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3:25 PM Tue, Nov. 13th

Pot fund keeps growing, other uses for dollars – except lowering fees – being sought

The state Department of Health Services has accumulated nearly $44 million in its medical marijuana account, largely from the $150 a year the agency charges medical marijuana patients. (Adobe Images)

The state Department of Health Services has accumulated nearly $44 million in its medical marijuana account, largely from the $150 a year the agency charges medical marijuana patients. (Adobe Images)

PHOENIX – State lawmakers are free to use fees paid by medical marijuana patients to operate programs to help get people off of other drugs, Attorney General Mark Brnovich has concluded.

But he said for these programs to be legal they probably have to promote marijuana as an alternative

The formal opinion comes as the state Department of Health Services has accumulated nearly $44 million in its medical marijuana account, largely from the $150 a year the agency charges medical marijuana patients. So Sen. Sylvia Allen, R-Snowflake, asked Brnovich if any of that can be used to help patients addicted to drugs.

Brnovich's answer: Yes – with restrictions.

A 2010 law allows patients with specified medical conditions to obtain up to 2 1/2 ounces of marijuana every two weeks. Brnovich said that shows a key purpose is to protect medical marijuana users from arrest and prosecution.

That law gives the Department of Health Services absolute authority to set the fees. But it spells out that money collected can be used only to administer the program.

With income running twice as fast as expenses, and state Health Director Cara Christ resisting calls to lower the fees, the cash continues to accumulate.

The legal issue of what can be done with that cash, said Brnovich, is the Voter Protection Act.

It prevents lawmakers from repealing programs that voters have approved at the ballot. But they can make changes that "further the purpose'' of what voters approved.

And there's the rub.

"There has to be a connection to medical marijuana,'' said Brnovich spokesman Ryan Anderson.

Put simply, he explained, lawmakers are not free to decide that the funds paid by medical marijuana patients can now be used, without limit, to treat drug addiction. Only if the program furthers the purpose of what voters approved, Anderson said, could the account be tapped.

"You couldn't, hypothetically, just say 'marijuana bad,' '' Anderson explained.

And even a program to say that opioids are bad or offering treatment, he said, would have to somehow be linked to the decision by voters to legalize marijuana.

"You can't just use the money to do a drug addiction program if there's not a tie somehow to the medical marijuana program or the medical value of medical marijuana,'' Anderson said. "You would need to point out the medical benefits of marijuana or, for example, say 'Opioid addiction bad, perhaps you should consider the benefits of medical marijuana.'''

Even with those restrictions, though, the organization that crafted the 2010 Arizona law says medical marijuana users should not be financing programs to deal with problems people have with other illegal drugs, including those who are using marijuana illegally.

Mason Tvert, spokesman for the Marijuana Policy Project, said the whole purpose of the law – and the fees to fund it – is to ensure that medical marijuana patients do not have to fear prosecution. And he said that there may be some wiggle room in how to interpret that.

"But drug addiction treatment does not seem to be one of those areas that would be unclear,'' Tvert said.

"Funding this service on the backs of seriously ill patients who are already having to pay for their medicine out of pocket is wrong,'' he said. "Given that the medical cannabis fund has a surplus, the state should lower the fees to ensure medical marijuana is an affordable treatment for seriously ill patients.''

Anderson said that may be a valid policy question – but not a legal one.

That isn't exactly true.

In fact, Brnovich's office is defending Christ in a lawsuit filed by two medical marijuana patients who want the courts to order her to reduce the $150 annual fee for the state-issued permit for patients to buy the drugs.

Attorney Sean Berberian contends that fee is illegally high because it is far more than needed to administer the program. And he argues that nothing in the law allows Christ to simply bank the proceeds.

Berberian also charges that both Gov. Doug Ducey and predecessor Jan Brewer directed the health department to keep the fees as high as possible to deter patients from getting the drug, a charge Ducey's office has denied.

In a ruling last year, Maricopa County Superior Court Judge Jo Lynn Gentry did not dispute the claim that the state is collecting far more than its needs. But the judge said it's not up to her to force the state to lower the fees.

That lawsuit is now awaiting Court of Appeals review.

Earlier this year Sen. Sonny Borrelli, R-Lake Havasu City, sought to lower the fees in connection with a proposal to have the state Department of Agriculture start testing medical marijuana for purity and pesticides. That measure died amid a political dispute over taxes and related issues.

Borrelli said Tuesday he will make another try when the Legislature convenes in January.