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Arizona’s Medical Marijuana Law: 25 mile rule challenged in lawsuit

February 16, 2012
By

www.judgepedia.com
February 16, 2012

Today a ‘motion for a preliminary injunction and memorandum of law in support thereof’ was filed in the United States District Court for the district of Arizona which will send the Arizona Medical Marijuana Act back to Federal Court. The lawsuit, HAYES vs ARIZONA has Governor Brewer named along side the Director of the Arizona Department of Health Services Will Humble and Robert Halliday who is the director of the Arizona Department of Public Safety as well as Tom Horne the Arizona Attorney General. The Plaintiff is listed as Billy Hayes, the Co-Founder and former CEO of Arizona Cannabis Society, local medical marijuana advocate and also a well known medical marijuana cultivation consultant. The case itself is claiming a small portion of the Arizona Medical Marijuana Act (AMMA) is unconstitutional, the section in question is being referred to as the “25 Mile Rule” and Hayes is looking to have it removed from the Law.
“comes now, one Pro Se…and hereby moves the court to preliminary enjoin enforcement of Arizona Revised Statute 36-2804.02 (A)(3)(f) and preserve the status quo with respect to that portion of the Arizona Medical Marijuana Act that allows for cultivation of Medical Marijuana…”
The case alleges the above listed section of the AMMA interferes with Federal Equal Protection under the 14th Amendment to the United States Constitution and as such should be stricken from the AMMA, no other portion of the AMMA is being challenged.
This lawsuit against the state is like nothing we have seen as of yet regarding the implementation of the AMMA, as it a single patient challenging the State, regarding just a single section of the AMMA but don’t be confused, this little section is enormous in nature. The portion of the law being challenged has been the source of much controversy since the implementation of the Arizona Medical Marijuana Act and Hayes has sat in the background watching and listening to it all.
“I have a unique position in the industry as a cultivation consultant, I actually see what people are growing, how they’re growing it and the benefits they get from cultivating cannabis. It goes farther than just the obvious financial benefits for patients that choose to grow their own cannabis, it goes a lot farther.”

Arizona Cannabis Society first appeared as a cultivation force in an article by Ray Stern from the New Times, in another New Times article you can find images of Hayes smoking a large joint, his mmj card was also used in an article by Ray Stern and the New Times regarding Arizona’s medical marijuana act and its implementation, or lack there of. A video of Hayes speaking out against cultivation restrictions at a Town of Gilbert Planning & Zoning meeting can also be found on the city’s official website. Advocacy aside, he was also recently featured in THC Revista, an Argentinian cannabis cultivation magazine, the magazine which is riddled with photos of hydroponic systems and gorgeous marijuana plants. A significant number of those photos have Hayes’ name attached. Hayes definitely knows how to cultivate cannabis and that could be important in this case, as the words “ORAL ARGUMENT REQUESTED” are in bold across the front of the motion.

The case is no small matter by any means and Hayes is taking it very seriously. The law currently states that if/when a dispensary opens its doors within 25 miles of the patient, that patient will no longer be authorized to cultivate medical marijuana upon renewal of their medical marijuana registry card.
Hayes is looking to change that portion of the law, well, “remove” it is a better way to say it, he wants it axed and he is willing to go into the federal court system to try. He is potentially implicating himself in activity that is still considered a federal crime, so that every patient in Arizona has a choice as to where, and how their medication is produced. Marijuana madman, Arizona medical marijuana martyr, legal genius, truth is only time will tell us which one of these Hayes is, time and a federal judge.
In an interview with Hayes that was done just prior to his filing the case, we asked some of the more obvious questions, for example, ‘why would you want to possibly delay the dispensaries any longer than they already have been, if, your advocating for yourself as well as potentially all of the patients in Arizona as this decision could affect them all.’
Hayes replied quite matter of factly “I have heard this section of the law discussed at every single meeting, industry function, industry event, you name it, it was obvious something needed to be done to try and protect AMMA patients and talking was getting us nowhere.”
When we asked him why he choose to wait until now to file the lawsuit he said “It had to be perfect, the lawsuit that is. I will only get one chance at this lawsuit so it has to be done carefully, it had to be done correctly. Representing yourself pro se against the State is never an easy task, you have to have all your ducks in a row before you step in through those courtroom doors.”
During the interview we asked why Robert Halliday is listed in the lawsuit, Hayes responded “it’s his job to direct the DPS employees below him to do the background checks, verify registry cards, issue criminal citations and arrest suspected offenders of violations of the AMMA. I tried to limit who was named and he unfortunately had to be on that list, he took an oath to defend my Constitutional Rights and is in charge of many others that did the same. It is very important these individuals understand clearly what those new ‘rights’ under the law are.”
The magnitude of this case is hard to grasp at first, start with every business that is involved at this point or potentially could be. The dispensaries stand to lose their monopoly of the Arizona Medical Marijuana Act by loosing control of 99% of all the cultivation in the state according to Hayes. Many of the “grow shops” that opened and are flourishing during Arizona’s green rush would be forced to close, many of the caregivers would no longer be able to supply their patients with “home grown” medicine and this directly effects these stores economically.
There are literally dozens of legitimate ancillary businesses and business models that would be forced to close due to lack of customer base. Patients would lose their ability to choose how their medicine was produced, and caregivers would lose their ability to produce it. Marijuana Testing facilities would lose a tremendous amount of potential business, processing facilities such as medicinal cannabis bakeries, commercial kitchens that are family owned and operated would lose thousands of potential patient clients. Even businesses being developed to dispose of the “controlled substance” aka unusable marijuana which by law must be incinerated would have no chance of developing successful businesses operations.
Now businesses aside, there are currently over 19,000 mmj patients in the state of Arizona, and over 16,500 of them are “approved to cultivate” by AZDHS. These patients stand a lot to lose considering everyone of those patients was presented with a choice to cultivate or not to cultivate when they applied through the AZDHS registry system to receive their medical marijuana card.
The “status quo” according to Hayes has clearly been established in regards to the AMMA and the stack of signed statements he already has appears to back up his claims.
Early I mentioned Hayes and his appearance at the Gilbert P&Z meeting, he was there representing the patients that were already cultivating or had intentions of cultivating their own medical marijuana who were facing massive restrictions from the Town of Gilbert. I watched the meeting, several times, although it only took one time to see and hear the impact Hayes had on the Planning and Zoning Commission and their decision to scrap pretty much everything on the table regarding restrictions against patients. In fact he attended meetings all over Arizona, almost everyone of those meetings ended with a similar result, very little if any restrictions against patients wishing to cultivate.
I have also seen Hayes at meetings advocating for dispensaries as well, which to some may seem a bit odd considering he is filing a lawsuit that could deal quite a financial blow to dispensaries if he wins. Hayes was the acting CEO of Arizona Cannabis Society until recently when he resigned and designated the current CFO as the new acting CEO of the very company he founded. Arizona Cannabis Society (AZCS) has made public intentions of submitting multiple applications to operate dispensaries in Arizona, so why would the Founder and former CEO file a lawsuit that could potentially take away AZCS’s and every other dispensary owners hand in the AZ mmj monopoly game?
If you ask Hayes he’ll tell you, “Our Constitution and our Rights are being legislated and executive ordered away almost daily at this point, we need to stand up for people’s rights regardless of how it effects us economically, we’re all in this boat together and it’s going to sink if we don’t start plugging these holes being carved into our constitutional rights.”
Hayes seems well versed in Constitutional as well as State Law and his knowledge of cannabis cultivation would undoubtedly overwhelm anyone the state could offer during the “ORAL ARGUMENT REQUESTED” by Hayes in his motion. It would seem the State is up against a very formidable opponent in a fight that could change the entire face of the AMMA.
One thing that could work in the plaintiff’s favor is the Judge that will be presiding over the case, the Honorable Judge Susan Bolton will be hearing the case and oral argument if the case makes it that far. Judge Bolton’s name should be very familiar with most of us by now. Arizona’s SB1070 was shredded by Judge Bolton on the very same grounds Hayes is requesting a preliminary injunction and memorandum of law on, constitutionality.

From Judgepedia:
Judge Bolton dismissed a lawsuit on January 4, 2012 filed by Arizona claiming a state law passed by voters in 2010 that legalized medical-marijuana put state workers at risk for federal prosecution and imprisonment due to conflict with federal drug law. Arizona Governor Jan Brewer, who opposed the measure, had sought to block the creation of marijuana dispensaries allowed by the law – claiming that state employees charged with regulating the dispensaries were at risk for federal prosecution. Bolton ruled that the state had not established a “genuine threat of imminent prosecution” and dismissed the case.
A spokesman for Governor Brewer’s office expressed great disappointment over the ruling. Joe Yuhas, spokesman for the Arizona Medical Marijuana Association, said of the ruling “We would hope that our state leaders will now recognize it is time to stop wasting taxpayer dollars in an effort to thwart the will of the voters and move ahead with full implementation of the initiative.”

Arizona counter-suit
On October 21, 2011, Judge Bolton dismissed a lawsuit filed by Governor Jan Brewer against the federal government. The lawsuit was filed as a counter-suit to the one filed by the Justice Department challenging Arizona’s immigration law. In her suit, Gov. Brewer claimed that the federal government was not doing enough to protect the state form illegal immigration. Judge Bolton dismissed the suit saying that Gov. Brewer’s charges were political questions not appropriate for a court to decide. In addition, Judge Bolton said that some of the state’s claims must be thrown out because they were answered in a 1994 court case in Arizona and cannot be litigated again.
Judge Bolton wrote, “While Arizona may disagree with the established enforcement priorities, Arizona’s allegations do not give rise to a claim that the counter-defendants (the federal government) have abdicated their statutory responsibilities.”
Arizona immigration law (S.B. 1070)
The United States Department of Justice took the state of Arizona to court in order to stop its bill on immigration from taking effect July 29, 2010. In the ruling, Bolton upheld parts of the law, while striking down some of its more controversial aspects.
In summary, parts of the law that were upheld:
The state can restrict local officials from creating “sanctuary city” policies that limit enforcement of the law;
Arizona state officials will work with the federal government on illegal immigration;
and it is a crime to employ day laborers, often illegal immigrants that wait for work in public areas.
Parts of the law blocked by the decision:
The state cannot criminalize individuals for failing to have alien registration papers on them;
Arizona cannot authorize “the warrantless arrest of a person” if law officials believe she or he is in the county illegally.
The state of Arizona appealed the ruling in the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit upheld Bolton’s ruling on April 1, 2011.
Read the Ninth Circuit opinion here: USA v. State of Arizona

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