Court: Medical marijuana dispensaries can be next to preschools

A voter-approved law to keep marijuana dispensaries away from schools doesn’t apply to preschools, the Arizona Court of Appeals has ruled.

In a split decision, the judges said it may well be possible that those who wrote the state’s first medical marijuana law in 2010 did not want the dispensaries located near schools. That measure forbids the Arizona Department of Health Services from licensing a facility within 500 feet of an existing public or private school.

Appellate Judge David Gass, writing for the majority, acknowledged the law does not define “school.’’

But he said there is no way the law can be read to also require that 500-foot buffer around preschools.

Simply put, Gass said, a preschool is a licensed daycare facility. The fact that it may offer some educational programs is legally irrelevant, he said.

The majority ruling drew criticism from appellate Judge Andrew Jacobs.

“The voters’ intent was plain: to prevent schoolchildren from exposure to marijuana and to keep a legal business that is selling marijuana away from a school and its occupants,’’ he wrote in his dissent.

Gass, however, said courts cannot make such rulings strictly on how they interpret the intent of those who crafted the measure — in this case, voters. Instead, he said, judges have to look at the plain language of the law.

The statute says those seeking to open marijuana dispensaries must provide an address for where marijuana will be sold and where it will be cultivated, “neither of which may be within 500 feet of a public or private school’’ already in existence.

This case came to the court because a company that was denied a license complained that the successful applicant was disqualified because the site was within 500 feet of two preschools.

Gass said that, despite the fact the Medical Marijuana Act does not define “school’’ or “preschool,’’ there are multiple reasons to conclude the former does not include the latter.

“The etymology of ‘preschool’ alone shows it means something before — and thus apart from — ‘school,’” he wrote.

Then there’s the Arizona Constitution, which requires the state to provide a “public school system,’’ designed to include everything from kindergarten through universities open to pupils between ages 6 and 21.

“It expressly excludes preschool-aged children,’’ Gass said.

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By contrast, he said, preschools are licensed by the health department as child-care facilities. They are not subject to the same requirements as public and private schools.

Jacobs, however, said one of these preschools cited in the lawsuit requires teachers to have a bachelor’s degree and has a curriculum focused on science, technology, engineering and math. The other has weekly lesson plans including reading and writing, physical activity, art and science. Both send report cards to parents.

Gass and appellate Judge Brian Furuya, who agreed with him in the 2-1 decision, were unconvinced.

None of that is mandated by statute or regulations, Gass wrote. “And the facilities could cease offering them at any time,’’ he said. “They have no attendance requirements. They have no grading requirements. They have no educational requirements for the caregivers. A child-care facility need not have any of them.’’

The bottom line, said Gass, is the court is bound by what the words say.

“We decline the invitation to rewrite the law under the guise of interpreting it even if we divine a more desirable intended outcome than the text allows,’’ he said.

Still, Gass said, that does not leave those who want dispensaries kept away preschools without a remedy.

“If the legislature and governor disagree with our interpretation, they have the means of amending the voter-enacted act,’’ he said.

He conceded that would not be a simple matter.

The Voter Protection Act of the Arizona Constitution forbids lawmakers from making any changes to what voters approve unless the alteration “furthers the purpose’’ of the original law.

Making that claim while putting in an additional distancing requirement could prove a difficult legal task. Gass said tightening up the rules “would threaten to restrict, rather than expand, access to medical marijuana — in direct contravention of the act’s express principal purpose.’’

Even if it was found that such a change “furthers the purpose’’ of the original law, Gass pointed out there’s an additional hurdle: The Voter Protection Act also requires a three-fourths vote of both the House and the Senate.