Arizona passes medical-marijuana initiative “upon further review”

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To borrow a football term from the NFL, “upon further review,” Proposition 203 is becoming law — and a bad one at that.

On Election Day, November 2, Arizona’s Medical Marijuana Act ballot initiative, Proposition 203, was defeated by 7,200 votes. Eleven days later, as votes were still being counted, Proposition 203 was still losing — by 1,500 votes. On the 12th day after the election, late-counted votes from Maricopa County (Phoenix) pushed Proposition 203 to a new “high.” And on the 13th day, they rested… and perhaps toked up.

Proposition 203, the fourth attempt by legalization advocates to pass an enforceable “medical-marijuana” legalization in Arizona, finally won — after four votes over 14 years,  plus another 12 days of counting and recounting.

The final tally:

FOR – 841,346 (50.13%)

AGAINST – 837,005 (49.87%)

Of 1,678,351 votes cast, the margin of victory was 4,341.

It took twelve days to count the ballots? They must have used an abacus. In Marijuana-toke-us (Maricopa) County, apparently they counted and they counted… until they got the result they wanted.

Advocates of Proposition 203 pushed hard for “compassion” for terminally ill cancer and HIV patients.

However, the Proposition 203 advocacy funding came largely from ubër-liberal billionaire George Soros and his pro-legalization pet organizations — long-time, broad-based marijuana legalization supporters. The real issue is not providing for terminally ill cancer patients, it is accommodating those who grow, sell, and use marijuana for “recreational” purposes.

Yavapai County Attorney Sheila Polk underscored this point in an editorial in the September 29, 2010 Prescott News:

I have done the research… consider these statistics from states who have adopted laws to “decriminalize marijuana for terminally ill patients”:  97-98% of medical marijuana cardholders are aged 17-to-35 and suffer from “chronic pain,” while only 2-3% of cardholders suffer from cancer, glaucoma, HIV and other debilitating illnesses.  Under Proposition 203, a “cardholder” is entitled to 2.5 ounces of marijuana every two weeks amounting to 140 marijuana joints (10 joints per day).  These large amounts of unmonitored and unregulated marijuana are grown, harvested, and consumed in the community” (emphasis added).

Forget, for the moment, what the medical community widely tells us about there being ample — and safer — alternatives to marijuana for medical relief for these 2-3% who are actually ill. Instead, consider ten marijuana joints a day for 14 straight days… and then a repeat of this cycle over and over. All that for a “debilitating injury”? Sounds pretty debilitating unto itself to me.

Proposition 203 was opposed by Arizona Governor Jan Brewer (R), and U.S. Senators John McCain (R) and Jon Kyl (R), as well as the Arizona Cardinals football team, most major newspapers in the state, law enforcement, the employer community, and many prominent religious leaders.

In fact, Governor Brewer said, “Almost all marijuana recommendations come from a few doctors [who] for, say, $150, prescribe pot to nearly everyone… compassion will quickly turn to capitalism.”

According to the Arizona Department of Health Services, Proposition 203 would allow:

A “qualifying patient” who has a “debilitating medical condition” to obtain an “allowable amount of marijuana” from a “nonprofit medical marijuana dispensary” and to use the marijuana to treat or alleviate the debilitating medical condition or symptoms associated with the condition.

Once a “qualifying patient” submits a doctor’s prescription to the Arizona Department of Health Services and receives a medical-marijuana card, the cardholder can obtain up to 2.5 ounces per 14-day period, or if he or she lives more than 25 miles from a dispensary, the holder (or his or her “caregiver”) can grow their own — up to 12 marijuana plants each.

Schools are prohibited from discriminating against (failing to enroll) children who use “medical” marijuana under the Act, and children can obtain medical-marijuana cards with parental consent.

“Medical marijuana” for kids? That’s right. But only with parental consent. There’s a safeguard. The parents will be too high to care or to guard their respective 2.5 ounces of readily replenishable stash or their respective 12 marijuana plants. And schools cannot discriminate against medical-marijuana kids. Come on in. Take a desk chair. Sure hope your “debilitating medical condition” and its heretofore illegal “treatment” don’t interfere with our teaching the non-medical-marijuana kids. This is what our schools need.

Moreover, as education in America falls further and further behind many other industrialized nations (are we still considered industrialized?), more dope at school and creating a protected class of marijuana-smoking children will help us in an increasingly competitive global economy.

Proposition 203 is the only state medical-marijuana law with a specific workplace componentand it is a bad one.

Regarding the workplace, employers are prohibited from:

(1) Discriminating against a person registered under the Act (i.e., a medical-marijuana “cardholder”) in hiring, terminating, or imposing employment conditions — unless failing to do so would result in the employer losing a monetary or licensing benefit under federal law (DOT certification, for example); and/or

(2) Penalizing a qualifying patient/cardholder for a positive drug test for marijuana — unless the “patient” used, possessed, or was impaired by marijuana on the employment premises or during hours of employment.

Thus, employers are allowed to prohibit use or possession at work. Moreover, they can prohibit impairment at work — which, of course, often is a difficult burden to meet. Unlike alcohol, there is no universal legal standard for what constitutes marijuana impairment. A drug-test positive will not likely be enough — instead, the burden shifts to the employer to demonstrate impairment.

Perhaps even more troubling, pre-employment drug testing will be rendered meaningless for “cardholder” job applicants since an employer cannot “discriminate” against job applicants unless they possess, use, or are impaired on the job.

I vividly remember the news broadcasts of San Francisco’s counter-culture youth (and burned-out ex-youth) giddily celebrating the passage of California’s medical-marijuana law in 1996. Crowded into Washington Square, the cloud of marijuana smoke seemingly hanging above their medically-treated heads as bong-after-bong and joint-after-joint was passed around. Brave souls. None of them looked to be terminally ill or to have a debilitating illness.

And now, a replay in Arizona. Some voters bought into the myth of the legalization advocates. Proposition 203 was sold as compassion for the terminally ill, but contradictorily includes provisions prohibiting discrimination by schools against pot-smoking kids, and by employers against pot-smoking job applicants who have the bullet-proof shield of a marijuana “gold card” or against employees who want to seek relief from their “debilitating illnesses” during work breaks or at lunchtime or before their factory shifts.

Proposition 203 is bad policy and bad law, has been intentionally mislabeled, and is going to lead to much greater access to marijuana, more marijuana use, more impairment, less safe workplaces, declining employee performance… and a lot of litigation.

And, oh yes, according to the U.S. Substance Abuse and Mental Health Services Administration, marijuana is highly addictive.

Upon further review, the law is a lie.

Mark A. de Bernardo is the executive director for the Institute for a Drug-Free Workplace. He is also a partner in the Washington, D.C. region office of Jackson Lewis, a national management-side employment law firm with more than 650 lawyers who exclusively advise and defend employers.