Arizona Medical Marijuana FAQs

ARIZONA MEDICAL MARIJUANA FAQs

Note: In accordance with the 23 February 2011 Arizona State Bar Ethics Ruling, Smith & Craven is proud to offer medical marijuana legal counseling. However, we caution that nothing contained in this FAQ should be construed as legal advice, or the basis for formation of an attorney-client relationship. If you require legal counsel, please contact attorney, Gary Michael Smith directly at 480-320-2967, or via our firm’s main line, 480-222-2225 to schedule an appointment. Also, in compliance with the State Bar Ethics Ruling, we remind you and caution that marijuana is still a Schedule 1 Controlled Substance and remains illegal at the Federal level. The growth, trafficking, sale, possession, or consumption of marijuana, medicinal or otherwise, may be a felony punishable by imprisonment, fines, forfeiture of property, or any combination thereof. Also, since the Arizona Medical Marijuana statutes and rules are new, there have been no cases yet filed in any appellate court seeking to interpret these new laws. So, be cautious and aware that these new laws may change rapidly and radically.

GENERAL INFORMATION

Is Medical Marijuana Illegal?
- Yes. Marijuana remains a Schedule I drug under FDA regulation. No change in Arizona State Law effects Federal law. The Comprehensive Drug Abuse Prevention and Control Act was made law in 1970. Title II of this law, the Controlled Substances Act, is the legal foundation of narcotics enforcement in the United States. The Controlled Substances Act regulates the manufacture, possession, movement, and distribution of drugs in our country. It places all drugs into one of five schedules, or classifications, and is controlled by the Department of Justice and the Department of Health and Human Services, including the Federal Drug Administration. Under these FDA regulations, Schedule I drugs have a high tendency for abuse and have no accepted medical use. This schedule includes drugs such as Marijuana, Heroin, Ecstasy, LSD, and GHB. Recent activists have tried to change the schedule for Marijuana citing the possible medical benefits of the drug, but marijuana remains on Schedule I. Pharmacies do not sell Schedule I drugs.
But I Heard the Obama Administration Instructed the DEA Not to Enforce the Marijuana Laws.
- Not True. On 19 October 2009, and at President Obama’s direction, United States Deputy Attorney General David W. Ogden signed a memorandum directed to selected United States Attorneys giving them permission to forego prosecution of persons and entities engaged in “clear and unambiguous compliance with state laws”. In that same memorandum, Mr. Ogden made clear that law enforcment was still free to exercise its discretion to prosecute. You can read Mr. Ogden’s memorandum HERE. In fact, just a few months later, in July 2010, the DEA released a 54 page position statement emphasizing that it would continue to seek out and arrest persons involved in marijuana, medicinal or otherwise. You can read the DEA position statement HERE.
Can Medicinal Marijuana Be Smoked In A Public Place?
- No. A.R.S. § 36-2802.
Under Arizona Law, Where and When Is It ILLEGAL to Use Medicinal Marijuana?
- It is illegal to engage in any task under the influence of marijuana that would constitute negligence or professional malpractice. A.R.S. § 36-2802.
- It is illegal to possess or to use medicinal marijuana on a school bus; on the premises of a preschool, primary school, or secondary school; or in a correctional facility. A.R.S. § 36-2802.
- It is illegal to smoke marijuana in any public place or on any form of public transportation (but the statute appears to condone consumption of TCH-infused edibles). A.R.S. § 36-2802.
- It is illegal to operate, navigate or being in actual physical control of any motor vehicle, aircraft or motorboat while under the influence of marijuana, except that a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment. A.R.S. § 36-2802.
- It is illegal to use marijuana on any private property if the person or entity in lawful possession of that property prohibits it. A.R.S. § 36-2814.

DISPENSARY INFORMATION

What Is A CHAA?
- “CHAA” means a Community Health Analysis Area, a geographic area based on population, established by the Department for use by public health programs. R9-17-101.
What Is A Dispensary?
- A dispensary is a “nonprofit medical marijuana dispensary”, which means a not-for-profit entity that acquires, possesses, cultivates, manufactures, delivers, transfers, transports, supplies, sells or dispenses marijuana or related supplies and educational materials to cardholders. A nonprofit medical marijuana dispensary may receive payment for all expenses incurred in its operation. A.R.S. § 36-2801.
How Many Dispensaries Will ADHS Certify?
- Only 1 per CHAA (there are 126 CHAAs in Arizona). R9-17-303.
What Is A Dispensary Agent?
- A dispensary agent is a “nonprofit medical marijuana dispensary agent”, which means a principal officer, board member, employee or volunteer of a nonprofit medical marijuana dispensary who is at least twenty-one years of age and has not been convicted of an excluded felony offense. A.R.S. § 36-2801.
Who Are The “Principal Officers” Of A Dispensary?
- The individual or individuals identified in the dispensary’s by-laws as principal officers of the dispensary, and any of the following:
  - 1. If an individual is applying for a dispensary registration certificate, the individual;
  - 2. If a corporation is applying for a dispensary registration certificate, two officers of the corporation;
  - 3. If a partnership is applying for a dispensary registration certificate, two of the partners;
  - 4. If a limited liability company is applying for a dispensary registration certificate, a manager or, if the limited liability company does not have a manager, a member of the limited liability company;
  - 5. If an association or cooperative is applying for a dispensary registration certificate, two members of the governing board of the association or cooperative;
  - 6. If a joint venture is applying for a dispensary registration certificate, two of the individuals who signed the joint venture agreement; and
  - 7. If a business organization type other than those described in (2) through (6) above is applying for a dispensary registration certificate, two individuals who are members of the business organization. R9-17-301.
Who Are The “Board Members” Of A Dispensary?
- The individual or individuals identified in the dispensary’s by-laws as board members of the dispensary, and any of the following:
  - 1. If a corporation is applying for a dispensary registration certificate, the officers of the corporation;
  - 2. If a partnership is applying for a dispensary registration certificate, the partners;
  - 3. If a limited liability company is applying for a dispensary registration certificate, the members of the limited liability company;
  - 4. If an association or cooperative is applying for a dispensary registration certificate, the members of the association or cooperative;
  - 5. If a joint venture is applying for a dispensary registration certificate, the individuals who signed the joint venture agreement; and
  - 6. If a business organization type other than those described in subsections (A)(2) through (A)(6), the members of the business organization. R9-17-301.
What Are The Key Items ADHS Evaluates In A Dispensary Registration Certificate Application And What Happens If There Is More Than One Applicant Per CHAA?
- ADHS will evaluate applications based on a progressive set of criteria, enumerated below. If only one applicant meets the criteria in 1., for example, ADHS will award that applicant the certificate. If more than one applicant meets the criteria in 1., then ADHS will looks to see who amongst those applicants meets the criteria in 2., etc. In an instance where only one of the competing applicants meets the next highest criteria, it will be awarded the dispensary registration certificate. Where the competing applicants do not meet the higher levels of these progressive requirements, ADHS will select randomly who amongst them will be awarded the certificate.
  - 1. Each applicant, principal officer, or board member associated with a dispensary registration certificate application has submitted Arizona state income tax returns for the previous three years with the dispensary registration certificate application;
  - 2. Each applicant, principal officer, or board member associated with a dispensary registration certificate application:
    - a. Is current on paying court-ordered child support;
    - b. Is not delinquent paying taxes, interest, or penalties due to a governmental agency;
    - c. Does not have an unpaid judgment due to a governmental agency; and
    - d. Is not in default on a government-issued student loan;
    - 3. Each individual who has 20% or more interest in the dispensary is the applicant or a principal officer or board member of the dispensary;
    - 4. Each applicant, principal officer, or board member has never filed for personal or corporate bankruptcy; and
    - 5. Documentation, from an in-state financial institution or an out-of-state financial institution, demonstrating that the dispensary has at least $150,000 available to begin operating was submitted with the dispensary registration certificate application. R9-17-302.
May I Apply For More Than One Dispensary Certificate?
- Yes, but if you do, you will need to demonstrate there is at least $150,000 available for each dispensary registration certificate application submitted. R9-17-302.
- An individual shall not be an applicant, principal officer, or board member on:
  - 1. More than one dispensary registration certificate application for a location in a single CHAA, or
  - 2. More than five dispensary registration certificate applications for locations in different CHAAs. R9-17-304.
Do I Have To Be An Arizona Resident To Apply For A Dispensary Registration Certificate?
- Yes. Each principal officer or board member of a dispensary must be an Arizona resident and have been an Arizona resident for the three years immediately preceding the date the dispensary submits a dispensary certificate application. R9-17-304.
When Can I Submit My Application For A Dispensary Registration Certificate?
- ADHS shall accept dispensary registration certificate applications for 30 calendar days beginning June 1, 2011. R9-17-303.
How Soon Will ADHS Award Dispensary Registration Certificates?
- Assuming the application is complete and compliant with both the statutes and the regulations, and:
  - If only one dispensary registration certificate application is received by ADHS, by 60 calendar days after June 1, 2011, ADHS shall allocate the dispensary registration certificate for the CHAA to that applicant; or
  - If more than one dispensary registration certificate application for a dispensary located in a CHAA is received by ADHS, by 60 calendar days after June 1, 2011, ADHS shall allocate a dispensary registration certificate according to R9-17-302. R9-17-303.
If I Don’t Succeed In My Application This Year, Can I Reapply?
- Yes, but not until May of next year, when ADHS is required to post on its website whether it is accepting additional applications. R9-17-303.
- Note that ADHS will accept new applications only if an existing dispensary certificate is revoked or if ADHS allows more than one dispensary per CHAA (or in some fashion changes the allocation scheme).
Does My Cultivation Site Have To Be The Same As My Dispensary Site?
- No. A dispensary’s cultivation site may be located anywhere in the state where a cultivation site is allowed by the local jurisdiction. R9-17-305.

MEDICAL DIRECTOR INFORMATION

What Is A Medical Director?
- A medical director is a physician appointed by a dispensary who is responsible for:
  - Developing and providing training to the dispensary’s dispensary agents on the following subjects:
    - a. Guidelines for providing information to qualifying patients related to risks, benefits, and side effects associated with medical marijuana;
    - b. Guidelines for providing support to qualifying patients related to the qualifying patient’s self-assessment of the qualifying patient’s symptoms, including a rating scale for pain, cachexia or wasting syndrome, nausea, seizures, muscle spasms, and agitation;
    - c. Recognizing signs and symptoms for substance abuse; and
    - d. Guidelines for refusing to provide medical marijuana to an individual who appears to be impaired or abusing medical marijuana; and
    - Assisting in the development and implementation of review and improvement processes for patient education and support provided by the dispensary.
    - Providing oversight for the development and dissemination of:
      - 1. Educational materials for qualifying patients and designated caregivers that include:
        
        a. Alternative medical options for the qualifying patient’s debilitating medical condition;
        
        b. Information about possible side effects of and contraindications for medical marijuana including possible impairment with use and operation of a motor vehicle or heavy machinery, when caring for children, or of job performance;
        
        c. Guidelines for notifying the physician who provided the written certification for medical marijuana if side effects or contraindications occur;
        
        d. A description of the potential for differing strengths of medical marijuana strains and products;
        
        e. Information about potential drug-drug interactions, including interactions with alcohol, prescription drugs, non-prescription drugs, and supplements;
        
        f. Techniques for the use of medical marijuana and marijuana paraphernalia;
        
        g. Information about different methods, forms, and routes of medical marijuana administration;
        
        h. Signs and symptoms of substance abuse, including tolerance, dependency, and withdrawal; and
        
        i. A listing of substance abuse programs and referral information;
        
        2. A system for a qualifying patient or the qualifying patient’s designated caregiver to document the qualifying patient’s pain, cachexia or wasting syndrome, nausea, seizures, muscle spasms, or agitation that includes:
        
        a. A log book, maintained by the qualifying patient and or the qualifying patient’s designated caregiver, in which the qualifying patient or the qualifying patient’s designated caregiver may track the use and effects of specific medical marijuana strains and products;
        
        b. A rating scale for pain, cachexia or wasting syndrome, nausea, seizures, muscles spasms, and agitation;
        
        c. Guidelines for the qualifying patient’s self-assessment or, if applicable, assessment of the qualifying patient by the qualifying patient’s designated caregiver; and
        
        d. Guidelines for reporting usage and symptoms to the physician providing the written certification for medical marijuana and any other treating physicians; and
        
        3. Policies and procedures for refusing to provide medical marijuana to an individual who appears to be impaired or abusing medical marijuana. R9-17-313.
Can a Dispensary’s Medical Director Write Me a Recommendation for Medical Marijuana?
- NO. To prevent conflict of interest, a medical director for a dispensary shall not provide a written certification for medical marijuana for a qualifying patient. R9-17-313(E).

QUALIFIED PATIENT INFORMATION

As a Qualified Patient, Are My Medical Marijuana Patient Records or Medical Marijuana Purchases Private?
- No. Everything, from your application to be a qualified patient, through every purchase you make, is entered into a mandatory database maintained by each dispensary with which you do business, and those records are accessible by ADHS. R9-17-315.
As a Qualified Patient, Am I Immune From Prosecution for Procuring or Consuming Medical Marijuana?
- No. The United States Supreme Court has ruled in Gonzalez v. Raich that federal law enforcement authorities can prosecute patients who use physician-prescribed marijuana. This is true even if state law authorizes the physician to prescribe the drug.
Is My Health Insurance Required to Reimburse or Cover My Medicial Marijuana Purchases or Physician Bills?
- No. A.R.S. § 36-2814.

RECOMMENDING PHYSICIAN INFORMATION

Can a Recommending Physician Be Prosecuted for Recommending Medicial Marijuana?
- PROBABLY NOT. In 2002, the United States Court of Appeals Ninth Circuit ruled in Conant v. Walters that a physician’s recommendation for medicinal marijuana constituted protected 1st Amendment speech, rendering the physician immune from prosecution for making a recommendation. In 2003, the United States Supreme Court rejected to review that decision. Note though that a physican can only recommend medical marijuana, NOT prescribe it. Under federal law, physicians may only prescribe legal medicines. Writing a prescription for medicinal marijuana could result in loss of a physician’s DEA registration, and possibly criminal prosecution.

EMPLOYER-EMPLOYEE INFORMATION

Can An Employer Prohibit Marijuana Use at Work?
- Yes. The law does not protect an employee who possesses marijuana or uses it on the employer’s premises or during work hours. The law also does not protect an employee who is impaired from marijuana at work. A.R.S. § 36-2813; A.R.S. § 36-2814.
- Your employment policy should state that possession or use of, or impairment from marijuana in the workplace will not be tolerated. Marijuana will be treated like any other lawfully prescribed drug that may impair an employee’s functioning at work. An employer should not tolerate any employees being impaired from drugs, legal or illegal, at work. Your policy should state this and state that employees should not report to work impaired. The employee should notify his supervisor of any impairment from medication that could pose a safety risk or affect the ability to work. Be aware that the employee does not need to identify the medication or the medical condition to the supervisor but the time off may be covered under ADA and/or FMLA and those processes may apply.
- The new law also provides that an employer may refuse to hire or continue employment of a cardholder if the hiring or continued employment of the registered qualifying cardholder would cause the business to lose a monetary or licensing-related benefit under federal law or regulations. A.R.S. § 36-2813.
What If A Job Applicant Tests Positive for Marijuana in Pre-Employment Drug Testing?
- You cannot refuse to hire the applicant automatically. Employers cannot discriminate against an applicant for medical marijuana use if the applicant is a registered cardholder. Determine whether the applicant is a registered cardholder. If so, the employer cannot base the hiring decision on the applicant’s medical marijuana use outside of work. If marijuana use outside of work poses a safety risk, you may be able to refuse to hire the applicant. In addition, an employer who would lose a federal license by employing a marijuana user is not required to employ the individual. This analysis is complex and it is recommended that you seek legal advice in this situation. A.R.S. § 36-2813.
What if a Current Employee Tests Positive for Marijuana on a Drug Test?
- You cannot automatically terminate the employee. Determine whether the employee is a registered cardholder. If so, and the employee was not using marijuana at the workplace and was not impaired on the job, then the employer may not terminate, discipline or discriminate against the employee. Marijuana will be treated like any other lawfully prescribed drug that may impair an employee’s functioning at work. A.R.S. § 36-2813.
Can an Employer Terminate an Employee For Being Under The Influence of Marijuana At Work?
- Yes, but it is difficult to determine whether a person is under the influence of marijuana in the workplace. Under the law, “under the influence” does not include a registered qualifying patient who has a presence of metabolites or components of marijuana that appear insufficient to cause impairment.
- If the employer is able to document signs that the employee is under the influence, and witness testimony indicates use, possession or impairment at work, you may be able to substantiate that the employee is under the influence in violation of your policy. A.R.S. § 36-2813; A.R.S. § 36-2814.