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Horne seeks halt to licensing of pot dispensaries

Horne seeks halt to licensing of pot dispensaries

He argues federal law pre-empts voter-OK'd medical marijuana

PHOENIX - The state's top prosecutor asked a judge Thursday to void a key provision in Arizona's 2-year-old medical marijuana law.

In legal papers filed in Maricopa County Superior Court, Attorney General Tom Horne argued that judges are legally powerless to authorize anyone to sell marijuana as long as it remains illegal under federal law.

The real goal is to get a ruling declaring the state and federal laws in conflict.

Horne said that will allow him to direct the state Department of Health Services to halt the current process of licensing up to 126 dispensaries to sell the drugs before the first one has opened its doors.

Horne is not seeking to invalidate the more than 31,000 cards the state health department has issued to people who have a doctor's recommendation to use the drug.

He said there is a technical legal difference to how Arizona law is worded he believes allows state officials to provide the cards as identification.

Maricopa County Attorney Bill Montgomery, filing similar paperwork Thursday in the same case, does not share that view.

He believes the state-issued cards to medical marijuana users also are pre-empted by the federal Controlled Substances Act.

He is seeking a court ruling, whether in this case or another, that wipes out the entire 2010 Arizona Medical Marijuana Act.

The legal filings come in a case where the White Mountain Health Center filed an application to operate a dispensary and cultivation site in Sun City.

Arizona law requires dispensary owners to first show they have the necessary zoning and use permits before they can get a license.

But the Maricopa County Board of Supervisors, which controls zoning in the unincorporated area, refused to process the request on Montgomery's advice.

The dispensary owners sued, asking Maricopa County Superior Court Judge Michael Gordon to force the county to act.

Montgomery, who is named as a defendant in that case, said in his response that he can't, citing a ruling earlier this year by the U.S. Supreme Court striking down key provisions of SB 1070, the state's 2010 law aimed at illegal immigrants.

In that case, Montgomery said, the high court ruled that state laws are pre-empted by federal statutes where they conflict, and where a state law would be "an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."

In this case, he said, Congress specifically classified marijuana as a Schedule 1 drug, for which there is no legitimate medical use.

Horne insisted he is a reluctant warrior in the fight against the Medical Marijuana Act.

But he said his hand was forced after prosecutors in 13 of the state's 15 counties asked him for a formal legal opinion on whether the state law is pre-empted by federal statutes.

Horne said his research found that a state may not authorize what the federal government expressly prohibits.

But Ryan Hurley, an attorney who represents some dispensary owners, said Horne is relying on the wrong cases.

"The factual pattern is very different" from how Arizona law operates, he said. "And they completely ignore other cases out of California and Michigan and frankly another case out of superior court in Arizona that says the exact contrary."

Horne acknowledged Arizona is one of more than a dozen states with similar laws. And despite the Controlled Substances Act, there has been no wholesale effort by the U.S. Department of Justice to shutter dispensaries.

Horne said the lack of federal action against dispensaries elsewhere is irrelevant to his legal opinion.

It could turn out Gordon rules on the case without ever addressing the effort by Horne and Montgomery to secure a broad ruling on federal pre-emption.

In his legal filings, Montgomery said what the White Mountain clinic owners want is a court order for him to alter his advice to the supervisors.

And he said courts are powerless to issue such an order.

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