The Arizonans knew that zoning problems could be a headache for pharmacy owners. Unexpected, however, were the new bans in some Arizona cities on marijuana recreational facilities.
Shortly after Proposition 207, also known as the Smart and Safe Arizona Act (the “plot”), Several Arizona cities have banned the sale of recreational marijuana unless the pharmacy is a“ dual licensee ”. A dual licensee is a facility that is licensed as both a medical marijuana facility and an adult (or recreational) facility.
The law explicitly allows pharmacy owners to hold both licenses (medical and recreational) and sell both types of products in the same pharmacy location. Cities in Arizona, like Mesa, have found a way to end the law, including banning recreational marijuana dispensaries. While Mesa and the other Arizona cities are certainly allowed to enact such ordinances, even when it appears to be lawful to do so, it appears to defeat the purpose of the law.
Why did these cities apply to ban recreational facilities? There have been several theories advocated by others. As the Phoenix New Times reported:
Others have since followed Gilbert [Arizona’s] lead, create de facto monopolies on existing medical marijuana facilities, and build barriers for new players looking to enter the new recreational cannabis market in Arizona. In the weeks following the election, several local governments passed similar laws, including Scottsdale, Mesa, Goodyear, and Surprise. Tempe is currently soliciting public contributions for its own marijuana recreational provisions.
Click here to read the full Phoenix New Times article.
Not only are recreational pharmacies banned in some Arizona cities, but marijuana testing facilities are also banned. For example, as set out in Ordinance No. 5601 for the City of Mesa,[t]The operation of a marijuana testing facility is prohibited in the city [of Mesa]. “Click here for all of the Mesa Regulations.
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Mesa also has (a) the “ownership and use of marijuana and marijuana products on the city property,” (b) the “intra-city delivery of marijuana and recreational marijuana products,” and (c) the use of marijuana – and marijuana products prohibited on prohibited property. “See Mesa Town Bylaw No. 5601.
Photo by Florian Schneider via Unsplash
In addition to these issues, the new regulations will also have a negative impact on the new Social Equity Opportunity program in Arizona. As mentioned in the New Times article:
[Mason] cave [president and chairman of the Arizona Cannabis Chamber of Commerce] added that the new restrictions will prevent people from obtaining Prop 207’s 26 so-called social equity licenses, which are supposed to go to pharmacy operators based in communities disproportionately affected by cannabis criminalization.
What is probably the most intriguing part of these new restrictions are the purported reasons for such regulations. As part of the preamble to the Mesa Regulation, Mesa gave the following reasons for the new bans:
The city of Mesa, Arizona (the “City”) states that Proposition 207 authorizes marijuana plants and testing facilities to use chemical extraction or chemical synthesis, including butane and other combustible gases, to extract marijuana concentrate, which is a threat To the community, represents community health, safety, and protection, and increases the responsibility of law enforcement and other city departments to respond to violations of state and local laws, including building, electrical, plumbing, and fire regulations.
Marijuana contains tetrahydrocannabinol, which is listed on Appendix I of the Controlled Substances Act under 21 US Code Sections 811-814, and any possession or use is in violation of federal law under 21 United States Code Sections 841-865.
According to Mesa, marijuana production is so dangerous and so burdensome for city workers that it must be banned. What about other industries using similar extraction and chemical techniques? Will they be banned from Mesa next? Since taxes are levied on the sale of marijuana, it would be expected that those taxes would cover such additional expenses from Mesa. And this argument completely overlooks the fact that medical licensees are not excluded from these activities. The rationale for adopting the new regulation seems on the weak side if you dig a little deeper.
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The second reason set out above – for marijuana to remain a List I drug – also misses the point. Mesa allows medicinal and recreational marijuana to be sold through dual licensees. Now why is it using federal law as a justification to ban the sale of marijuana for recreational use and related activities only? This, too, seems to defy logic. If the federal marijuana ban were really such a monumental topic, one would assume that Mesa would attempt to ban the sale of medical marijuana as well (to the extent permitted by law). If the federal marijuana ban is lifted at some point, will Mesa and other cities withdraw those ordinances? That seems logical if this is really a solid basis for the ban on the sale of recreational uses.
Unfortunately, these ordinances appear to have grown in importance in the cities of the Phoenix area. Hopefully, over time, these cities will reassess the wisdom of these regulations and the harmful effects they have on sales tax and consumer choice.
is an attorney with Harris Bricken. This article was originally published on the Canna Law Blog and is republished with permission.