It’s High Time

Weed is on the ballot once again in Arizona, but as with most things involving money and bureaucracy, there are those in the cannabis industry who think this is the wrong bill.

For the second time in four years, Arizona voters have the opportunity to legalize marijuana for recreational use through the Smart and Safe Arizona Act—Proposition 207—on next month’s ballot.

The citizen-initiated measure would tax and regulate cannabis, making possession of up to an ounce legal for persons over the age of 21. It would also allow adults to grow up to six plants and possess up to five grams of concentrates. Edibles would be restricted to 10mg THC per piece and 100mg per bag with no animal or fruit shapes that appeal to children.

It would also allow expungement of convictions for some marijuana-related crimes, beginning in July 2021.

Under the current system, those holding MMJ certifications can possess up to 2.5 ounces of leaf and unlimited edibles with no limit on THC content. They can also grow up to 12 plants if they live more than 25 miles from the nearest dispensary.

That system would remain in place for cardholders should voters pass Prop 207.

The Arizona Department of Health Services would be the lead agency to oversee creation of regulations for recreational use in an industry that would bring an estimated $250 million annually into state coffers via a 16 percent excise tax.

A Smart and Safe Fund would be established to collect taxes, fees and fines for program administration and dispersal to enforcement, education and social programs. That fund would be kickstarted with $45 million from the existing Medical Marijuana Fund that currently has $68 million and is expected to grow to $91 million by the end of next year.

Both the medical and recreational marijuana programs would be regulated by the AZDHS, which is also tasked with writing the rules should the measure pass.

“The reason we asked DHS is because they have spent the last decade establishing a program for the medical marijuana program,” said Roopali H. Desai, a partner at Coppersmith Brockelman, a Phoenix-based law firm that was primary author of the initiative. “Many of the people who will be applying for and ultimately obtaining an adult-use license are people who have currently been regulated by the DHS under the medical program. We didn’t want to reinvent the wheel.”

Desai added that it is common for rules to be written after a ballot initiative has passed and that Prop 207 is written to provide guidance to the agency charged with writing regulations.

“We don’t want to proscribe every little detail,” she said. “We understand that things change.”

As of Sept. 1, 2020, there were a total of 130 registered nonprofit medical marijuana dispensaries, with 123 facilities operating throughout the state.

Should Smart and Safe pass, current pharmacy owners in counties with fewer than two licensed dispensaries would be first in line to get retail permits as part of an “early applicant” dual-licensing program.

An additional 26 licenses would be created to implement a Social Equity Ownership Program to “promote the ownership and operation of marijuana establishments and marijuana testing facilities by individuals from communities disproportionately impacted by the enforcement of previous marijuana laws.”

“There are really very few states that have done this right and it required a lot of research and time so that we do not end up tokenizing minorities,” Desai said. “The big, white investor guys go find some token African-American applicants and put them on the papers and then they end up making all the money, owning all the equity. We needed to create a social equity program that is real.”

Resources would also be focused on poorer rural communities because “the research shows that if people have access to cannabis to deal with their pain, to deal with their depression, they tend to not then turn to opioids, which are much more addictive and cause much more significant health problems,” she said.

Those communities would also have control over local regulations in line with existing MMJ rules. Under Prop 207, cities, towns and counties would be allowed to enact rules to govern marijuana within their jurisdictions, such as prohibiting marijuana establishments; limiting the number of marijuana establishments; prohibiting delivery of product and any other “reasonable zoning regulations that limit the use of land” for marijuana establishments to specified areas.

Local jurisdictions could also restrict hours of operation and signage, but would be prohibited from enacting regulations more stringent than existing rules for the state’s MMJ program.

As to expungement, the bill would provide a pathway for an estimated 200,000 people charged with felonies for low-level marijuana use to have those charges expunged. Individuals would have to petition courts for the expungement of their criminal record, but there is some funding dedicated to enacting that part of the program. Eligible convictions would include possession, consumption, or transportation of 2.5 ounces or less of marijuana or 12.5 grams or less of marijuana concentrate; possession, consumption, cultivation or processing of not more than six marijuana plants at an individual’s residence for personal use; possession, use, or transportation of paraphernalia related to marijuana cultivation, manufacturing, processing or consumption.

But not everyone is happy

with the way Smart and Safe is written.

Kim A. Williams, who co-owns Tucson’s Tumbleweeds Health Center with Dana Rae Zygmunt, says she’s “not a fan” of Prop 207.

“It’s incomplete and the rules are not even finished,” Williams said

Tumbleweeds devotes an entire section of its website to describing the advantages cardholders have over potential recreational users, both legally and in the marketplace.

From gun rights to workplace protections to the amount of taxes levied, Williams says the laws favor those with certifications.

Further, she thinks the rules are written to favor a handful of powerful insiders, leaving newcomers and those with fewer resources out of the business, and that punishment for breaking the rules can still ruin the lives of people in underserved communities.

“Even petty offenses or a misdemeanor can have a negative impact on someone’s life,” she said. “It needs to be really legal. When you introduce fines and penalties, it’s not legalization.”

Tucson cannabis doctor Heather Moroso echoes Williams’ concerns, particularly concerning what she calls a “monopoly on ownership” and the penalties that may be faced by home growers.

“It’s a replica of the 2016 initiative with prettier language,” she said. “I think it didn’t pass in 2016 because of the intelligent voter. They found out what’s in it and rejected it.”

Prop 207 is the result of nearly a quarter-century of loosening cannabis rulings in the state of Arizona.

In 1996, Arizona’s Prop 200 allowed doctors to prescribe controlled substances in the wake of California passing medical cannabis laws in 1995. Prop 200 passed with an overwhelming majority, 65.4 percent to 34.6 percent—872,235 votes to 461,332.

Prop 205, the Taxation and Regulation of Marijuana Act—Prop 207’s 2016 predecessor—would have created the Department of Marijuana Licenses and Control, with a director appointed by the governor.

That measure lost in 2016 by 67,021 votes as 51.32 percent voted against with 1,300,344 votes and 1,233,323 voted in favor, or 48.68 percent.

The current medical marijuana laws were passed in 2010 with Prop 203.

Recent polling shows that citizens of Arizona are ready to legalize weed, regardless of the minutiae of the measure. Strategies 360, the advocacy group working to get Smart and Safe passed, conducted a poll of 800 likely voters showing 57 percent to 38 percent in favor of the proposition. A recent Suffolk University/USA TODAY poll showed support for 207 at 45.6 percent versus 34.2 percent opposed, with about 19 percent of voters undecided, although other polls show the margins getting closer as voting is already underway.

This article appears in Oct 15-21, 2020.