Medical Pot Patients Test 25-Mile Limit

PHOENIX (CN) - Medical marijuana advocates claim in court that Arizona unconstitutionally bars some patients from growing the drug at home if they live less than 25 miles from a licensed medical marijuana dispensary.

Plaintiffs Keith Floyd and Daniel Cassidy claim the Arizona Department of Health Services denied them cultivation rights when they applied for renewal of their Arizona Medical Marijuana registry cards.

They sued Arizona and DHS Director Will Humble, in Maricopa County Court.

The men claim a provision of the Arizona Medical Marijuana Act law violates a 2010 voter-approved amendment to the state constitution, "barring any law or rule that would compel state residents to participate in any health care system."

The Arizona Medical Marijuana Act (AMMA), also approved by voters in 2010, "legalizes medical marijuana for use by qualifying patients suffering from a debilitating disease or condition," the lawsuit states.

The plaintiffs claim that law "improperly compels Arizona qualifying patients to participate in the state-registered dispensary health care system," by its "designation as to who will be allowed to cultivate marijuana plants for the qualifying patient's medical use if a registered nonprofit medical marijuana dispensary is not operating within 25 miles of the qualifying patient's home."

Cassidy's card expired in November 2012, and his renewal application as a patient with cultivation rights was denied in March "because Mr. Cassidy resides within 25 miles of an operating dispensary," the lawsuit states.

Cassidy says he appealed to an administrative law judge in May, arguing "that he has a right to provide his own health care. Further plaintiff Cassidy argued the '25 Mile Rule' compelled by the AMMA violated his right to choose his own health care which is a constitutional right under Article 27, Section 2 of the Arizona Constitution."

But the judge found that Cassidy "'failed to demonstrate that the department's denial of his renewal application was inappropriate or was not in conformity with the applicable statutes and rules,'" according to the complaint.

Cassidy claim the judge did not address his constitutional argument, "which legally preempts any 'applicable statutes and rules' and is the Supreme Law of the Land."

Floyd, too, claim that his "right to provide for his health care has thus been revoked by the recent enforcement ... and ADHS issuance of a new registry identification card indicating he is 'not authorized to cultivate.' Although plaintiff Cassidy paid all the required fees, submitted relevant medical certification in which he still qualifies as a patient with a debilitating medical condition, he was denied a renewal registry identification card."

The complaint continues: "ADHS is compelling plaintiffs to participate in the state mandated dispensary health care system, regardless of their financial ability and all other factors, which is in direct violation of Article 27, Section 2 of the Arizona Constitution. Plaintiffs Floyd and Cassidy are subject to criminal penalties and fines if plaintiffs continue to provide for their own health care, which they have done legally under the AMMA and at the direction of ADHS since June 2011 and November 2011 respectively."

Floyd and Cassidy seek an injunction and declaratory judgment "that all qualifying medical marijuana patients may cultivate medical marijuana, under all existing medical marijuana limitations and regulations, with the exception of disallowing otherwise qualifying patients residing within 25 miles of a registered medical marijuana dispensary, and therefore preserving the status quo."

They are represented by W. Michael Walz.

Follow @jamierossCNS

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