In an April 29, 2011, forum at the Phoenix Country Club sponsored by Valley Partnership, Will Humble, Director of the Arizona Department of Health Services, said that he personally is not worried that he might be prosecuted by the federal government for aidding and abetting the commission of crimes involving federal marijuana criminal laws.  He made the statement in response to a question that asked him to comment on the April 14, 2011, letter from the two Washington state U.S. Attorneys to the Governor of Washington who asked U.S. Attorney General Eric Holder if the U.S. would prosecute Washington state employees who implement Washington’s recently enacted medical marijuana law that provides for the creation of state legal medical marijuana dispensaries.

In an April 13, 2011, letter to the U.S. Attorney General, Washington Governor Christine 0. Gregoire asked:

“It would be very helpful to receive clear guidance on the Department of Justice enforcement position and whether the 2009 Memorandum from Deputy Attorney General Ogden should be read to encompass the activities that would be licensed under this state legislation. Also, it would be helpful if the guidance addressed whether state employees involved in inspecting the premises, auditing the records or collecting fees from the licensed dispensers, producers or processors would be immune from arrest or liability when engaged in the enforcement of this licensing law.”

The next day, Jenny A. Durkan, United States Attorney for the Western District of Washington, and Michael C. Ormsby, United States Attorney for the Eastern District of Washington, sent Governor Gregoire a letter in which they said:

“the Department could consider civil and criminal legal remedies regarding those who set up marijuana growing facilities and dispensaries as they will be doing so in violation of federal law. Others who knowingly facilitate the actions of the licensees, including property owners, landlords, and financiers should also know that their conduct violates federal law. In addition, state employees who conducted activities mandated by the Washington legislative proposals would not be immune from liability under the CSA. Potential actions the Department could consider include injunctive actions to prevent cultivation and distribution of marijuana and other associated violations of the CSA; civil fines; criminal prosecution; and the forfeiture of any property used to facilitate a violation of the CSA”

Mr. Humble said he is concerned about the affect the U.S. Attorney letters and news stories might have on DHS employees involved in implementing Arizona’s medical marijuana laws, especially DHS IT personnel.

Here are my notes from the one hour forum.

• Phoenix Planning Director Debra Stark gave a list of zoning jurisdictions that require special zoning documents and those that do not.  The following do not require either a use permit, a conditional use permit or a special use permit:  Glendale, Surprise, Buckeye, Goodyear, Avondale, Mesa, Tempe, Fountain Hills, Tucson and Flagstaff.  The following require either a UP, a CUP or a SUP: Peoria, El Mirage, Carefree, Scottsdale, Chandler, Gilbert, Phoenix and Maricopa County.  After the forum I asked her how long it would take for a prospective dispensary to get the comfort letter from the Phoenix zoning department.  She said five days, but the letter would say that it is subject to the applicant obtaining a special use permit before opening for business.

• Will Humble said that a financial institution can issue the bank comfort letter if the not-for-profit entity or one of its principal officers has $150,000 or more of cash on deposit, a $150,000 letter of credit or gold valued at at least $150,000.

• When asked who DHS would consider to be the ideal owner of an Arizona medical marijuana dispensary, Will Humble said it is an owner whose primary concern is to do what is in the best interest of the patients.

• Will Humble made a statement about the duties of the medical director that troubled me.  He said that the medical director has a duty / responsibility to make sure that patients of the dispensary do not abuse marijuana.  The DHS rules prohibit the medical director from having a patient doctor relationship.  How would it be possible for a medical director who is not present at the time of a sale or interaction between dispensary staff and the patient who is abusing marijuana to know: (i) about the abuse, or (ii) to take any action to prevent or help stop the abuse?

See “Washington Legislature Passes New Medical-marijuana Law, Governor Threatens Veto” and “U.S. Attorney Will Prosecute Dispensary Owners, Landlords who Rent to Dispensaries & State Employees Involved in State Medical Marijuana Laws.”