Disclaimer: The comments in this blog are my personal opinion and may or may not reflect an adopted position of the city of Glendale and its city council.

On Tuesday, March 28, 2018 the Glendale City Council in a vote of 4 to 3 approved the expansion of building size and hours for Arizona Organix, a medical marijuana dispensary located in Glendale. Mayor Weiers and Councilmembers Hugh, Turner and Aldama voted in favor. Vice Mayor Tolmachoff and Councilmember Malnar and I voted against.

Another history lesson on the background of legalized medical marijuana in Arizona is in order. On November 2, 2010 voters in Arizona legalized the use of medical marijuana. The state created Community Health Analysis Areas (CHAAs) allowing one dispensary in each CHAA. There are over 100 CHAAs in the state. Glendale has at least (and probably more) 8 CHAAs within its boundaries.  Here is the current CHAA map:

Glendale passed a Zoning Ordinance, effective March 25, 2011 to deal with dispensaries within its city limits:

  • Allowed in zoning classifications of General Office (G-O); General Commercial (C-2); and Heavy Commercial (C-3)
  • Dispensaries must be one mile apart
  • Dispensaries must be 1,320 feet away from elementary, middle and high schools
  • Dispensaries must be 500 feet away from residential properties
  • Maximum building size of 2,000 SF
  • Allowable hours of operation are 8 AM to 8 PM (12 hours)

Arizona Organix filed for a zoning text amendment to Glendale’s current zoning requirements asking for a 6,000 SF allowable maximum building size and for an expansion of operating hours from 8 AM to 10 PM (total hours open – 14).

I voted against their request for 2 reasons. One is that the action is precedent setting and the newly approved standards will apply to all dispensaries in Glendale. While Glendale currently has 3 dispensaries, more are on the way and they will be able to operate under the newly approved text amendment requirements as to building size and hours of operation. This time a majority of city council approved an increase in building size and hours but what’s next now that the door has been opened to change Glendale’s specific regulations?

However, for me there was an even more compelling reason to vote against their request. As an elected official I took an oath of office. In that oath I swore I would “support the Constitution of the United States and the Constitution and laws of the state of Arizona…”   Note which is cited first — the Constitution of the United States and which is cited in the secondary position – the Constitution of Arizona.    

Interestingly, Mayor Weiers and Councilmember Turner dismissed my argument. I think they might have some ‘learnin’ to do. Article VI of the United States Constitution contains the “supremacy clause.” The supremacy clause contains what is known as the doctrine of pre-emption. This doctrine states that any federal law, even if it is only a regulation from a federal agency, supersedes any conflicting state law, even if that law is part of the state’s constitution. In other words the federal government wins every time when there is conflicting legislation between the feds and the states.

The federal government has laws prohibiting the use of marijuana for any use. At least 29 states have legalized marijuana, medically or recreationally. But that does not make what they are doing legal. In the eyes of the federal government it is still a crime. To date the federal government has been reluctant to take on the states over this issue but its inaction should not be confused with tacit approval for marijuana use. One should not assume that federal inaction will continue indefinitely.

Here’s a different version of the same state action to refuse to recognize the doctrine of pre-emption. California recently passed legislation making it a sanctuary state in order to protect illegal aliens. In this case, the federal government has filed suit against the state on the basis of pre-emption. Interestingly, Orange County, California has joined the federal suit. I suspect the Supreme Court will recognize and uphold this doctrine.

 California’s action is no different than the action of the states that have passed legislation to allow the use of marijuana for they, as well, have chosen to ignore the doctrine of pre-emption. The only difference at this point in time is that the federal government has not filed suit against them. Should the federal government win its action against California I suspect in the future it will file suit on the same grounds against those states that have legalized marijuana.

I have no public opinion for or against the use of marijuana.  If I had approved the Arizona Organix zoning text amendment I would have been enhancing and abetting the state’s refusal to recognize the constitutional doctrine of pre-emption. I am a constitutionalist and I do believe that the federal constitution and the laws derived wherefrom are supreme, including the areas of tobacco, firearms and drugs. If states legislate opposing federal law what else in the Constitution will they choose to ignore? Then what do we become? A collection of states with no common authority?

In my small way, I chose to uphold the Constitution of the United States.

© Joyce Clark, 2018         


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