Judge nixes medical marijuana users right to grow their own

2013-11-14T00:00:00Z 2013-11-14T08:51:34Z Judge nixes medical marijuana users right to grow their ownBy Howard Fischer Capitol Media Services Arizona Daily Star
November 14, 2013 12:00 am  • 

PHOENIX — Medical marijuana users have no constitutional right to grow their own drug, a trial judge has ruled.

Judge Katherine Cooper of Maricopa County Superior Court threw out a challenge by two men to a provision in the 2010 voter-approved Arizona Medical Marijuana Act that says only those living farther than 25 miles from a state-regulated dispensary can cultivate the plants.

She said there is no basis for their claim that the provision limits their health-care rights.

But Cooper left the door open for the men to raise a separate challenge that the 25-mile rule amounts to a violation of their rights under constitutional provisions guaranteeing everyone equal protection of the law. She said, though, they have yet to make a case for that claim.

The 2010 law allows those with a doctor’s recommendation to get a card from the state allowing them to obtain and possess up to 2½ ounces of marijuana every two weeks.

That law also envisioned a system of state-regulated dispensaries to sell the drug. But it also says anyone who lives farther than 25 miles from a dispensary could grow up to 12 plants at any one time.

Initially, that exemption applied to everyone because it took the state more than a year to license dispensaries. But state Health Director Will Humble said just about all of the approximately 40,000 medical-marijuana cardholders in Arizona now live close enough to a dispensary.

The challengers, who had been growing their own, did not want to give up that right.

They cited provisions of a 2012 constitutional amendment that says individuals cannot be forced to participate in any health-care system.

Attorney Michael Walz said forcing those who are entitled to use medical marijuana to buy their drugs at retail from a dispensary amounts to forcing them to participate in that system.

Cooper disagreed.

“Dispensaries are not a ‘health-care system,’ ” the judge wrote.

She said they do not manage, process, enroll or pay for health-care services for qualifying patients.

And Cooper said the amendment the men are relying on clearly applies to mandated health insurance, “not to a businesses that sell controlled substances.”

Anyway, the judge wrote, participating in the Arizona Medical Marijuana Act is hardly a compulsory program.

Instead, she pointed out, it simply allows those who qualify to legally obtain and possess marijuana.

“It does not compel people to use medical marijuana or even obtain a qualifying registry card,” Cooper said.

An appeal is likely.

Copyright 2014 Arizona Daily Star. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Featured businesses

View more...

Deals, offers & events

View more...