In The Weeds: A Closer Look at Recreational Marijuana in Arizona

By Taylor Hamel.

Though the sun was not blazing over Arizona’s desert landscape on the chilly afternoon of January 22, 2021, the state’s residents were. That is because January 22 was the first day of the legal sale of recreational marijuana by licensed dispensaries in Arizona.

Arizona voters approved the Smart and Safe Arizona Act (Proposition 207) in the November 2020 election which legalized recreational marijuana in the state. Although it was impossible to legally purchase recreational marijuana until dispensaries were licensed to sell it, the Arizona Department of Health Services (“AZDHS”) approved licenses far earlier than the projected March 2021 date. After AZDHS approved licenses for 86 dispensaries on January 22, long lines began to form, requiring some customers to wait for multiple hours before making their long-awaited purchases. Some dispensaries kept the theme of the occasion by making their first sales at 4:20 P.M., while others began selling at noon to give their patrons a head start on shopping.

Despite this day feeling like a liberation for many Arizonans, the legalization of recreational marijuana use did not create free rein for marijuana use in Arizona. The Smart and Safe Arizona Act, as codified in Title 36, Chapter 28.2 of Arizona Revised Statutes, contains multiple restrictions and other provisions that are important to be aware of before partaking in Arizona’s new recreational pastime.

Permissions and Restrictions for Recreational Marijuana:

The new law permits Arizona adults who are at least 21 years old to possess, consume, purchase, process, manufacture, and transport one ounce or less of marijuana but not more than five grams of marijuana concentrate. It also allows for adults to possess, transport, cultivate, or process up to six marijuana plants for personal use, not exceeding twelve plants in a residence with two or more 21-year-old individuals. However, those plants must be cultivated outside of the public eye and remain secured from access by minors. Also worth noting is that the smell of marijuana or burning marijuana “does not by itself constitute articulable suspicion of a crime” under the act.

Besides the age of purchase and consumption, the green stuff shares other restrictions with alcohol in Arizona. Individuals cannot be impaired while operating a vehicle, including cars, boats, and planes. The law also prohibits passengers of vehicles from consuming marijuana or marijuana products.

One of the most important restrictions to keep in mind is that businesses may still maintain policies that restrict the use of marijuana by current and prospective employees. While having a medical marijuana card may act as a shield in some workplace disputes about the use of marijuana, there are no such protections for recreational users. Additionally, businesses, schools, and other institutions may prohibit or regulate the use of the substance on or in their properties. Public and open spaces are also off limits for smoking marijuana, though medical marijuana patients may consume marijuana in edible form in public. Besides these differences, there may be other reasons to hold onto that medical marijuana card despite the legalization of recreational use.

Medical Marijuana and Patient Cards Moving Forward

Among other benefits, having a medical card may provide some protection in the workplace for marijuana users. Although in practice it is unclear how far those protections actually stretch, the medical marijuana statute prohibits discrimination against a cardholder, “[u]nless failure to do so would cause an employer to lose a monetary or licensing benefit under federal law or regulations.” Under the statute, prohibited workplace discrimination includes discrimination based on status as a cardholder and for a positive drug test, “unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment.” However, Arizona employers are not required to keep medical marijuana users in “safety-sensitive positions.”

Another reason to keep or even acquire a medical marijuana card is to avoid the hefty taxes that come with recreational marijuana purchases. An excise tax of 16% applies to all sales of marijuana and marijuana products, except to those individuals with a valid medical card. This excise tax combined with Phoenix’s current combined sales tax rate of almost 9% means those without medical cards will be paying nearly a quarter of the sticker price of their purchases in additional taxes. While there are costs associated with getting a medical marijuana card for qualifying patients (approximately $300 for a two-year license), obtaining a license will save more money than it costs for people who plan to spend more than $938 per year on average on recreational marijuana.

Medical card holders can also purchase as much as twoandonehalf ounces of marijuana at dispensaries as opposed to the one ounce for recreational users. But for some current card holders, these benefits do not feel like enough. Those who already had medical marijuana cards when the news spread about dispensaries selling for recreational purposes felt burdened by the influx of new customers and the limited number of locations that were able to sell to them. While some were glad to see the access to safe marijuana broaden, others felt they should not have to wait in such long lines. Because Arizona allows for delivery of medical but not recreational marijuana (for now), this frustration will likely be shared with other cardholders if long lines continue to plague dispensaries. Using the medical card like a fast pass at your favorite amusement park is a solution that fixes one customer’s problems by passing it onto another. However, it may be the only viable solution until AZDHS adopts the required rules regulating delivery of recreational marijuana.

Prior Marijuana-Related Crimes

This statute includes a provision for the possibility of expungement—essentially, sealing or destroying a record—of an arrest, charge, adjudication, conviction, or sentence for any of three offenses relating to actions involving marijuana that have now been made legal. This statute is far from perfect in areas of restorative justice and social equityhowever, this provision as well as the included justice reinvestment fund at least provide a starting point for Arizona lawmakers. For more detailed discussions about the shortcomings of Arizona’s legalization of recreational marijuana for those respective topics, consider visiting the two links above for posts by fellow ASU Law students on the Arizona State Law Journal Blog.

In conclusion, Arizonans planning to participate in the newly legalized use of recreational marijuana should keep in mind that the Smart and Safe Arizona Act did not create a free-for-all when it comes to marijuana use, sale, and cultivation. As the name of the act directs: be smart and safe when it comes to recreational marijuana.

"Southwest Cannabis Conference & Expo art" by Gage Skidmore is licensed under CC BY-SA 2.0

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By Taylor Hamel.

J.D. Candidate, 2022

Taylor Hamel is a 2L Staff Writer from Gilbert, Arizona. He graduated summa cum laude from Arizona State University with bachelor’s degrees in Finance and Accountancy, and a minor in Philosophy. He is currently a judicial extern at the Federal District Court, District of Arizona, and will be joining Squire Patton Boggs as a Summer Associate in 2021. In his free time, he enjoys reading, running, and golfing.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.