Legend has it that Alice Cooper originally titled his hit “Preschool’s Out Forever.” I made that up, but it occurred to me when I read a headline from Law360 that read “Under Pot Law, Preschool Isn’t ‘School,’ Ariz. Court Rules.”

This is one of those decisions that makes you wonder how we ended up in this place – even if the decision may have been the correct result under the law.

The nitty gritty from Sam Reisman:

A divided Arizona appeals court… shut down a challenge to a state decision that granted a medical marijuana license to a dispensary located near a preschool after finding that state law treats “public or private schools” and “preschools” as two different things.

…

The appeal has its roots in the state’s 2016 award of a medical marijuana license to a dispensary whose storefront was located within 500 feet of two childcare facilities that marketed themselves as “preschools.”

The Rationale for the Decision

More from Reisman:

Arizona’s medical marijuana law forbade licensing dispensaries within such close proximity to a “public or private school,” but state marijuana regulators determined that the license at issue was legitimately awarded since the childcare facilities were not “schools” under the state’s law.

…

“The etymology of ‘preschool’ alone shows it means something before — and thus apart from — ‘school,’” wrote Judge David B. Gass of the Arizona Court of Appeals, Division One, for the majority. “That qualitative distinction comports with how Arizona treats the term school in its Constitution and its statutes.”

Judge [Andrew] Jacob’s dissent held that Arizona voters who approved the state’s medical marijuana law “did not intend for medical marijuana dispensaries to be sited adjacent to preschools.”

The Implications of the Decision

Ugh, this is a tough one. As a lawyer, every now and then you see a headline and say, “what the?!” Then you read the opinion, and you realize the court may have interpreted the law in an understandable way, but you still feel like the outcome is disconcerting.

I completely understand how and why the Arizona court arrived at the decision, presumably aware of the backlash the decision would create. And there is a big part of the litigator in me that thinks that a court does the full extent of its duty when it interprets the language of a rule and regulation and renders the result of that decision without regard for the social or practical implications of that decision.

But, man, it’s a tough look for the marijuana industry at a time when the industry is gaining traction and needs more public support. After all, there is a public hearing this December to hear arguments on whether marijuana should be rescheduled at the federal level. The stakes could hardly be higher.

So, in a time when the industry needs public support, this is a decision that allows marijuana to be sold next to where young parents send their toddlers while hearing scary stories – regardless of their statistical veracity – about increased crime and bad influences associated with proximity to marijuana dispensaries.

On the other hand, there may be a missed distinction between preschools and high schools that isn’t reflected in the plain language of the statute or regulations but might give some assurances to the court and to those who worry about the implications of the decision. And it’s simple: Unlike high schoolers, preschoolers aren’t likely to ditch class and use a fake ID to buy pot at the nearby dispensary.

The fear about marijuana dispensaries near preschools is largely driven by the public’s preconceived notions about the societal harms inherent to being in proximity to a marijuana dispensary. Whether it intended to or not, the Arizona Legislature seems to have a created a regime that allowed – if not compelled – the court to conclude that preschools are treated as regular schools when determining the location of marijuana dispensaries. The Arizona Legislature certainly can change the law to make clear that preschools are subject to the same setbacks as any other school when it comes to marijuana dispensaries. If it does, that’ll be that. If it doesn’t, then the opposition to the court’s decision can shift its focus from the appeals court to the elected representatives of Arizona.