrial district as the site of a high-tech agricultural facility.  

But as soon as you step inside, the smell of hundreds of marijuana plants is overwhelming. As you make your way through the small rooms that line the main hallway, you can hear the whoosh of ventilation fans and the gentle hum of huge artificial lights suspended above a lush green canopy of leaves. Reggae, old-school hip-hop, and pop-punk blare from a portable speaker as a crew of 30 or so workers trim, water, and inspect the all-female crop of cannabis plants casually known as “the ladies.” 

A relaxed grower, originally from Colorado, gleefully announces, “The plants respond to the type of music you play them.” 

The plants also respond to all the energy it takes to power an indoor grow facility like this one. That results in some pretty hefty electricity bills. 

So why grow pot indoors, particularly legal pot? Why not stick it in a field and rely on the strong Arizona sun? Arizona’s medical marijuana law and local ordinances stress the importance of security and discretion, making indoor growing an easy sell to regulators worried about public perception. But there’s another option: the greenhouse, a cross between indoor and outdoor growing that relies in large part on the sun. 

The energy savings associated with growing cannabis in greenhouses are undeniable, says Mark Steinmetz of Nature’s AZ Medicines. His company operates both indoor and greenhouse facilities. 

Steinmetz estimates that he can power his 14,000-square-foot indoor complex for $25,000 a month in the summer — the same amount it takes to power his two greenhouses, which cover more than 100,000 square feet. 

But in the cannabis cultivation business, “greenhouse” is a dirty word. Not only are there environmental factors to take into account, greenhouses have long produced inferior marijuana in a world where boutique cannabis is practically a given. 

“I even hate to say the word greenhouse. I kind of cringe a little bit every time I say it,” Steinmetz admits.

He and others are out to change that. 

Mark Steinmetz and Gerry Wilson in their Tucson-area growing facility.

Mark Steinmetz and Gerry Wilson in their Tucson-area growing facility.

Nate Nichols

The national legal marijuana market reached nearly $5.5 billion in revenue in 2015, and is expected to grow to $21.8 billion by 2020, according to a report by ArcView Market Research, a national cannabis investment group. 

But just how are these gardens of cannabis grown? Hard to say. National statistics on marijuana cultivation are largely unavailable. The DEA and FBI track plant destruction and seizures related to illegal cultivation as well as arrests for possession, manufacturing, and distribution of marijuana. But that sheds little light on legal marijuana markets.

In 2015, Arizona dispensaries grew and sold more than 19 tons of medical marijuana, according to the Arizona Department of Health Services. Arizona officials track weight, not price, but New Times estimates that in 2015, Arizona dispensaries were responsible for more than $215 million in revenue. Anecdotally, we know that the vast majority of this valuable crop is grown in energy-intensive indoor facilities like the Grand Avenue warehouse. 

And making that happen burns a lot of fuel. 

A landmark study in 2012 provides some of the best data on energy use in marijuana cultivation. Evan Mills, a senior scientist at the University of California, estimates that each marijuana cigarette or “joint” that reaches the hands of a consumer is equivalent to using a 100-watt lightbulb for 25 hours or driving almost 23 miles in a hybrid car.

Even more startling, according to Mills: “The indoor cultivation of marijuana uses $6 billion worth of electricity every year, which amounts to 1 percent of overall U.S. electricity.”

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That was four years ago. Energy use stands to increase as states across the country move to legalize marijuana. Arizona will consider legalizing recreational use in November. 

If the medical marijuana cultivation industry in Arizona is any indication, indoor growing certainly dominates. 

According to the Arizona Department of Health Services, there are currently 99 state licensed dispensaries, 79 of which have approved cultivation permits. Tom Salow, a branch chief in the Division of Public Health Licensing Services with AZDHS, says his office doesn’t track such things — but he’s pretty sure that only three of Arizona’s sanctioned growers use greenhouses. 

Although marijuana has now been legal for medical purposes in Arizona for the last four years, you would be hard-pressed to notice much innovation in the industry. In buildings that more closely resemble fortresses than farms, master growers operate increasingly large facilities. Some are home to only a few plants, while others have thousands. Facilities can range in size from a few thousand square feet to 100 times that size. 

And around here, bigger is definitely better for dispensary owners. Unlike many other states with medical or recreational marijuana, Arizona has no limits on the number of plants a dispensary can cultivate.

As cultivation facilities increase in size, so too can the headaches caused by poor practices. Most growers are using the same practices that made them successful years ago with their first closet-, garage-, or basement-grown harvest. 

One of the biggest inefficiencies, currently, is the fact that these growers are forced to re-create the power of the sun using artificial lighting. 

But the greenhouse method is not without its challenges. Even the growers at Mark Steinmetz’s Nature’s AZ Medicines admit that it’s often easier to grow marijuana indoors. 

Because greenhouses are more open to the outdoors than traditional indoor cultivation facilities, they face unique problems. Constantly exchanging air by pushing out stale air and drawing in fresh air from the outdoors leaves greenhouses more susceptible to problems that don’t affect indoor facilities as often, including the ability of pests to enter, bringing in molds and mildews that are prevalent in nature; the inability to control the indoor climate; lack of interior rooms to contain infestations; and potentially inadequate lighting, depending on the location.

For these reasons, Jennifer Gote, a Phoenix-based marijuana cultivation consultant who works with dispensaries across the state, is still partial to indoor cultivation. 

“Indoor cultivation offers a lot more control,” she says. Gote believes that the ability to precisely control the environment can result in a better quality medicine. 

“There is absolutely a quality difference between indoor and greenhouse marijuana. Indoor is much higher quality.” 

She doesn’t dispute the energy savings — just the quality. 

“Greenhouse will always come in lower cost. But will the quality be there?” 

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Big Week for Weed! State Confirms Legalization Measure for Ballot, ASU Forum Starts Today

Thursday, August 11, 2016 at 10:02 a.m.

(See UPDATE below from the Arizona Secretary of State’s Office)

What a busy week in weed! The Regulation and Taxation of Marijuana Act (RTMA) has exceeded its signature goal and will be on the November ballot, the Arizona Secretary of State’s Office confirmed on Wednesday. Matt Roberts, spokesman for the office, said the state will likely issue a certification today making the news official.

The campaign behind the ballot initiative, a group of Arizona dispensary owners and the national Marijuana Policy Project, plan to hold a news conference about it this morning, but the news media has run with the story since yesterday afternoon’s announcement. The campaign submitted 258,699 signatures to the state on June 30, well in excess of the 150,642 it needed. (New Times will update this story with the official tally of valid signatures when the figure is released.)

If approved by voters on November 8, the RTMA will legalize possession and cultivation of marijuana for personal consumption for adults 21 and older and sets up a limited system of retail stores where cannabis products will be sold.

Also on Wednesday, the U.S. Drug Enforcement Administration announced that it would not reschedule marijuana from its current Schedule I status under federal law. The announcement did contain one interesting surprise: The DEA says it will expand the number of cultivation sites approved for purposes of medical research.

An incremental step to be sure, but a significant one. At present, the only place where marijuana can be grown in the United States without violating federal law is on a small farm owned by the University of Mississippi, under the oversight of the National Institute on Drug Abuse.

Might we see a NIDA-certified pot farm at Arizona State University or elsewhere in the state? Details will be revealed in an upcoming edition of the Federal Register, the agency says.

Click the link to read the DEA’s letter to petitioners who wanted marijuana rescheduled. (Signers include the governors of Rhode Island and Washington.)

If you can’t get enough of all the news coverage on cannabis this week and want full immersion, Arizona State University has a public forum for you.

Today ASU’s Morrison Institute for Public Policy kicks off its Arizona Citizens’ Initiative Review (CIR), which it calls “an innovative exercise in voter engagement and education.”

For the next four days, the CIR’s advisory board — various experts on a range of subjects, along with advocates, pro and con, of the ballot initiative — will converge to discuss the potential effects of marijuana legalization.

The event is open to the public, but for viewing only (no questions or comments from the peanut gallery). Findings gleaned from the discussions will be delivered to the Arizona Citizens Clean Elections Commission and the Secretary of State’s Office and shared with the news media.

Today through Sunday, interested parties will converge on the A.E. England Building, 424 North Central Avenue in downtown Phoenix. Hours are 10:30 a.m. to 5:30 p.m. today, and Friday through Sunday from 8:15 a.m. to 5:30 p.m.

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A partial schedule of events, per ASU:

• Thursday, August 11
3-4 p.m.: Initial advocate presentations

• Friday, August 12
12:15-1:15 p.m.: Advocate Q&A panel
2-4 p.m.: Independent expert panel sessions

• Saturday, August 13
1-2 p.m.: Final advocate presentations

Advocates in favor of legalization are J.P. Holyoak and Ryan Hurley of the Campaign to Regulate Marijuana Like Alcohol. Yavapai County Attorney Sheila Polk and Arizona psychiatrist Ed Gogek will advocate for the opposition.

Independent experts include Will Humble of the Arizona Public Health Association; Gregory Midgette, a policy researcher with the RAND Corporation think tank; Erik Luna, an ASU law professor; and Ashley Kilroy, executive director of marijuana policy for the city and county of Denver.

The Morrison Institute likens the event to a jury trial without a verdict: It will elucidate pros and cons but will take no final stance on the ballot measure.

Read more info about the event from ASU here and here.

UPDATE: Secretary of State Michelle Reagan’s office has released data on signature validity for what will now be known as Proposition 205. Here’s the word from Reagan’s spokesman, Matt Roberts:

 To qualify for the ballot, the county recorders were required to validate at least 7,681 total signatures with no worse than a 38.4% signature failure rate.

· The county recorders validated 8,864 signatures and disqualified 3,611signatures, resulting in a 28.95% signature failure rate.

· Pursuant to state law the estimated total number of valid signatures is 177,258, which exceeds the 150,642 minimum signatures to qualify for the ballot under the Arizona Constitution.

· The Secretary of State’s Office has notified the Governor that a sufficient number of signatures have been filed and that the initiative will be placed the general election ballot.

· The initiative will be assigned Proposition 205.

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Marijuana Legalization Would Eliminate Several Felony Arrests a Day in City of Phoenix

Thursday, August 11, 2016 at 7:07 a.m.

If voters approve it in November, the pending ballot initiative to legalize marijuana for recreational use in Arizona stands to eliminate several felony arrests each day in the city of Phoenix alone.

On average, the Phoenix police have arrested more than seven people a day since January 2015 for suspicion of marijuana possession, according to figures New Times obtained through a public-records request.

The numbers represent a decline from the roughly 10 people per day police arrested from 2012 to 2014. The decline was especially notable for juveniles, who were arrested nearly half as often in 2015 compared to other recent years.

Lieutenant Paul Taylor of the department’s public-affairs bureau didn’t offer any explanation for the decline when asked for a possible reason, such as a policy change. But he said he didn’t dispute the figures, which came from the bureau’s Crime Analysis and Research Unit. 

Possession of any amount of marijuana up to two pounds is a Class Six felony in Arizona, which has one of the nation’s toughest pot-prohibition laws on the books. Medical cardholders can possess up to 2.5 ounces legally, but most of the state’s estimated 600,000 marijuana users take their chances with the law. Typically, a county prosecutor will reduce the felony charge to a misdemeanor or allow a defendant to escape a conviction by agreeing to take a drug-rehabilitation course. Even if convicted of a felony or misdemeanor for simple possession, first- and second-time drug offenders can’t be sentenced to jail because of a law voters passed in 1996.

Yet most do a see the inside of a jail or city booking facility following their arrest by police for a felony. Nearly all adults are temporarily jailed during the booking process, Phoenix police have previously told New Times. The new statistics show that more than 25 percent of the children busted for pot were detained. The rest were cited and released to a parent or guardian.

Here are the numbers of possession-only cases as released by Phoenix PD and compiled by New Times

2012: Approximately 3,000 adults arrested, 600 juveniles.

2013: 3,169 adults arrested, 465 juveniles.

2014: 3,162 adults arrested, 404 juveniles.

2015: 2,663 adults arrested, 278 juveniles.

2016: 1,254 adults arrested, 172 juveniles (through June)

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Sheila Polk, Yavapai County Attorney and co-chair of a group lobbying to defeat the legalization measure, claims in published literature that “marijuana legalization does not mean fewer arrests.”

That’s incorrect, judging by the state’s largest city. 

Yet the new statistics don’t give a perfect idea as to what won’t happen, in terms of arrests, if voters approve the Regulation and Taxation of Marijuana Act (RTMA) in November. Many, if not up to half, of those arrested for marijuana possession may have been charged with other crimes, too. If that’s the case, then they probably would have been arrested regardless.

Nor do the stats indicate the quantity of marijuana seized. Even if marijuana becomes legal for recreational use, possession of more than two pounds would remain a felony. (A spokesman with the Arizona Department of Public Safety told New Times in June that more than 90 percent of marijuana cases the state crime lab analyzes involve less than one ounce.)

Under the RTMA, residents 21 and older could legally possess an ounce or less, and anything between an ounce and 2.5 ounces would be a civil offense payable by a fine. Possession by those under 21, also a felony now, would become a petty offense subject to a $300 fine for amounts under an ounce. Possession of more than an ounce by a minor would remain a felony.

Clearly, then, police would continue to make some marijuana-possession arrests. But when it comes to busting cannabis consumers, the vast bulk of their work would be eliminated.

Paraphernalia charges related to marijuana would disappear as well. The RTMA would legalize “marijuana accessories,” which include devices in which to carry or use marijuana. As things stand now, police have the option of submitting charges to prosecutors for both possession and paraphernalia when they bust someone with pot and a pipe. While Phoenix stats don’t differentiate between pot-related paraphernalia bookings and those that involve other drugs, the RTMA would likely rid the state of thousands of paraphernalia charges each year.

Finally, the law would allow adults 21 and older to grow up to six plants in a discreet location, with a 12-plant-per-household maximum. Growing pot is currently a Class Five felony if the weight of the plants is less than two pounds. 

The Phoenix PD has averaged about 30 cultivation arrests per year since 2012, the stats show. Yet in the past 12 months, the department has made just one cultivation arrest.

Perhaps it’s time to start envisioning all the productive ways police officers could spend the time they currently devote to escorting cannabis consumers to jail.

Marijuana News

New Applications Have Poured in for Arizona Medical-Pot Store Licenses

Wednesday, August 3, 2016 at 2:26 p.m.

The medical-marijuana industry is exploding in Arizona, restrained only by limitations that state and city officials have imposed on it.

Nothing exemplifies the potential of this lucrative trade like the numbers the Arizona Department of Health Services reported today on the flood of applications the agency received in July for a chance of obtaining one of 31 new licenses to operate a medical-marijuana dispensary.

The DHS confirms for New Times that 747 applications were submitted during the official submission period, July 18-29. At $5,000 per application, the DHS took in $3.7 million in fees. The money will be added to the state’s medical-marijuana fund, which stood at about $12 million before this latest influx. Applicants who fail to obtain one of the 31 new licenses will receive a refund of $1,000 — leaving the state with a $3 million windfall.

Officials expect a few more applications to trickle in by mail, DHS spokeswoman Holly Ward says. They’ll count as long as they were postmarked by the July 29 deadline.

As of April, according to a blog post written by DHS director Cara Christ, there were 99 nonprofit dispensaries licensed in Arizona, with 92 open and operating.

Roughly 100,000 patients are now registered under the program, 70 percent of whom list “chronic pain” as their sole qualifying ailment. Patients aren’t allowed to grow their marijuana if they live within 25 miles of an operating dispensary.

It will take weeks for the DHS to sort through the applications and designate the new licensees. Winners are assured a dynamite business opportunity, albeit in a field that will see a rush of new fellow competitors.

Applications had to be accompanied by a signed letter from a property owner certifying that a suitable location is available for the proposed dispensary.

Via a convoluted scoring process that utilizes Community Health Analysis Areas (CHAA), the DHS will analyze those proposed locations in order to calculate which applicants stand to serve the most customers within a 10-mile radius.

Only DHS knows where all the patients are, and they aren’t saying. (Not surprisingly, most eligible CHAAs are located in metro Phoenix and Tucson, with a few in slightly less-populated but patient-rich areas such as Lake Havasu City and northeast Yavapai County.)

In the event of tie scores, the DHS will break deadlocks by choosing randomly.

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Ryan Hurley, a Valley attorney who provides legal assistance to dispensaries (and to the pending ballot measure to legalize recreational marijuana use), says he expects to see a few ties.

For one thing, the volume of competition makes it likely that some property owners have promised the same site to more than one applicant. A property owner doesn’t necessarily care who wins, but an applicant certainly does.

Furthermore, a letter of intent isn’t a signed lease. In theory, at least, an applicant could win a license, only to find out that the designated location won’t work. In that case, the licensee could put the dispensary at another address within the same CHAA. So it’s possible that an applicant could game the system by listing an address that would provide an edge in the selection process, while having no intention of actually putting a dispensary at that location. (In any case, the regulations permit dispensaries to move anywhere in the state — subject to local controls — after they’ve been operating for three years.)

It’s safe to assume hard feelings might arise among the 700-plus losers, and that some of those left outside looking in might blame the DHS selection process.

In other words, the DHS might not come out of the process without contending with a lawsuit or two.

The DHS expects to announce the winners in October — which means patients could be shopping at new stores by next summer.

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Here’s the Truth Behind Claims That Legalization Will End Workforce Drug-Testing for Weed

Opponents of a ballot measure to legalize marijuana in Arizona threaten a looming catastrophe of liability lawsuits for employers.

From the start, Arizonans for Responsible Drug Policy, an anti-legalization political action committee led by conservative radio show host Seth Leibsohn and Yavapai County Attorney Sheila Polk, has maintained (see PDF below) that the initiative known as the Regulation and Taxation of Marijuana Act (RTMA) would take away employers’ control over their own business operations.

Last week, representatives of a prominent segment of the state’s business community engaged in similar anti-pot saber rattling.

“With a statutory right to use marijuana built into the RTMA and employers only allowed to restrict use in the workplace, an employer will not be able to use a positive drug test for marijuana as a cause for discipline prior to an accident,” David M. Martin, president of the Arizona chapter of Associated General Contractors of America, and developer Karrin Kunasek Taylor write in an op-ed the Phoenix Business Journal (subscription required) published last week. “Our business climate will take the hit.”

Yet, the proposed RTMA does not aim to prohibit employers from continuing to screen for drugs, nor does it alter the current negative consequences for those who test positive. It states:

“[The RTMA] does not require an employer to allow or accommodate the possession or consumption of marijuana or marijuana products in the workplace and does not affect the ability of employers to enact and enforce workplace policies restricting the consumption of marijuana and marijuana products by employees.”

In fact, cannabis-rights supporters who oppose the act because they think it’s too conservative have targeted that very paragraph.

“YOUR EMPLOYER CAN FIRE YOU FOR USING MARIJUANA LEGALLY AT YOUR OWN HOME!” Jason Medar blares in all caps in one of eight “con” arguments he filed in the state’s official publicity pamphlet regarding this November’s ballot initiatives.

David M. Martin didn’t return messages requesting clarification of his op-ed argument.

Ryan Hurley, a lawyer for local dispensaries and a backer of the RTMA, says the act means exactly what it says: If Arizona voters approve the measure, drug-testing policies that are legal now will remain legal.

Hurley acknowledges that the drug-screening debate zeroes in on the fuzzy line where personal life ends and work life begins. After all, a person might test positive days or weeks after last using marijuana, making it difficult to determine when he or she was impaired. But Hurley believes that where pot is concerned, the line will become clearer as marijuana’s place in American culture and the nation’s legal system continues to come into focus.

“This was never about whether employers get to fire you or not,” he argues. “Employers ought to be more concerned about the status quo and felony arrest records.”

Hurley also takes issue with the argument put forth by Arizonans for Responsible Drug Policy (ARDP) that when it comes to drug testing or anything else, legalization would confer upon marijuana users special rights that don’t apply to users of alcohol, tobacco, or other legal substances.

The ARDP objects to language in the initiative that reads, “Notwithstanding any other law, except as otherwise provided in this chapter, it is lawful in this state and may not be used as the basis for prosecution, penalty or seizure or forfeiture of assets for a person who is at least twenty-one years of age to [use or possess marijuana].”

Even if the “penalty” in question is termination from one’s job, Hurley says, the “notwithstanding” part applies to drug testing, which, after all, is included in the “chapter” (i.e., the proposed new law).

“You can read those two parts harmoniously,” Hurley argues. “Continued employment is not a ‘penalty,’ it’s a conferred benefit. And if one of the conditions of employment is to remain drug free, that would remain the same.”

The proposed RTMA states, “This chapter does not authorize any person to engage in and does not prevent the imposition of any civil, criminal or other penalty on a person for … performing any task while impaired by marijuana or a marijuana product that would constitute negligence or professional malpractice.” 

The ARDP has interpreted the passage as meaning that “employers will only be able to take adverse action against a marijuana-using employee if the employee is (1) actually impaired on the job, and (2) ‘performing’ a task that would (3) ‘constitute negligence or professional malpractice.'”

Phoenix employment attorney John J. Balitis, who says he has no stake in the election, believes the ARDP may have a point here. Balitis, a director at the law firm Fennemore Craig, says a recreational marijuana user who is fired after a positive drug test might file a lawsuit arguing that the law only prohibits employees under the influence of marijuana from performing tasks negligently or in a manner that constitutes professional malpractice. In other words, that working while high is okay, as long as one doesn’t screw up.

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Hurley concedes that legal questions and court cases likely would arise. But he points out that passage of medical-marijuana laws in Arizona and other states resulted in the tightening of protections for employers who drug-test.

In 2011, for instance, the Arizona State Legislature passed a law that clarified which types of sensitive jobs were subject to drug testing and redefining what constitutes impairment. It’s unclear whether the law was necessary. But today, 100,000 Arizonans legally use marijuana on a medicinal basis, and employers still drug-test. If anyone should complain, it’s medical-marijuana users who thought they’d have more protection under the 2010 law.

Balitis and the ARDP worry the new act might nullify that 2011 law, and, in turn, expose employers to liability if they refuse to hire people who consume marijuana in their off-time, as well as liability from accidents caused by marijuana users. Hurley disagrees, reiterating that drug-testing would remain the status quo.

It’s worth noting that Sheila Polk and other medical-marijuana opponents argued in 2010 that if Arizona voters approved medical marijuana, employers would face “disaster” because they’d be unable to weed out  applicants or employees who tested positive for marijuana. The same concerns were raised in Colorado, Oregon, and Washington, but courts have ruled consistently in recent years that employers have the right to fire people who use marijuana, even when the use is medicinal.

The notion that the system will remain in working order has strong precedent in Colorado, where voters approved Amendment 64 in 2012.

The Colorado law contains wording very similar to Arizona’s regarding an employer’s right to restrict employees’ marijuana use, and the Denver Metro Chamber of Commerce had taken a position against Amendment 64 in part because of fears that employers would lose control of their drug-free workplaces, says Laura Giocomo, the group’s vice president of communications and marketing. But those scenarios have not come to pass.

In fact, unemployment in Denver has dropped to 3.3 percent — far below the national average of 4.9 percent. New businesses are popping up and tourism has set new records in the last couple of years.

“In terms of workforce development and economic development, we haven’t seen big changes,” Giocomo says. “People are still flocking to Denver. We don’t have a shortage of smart, qualified workers here.”

Of course, that hasn’t prevented critics of legalized marijuana from spinning Colorado’s employment stats as a negative.

Last year the Colorado Springs Gazette published an op-ed entitled “Drug Use a Problem for Employers,” which the ARDP and other prohibitionists have widely distributed as evidence of a problem Arizona ought to avoid.

One of the sources quoted in the opinion piece is Leona Wellener, who owns a Colorado Springs staffing agency. According to the op-ed, Wellener believed “marijuana use has compromised Colorado’s workforce” and said that more than half of her company’s applicants in February 2015 had tested positive for THC.

But now, Wellener tells New Times that marijuana use is simply one of many factors that may prevent people from obtaining a position during these boom times.

“We’re having a hard time finding people in general,” Wellener says. For some, marijuana use is a barrier to employment. For others, it’s “horrible work histories, no applicable skills, or [that they] can’t pass a background check. Marijuana use is part of what we’re dealing with.”

Wellener says that personally, she has no problem with marijuana users as a rule. Her clients do, though, because they want a drug-free workplace.

She adds that she has no opinion about Arizona’s legalization initiative. But when informed that the state currently enforces a zero-tolerance, felony prohibition on marijuana, she remarks, “That’s ridiculous.”

Read Anti-Legalization Literature From Arizonans for Responsible Drug Policy:

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Some AZ Democrats Embrace National Party’s New Stance on Pot Legalization

The Democratic National Convention in Philadelphia has adopted a bold pro-marijuana platform that could have an effect on Arizona’s upcoming legalization vote.

With heavy input from Bernie Sanders supporters, the draft of the platform document was publicized earlier this month and showed a heavy lean to the left wing of the party. Regarding marijuana, the draft suggested a move toward the type of legal tolerance that polls show most Americans want.

The platform was approved at the convention on Monday. Despite reported concerns from Hillary Clinton’s camp, the language from the draft document regarding marijuana remained intact.

“Because of conflicting federal and state laws concerning marijuana, we encourage the federal
government to remove marijuana from the list of ‘Schedule 1’ federal controlled substances and to appropriately regulate it, providing a reasoned pathway for future legalization,” the now-official party platform states.

The platform stops short of endorsing adult-use marijuana initiatives that will be on the ballot this year in Arizona, California, Maine, Massachusetts, and Nevada. But it comes close: “We believe that the states should be laboratories of democracy on the issue of marijuana, and those states that want to decriminalize it or provide access to medical marijuana should be able to do so.

“We support policies that will allow more research on marijuana, as well as reforming our laws to allow legal marijuana businesses to exist without uncertainty,” the platform continues. “And we recognize our current marijuana laws have had an unacceptable disparate impact in terms of arrest rates for African Americans that far outstrip arrest rates for whites, despite similar usage rates.”

The document also demands more drug courts and diversion programs to keep nonviolent drug offenders out of prison.

“The ‘war on drugs’ has led to the imprisonment of millions of Americans, disproportionately people of color, without reducing drug use,” it reads.

Of course, the platform only provides guidance to Democratic candidates. They don’t have to follow it. Nevertheless, the clear direction about the rights of marijuana consumers and the failure of the drug war may have long-term implications whichever political side becomes dominant after November’s vote, says Mikel Weisser, president of Arizona’s chapter of the National Organization for the Reform of Marijuana Laws.

In the short term, Weisser says, its marijuana message might embolden local Democratic candidates to speak up in favor of the Regulation and Taxation of Marijuana Act, the Colorado-style marijuana-legalization initiative expected to be on Arizona’s ballot in November.

Weisser, who is in Philadelphia this week as a delegate for Bernie Sanders and is also a candidate for the U.S. House of Representatives in Congressional District Four, says each section of the 55-page platform had to be approved in separate votes, and that the marijuana section was approved by the slimmest of margins: 81 to 80.

“I was really thrilled to see it slide through with no final contention,” he says. A couple of weeks ago, when the draft was still being debated, he notes, “The Hillary people tried to trim the language even more.”

Thousands of copies of the platform could be found all over the Wells Fargo Arena in Philadelphia, and Weisser has no doubt it was well-read by the Democratic delegates at the convention.

Dennis Obduskey's July 12 Facebook post about his efforts to include pro-cannabis language in the Democratic Party platform draft document.

Dennis Obduskey’s July 12 Facebook post about his efforts to include pro-cannabis language in the Democratic Party platform draft document.

Cannabis advocates can thank platform committee member Dennis Obduskey of Park County, Colorado, for pushing the marijuana section.

“Hard to believe MY AMENDMENT to the Democratic Party National Platform made national news! On Saturday, we won on an amendment to remove marijuana as a Class 1 Controlled Substance!” Obduskey posted on Facebook earlier this month

“We have so many people in jail because of marijuana use,” Obduskey told the Denver Post on Monday. “We need to get this as a national policy and stop screwing around with it.”

Several Democratic candidates for Congress in Arizona agree with that concept.

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“As a doctor, I know that putting marijuana in the same category as heroin or methamphetamines doesn’t match up with the science, and the penalties for possession can be extreme and disproportionately affect minority populations,” says Matt Heinz, a physician and former state lawmaker who’s vying for the Democratic nod to oppose Republican incumbent Martha McSally for the seat in Congressional District Two.

Heinz says marijuana has been shown to reduce the use of narcotics for pain control, which could lead to a drop in opiate addiction, and he’d like to see more research on cannabis’ potential to treat illnesses like post-traumatic stress disorder. Most important, he says, state voters should be allowed to decide the issue for themselves.

That last issue is also a key factor for Democratic Rep. Ann Kirkpatrick, who represents Arizona’s First Congressional District.

“I think it’s critical that Arizona voters have the right to decide for themselves about marijuana legalization, just as they did when they passed Prop. 203 in 2010, which legalized medical marijuana in our state,” Kirkpatrick says. But she adds a caveat: “As a former prosecutor, I have seen firsthand the need for tough policies to ensure marijuana stays out of the hands of children and that we crack down on use while driving.”

Kirkpatrick, who’s running against John McCain for the U.S. Senate, offered no opinion about the new platform’s “pathway for future legalization” or whether she believes voters should approve or reject the RTMA, which is sponsored by the national Marijuana Policy Project and local medical-marijuana dispensaries.

Rep. Ruben Gallego is the only member of Arizona’s Congressional delegation who’s a strong supporter for marijuana freedoms. Gallego announced his support for the Arizona initiative in a news conference in late June

Other Democrats seemed reticent on Tuesday to take a stance on the party platform or Arizona’s legalization proposal.

Enrique Gutierrez, spokesman for the Arizona Democratic Party, declined to comment about the national party platform stance on marijuana. He says the ADP has not passed a resolution on either that or the state’s pending legalization measure, and that he’s unsure when any such votes might take place.

Some other candidates for Democratic posts in the state didn’t return messages New Times left with their campaign staff. Victoria Steele, a former TV reporter who’s facing off with Matt Heinz in the August 30 Democratic primary for CD-2, didn’t call back. (McSally did not return our call, either.) Nor did Tom O’Halleran, a former Republican state lawmaker who’s running for Congress as a Democrat in Arizona’s CD-1.

Some AZ Democrats Embrace National Party's New Stance on Pot LegalizationEXPAND

Courtesy of Mikel Weisser

Now that the national party says legalization is a reasonable goal in America, more Democratic politicians may feel comfortable talking about it. But the issue can still sometimes be politically radioactive, Weisser says.

“There’s a fear of not getting votes,” he says of politicians who might agree with the idea of legalization but aren’t speaking out. “And then there’s ‘reefer madness.’ People have been trained to be afraid, to be very afraid, of marijuana.”

Yet the mood at the convention seemed very welcoming to marijuana and its related issues, he emphasizes.

On Monday, cannabis activists carried two giant “joints,” each 51 feet long, through downtown Philadelphia to demand federal legalization. With the Democratic Party spearheading the “pathway,” it may only be a matter of time.