Last Word on the 25 Mile Rule PLAINTIFF’S RESPONSE TO COURT’S ORDER TO PROVIDE MEDICAL DOCUMENTATION FOR POSTPONEMENT OF JULY 22, 2015 ORAL ARGUMENT

ARLIN TROUTT

Plaintiff

WILL HUMBLE, HEAD OF ARIZONA DEPARTMENT OF HEALTH SERVICES,

et al

Defendants

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Case No. LC 2014-000443

PLAINTIFF’S RESPONSE TO COURT’S ORDER TO PROVIDE MEDICAL DOCUMENTATION FOR POSTPONEMENT OF JULY 22, 2015 ORAL ARGUMENT

Assigned to the Honorable Crane McClennen

 

I, Arlin Troutt, (“the Plaintiff”) submit this Response to this Honorable Court’s Order: “If Appellant believes having Oral Argument on that date would negatively affect his health, he will have to file a Motion To Continue Oral Argument along with some supplemental documentation from his doctor.” (Minute Entry June 19, 2015)

Plaintiff received a Notice Regarding Oral Argument from the Arizona Department of Health (ADHS”), signed by Mathew Hesketh, on June 23, 2015.

ADHS tells the Court that if Arlin Troutt cannot physically attend, ADHS is willing to waive its request for Oral Argument and submit this case for a decision on the briefs. (Pg. 1, lines 19-21)

Plaintiff objects to the Court allowing the Answering Brief filed on April 30, 2015 by ADHS to be the last word. Plaintiff objects to giving the great weight of judicial deference to ADHS based on their misrepresentations to the Court.

.         Plaintiff filed a Response to ADHS Answering Brief on May 18, 2015, complaining about the misrepresentations ADHS relied on to prevail in court.

Then ADHS attempts to re-argue the case with blatantly false claims in an untimely and disguised Motion. Plaintiff was forced to submit a Response to: APPELLEE’S MOTION FOR DISPOSITION BY OPINION AND REQUEST FOR ORAL ARGUMENTS, signed by Attorney Gregory W. Falls on June 4, 2015.

This disputed Motion contained new evidence of frivolous misrepresentation of crucial facts to this Court that required a Response. Plaintiff filed a complaint on June 15, 2015, against ADHS for this disingenuous and damaging filing with the Court.

Plaintiff’s Motion is now being mischaracterized as a mere request for a continuance. Plaintiff explained to the Court that Plaintiff had recently been released from the hospital and had serious energy, weight and vision loss directly related to this protracted litigation.

Plaintiff submitted a complaint regarding the filing and content of the ADHS Motions and requested the Court to issue sanctions in this matter on June 29, 2015.

ADHS asked the Court to give ADHS deference and great weight to there interpretations of law in the Answering Brief. ADHS states: Department’s interpretation is not plainly erroneous. It is therefore entitled to deference and great weight.” (April 30, 2015 ADHS Answering Brief -Pg. 13, lines 10-14)

ADHS forced the Plaintiff to remind the Court that ADHS illegally altered the language and changed the meaning of a “voter initiated” and “voter protected” law. ADHS is not entitle to judicial deference and great weight for these illegal interpretations and regulations.

Again, Plaintiff reminds the Court that there is not a scintilla of evidence to support ADHS claims that A.R.S. § 36-2804.02(A)(3)(f) is a required request for authorization to cultivate marijuana or that AMMA gives ADHS authority to “regulate the medical use of marijuana”.

Plaintiff would also respectfully remind the Court that: “This appeal involves a simple question” and Oral Argument will not change this material fact: The Plaintiff has proved to this Honorable Court that the simple answer here is: A.R.S. § 36-2804.02(A)(3)(f) can only be interpreted as a “request for information”.

CONCLUSION

The ADHS stated in their June 23, 2015 Notice Regarding Oral Argument that they requested Oral Argument to assist the Court in reaching a decision. (Pg. 1, lines 16-17) Plaintiff wants to help this Court reach a decision also.

Unfortunately, the tolerated tactics of ADHS by the Court have been frustrating and stressful and have taken a heavy toll on the Plaintiff’s mental and physical stamina and eyesight.

Plaintiff believes that it was an abuse of discretion to damage the Plaintiff by denying and delaying requests for clarification of A.R.S. § 36-2804.02(A)(3)(f) in a timely and procedurally proper manner.

Plaintiff believes that it was an abuse of discretion to refuse to acknowledge the conflicts of interest in this case and allow misrepresentation of facts.

Other than being forced to respond to these repetitive misrepresentations by ADHS, Plaintiff has little energy and little else to say or see this Court about.

Dr. Marinez has gone out of his very busy way to verify the gravity of Plaintiff’s confidential medical condition that is associated with this case. Dr. Martinez has informed the Court of the crucial need for Plaintiffs recovery time and is requesting between 2 to 3 months recovery time from the hospital release date on May 30, 2015. (EXHIBIT A)

REQUEST FOR RELIEF

Whereas, Plaintiff Requests Oral Argument be held but set off until after August 30, 2015. If the Court believes it can rule in favor of the Plaintiff and dispose of this matter without further Oral Argument or filings from ADHS, then Plaintiff would waive his request for Oral Argument and Postponement.

Whereas, Plaintiff requests this Honorable Court to include in the Record for Review all filings after ADHS filed the May 18, 2015 Answering Brief.

 

Respectfully Submitted on July 6, 2015

 

 

 

 

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PLAINTIFF’S RESPONSE TO DEFENDANT’S NOTICE REGARDING JULY 22, 2015 ORAL ARGUMENT AND ADDENDEM TO PLAINTIFF’S RESPONSE TO DEFENDANT’S ANSWERING BRIEF AND REQUEST FOR SANCTIONS FOR MISREPRESENTING MATERIAL FACTS TO THE COURT

BEFORE THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN THE COUNTY OF MARICOPA

 

ARLIN TROUTT

Plaintiff

WILL HUMBLE, HEAD OF ARIZONA DEPARTMENT OF HEALTH SERVICES,

et al

Defendants

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Case No. LC 2014-000443

PLAINTIFF’S RESPONSE TO DEFENDANT’S NOTICE REGARDING JULY 22, 2015 ORAL ARGUMENT AND ADDENDEM TO PLAINTIFF’S RESPONSE TO DEFENDANT’S ANSWERING BRIEF AND REQUEST FOR SANCTIONS FOR MISREPRESENTING MATERIAL FACTS TO THE COURT

Assigned to the Honorable Crane McClennen

 

BACKGROUND

I, Arlin Troutt, (“the Plaintiff”) submit this Response to Defendant’s Notice Regarding Oral Argument. Plaintiff also requests this Response and Addendum be included in the court record for review. Plaintiff also requests Sanctions.

There is nothing “normal or ordinary” about this Complaint and Appeal. This dispute with the Arizona Department of Health (“ADHS”) began with the promulgation of regulations based on misrepresentations of the intent and language of the Arizona Medical Marijuana Act (“AMMA”).

APPELLEE’S MOTION FOR DISPOSITION BY OPINION AND REQUEST FOR ORAL ARGUMENTS, signed by Attorney Gregory W. Falls on June 4, 2015, is new evidence of misrepresentation of crucial facts to this Honorable Court (”the court”) . Plaintiff is requesting sanctions in this matter.

This Motion for a Written Disposition after 15 minutes of Oral Argument was nothing more than a “give ADHS the last word motion” and “dispose of this case with false evidence”.

ADHS disingenuously argues in this motion: “AMMA requires ADHS to deny an application for authorization to cultivate marijuana”… (Pg. 2, lines 9-10)

ADHS disingenuously states: “Appellant Arlin Troutt (“Troutt”) contends that any qualifying patient who requests authorization to cultivate must be given such authorization… Opening Brief (4:1-9); Reply Brief (3:17-20)” (Pg. 2, lines 12-15)

Arlin Troutt contends that ADHS lied to the court. Arlin Troutt “contends” ADHS had to illegally replace a period with a comma and add 18 words to A.R.S. § 36-2804.02(A)(3)(f) to turn a request for information into a request for authorization.

ADHS wanted “false evidence” to be the last word in this case. This veiled reminder to the court of the seriousness of this protracted litigation and the ramifications of clarifying A.R.S. § 36-2804.02(A)(3)(f) will not change the evidence, public sentiment or the language of law like ADHS has clumsily attempted to do.

ADHS illegally altered the language and changed the meaning of a “voter initiated” and “voter protected” law. This altered language is the only evidence ADHS has offered to support their claim that A.R.S. § 36-2804.02(A)(3)(f) was intended as a cultivation restriction.

This illegal alteration of the language and meaning of AMMA does not entitle ADHS to judicial deference and great weight for these disputed ADHS interpretations and regulations.

ADHS misguides the court with this plainly erroneous misrepresentation: “The Legislative Council interpreted AMMA in the same way as the Department. The Legislative Council’s analysis is evidence of the intent of the electorate and cannot be ignored or disregarded. In light of the Legislative council’s similar reading of the statute, the Department’s interpretation is not plainly erroneous. It is therefore entitled to deference and great weight.” (ADHS Answering Brief -Pg. 13, lines 10-14)

There is not a scintilla of evidence to support ADHS claims that A.R.S. § 36-2804.02(A)(3)(f) is a required request for authorization to cultivate marijuana or that AMMA gives ADHS authority to “regulate the medical use of marijuana”.

ADHS concedes that: “The primary objective in interpreting a voter-enacted law is to effectuate the voters’ intent.” However, ADHS illegal alteration of A.R.S. § 36-2804.02(A)(3)(f) from a request for information into a required request for authorization and restriction on the medical use of marijuana “does not effectuate the intent of a voter-enacted law”.

An action not based upon consideration of relevant factors is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law or if it was taken without observance of procedure required by law. [Natural Resources Defense Council, Inc. v. United States EPA, 966 F.2d 1292, 1297 (9th Cir. 1992)]

In reviewing an agency’s decision the superior court must affirm the agency action unless it is “not supported by substantial evidence, is contrary to law, is arbitrary and capricious or is an abuse of discretion”.

Normally, sufficiency of evidence rulings in administrative proceedings show a certain degree of deference to an agency based upon the accumulated experience and expertise of its members.

Ordinarily an agency interpretation of a statute or regulation it implements is given great weight. However, the agency’s interpretation is not infallible, and courts must remain the final authority on critical questions of statutory construction.

A question of statutory interpretation involves a question of law that is not bound by an administrative agency’s “conclusions about questions of law”.

CONCLUSION

This is not a normal or ordinary case. The State of Arizona has a brutal history of violently arresting people, confiscating children, seizing property and sentencing critically ill patients to long prison terms for cultivating and using medical marijuana.

The Arizona Voter Protection Act of 1998 was a direct result of the 1996 Medical Marijuana Act that was initiated and approved with a 65% vote margin and ignored by the State of Arizona.

Profound conflicts of interest have been buried under an avalanche of ADHS misrepresentations to the courts and a refusal to concede that A.R.S. § 36-2804.02(A)(3)(f) is a “request for information” and not a requirement for the approval of ADHS to use medical marijuana.

Misrepresentations of material facts by ADHS to prevail in this case should not be considered as legal interpretations of law or given great weight in this particular matter.

In reviewing an agency’s decision pursuant to the Administrative Review Act, the superior court must affirm the agency action unless it is “not supported by substantial evidence, is contrary to law, is arbitrary and capricious or is an abuse of discretion.” Carlson v. Arizona St. Pers. Bd., 214 Ariz. 426, 153 P.3d 1055, ¶ 13 (Ct. App. 2007) (emphasis added), quoting A.R.S. §12–910(E)

It was an abuse of discretion for the courts to damage the Plaintiff with delay and a refusal to acknowledge the conflicts of interest in this case and rule on Plaintiff’s requests for clarification of A.R.S. § 36-2804.02(A)(3)(f) in a timely and procedurally proper manner. An improvidentexercise of discretion is an error of lawandgroundsforreversing a decision on appeal.

ADHS contends: “This appeal involves a simple question”. The Plaintiff has proved to this Honorable Court that the simple answer here is: A.R.S. § 36-2804.02(A)(3)(f) can only be interpreted as a “request for information” and not a “request or requirement for approval”.

Other than being forced to respond to these last illegitimate ADHS motions, Plaintiff has little else to say to the court.

This Complaint and Appeal began in May of 2014 and Plaintiff is still struggling to get a simple clarification of the English language.

Plaintiff’s physicians are preparing medical reports per instruction of the court and

Plaintiff intends to comply with all court orders regarding this matter.

 

REQUEST FOR RELIEF

Whereas, Plaintiff requests the court to acknowledge and address, for the record, the conflicts of interest and misrepresentations Plaintiff has complained about in this case.

Whereas, Plaintiff requests the court to acknowledge and issue sanctions against ADHS for their untimely Argument containing a crucial misrepresentation of material facts.

Whereas, Plaintiff request the court to rule that A.R.S. § 36-2804.02(A)(3)(f) is a request for information and cannot be interpreted as a requirement for denial of an AMMA identification card.

Whereas, Plaintiff requests the court to rule that A.R.S. § 36-2804.02(A)(3)(f) cannot be interpreted as a required request for authorization to cultivate marijuana.

Whereas, Plaintiff requests the court to rule that A.R.S. § 36-2804.02(A)(3)(f) and or the AMMA does not gives ADHS authority to “regulate the medical use of marijuana”.

 

Respectfully Submitted on June 29, 2015

 

 

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REQUEST FOR DENIAL OF APPELLEE’S MOTION FOR DISPOSITION BY OPINION AND REQUEST FOR RECONSIDERATION OF COURT’S DECISION TO GRANT ORAL ARGUMENTS TO DEFENDANTS

BEFORE THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN THE COUNTY OF MARICOPA

 

ARLIN TROUTT

Plaintiff

WILL HUMBLE, HEAD OF ARIZONA DEPARTMENT OF HEALTH SERVICES,

et al

Defendants

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Case No. LC 2014-000443

REQUEST FOR DENIAL OF APPELLEE’S MOTION FOR DISPOSITION BY

OPINION AND REQUEST FOR RECONSIDERATION OF COURT’S DECISION TO GRANT ORAL ARGUMENTS TO DEFENDANTS

Assigned to the Honorable Crane McClennen

BACKGROUND

I, Arlin Troutt, (“the Plaintiff”) hereby submit this Request for Denial of Defendants Motion for Disposition by Opinion and the Plaintiff’s Request for Reconsideration of Court’s (June 3, 2015) Decision to Grant and Order Oral Arguments for Defendants.

This complaint regards a protracted and damaging dispute with the Arizona Department of Health (“ADHS”) over the language and meaning of the Arizona Medical Marijuana Act (“AMMA”) as described to Arizona voters in the 2010 Proposition 203 Ballot Guide (the “Publicity Pamphlet”).

Plaintiff has been requesting a simple clarification of A.R.S. § 36-2804.02(A)(3)(f) for well over a year to resolve and rectify this ADHS misinterpretation and misrepresentation of A.R.S. § 36-2804.02(A)(3)(f) .

The Plaintiff has recently suffered a major health setback that is directly related to the Plaintiff’s “certified critical illness” and this distressing and punitive litigation. Plaintiff has recently lost a great deal of optical vision, weight and physical strength.

On June 11, 2015 Dr. Pedro Martinez (Plaintiff’s Primary Care Physician) demanded Plaintiff take 90 days to rest and recover from a recent hospitalization and damage the Plaintiff suffered. Plaintiff’s doctors are aware and concerned over the stress and damage this protracted litigation with the ADHS has created for the Plaintiff.

This battle to acquire a simple “clarification” of the English Language has stolen Plaintiff’s freedom, health and precious time.   Plaintiff finds it frustrating and stressful that Attorney Gregory Falls, this Honorable Court and Administrators at the ADHS must know the language of the AMMA and the Merriam Webster’s dictionary will never allow A.R.S. § 36-2804.02(A)(3)(f) to be more than a “request for information”.

Plaintiff would respectfully remind this Honorable Court of what ADHS stated to Administrative Law Judge Tammy Eigenheer over a year ago in the ADHS (April 30, 2014):  THE DEPARTMENT OF HEALTH SERVICE’S RESPONSE TO APPELLANT’S REQUEST FOR CLARIFICATION (Docket No. 2014-MMR-T181-DHS, Case No. 2014C-MMR-0312-DHS): This appeal involves a simple question: whether the Department erred by denying Appellant’s request for approval to cultivate marijuana.”    

The simple question and answer here is: A.R.S. § 36-2804.02(A)(3)(f) can only be interpreted as a “request for information” and not a “request for approval”.  

ADHS also states: “The Department denied Appellant’s request to cultivate because it was required to do so by statute. Under the Arizona Medical Marijuana Act (“AMMA”), a qualifying patient may request authorization to cultivate “if a nonprofit medical marijuana dispensary is not operating within twenty five miles of the qualifying patient’s home.” A.R.S. § 36-2804.02(A)(3)(f); see also A.A.C. § R9-17-204(A)(1)(h) (renewal application for patient card may request authorization to cultivate if “qualifying patient believes that the qualifying patient resides at least 25 miles from the nearest operating dispensary”).

ADHS goes on to state: “This statutory language should be given its plain meaning. See Hourani v. Benson Hosp., 211 Ariz. 427, 431, ¶ 7, 122 P.3d 6, 10 (App. 2005) (“If [a] statute is clear and unambiguous, [courts] apply the plain meaning of the statute.”). The Department correctly interpreted the language to mean exactly what it says: if you live within twenty-five miles of a dispensary,you are not authorized to cultivate marijuana. Any other interpretation, including the ones advanced by Appellant, would be nonsensical and render the language meaningless.

These statements from ADHS to Judge Eigenheer cannot be considered interpretations after ADHS arbitrarily and capriciously and illegally changed the words and meaning of the law. ADHS exploited this misrepresentation to formulate and promulgate rules and ADHS continues to misguide this Honorable Court to prevail in this matter.

STATEMENT OF FACTS

Plaintiff was issued a cultivation identification card in 2011 and renewed this card in 2012 and 2013. Plaintiff paid fees, provided required requests for information and properly demanded ADHS to issue Plaintiff’s cultivation identification card on April 29, 2014 and on May 14, 2015.

On May 20, 2015 Plaintiff received a “certified letter” dated May 14, 2015 and delivered by United States Postal Service (“USPS”) from Gregory Ducey and Cory Nelson. (Exhibit A)

This USPS certified letter contained another unauthorized identification card issued by ADHS containing Plaintiff’s name and residential address and also stated “unauthorized to cultivate”.

This USPS certified letter also contained the following misrepresentation of fact and law from Governor Gregory Ducey and Cory Nelson (Interim Director of ADHS): “The Arizona Department of Health Services (Department) Medical Marijuana Card Registry Office has “denied your request to cultivate”.“Pursuant to A.R.S. § 36-2804.02(A)(3)(f), a qualifying patient applying to the Department for a qualifying patient’s registry identification card must submit an application that includes “[a] designation as to who will be allowed to cultivate marijuana plants for the qualifying patient’s medical use (Emphasis added.) if a registered nonprofit medical marijuana dispensary is within twenty-five miles of the qualifying patient’s home, neither the qualifying patient nor the qualifying patient’s designated caregiver may be granted authority to cultivate marijuana plants”.”   (EXHIBIT A)

The Publicity Pamphlet and AMMA version of A.R.S. § 36-2804.02(A)(3)(f) only contains 37 words that end with a “period” for punctuation. ADHS replaced this “period” with a “comma” and added 18 words to A.R.S. § 36-2804.02(A)(3)(f) that could not have been intended by the electorate because they do not exist in A.R.S. § 36-2804.02(A)(3)(f) or anywhere else in the Publicity Pamphlet or AMMA.

This “comma” and these 18 words that ADHS added to A.R.S. § 36-2804.02(A)(3)(f) “illegally changed” the meaning of this provision from a simple “request for information” to a “restriction” that was “unintended by the electorate, unmentioned in the Publicity Pamphlet and unauthorized” by AMMA. This is the “illegal and factual issue of unique interest” that is of “substantial public importance”.

Plaintiff would remind this Honorable court that the ADHS has stated: “The Department interpreted A.R.S. § 36-2804.02(A)(3)(f) to mean exactly what it says: “If you live within twenty-five miles of a dispensary, you are not authorized to cultivate marijuana.”(ADHS Response, December 8, 2014- Page 7, lines 21-25)

The Legislative Council’s Analysis and the Descriptive Title of the Publicity Pamphlet explained the effect of a “yes” and “no” vote for AMMA. The Publicity Pamphlet explains: that a “yes” vote for the AMMA: ALLOWS THE USE OF MARIJUANA FOR PEOPLE WITH DEBILITATION MEDICAL CONDITIONS WHO OBTAIN A WRITTEN CERTIFICATION FROM A PHYSICIAN “AND” ESTABLISHES A REGLATORY SYSTEM GOVERNED BY THE ARIZONA DEPARTMENT OF HEALTH SERVICES FOR ESTABLISHING AND LICENSING MEDICAL MARIJUANA DISPENSARIES.

The Legislative Analysis and the Descriptive Title of the Publicity Pamphlet clearly define the extent of immunity granted to a certified patient and clearly separates and defines ADHS responsibility and limited authority to establish and regulate dispensaries.

ADHS continues to damage the Plaintiff and misguide this Honorable Court by alleging: “The Legislative Council interpreted AMMA in the same way as the Department. The Legislative Council’s analysis is evidence of the intent of the electorate and cannot be ignored or disregarded. In light of the Legislative council’s similar reading of the statute, the Department’s interpretation is not plainly erroneous. It is therefore entitled to deference and great weight.” (ADHS Answering Brief -Pg. 13, lines 10-14)

ADHS also misled this Honorable Court by stating: The twenty-five mile rule (A.R.S. § 36-2804.02(A)(3)(f)) was intended to be a restriction on the personal cultivation of marijuana under AMMA.” (ADHS Response, December 8, 2014- Page 10, lines 14-18)

The “25-miles as the Crow Flies” rule that the ADHS attached to A.R.S. § 36-2804.02(A)(3)(f) is an undeniable example of over-regulation. ADHS illegally changed the language of AMMA to obstruct the implementation of a “voter initiated” and “voter protected” law with a “rule for crows”.

ADHS concedes: “The primary objective in interpreting a voter-enacted law is to effectuate the voters’ intent.” (ADHS Answering Brief – Pg. 6, lines 12-14)

However, ADHS conversion of A.R.S. § 36-2804.02(A)(3)(f) from a simple “request for information” into a “required request for authorization” “does not effectuate the intent of a voter-enacted law.  

The intent of AMMA according to the Publicity Pamphlet was to authorize the medical use of marijuana for critically ill patients and reduce the crime and violence associated with marijuana prohibition. Forcing qualified patients into protracted litigation with fraudulent interpretations of the English language to create unauthorized restrictions by ADHS was not the intent of the electorate. Forcing our Superior Court Judges to drag out the Merriam Webster Dictionary over and over to protect medical marijuana patients and their physicians “from the state” was not the intent of the electorate.

ADHS states in their APPELLEE”S MOTION FOR DISPOSITION BY OPINION dated and signed by ADHS attorney Gregory Falls on June 4, 2015: “The Department believes such a disposition would be appropriate because the Court’s decision, for either party, most likely will establish or clarify a “rule of law” and involve a legal or factual issue of unique interest or substantial public importance.” (Pg. 1, lines 17-19)

AMMA established the “rule of law” in this matter and the ADHS misrepresented the “rule of law” to the Plaintiff, public and courts.

The time for Oral Arguments have long past in this protracted battle for clarification of ADHS interpretations of A.R.S. § 36-2804.02(A)(3)(f) . The time for Written Disposition by Opinion has not arrived. There is little doubt that higher courts will review this case.

The Plaintiff does not dispute what the AMMA Publicity Pamphlet explained to voters before they removed the criminal statues for the “cultivation and medical use of marijuana”.

The Plaintiff does not “criticize” the “existing law”. Plaintiff does not claim that the “rule of law” has been “overlooked”. The “unique legal and factual issues” that are so “important” in this case originated with ADHS misrepresentation of the “Rule of AMMA”.

Now the Ducey/Nelson ADHS claims as a “Statement of Fact” to this Honorable Court that: “The Department regulates medical marijuana use in the State of Arizona under AMMA and the Rules.” (ADHS Answering Brief – Pg. 2, lines 13-14)

Only licensed physicians can legally certify and regulate the use of medicines like marijuana. ADHS regulation of “medical use of marijuana” is damaging, unauthorized and illegal.

CONCLUSION

Plaintiff’s complaints of ADHS obstruction of the AMMA program with over-regulation, excessive fees and threats for reporting contaminated marijuana have been buried under an avalanche of fabrications, denials and a refusal to concede that A.R.S. § 36-2804.02(A)(3)(f) is merely a “request for information”.

ADHS admits: “If [a] statute is clear and unambiguous, [courts] apply the plain meaning of the statute.” (ADHS Answering Brief – Pg. 9, line 22).

Plaintiff has undeniably demonstrated to this Honorable Court that A.R.S. § 36-2804.02(A)(3)(f) can only be interpreted as an AMMA “request for information” and not an ADHS “request for authorization”.

ADHS has illegally extended their limited authority to establish and regulate dispensaries to the unauthorized regulation and restriction of qualified patient’s right to engage in the cultivation and or medical use of marijuana.

The “rule of law” is a legal principle that protects citizens and opposes the arbitrary and capricious decisions of individual government officials. This dispute concerns a damaging and disingenuous misrepresentation of the AMMA by the ADHS and not the language of the AMMA.

Arizona voters initiated and approved a law that removed criminal penalties for cultivation of marijuana for medical use. The electorate realized that cultivation is the key to reducing the cost, crime and subsequent violence that creates the greatest risk to medical marijuana patients and threatens the safety, health and welfare of our citizens.

There is a gigantic conflict of interest here. The State of Arizona has a brutal history of violently arresting people, confiscating children, seizing property and sentencing critically ill patients to long prison terms for cultivating and using medical marijuana.

Plaintiff fears there will be no mention of the unethical tactics and misrepresentations ADHS has relied on to prevail in this case. Plaintiff is concerned that 15 minutes of Oral Argument and Disposition of this matter with a Written Opinion could easily be argued as “Res Judicata” down the road.

This long running dispute is well documented and there is nothing left to Orally Argue. It is time to drag out Merriam Webster’s dictionary and rule with the righteous.

RELIEF REQUESTED

Whereas the Plaintiff respectfully requests this Honorable Court to Reconsider and Reverse its Order granting Oral Arguments to the Defendants.

Whereas the Plaintiff respectfully requests this Honorable Court to Deny the Defendant’s request to Dispose of this Matter with a Written Opinion.

Whereas the Plaintiff respectfully requests this Honorable Court to clarify this dispute by ruling that A.R.S. § 36-2804.02(A)(3)(f) is an AMMA request for information and not a request for authorization.

Respectfully Submitted on June 15, 2015

 

—————————————-

Arlin Troutt

 

CERTIFICATE OF SERVICE

 

A Conformed COPY of the forgoing is hand-delivered to the Honorable Crane McClennen (at Mesa Court) on June, 15, 2015

A Conformed Copy of the forgoing is sent via Certified U.S.P.S. Mail on June, 15, 2015 to:

Will Humble, Former Head of Arizona Department of Health Services and Cory Nelson, Interim Director, of the Arizona Department of Health Services via:

————-

Arlin Troutt

 

EXHIBIT A

 

Certified Letter and Envelope from Governor Gregory Ducey and Interim Director of Arizona Department of Health Services, Cory Nelson

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Oral Argument Set and Appellee’s Motion for Disposition by Opinion

Appealee Motion for Disposition (2)

 

 

 

Appealee Motion for Disposition (3)

 

 

 

 

Appellee Motion for Disposition (1)

 

 

 

 

Oral Argument and Motion for Disposition by Opinion

Oral Argument and Motion for Disposition by Opinion

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How Will Humble robbed 9 million in Medical Marijuana Money and Resigned.

THIS CASE IS BEFORE

 

THE SUPERIOR COURT OF THE STATE OF ARIZONA

 

COUNTY OF MARICOPA

Arlin Troutt

Plaintiff and Appellant

ARIZONA DEPARTMENT OF HEALTH SERVICES, WILL HUMBLE, et al

Defendants and Respondents

 

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Case No.:   LC2014-000443-001 DT

PLAINTIFF/APPELLANT RESPONSE TO DEFENDANT/RESPONDENTS ANSWERING BRIEF

The Honorable Judge

Crane McClennen

 

BACKGROUND

I, Arlin Troutt, (“the Plaintiff”) hereby submits his response to the Answering Brief (“AB”) on Appeal of Will Humble, the former head of Arizona Department of Health Services (“ADHS”). This AB was filed by ADHS with this Honorable Court on April 30, 2015 in response to Plaintiff’s Opening Brief (“OB”) filed with this Honorable Court on March 11, 2015.

Most Arizona voters did not read all 19,000 or more words of fine print in the Publicity Pamphlet. Most voters did not read the disputed definition of “medical use” or the disputed 37 words that construct A.R.S. § 36-2804.02(A)(3)(f).

However, a majority of Arizona voters approved a law that removed criminal penalties for cultivation of marijuana for medical use. The electorate realized that cultivation is the key to reducing the cost, crime and subsequent violence that creates the greatest risk to medical        marijuana patients and threatens the safety, health and welfare of our citizens.

STATEMENT OF THE CASE

This dispute regards the interpretation and electoral intent of the Arizona Medical Marijuana Act (“AMMA”) as described to Arizona voters in the 2010 Proposition 203 Ballot Guide generated by the Arizona Secretary of State (the “Publicity Pamphlet”).

Will Humble directed ADHS to formulate and promulgate administrative rules that were unauthorized by the AMMA, unintended by the electorate and damaging to the Plaintiff and other critically ill patients. ADHS misrepresented material facts to Tammi Eigenheer the Administrative Law Judge for the Arizona Administrative Hearings Office.

ADHS, alleges as a Statement of Fact: “The Department regulates medical marijuana use in the State of Arizona under AMMA and the Rules.” (AB-Pg. 2, lines 13-14)

Pursuant to A.R.S. § 36-2801(9): “MEDICAL USE” MEANS THE ACQUISITION, POSSESSION, CULTIVATION, MANUFACTURE, USE, ADMINISTRATION, DELIVERY, TRANSFER OR TRANSPORTATION OF MARIJUANA OR PARAPHERNALIA RELATING TO THE ADMINISTRATION OF MARIJUANA TO TREAT OR ALLEVIATE A REGISTERED QUALIFYING PATIENT’S DEBILITATING MEDICAL CONDITION OR SYMPTOMS ASSOCIATED WITH THE PATIENT’S DEBILITATING MEDICAL CONDITION (AB-App-046)

AMMA, “medical use” is a defined term of “certain specific conduct” that only “relates” to a registered qualifying patient’s specific needs to “treat or alleviate” medical conditions or associated symptoms. AMMA “medical use” can only be authorized for critically ill patients by a certifying physician.

A.R.S. § 36-2801(9) “medical use” does not “relate” to AMMA requirements for ADHS to “establish and regulate dispensaries” with minimum oversight and issue identification cards to caregivers, dispensary owners and dispensary agents.

ADHS has improperly extended their limited authority to regulate dispensary owners and agents with “minimum oversight” to the over-regulation and restriction of qualified patient’s right to engage in the cultivation and or medical use of marijuana.

Pursuant to A.R.S. § 36-2801(1)(c) definitions: MARIJUANA THAT IS INCIDENTAL TO MEDICAL USE, BUT IS NOT USABLE MARIJUANA AS DEFINED IN THIS CHAPTER, SHALL NOT BE COUNTED TOWARD A QUALIFYING PATIENT’S OR DESIGNATED CAREGIVER’S ALLOWABLE AMOUNT OF MARIJUANA. (AB-App-045)

A.R.S. § 36-2801(1)(c) definitions” makes an exclusive exception for the “allowable” amount of marijuana that a “qualifying patient” can cultivate and possess for medical use.

Pursuant to A.R.S. § 36-2801(15). “USABLE MARIJUANA” MEANS THE DRIED FLOWERS OF THE MARIJUANA PLANT, AND ANY MIXTURE OR PREPARATION

THEREOF, BUT DOES NOT INCLUDE THE SEEDS, STALKS AND ROOTS OF THE PLANT…” (AB-App-046)

A.R.S. § 36-2801(1)(c) and A.R.S. § 36-2801(15): can only be interpreted as provisions that authorize and protect the right of the qualifying patient to engage in the cultivation of marijuana for beneficial and “uninterrupted” medical use. (see A.R.S. § 36-2812(A)(2) @ AB- App-052) (AB-App-045, App-046 and)

ADHS concedes: “AMMA decriminalizes the medical use of marijuana for registered qualifying patients.” (AB-Pg. 1, lines 3-4), ADHS acknowledges that the Plaintiff: “is a qualified patient and holder of a card.” (AB-Pg. 1, line 10)

Plaintiff was issued a cultivation identification card in 2011 and renewed this card in 2012 and 2013. Plaintiff paid fees, provided required requests for information and properly demanded ADHS to renew Plaintiff’s cultivation identification card on April 29, 2014.

On May 2, 2014 ADHS sent Plaintiff a “Request for Information” stating: “The patient date of birth listed on the “physician certification form does not match the date of birth listed in the application and/or the identification document submitted. Please re-submit the corrected information and /or documents to the Program via the Department’s online application system”.(EXHIBIT B)

ADHS confirmed that this May 2, 2014 “Information Request” had been resolved on May 2, 2014. (EXHIBIT A- Pg. 3, footnote 3)

On May 8, 2014 ADHS sent a second “Request for Information” stating:   “Your application for a Qualifying Patient Registry Identification Card (Registry Application #AZQP0016870000161953) has been received by the Medical Marijuana Program (‘Program’), Arizona Department of Health Services (‘Department). The following issue(s) with your application was/were identified by the Program: 1. The residential address you have listed in the application is within 25 miles of an operating dispensary. The qualifying patient cannot cultivate. Please resubmit your application. During resubmission, you may make changes to your address or withdraw the request to cultivate to help resolve this issue.” “If you do not resubmit, the cultivation request will be denied.” (EXHIBIT B)

Both the May 2, 2014 and the May 8, 2014 Requests for Information were clearly titled “Request for Information”. However, ADHS made an error on the May 8, 2014 Request for Information that the Plaintiff could not respond to because of the “Department’s online application system” did not allow registering patients to respond. (Exhibit C)

Plaintiff immediately filed a 33 page complaint with ADHS on May 10, 2014 regarding this error; and the matter of the Plaintiff getting sick from contaminated dispensary marijuana and being threatened for reporting the contaminated marijuana and dispensary to ADHS.

On May 14, 2014 Robert Lane of the ADHS issued: ORDER DENYING REQUEST TO CULTIVATE AND NOTICE OF RIGHT TO APPEAL (the “Denial”) (EXHIBIT A).

ADHS Denial states “REASONS FOR DEPARTMENT’S DENIAL OF APPLICANT’S REQUEST TO CULTIVATE:The Application, submitted to the Department on April 29, 2014, included a “request for authorization” to cultivate marijuana plants based on the “Applicant’s Residence”.” (EXHIBIT A-Page 2, lines 13-15)

On May 17, 2014, Plaintiff received an altered and unauthorized identification card from ADHS via United States Postal Service. The authority to cultivate indication that is required by AMMA and demanded by the Plaintiff had been excluded from the 2014 identification card, but ADHS included Plaintiff’s name and residential address on the card.

A.R.S. § 36-2804.04(A)(7) requires ADHS to clearly indicate the card holders AMMA cultivation authorization but nothing in the AMMA requires a qualified patient to disclose the secured and confidential location of the patient’s cultivation site. (AB-App-049)

A.R.S. § 36-2804.04 certainly does not give ADHS authority to deny a specifically defined immunity, a privilege and a preference only offered to a qualified patient by AMMA.

According to A.R.S. § 36-2808(A): Notifications to department; civil penalty: “it is the registered qualifying patient that must notify ADHS of the patient’s change in his “preference regarding who may cultivate marijuana”. (AB-App-051).

If ADHS fails to issue a registry identification card in a legal and timely manner after demand by a registering qualified patient or a registered qualifying patient’s ADHS application becomes the patient’s authorization to use medical marijuana.

According to: A.R.S. § 36-2818(B). Enforcement of this act; mandamus: IF THE DEPARTMENT FAILS TO ISSUE A REGISTRY IDENTIFICATION CARD WITHIN FORTY-FIVE DAYS OF THE SUBMISSION OF A VALID APPLICATION OR RENEWAL, THE REGISTRY IDENTIFICATION CARD SHALL BE DEEMED ISSUED, AND A COPY OF THE REGISTRY IDENTIFICATION CARD APPLICATION OR RENEWAL IS DEEMED A VALID REGISTRY IDENTIFICATION CARD.

A.R.S. § 36-2804.05(A) gives ADHS a very limited authority to deny an application for registration or renewal demands qualified patients for an AMMA identification card. ADHS has no authority to limit or restrict the medical use or immunities granted to the Plaintiff by AMMA.

ADHS added 35 words that do not exist in the Publicity Pamphlet to the 37 words that actually construct A.R.S. § 36-2804.02(A)(3)(f) to create a 72 word interpretation that is unintended by the electorate and unauthorized by AMMA.

According to Arizona’s laws regarding the negligent misrepresentation of material facts and Arizona Rules of Professional Conduct ER 8.4 MISCONDUCT (a)(b)(c)(d)(f) the misrepresentation of material facts are a very serious concern in the pursuit of justice.

The following is an unauthorized and damaging misrepresentation of a material fact by ADHS: “Pursuant to A.R.S. § 36-2804.02(A)(3)(f), a qualifying patient applying to the Department for a qualifying patient’s registry identification card must submit an application that includes “[a] designation as to who will be allowed to cultivate marijuana plants for the qualifying patient’s medical use if a registered nonprofit medical marijuana dispensary is within twenty-five miles of the qualifying patient’s home, neither the qualifying patient nor the qualifying patient’s designated caregiver may be granted authority to cultivate marijuana plants.” (EXHIBIT A- Pg.1, line 21-23 to page 2, lines 1-5)

If A.R.S. § 36-2804.02(A)(3)(f) was intended to be a “restriction” or a “request for authorization” it would have said that, but it did not “say” that. ADHS had to create and add 35 extra words to “Pursuant to” to make A.R.S. § 36-2804.02(A)(3)(f) say that.

Plaintiff would respectfully remind this Honorable Court that ADHS told your Court in their December 8, 2014 Response: “The Department interpreted A.R.S. § 36-2804.02(A)(3)(f) to mean exactly what it says: “If you live within twenty-five miles of a dispensary, you are not authorized to cultivate marijuana.”(ADHS Response, December 8, 2014- Page 7, lines 21-25)

There is a distinct difference in a request for information and a request for authorization and a wide line of legality that ADHS crossed before Will Humble’s surprise resignation.

FACTS OF THE MATTER

According to the Preamble of the AMMA found in the Publicity Pamphlet at Section 2. Findings (A.), the intent and purpose for repealing criminal statues and removing civil penalties for the “cultivation” and or medical use of marijuana is crystal clear: “The People of the State of Arizona found and declared that: Marijuana’s recorded use as a medicine goes back nearly 5,000 years, and modern medical research has confirmed beneficial uses for marijuana.” (AB-App-045)

According to Section 2 (D.): “Consequently, changing state law will have the practical effect of protecting from arrest the “vast majority” of seriously ill patients who have a medical need to use marijuana.” (AB-App-045)

According to Section 2 (E.): Arizona removed state-level criminal penalties for the medical use and cultivation of marijuana for the health and welfare of its citizens.”(AB-A-045)

According to the clearest language of the Publicity Pamphlet for the AMMA in Section 2. (G): “State law should make a distinction between the medical and nonmedical uses of marijuana. Hence, the purpose of this act is to protect patients with debilitating medical conditions, as well as their physicians and providers, from arrest and prosecution, criminal and other penalties and property forfeiture if such patients engage in the medical use of marijuana.” (AB-App-045)

According to A.R.S. § 36-2801(18)(a),(b): As defined, a written certification includes more than a physician’s professional opinion. It requires the physician to complete a full assessment of the patient’s medical history, specify the patient’s debilitating medical condition, and sign and date the certification “only in the course of that relationship” and only after completing that assessment. (AB-App-046)

The Legislative Analysis in the Publicity Pamphlet states: ” If the qualifying patient is under 18 years of age, the patient’s custodial parent or legal guardian must submit written certifications from two physicians and the custodial parent or legal guardian must consent in writing to control the patient’s medical use of the marijuana.”(AB-App-055)

In no clearer terms could the Legislative Analysis have explained the physician’s traditional authority to “control” and “regulate” the quality, quantity, form and method of administration for medicine that the “physician and patient” believes is most beneficial to the patient.

Pursuant to A.R.S. § 36-2813(C). Discrimination prohibited: “A REGISTERED QUALIFYING PATIENT’S AUTHORIZED USE OF MARIJUANA MUST BE CONSIDERED THE EQUIVALENT OF THE USE OF ANY OTHER MEDICATION UNDER THE DIRECTION OF A PHYSICIAN AND DOES NOT CONSTITUTE THE USE OF AN ILLICIT SUBSTANCE OR OTHERWISE DISQUALIFY A REGISTERED QUALIFYING PATIENT FROM MEDICAL CARE.” (AB-App-053)

The term “medical use” is used 39 times in the Publicity Pamphlet and only in the context of medical use by a certified patient. (AB-Pages A045 to A-060)

AMMA does not authorize or allow ADHS to regulate, restrict or limit medical use of marijuana or tell this Honorable Court: “The Department regulates medical marijuana use in the State of Arizona under AMMA and the Rules.” (AB-Pg. 2, lines 13-14)

ADHS admits: “The Legislative Council’s analysis of AMMA was included with the Publicity Pamphlet distributed to voters in 2010.” (AB-Pg. 12, lines 25-26)

The Legislative Council’s Analysis and the Descriptive Title of the Publicity Pamphlet explained the effect of a “yes” and “no” vote for AMMA. The Publicity Pamphlet explains: that a “yes” vote for the AMMA: ALLOWS THE USE OF MARIJUANA FOR PEOPLE WITH DEBILITATION MEDICAL CONDITIONS WHO OBTAIN A WRITTEN CERTIFICATION FROM A PHYSICIAN “AND” ESTABLISHES A REGLATORY SYSTEM GOVERNED BY THE ARIZONA DEPARTMENT OF HEALTH SERVICES FOR ESTABLISHING AND LICENSING MEDICAL MARIJUANA DISPENSARIES.

The Publicity Pamphlet clearly explains: “A “no” vote shall have the effect of retaining current law (of 2010) regarding the “medical use” of marijuana.” (AB-App-055 and App-060)

ADHS misguides and disrespects this Honorable Court by alleging: “The Legislative Council interpreted AMMA in the same way as the Department. The Legislative Council’s analysis is evidence of the intent of the electorate and cannot be ignored or disregarded. In light of the Legislative council’s similar reading of the statute, the Department’s interpretation is not plainly erroneous. It is therefore entitled to deference and great weight.” (AB-Pg. 13, lines 10-14)

The Legislative Analysis and the Descriptive Title of the Publicity Pamphlet clearly define the extent of immunity granted to certified patients. Both the Legislative Analysis and the Descriptive Title clearly limit authority of ADHS to establish and regulate dispensaries. Nowhere in the AMMA is ADHS given authority to regulate medical use of marijuana.

The following is another great example of how the ADHS goes on to disrespect and misguide this Honorable Court with this nonsensically constructed and erroneous statement: “Nothing in AMMA permits cultivation of marijuana plants if a qualifying patient resides within twenty-five miles of an operating dispensary.” (AB-Pg. 13, lines 21-22).

According to A.R.S. § 36-2811 Presumption of medical use of marijuana; protections; civil penalty: (A.) “There is a presumption that a “qualifying” patient is engaged in the medical use of marijuana”. (B.) “Registered patients are not subject to arrest, prosecution or penalty in any manner, or denial of any right or privilege, including any civil penalty or disciplinary action by a court, licensing board or bureau for a registered patient’s medical use of marijuana .” (AB-App-051 to App-052)

ADHS concedes the Legislative Analysis states: “Proposition 203 would generally provide that any person who acts in conformity with the requirements of the proposition is not subject to any governmentally imposed sanction relating to the medical use of marijuana.” (AB- App-055).

According to the AMMA and ADHS Rule R9-17-101, any registered qualified patient can simply choose to “acquire” marijuana for medical use from any source possible: (R9-17-101) Definitions: In addition to the definitions in A.R.S. § 36-2801: “Acquire” means to obtain through any type of transaction and from any source. (A.R.S. § 36-2801(9) and R9-17-101)

A.R.S. § 36-136 does not authorize or allow the ADHS to cultivate and sell or dispense contaminated products or artificial and or counterfeit or substitute marijuana products.

AMMA does not allow ADHS to constrain the rights and specified immunities registering certified patients for engaging in the medical use of marijuana. AMMA does not allow ADHS to “impose” inferior products sold in high crime area based on a critically ill patient’s residence.

The Plaintiff does not use dispensary designer dope. ADHS does not have the authority to impose these products on Plaintiff’s religious beliefs. According to A.R.S. § 36-114. Limitation upon authority to impose treatment: “Nothing in this title shall authorize the department (ADHS) or any of its officers or representatives to impose on any person contrary to his religious concepts any mode of treatment,…”

These unauthorized and unintended ADHS regulations for “medical use of marijuana are damaging, arbitrary and capricious. These ADHS rules violate the intent of the AMMA, Arizona’s criminal statues and the CONTROLLED SUBSTANCE ACT Title 21, Subchapter I, § 802(1)(a)(b),(7)(21)

ADHS asks this Honorable Court to accord great weight to the agency’s interpretation of the Publicity Pamphlet unless it concludes the legislature intended a different interpretation. (AB-Pg. 6, lines 1-8)

ADHS concedes: “The primary objective in interpreting a voter-enacted law is to effectuate the voters’ intent.” (AB-Pg. 6, lines 12-14)

According to the Arizona Appellate Court in State v. Gear, regarding immunity of medical marijuana patients and their physicians: “in construing statutes, we apply a word’s “usual and commonly understood meaning unless the legislature clearly intended a different meaning.” In re Nelson, 207 Ariz. 318, 322, ¶ 16, 86 P.3d 374, 378 (2004). And, we apply this same principle when we interpret a voter-approved initiative. Sedona Grand, LLC v. City of Sedona, 229 Ariz. 37, 40, ¶ 11, 270 P.3d 864, 867 (App. 2012). “To determine the ordinary meaning of a word, we may refer to established and widely used dictionaries.” Stout v. Taylor, 233 Ariz. 275, 278, ¶ 12, 311 P.3d 1088, 1091 (App. 2013).”   (No. 1 CA-CR 13-0852 State v. Gear-Arizona Appeal Court Division One ) http://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2014/1%20CA%20CR-13-0852.pdf

ADHS admits: “If [a] statute is clear and unambiguous, [courts]apply the plain meaning of the statute.” (AB-Pg. 9, line 22).

However, ADHS refuses to admit that “medical use” is a defined term of “certain specific conduct” that clearly includes cultivation and these clearly defined immunities only “relate” to a registering qualifying patient’s specific needs to “treat or alleviate” medical conditions or associated symptoms.

CONCLUSION

            The Plaintiff has demonstrated to this Honorable Court with a great preponderance of documented evidence that cultivation of medical marijuana was intended by the electorate, specifically defined and authorized for registering qualified patient’s personal needs to treat or alleviate medical conditions or associated symptoms.

The Plaintiff has demonstrated to this Honorable Court with undeniable documentation that ADHS has misrepresented the material facts. ADHS has denied that “medical use” is a defined term of “certain specific conduct” that includes and authorizes cultivation and only relates to the qualified patient.

The Plaintiff has demonstrated to this Honorable Court with the Evidence on Record that A.R.S. § 36-2804.02(A)(3)(f) can only be interpreted as an AMMA “request for information” and not a “request for authorization”.

Plaintiff complained on May 10, 2014 that A.R.S. § 36-2804.02(A)(3)(f) does not allow or authorize the ADHS to restrict or limit the Plaintiff’s immunity for engaging in the medical use of marijuana pursuant to AMMA. The intent of AMMA according to the Publicity Pamphlet was to authorize the medical use of marijuana for critically ill patients and reduce the crime and violence associated with marijuana prohibition.

Limiting critically ill patient’s options to driving great distances to high crime areas to buy artificial and contaminated marijuana for high profit was not the intent of the electorate.

Forcing qualified patients into protracted litigation with frivolous interpretations and unauthorized restrictions by ADHS was not the intent of the electorate.

Forcing our Superior Court Judges to drag out the Merriam Webster Dictionary over and over to protect medical marijuana patients and their physicians “from the state” was not the intent of the electorate.

ADHS misled Judge Eigenheer and continues to mislead this Honorable Court. ADHS alleges: “The twenty-five mile rule (A.R.S. § 36-2804.02(A)(3)(f)) was intended to be a restriction on the personal cultivation of marijuana under AMMA.” (December 8, 2014- Page 10, lines 14-18)

ADHS “25-miles as the Crow Flies” rule that was attached to A.R.S. § 36-2804.02(A)(3)(f) is an unauthorized restriction on personal cultivation of marijuana that compromises a critically ill patient’s medical confidentiality and jeopardizes the patient’s health and safety. This “25-miles as the Crow Flies Rule” is a perfect example of the dangerous over-regulation ADHS relied on to obstruct the implementation of AMMA.

Complaints of ADHS obstruction of the AMMA program with over-regulation, excessive fees and threats for reporting contaminated marijuana have been buried with the ADHS refusal to admit that medical use includes cultivation and A.R.S. § 36-2804.02(A)(3)(f) is merely a “request for information”.

These 37 words that construct A.R.S. § 36-2804.02(A)(3)(f) can only be interpreted as an AMMA “request for information”. ADHS added 35 non existent words to make the “25-Mile As the Crow Flies Rule” a “required request for authorization”, obstructing the will of the electorate and the implementation of the AMMA Donation Program.

            The State of Arizona has a history of violently arresting people, confiscating children, seizing property and sentencing people to long prison terms for cultivating and using medical marijuana. Will Humble has a long history of opposing medical marijuana that goes back to the first time voters approved medical marijuana in 1996. Will Humble still opposes medical marijuana after a questionable dispersal of 8.8 million dollars of medical marijuana money and a surprise resignation in March of 2015.

These disputed rules ADHS has formulated to usurp control of the cultivation cash for the “medical use” of marijuana is where Will Humble and the ADHS crossed the line of job description, moral responsibility and legality.

Now ADHS asks this Honorable Court to rely on an ALJ Affirmation of an ADHS Final Decision that was based on the same arbitrary and capricious rules and misrepresentations of material facts that the Plaintiff has presented to this Honorable Court.

ADHS request for ORAL ARGUMENT is nothing more than another delay of the inevitable and more obstruction of the process of law. Plaintiff objects to this Honorable Court granting Oral Arguments to ADHS at this late date.         It is time for this Honorable Court to rule.

Plaintiff filed the original complaint against ADHS on May 10, 2014. ADHS took 50 days just to submit their final AB. This Honorable Court has issued over 2,350 Minute Entries since Plaintiff filed his Request for Judicial Review and Notice of Appeal on September 23, 2015.

ADHS made a Final Decision to over-regulate and overcharge charge critically ill patients for engaging in the medical use of marijuana. The medical use of marijuana includes cultivation and A.R.S. § 36-2804.02(A)(3)(f) is just a request for information.

ADHS has buried this matter under a protracted pile of frivolous administrative litigation. ADHS has shielded Will Humble from the damaging acts he chose to commit as head of the ADHS. This protracted administrative battle over the simplest interpretations of language, law and electorate intent was a distraction that covered up a multi-million dollar marijuana revenue robbery and resignation.

 

RELIEF REQUESTED

Whereas the Plaintiff respectfully requests this Honorable Court to overturn Judge Eigenheer’s Affirmation and the ADHS Final Decision in this matter.

Whereas the Plaintiff respectfully requests this Honorable Court to rule that “medical use” is a defined term of certain specific conduct in the AMMA that authorizes private cultivation of marijuana for medical use by registered qualified patients.

Whereas the Plaintiff respectfully requests this Honorable Court to rule that: A.R.S. § 36-2804.02(A)(3)(f) is a request for information and cannot be interpreted to be a request for authorization.

Whereas the Plaintiff respectfully requests this Honorable Court to rule that ADHS misrepresented material facts to Judge Eigenheer’s court and or to this Honorable Court.

Whereas the Plaintiff respectfully requests this Honorable Court to issue any sanctions, referrals for criminal investigation, or other punitive actions against Will Humble and ADHS for their misrepresentation and promulgation of such damaging and destructive information.

Whereas Plaintiff respectfully requests this Honorable Court to award Plaintiff any compensation for the costs and damages Plaintiff has suffered and is fairly entitled to receive.

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Respectfully Submitted on May 18, 2015

 

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Arlin Trout

 

 

 

 

 

 

 

 

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Why Did Will Humble Really Resign From AZDHS?

THIS CASE IS BEFORE

THE SUPERIOR COURT OF THE STATE OF ARIZONA

COUNTY OF MARICOPA

 

Arlin TrouttPlaintiff and AppellantARIZONA DEPARTMENT OF HEALTH SERVICES, WILL HUMBLE, et al 

Defendants and Respondents

 

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Case No.:   LC2014-000443-001 DTPLAINTIFF/APPELLANT OPENING BRIEF

 

 

The Honorable Judge

Crane McClennen

 

 

 

 

INTRODUCTION

I, Arlin Troutt, (“the Plaintiff”) started using marijuana illegally in 1965 to treat a serious medical condition. The Plaintiff has continued to benefit from and appreciate the medical relief and spiritual guidance marijuana offers for 50 years.

In 1996 the citizens of Arizona initiated and approved the use of medical marijuana with a 65% margin. However, the state’s refusal to bend to the will of the electorate forced Arizona’s citizens to initiate and approve the “Voter Protection Act on 1998″. The Arizona Voter Protection Act was initiated and approved by Arizona voters as a direct result of the state’s refusal to protect patients that needed medical marijuana in 1996.

In November of 2010 voters initiated and approved the Arizona Medical Marijuana Act (“AMMA”) This law “removed state-level criminal penalties for the medical use and cultivation of marijuana for the health and welfare of its citizens”.

However, the State of Arizona has a history of violently arresting people, confiscating children, seizing property and sending people to prison for cultivating and using medical marijuana. Arizona’s courts have zealously supported the police, prisons and these policies and practices for 19 years after the voters of Arizona first initiated and approved the use of medical marijuana in 1996.

This protracted violation of human rights and the pain, suffering and destruction caused by the Draconian enforcement of Arizona’s marijuana laws over the last two decades has proved to be costly, deadly, divisive, inhuman and immoral. The personal protection and career concerns of this old “hang ‘em high” culture that exists within Arizona’s government creates profound conflicts of interest. Even Judge McClennen has been a Maricopa County judge since 1997. Sending people to prisons for the “medical use of marijuana” is nothing new to Arizona or this Honorable Court.

Now, Will Humble, as head of the Arizona Department of Health Services (“ADHS”) has unexpectedly resigned after collecting and dispersing 8.8 million dollars of unauthorized medical marijuana money that the Plaintiff has complained about in this matter. Mr. Humble’s surprise resignation from such a powerful position at such a controversial and litigious time should be considered newly discovered evidence in this case.

A statutory interpretation and preliminary ruling on the disputed translation of one provision in the Arizona Medical Marijuana Act (“AMMA”) would have pierced this protective shield and allowed the Plaintiff to address the damages and dangers complained of in the Plaintiff’s May 10, 2014 complaint and the Plaintiff’s June 2, 2014 Complaint and Appeal Notice Response.

This adamant refusal by the ADHS and the Arizona Administrative Hearing Office (“AHO”) to provide an accurate clarification of the disputed language in the AMMA puts the Plaintiff at a great disadvantage. These complaints were formally submitted to the ADHS and required a timely and meaningful response.

Had Mr. Humble used a misinterpretation of the AMMA to justify restricting the rights of military veterans and critically ill infants to use medical marijuana would a simple clarification of the law taken this long?

STATEMENT OF CASE

The central question presented by this complaint and appeal hinges on a plain and simple translation of English words and a legal interpretation of their common meaning. This disputed language is the language that the Plaintiff and all Arizona voters were officially provided by the state before the electorate voted to remove criminal statues for the “cultivation and medical use of marijuana” in 2010.

This dispute more precisely concerns a ridiculous misrepresentation to this Court by the ADHS that one provision (A.R.S. § 36-2804.02(A)(3)(f)) in the AMMA is a restriction on the right of the Plaintiff and other legally “certified patients” to cultivate marijuana for medical use. The ADHS has stated to this Honorable Court that A.R.S. § 36-2804.02(A)(3)(f) requires the ADHS to restrict personal cultivation of marijuana for a certain class of critically ill patients after they have obtained a “written certification” from a physician for the medical use of marijuana. This simply is not true and the Arizona Administrative Hearing Office (“AHO”) should have clarified and ruled on this issue.

On April 2, 2014 the Plaintiff was sickened by contaminated marijuana from an ADHS dispensary in Apache Junction, Arizona. The Plaintiff initially submitted complaints to the ADHS on May 10, 2014 and June 2, 2014 and subsequently submitted 16 motions in an effort to expediently resolve this dangerous and time sensitive matter.

The May 10, 2014 Complaint the Plaintiff submitted to the ADHS was a detailed 33 page complaint. The Plaintiff’s May 10, 2014 Complaint and the June 2, 2014 Complaint and Response to the ADHS Denial and Notice of Right to Appeal (May 14, 2014) regards the dangers in selling artificially cultivated and contaminated marijuana products, threats and intimidation for reporting those products, excessive fees, over-regulation and misinterpretation of the language in the Arizona Medical Marijuana Act (“AMMA”). These complaints both regard the damages the ADHS created by promulgating rules based on a misrepresentation of electorate intent and misinterpretation of the plain and simple language that constructs the AMMA. The Plaintiff also complained of the failure by the ADHS to issue a renewal of the Plaintiff’s cultivation identification card in a legal, safe and timely manner.

The following is in the caption of the Plaintiff’s May 10, 2014 Complaint: REQUEST FOR A TIMELY RENEWAL OF ARLIN TROUTT’S ADHS RESTISTRY CARD WITH THE ORIGINAL DESIGNATED CULTIVATION PREFERENCE TO PREVENT FURTHER DAMAGES FROM INTIMIDATION AND RETALIATION AND FURTHER VIOLATIONS OF LAW BY THE STATE OF ARIZONA AND THE DEPARTEMENT OF HEALTH SERVICES AND THEIR AGENTS AND OR EMPLOYEES RELATING TO PLAINTIFF”S USE OF MEDICAL MARIJUANA.

The following is from the caption of the Plaintiff’s June 2, 2014 Complaint and response to the actions of the ADHS: RESPONSE TO ARIZONA DEPARTMENT OF HEALTH SERVICES NOTICE OF RIGHT TO APPEAL AND COMPLAINT AGAINST DEPARTMENT FOR INTIMIDATION, COERSION, THREATS AND OTHER DAMAGES ASSOCIATED WITH AN AGENCY ACTION REGARDING FEES AND APPLICATION RENEWAL MODIFICATION

The following is taken from the original Complaint filed by the Plaintiff in this matter on May 10, 2014: “The State of Arizona (State), the Arizona Department of Health Services (ADHS), and ADHS director Mr. Will Humble have a long andwell-documented history of opposing medical marijuana use and obstruction of the electorate’s intent to legalize marijuana since 1996. There is dangerous and damaging confusion that has required declaratory judgments, injunctions and rulings by the court regarding the same or similar complaints of abuse by the State and ADHS concerning the actual language and protections in the ARIZONA MEDICAL MARIJUANA ACT (AMMA). The legality and or constitutionality of this language, obstruction of the ADHS rulemaking process, interpretations and promulgation of these interpretations by the State, ADHS and their agents and employees has all come into question. (Page 1, lines 22-25 to Page 2, lines 1-6)

Since submitting this complaint against Will Humble and the ADHS on May 10, 2014 and the formal complaint and appeal notice on June 2, 2014 the Plaintiff has submitted 17 subsequent filings. These motions complain of the profound conflicts of interest in this case and the Plaintiff’s failed efforts to get a meaningful and timely translation of the disputed 37 words that construct A.R.S. § 36-2804.02(A)(3)(f).

On June 16, 2014 the Plaintiff submitted a REQUEST FOR CHANGE OF ADMINISTRATIVE LAW JUDGE AND REQUEST FOR HEARING ON CONFLICTS OF INTEREST AND REQUEST FOR ALL DOCUMENTS SUBMTTED BY APPELLANT TO THE ARIZONA DEPARTMENT OF HEALTH SERVICES IN THESE MATTERS BE ADMITTED TO THE ADMINISTRATIVE HEARING RECORD

On June 23, 2014 the Plaintiff submitted: REQUEST FOR PREHEARING CLARIFICATION OF FACTUAL AND LEGAL ISSUES REGARDING DISPUTED LANGUAGE AND MEANING OF PROVISIONS WITHIN THE ARIZONA MEDICAL MARIJUANA ACT

On June 26, 2014 the Plaintiff submitted: APPELLANT’S RESPONSE TO ARIZONA DEPARTMENT OF HEALTH SERVICES RESPONSE TO APPELLANT’S REQUEST FOR CHANGE OF ADMINISTRATIVE LAW JUDGE AND REQUEST FOR HEARING ON CONFLICTS OF INTEREST

On June 26, 2014 the Plaintiff submitted: REQUEST FOR CLARIFICATION OF FACTUAL AND LEGAL ISSUES REGARDING DISPUTED LANGUAGE AND MEANING OF PROVISIONS WITHIN THE ARIZONA MEDICAL MARIJUANA ACT

On June 30, 2016 the Plaintiff submitted: MOTION REQUESTING RECONSIDERATION OF DIRECTOR’S ORDER DENYING JUDGE CHANGE AND REQUEST FOR A COMPLETE RESPONSE TO MATTERS RAISED IN APPELLANT’S REQUEST FOR CHANGE OF ADMIISTRATIVE LAW JUDGE AND REQUEST FOR HEARING ON CONFLICTS OF INTEREST AND ADMISSION OF EVIDENCE

On July 4, 2014 the Plaintiff submitted: REQUEST FOR PREHEARING CLARIFICATION ON LANGUAGE, PURPOSE AND MEANING OF A.R.S. § 36-2804.02(A)(3)(f)

On July 11, 2014 the Plaintiff submitted: REQUEST FOR DISCOVERY AND ADMISSION OF DOCUMENTARY EVIDENCE

On July 16, 2014 the Plaintiff submitted: RESPONSE TO RESPONDENTS’ RESPONSE TO APPELLANT’S REQUEST FOR PREHEARING CLARIFICATION ON LANGUAGE, PURPOSE AND MEANING OF A.R.S. § 36-2804.02(A)(3)(F)

On July 20, 2014 the Plaintiff submitted: RESONSE TO RESPONDENTS RESPONSE TO REQUEST FOR DISCOVERY AND ADMISSION OF DOCUMENTARY EVIDENCE

On July 29, 2014 the Plaintiff submitted: COMPLAINT OF BIAS AND UNETHICAL PRACTICE AGAINST ADMINISTRATIVE HEARING OFFICE DIRECTOR CLIFF VANELL AND ADMINISTRATIVE HEARING JUDGE TAMMY EIGENHEER

On August 8, 2014 the Plaintiff submitted: RESPONSE TO RESPONDENTS RESPONSE TO APPELLANT”S COMPLAINT OF BIAS AND UNETHICAL PRACTICE AGAINST ADMINISTRATIVE HEARING OFFICE DIRECTOR CLIFF VANELL AND ADMINISTRATIVE HEARING JUDGE TAMMY EIGENHEER AND REQUEST FOR SANCTIONS AGAINST THE RESPONDENTS

On August 15, 2014 the Plaintiff submitted: REQUEST FOR AUGUST 12, 2014 RULING

On June 24, 2014 the ADHS submitted: RESPONSE IN OPPOSITION TO APPELLANT’S REQUEST FOR CHANGE OF ADMINISTRATIVE LAW JUDGE AND REQUEST FOR HEARING ON CONFLICTS OF INTEREST

On June 30, 2014 the ADHS submitted: THE DEPARTMENT OF HEALTH SERVICE’S RESPONSE TO APPELLANT’S REQUEST FOR CLARIFICATION

On July 7, 2014 the ADHS submitted: THE DEPARTMENT’S RESPONSE

TO APPELLANT’S MOTION FOR RECONSIDERATION OF REQUEST FOR CHANGE OF JUDGE

On July 11, 2014 the ADHS submitted: RESPONSE TO APPELLANT’S

REQUEST FOR PREHEARING CLARIFICATION ON LANGUAGE,

PURPOSE AND MEANING OF A.R.S. § 36-2804.02(A)(3)(F)

On July 18, 2014 the ADHS submitted: RESPONSE TO REQUEST FOR

DISCOVERY AND ADMISSION OF DOCUMENTARY EVIDENCE

On August 7, 2014 the ADHS submitted: RESPONSE TO COMPLAINT OF BIAS AND UNETHICAL PRACTICE AGAINST ADMINISTRATIVE HEARING OFFICE DIRECTOR CLIFF VANELL AND ADMINISTRATIVE HEARING JUDGE TAMMY EIGENHEER

On August 19, 2014 the ADHS issued their Final Decision denying the Plaintiff right to cultivate marijuana for medical use.

On September 23, 2014 the Plaintiff filed the following in the Superior Court of Maricopa County: NOTICE OF APPEAL AND REQUEST FOR JUDICIAL REVIEW OF COMPLAINT

On November 14, 2014 the Plaintiff filed: RESPONSE TO MINUTE ENTRY AND REQUEST FOR INJUNCTION AND DE NOVO HEARING OF CASE NO.: 2014C-MMR-0312-DHS

On January 2, 2015 the Plaintiff filed: REQUEST FOR DECLARATION OF RIGHTS AND INJUNCTION AGAINST WILL HUMBLE AND THE ARIZONA DEPARTMENT OF HEALTH SERVICES TO STOP DISSEMINATION OF INACCURATE AND DAMAGING INFORMATION AND REQUEST FOR SANCTIONS FOR MISREPRESENTATION OF MATERIAL FACTS IN THIS CASE

On February 13, 2015 the Plaintiff filed: REQUEST FOR RECONSIDERATION OF COURT’S DENIAL OF PLAINTIFF’S REQUEST FOR DECLARATION OF RIGHTS AND INJUNCTION AGAINST WILL HUMBLE AND THE ARIZONA DEPARTMENT OF HEALTH SERVICES TO STOP DISSEMINATION OF INACCURATE AND DAMAGING INFORMATION AND REQUEST FOR SANCTIONS FOR MISREPRESENTATION OF MATERIAL FACTS IN THIS CASE

On December 8, 2014 the ADHS filed: APPELLEE’S RESPONSE TO “RESONSE [SIC] TO MINUTE v. ENTRY AND REQUEST FOR INJUNCTION AND DE NOVO ARIZONA DEPARTMENT OF HEALTH SERVICES, HEARING OF CASE NO.: 2014C MMR-0312-DHS”

On January 23, 2015 this Honorable Court issued a Formal Order Denying the Plaintiff’s REQUEST FOR DECLARATION OF RIGHTS AND INJUNCTION AGAINST WILL HUMBLE AND THE ARIZONA DEPARTMENT OF HEALTH SERVICES TO STOP DISSEMINATION OF INACCURATE AND DAMAGING INFORMATION AND REQUEST FOR SANCTIONS FOR MISREPRESENTATION OF MATERIAL FACTS IN THIS CASE

On February 18, 2015 the Court issued a final and Formal Order Denying the Plaintiff’s: REQUEST FOR RECONSIDERATION OF COURT’S DENIAL OF PLAINTIFF’S REQUEST FOR DECLARATION OF RIGHTS AND INJUNCTION AGAINST WILL HUMBLE AND THE ARIZONA DEPARTMENT OF HEALTH SERVICES TO STOP DISSEMINATION OF INACCURATE AND DAMAGING INFORMATION AND REQUEST FOR SANCTIONS FOR MISREPRESENTATION OF MATERIAL FACTS IN THIS CASE

The ADHS alleged in THE DEPARTMENT OF HEALTH SERVICE’S RESPONSE TO APPELLANT’S REQUEST FOR CLARIFICATION: “This appeal involves a simple question: whether the Department erred by denying Appellant’s request for approval to cultivate marijuana. The scope of the hearing is limited to this single issue.” (June 30, 2014- Page 2, lines 1-3)

Clearly the Plaintiff has complained of much more than the ADHS just making an error. The ADHS goes on to make this blatant misrepresentation to the Court: The Department denied Appellant’s request to cultivate because it was required to do so by statute.” (June 30, 2014- Page 2, lines 8-9)

The AMMA does not require or give the ADHS authority to deny the renewal of the Plaintiff’s right to cultivate marijuana for medical use. According to A.R.S. § 36-2804.05 (A): Denial of registry identification card A.R.S. § 36-2804.05. (A):THE DEPARTMENT “MAY” DENY AN APPLICATION OR RENEWAL OF A QUALIFYING PATIENT’S REGISTRY IDENTIFICATION CARD ONLY IF THE APPLICANT: 1. DOES NOT MEET THE REQUIREMENTS OF SECTION 36-2801, PARAGRAPH 13.,2. DOES NOT PROVIDE THE INFORMATION REQUIRED., 3. PREVIOUSLY HAD A REGISTRY IDENTIFICATION CARD REVOKED FOR VIOLATING THIS CHAPTER., 4. PROVIDES FALSE INFORMATION.”

The use of “may” in A.R.S. § 36-2804.05 (A), indicates that denial to renew Appellant’s “registry identification card” is an ADHS option, not a statutory requirement. The ADHS “may” exercise this option “only if” the Applicant is not a “qualifying patient”, has not had an ADHS registry card revoked, has not provided false information or does not provide required information.The Plaintiff fully complied with A.R.S. § 36-2804.05 (A).

The ADHS was not required or even authorized to deny the Plaintiff’s renewal of his “registry identification card”. The ADHS has misrepresented this material fact to the Court. A.R.S. § 36-2804.05 (A) clearly supports the Plaintiff’s complaint of this ADHS misrepresentation of a material fact. The Plaintiff addressed this issue to AHO in the Plaintiff’s July 4, 2014 REQUEST FOR PREHEARING CLARIFICATION ON LANGUAGE, PURPOSE AND MEANING OF A.R.S. § 36-2804.02(A)(3)(f).

On December 8, 2014 the ADHS submitted this to the Court: APPELLEE’S RESPONSE TO “RESONSE [SIC] TO MINUTE v. ENTRY AND REQUEST FOR INJUNCTION AND DE NOVO ARIZONA DEPARTMENT OF HEALTH SERVICES, HEARING OF CASE NO.: 2014C, MMR-0312-DHS”

This ADHS Response states to this Honorable Court: “The issue is whether AMMA “permits” Troutt to cultivate. It does not. A.R.S. § 36-2804.02(A)(3)( f) is the only provision in AMMA that allows a qualifying patient to request authorization to cultivate: … (December 8, 2014- Page 6, lines 27-28 to Page 7, line 1)

The plain and simple understanding and meaning of A.R.S. § 36-2804.02(A)(3)(f) does not authorize or require the ADHS to require the Plaintiff to request approval to cultivate marijuana for medical use. The ADHS has misrepresented this material fact to this Honorable Court.

The ADHS also stated to this Court in their December 8, 2014 Response: “The Department interpreted A.R.S. § 36-2804.02(A)(3)(f) to mean exactly what it says: “If you live within twenty-five miles of a dispensary, you are not authorized to cultivate marijuana.” (December 8, 2014- Page 7, lines 21-25)

The ADHS claim that A.R.S. § 36-2804.02(A)(3)(f) means exactly what the ADHS is saying it says is a blatant misrepresentation of a material fact in this case. The Plaintiff is complaining about the ADHS using this misrepresentation of A.R.S. § 36-2804.02(A)(3)(f) to restrict the Plaintiff’s right to the medical use of marijuana and to mischaracterize the intent of the electorate.

This ADHS Response goes on to state: “The twenty-five mile rule (A.R.S. § 36-2804.02(A)(3)(f)) was intended to be a restriction on the personal cultivation of marijuana under AMMA.” (December 8, 2014- Page 10, lines 14-18)

The ADHS claim to the Court that A.R.S. § 36-2804.02(A)(3)(f) is intended as a restriction on the personal cultivation of marijuana, however the plain and simple language and common understanding of the 37 words that construct A.R.S. § 36-2804.02(A)(3)( f) does not support the ADHS interpretation as a restriction of any kind. The words simply do not exist to construct a restriction or support the ADHS interpretation of A.R.S. § 36-2804.02(A)(3)(f). AHO should have ruled on this issue.

The ADHS also stated to this Court in their December 8, 2014 Response: “The Department correctly denied Troutt’s request for authorization to cultivate because it was required to do so. (Page 11, lines 14-15)

The ADHS clearly has the option to deny an identification card application or renewal on a very limited basis. However, A.R.S. § 36-2804.05 (A) makes it clear that the ADHS has a very limited authority to refuse to renew an identification card and that authority is an option not a legal requirement .

The Plaintiff is legally certified by a physician and the physician’s written certification is the only authorization required for the Plaintiff to cultivate marijuana for medical use. The ADHS has improperly extended their limited authority to restrict or authorize the cultivation of ADHS marijuana dispensaries.          The ADHS has deliberately confused this responsibility with their responsibility to regulate dispensaries with their separate responsibility to issue identification cards to physician certified patients that have already been authorized to cultivate marijuana for medical use by their physicians.

The Plaintiff’s cultivation and medical use of marijuana is an option and a legal right that is authorized in the AMMA by a written certification from a state licensed physician. The Plaintiff is simply not required by law to request approval to cultivate from the ADHS. The AHO should have ruled on this issue and in the Plaintiff’s favor.

The ADHS did not have legal authority to delay the renewal process, deny Appellant’s demand for a cultivation card or alter and issue an identification card to the Plaintiff that was not authorized and approved by the Plaintiff. The Plaintiff requested and received a written certification to cultivate and use medical marijuana from an Arizona licensed physician in 2011, 2012, 2013 and on April 29, 2014.

The ADHS admits to the Court that: “If a qualifying patient is authorized to cultivate, the Department must notate this fact on his card by “clear indication of whether the cardholder has been authorized by this chapter to cultivate marijuana plants for the qualifying patient’s medical use.” A.R.S. § 36-2804.04(A)(7). (December 8, 2014- Page 7, lines 10-15)

The ADHS disagrees with the Plaintiff and states to this Court that this disputed plain and simple language in A.R.S. § 36-2804.02(A)(3)(f) “is exact” and “says” that this provision is a restriction on the Plaintiff’s AMMA immunity from prosecution and penalties.

The ADHS says the plain and simple language in A.R.S. § 36-2804.02(A)(3)(f) is a restriction on a physician’s written certification for the medical use of marijuana. The ADHS claims this even though the “medical use of marijuana” clearly includes “cultivation” in the AMMA definitions for specific clarity at A.R.S. § 36-2801 (9). The ADHS claim to this Court that A.R.S. § 36-2804.02(A)(3)(f) is a required restriction of any kind is simply incorrect and misleading.    The Plaintiff has complained from the start of this dispute that A.R.S. § 36-2804.02(A)(3)(f) does not allow or authorize the ADHS to restrict cultivation of marijuana for the medical use of a physician certified patient.

According to A.R.S. § 36-2801(9): the AMMA specifically includes cultivation in the definition of “medical use”. This AMMA immunity and right to cultivate marijuana is certified and authorized by the Plaintiff’s physician not the ADHS.

The Plaintiff’s complaints about the ADHS over-regulation, excessive fees and threats for reporting the sale of contaminated marijuana are all buried with this refusal to clarify a simple statutory interpretation of the 37 words that construct A.R.S. § 36-2804.02(A)(3)(f). The ADHS continues to misrepresent this very important material fact that they misrepresented to the Arizona Administrative Hearing Office and this Honorable Court to prevail while the Plaintiff has complained to no avail

According to the “plain and simple” preamble of the Proposition 203 Ballot Guide that all Arizona voters were provided by the state before this 2010 election: a yes vote removed the criminal penalties for the cultivation of marijuana for medical use by physician certified patients. (EXHIBIT A)

Most Arizona voters did not read the fine print in the Proposition 203 Ballot Guide or the disputed 37 words that construct A.R.S. § 36-2804.02(A)(3)(f). However, a majority of Arizona voters approved a law that removed criminal penalties for cultivation of marijuana for medical use. The electorate realizes that cultivation is the key to reducing the cost and crime that creates the greatest risk to medical marijuana patients and the safety, health and welfare of our citizens.

STATEMENT OF FACTS

          Proposition 203 was proposed by an “INITIATIVE PETITION RELATING TO THE MEDICAL USE OF MARIJUANA”.This initiative measureAmended TITLE 36, ARIZONA REVISED STATUTES, BY ADDING CHAPTER 28.1; AMENDING ARIZONA REVISED STATUTES; RELATING TO THE “MEDICAL USE” OF MARIJUANA; PROVIDING FOR CONDITIONAL REPEAL.

According to“The DESCRIPTIVE TITLE” of the Proposition 203 Ballot Guide: “THE USE OF MARIJUANA IS ALLOWED FOR PEOPLE WITH DEBILITATING MEDICAL CONDITIONS WHO OBTAIN A WRITTEN CERTIFICATION FROM A PHYSICIAN.” (Request-January 2, 2015, Page 10, lines 9-12)

Secondary to this immunity and protection for certified patients that engage in the “medical use of marijuana” the Descriptive Title also requires the State of Arizona to: ESTABLISH A REGULATORY SYSTEM GOVERNED BY THE ARIZONA DEPARTMENT OF HEALTH SERVICES FOR ESTABLISHING AND LICENSING MEDICAL MARIJUANA DISPENSARIES”. (Request-January 2, 2015, Page 10, lines 13-17)

According to the Proposition 203 Ballot Guide “INITIATIVE PETITION RELATING TO THE MEDICAL USE OF MARIJUANA”: A “yes” vote shall have the effect of authorizing the use of marijuanafor people with debilitating medical conditions who obtain a written certification from a physician. A “yes” vote shall also have the effect of establishing a regulatory system governed by the Arizona Department of Health Services for “establishing and licensing medical marijuana dispensaries”.

According to the ANALYSIS BY LEGISLATIVE COUNCIL: Proposition 203 would generally provide that any person who acts in conformity with the requirements of the proposition is not subject to any governmentally imposed sanction relating to the medical use of marijuana.” “In order to register with DHS, a qualifying patient must submit a signed written certification issued by the physician recommending the medical use of marijuana. The certification must be made in the course of a “physician-patient relationship”.

According to Section 2. Findings (A.), the intent and purpose for removing the criminal statues and civil penalties for the “natural cultivation” of marijuana for medical use is crystal clear: “The People of the State of Arizona found and declared that: Marijuana’s recorded use as a medicine goes back nearly 5,000 years, and modern medical research has confirmed beneficial uses for marijuana.”

According to Section 2 (D.): “Consequently, changing state law will have the practical effect of protecting from arrest the vast majority of seriously ill patients who have a medical need to use marijuana.”

According to Section 2 (E.): Arizona removed state-level criminal penalties for the medical use and cultivation of marijuana for the health and welfare of its citizens.

According to the clearest language of the AMMA in Section 2. (G): Hence, the purpose of this act is to protect patients with debilitating medical conditions, as well as their physicians and providers, from arrest and prosecution, criminal and other penalties and property forfeiture if such patients engage in the “medical use of marijuana”.

The voters of Arizona removed state-level criminal penalties for the medical use and cultivation of marijuana. EXHIBIT A

In May of 2011 the Plaintiff applied for and received a medical marijuana cultivation identification card from the Arizona Department of Health Services directed by Will Humble (“ADHS”). The Plaintiff properly applied for and paid fees to renew this identification card in 2012, 2013 and on April 29, 2014.

The Plaintiff provided the proper information and paid the fees to renew his cultivation identification card on April 29, 2014. The ADHS received this information and accepted the Plaintiff’s fees on that same day. The Plaintiff’s valid cultivation identification card did not expire until May 12, 2014. The ADHS did not formally deny the Plaintiff’s right to cultivate marijuana and issue a notice of the right to appeal until May 14, 2014.

The ADHS did not have the legal authority to accept payment for this service in advance and then refuse to renew the Plaintiff’s cultivation identification card. The Plaintiff did not request a cultivation card from the ADHS; the Plaintiff demanded the same identification card renewal that he was entitled to by law.

CONCLUSION

This litigation did not start with an ADHS Administrative Decision to revoke or deny the Plaintiff’s right to renew his cultivation identification card. This dispute started with Will Humble’s mischaracterization of the intent of the electorate and promulgation of rules based on his misinterpretation of A.R.S. § 36-2804.02(A)(3)(f).

The Plaintiff has struggled with the ADHS, the Arizona Administrative Hearing Office and this Honorable Court to merely get a clarification of the plain and simple language that constructs A.R.S. § 36-2804.02(A)(3)(f) before more people were damaged by the ADHS. These delays and denials for clarification of material facts in this case have provided the ADHS with a shield of protection the Plaintiff has not been able to penetrate.

How could the Plaintiff possibly have a fair hearing to appeal the disputed actions and damages created by such a powerful agency as the ADHS when the courts refuse to clarify the simple language of the law that is in dispute. The Plaintiff has done all in his power to address these profound but clear conflicts of interest and damaging actions.

The Plaintiff’s actual complaints have been buried in a refusal to clarify and acknowledge the meaning of a 37 word provision in the AMMA. The English translation and meaning of these words are in dispute because the are damaging the Plaintiff and the ADHS has predominately relied on A.R.S. § 36-2804.02(A)(3)(f) to justify their “actions”.

The Plaintiff cannot afford an attorney and expert witnesses. The Plaintiff has no formal legal training and is in a state of rapidly failing health due to the strain of this litigation.

The Arizona Medical Marijuana Act and the Arizona Voter Protection Act were clearly initiated, approved and intended to end the decades of catastrophic damage marijuana prohibition has brought to our state and nation.

The Plaintiff realized early on that the ADHS and AHO would have deep self protective concerns regarding this long running dispute and a serious conflict of interest over the medical use of marijuana for 2 decades.

The prohibition of marijuana is a great crime against humanity, our nation and the State of Arizona. However, this dispute is as simple as the language in A.R.S. § 36-2804.02(A)(3)(f) that the Arizona Administrative Hearing Office failed to resolve.

The real problems the Plaintiff has attempted to bring to the attention of the Court are the dangers of distributing artificially cultivated and contaminated marijuana products and the risks and consequences for creating unaffordable fees and over regulation that has tripled the price of state regulated marijuana.

As head of the ADHS, Will Humble has taken actions that are dangerous, damaging and unauthorized by law. The pain, suffering, death and litigious chaos the voters of Arizona attempted to curtail with the AMMA has been over-ridden, over regulated and protracted with a blatant mischaracterization of the intent of the electorate and a damaging misinterpretation of A.R.S. § 36-2804.02(A)(3)(f) by Will Humble as head of the ADHS.

The Plaintiff does not have the legal expertise to provide the Court with a professional Opening Brief. The Plaintiff did not even have the ability to persuade AHO to provide a preliminary clarification of the intent and meaning of A.R.S. § 36-2804.02(A)(3)(f). The Plaintiff has not been able to pierce this veil of protection the ADHS enjoys from our courts.

RELIEF SOUGHT BY PLAINTIFF/APPELLANT

The Plaintiff is requesting this Honorable Court to review the actual language of the information the State of Arizona provided to all voters before they voted to remove the criminal penalties for the cultivation of marijuana for medical use in November of 2010. EXHIBIT A http://medicalmarijuana.procon.org/sourcefiles/arizona-proposition-203-medical-marijuana.pdf

The Plaintiff is requesting this Honorable Court to include and review the Plaintiff’s May 10, 2014 complaint to the ADHS. (EXHIBIT B)

The Plaintiff requests this Honorable Court to include and review (EXHIBIT C) the Plaintiff’s June 2, 2014 complaint and response to the ADHS May 14, 2014 ORDER DENYING REQUEST TO CULTIVATE AND NOTICE OF RIGHT TO ADMINISTRATIVE APPEAL (May 14, 2014) .

The Plaintiff is requesting this Honorable Court to include and review all the complaints, motions, responses and evidence presented in this matter by the Plaintiff and the ADHS from May 10, 2014 to the present.

The Plaintiff is requesting this Honorable Court to rule that the AHO should have clarified the intent and meaning of A.R.S. § 36-2804.02(A)(3)(f) and ruled that this provision is not a restriction.

The Plaintiff is requesting this Honorable Court to rule that the ADHS is incorrect in their interpretation of A.R.S. § 36-2804.02(A)(3)(f) and that AHO erred in not clarifying and ruling on this issue in favor of the Plaintiff.

The Plaintiff is requesting this Honorable Court to rule that the ADHS was in error by denying the renewal of the Plaintiff’s cultivation identification card in May of 2014.

The Plaintiff is requesting this Honorable Court to make a ruling that would provide an avenue of accountability for the improper actions of the ADHS and issue a ruling that would provide fair compensation for the ADHS actions and violations of the Plaintiff’s rights and the damages he has appropriately complained of to the ADHS, AHO and this Honorable Court.

In closing the Plaintiff is requesting this Honorable Court to consider the facts of this case and the disadvantage of the Plaintiff in this matter.

The Plaintiff is asking this Honorable Court to make a brave but simple ruling on a hugely complicated and controversial political issue that will require more than a blind eye and a dismissal on a technicality.

 

Respectfully Submitted on March 11, 2015

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Arlin Troutt

 

 

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Why Will Humble Really Resigned?


Arlin Troutt

 

Plaintiff and Appellant

                

                 v.

 

ARIZONA DEPARTMENT OF HEALTH SERVICES, WILL HUMBLE, et al

 

Defendants and Respondents

 

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Case No.: LC2014-000443-001 DT

 

 

REQUEST FOR RECONSIDERATION OF COURT’S DENIAL OF PLAINTIFF’S REQUEST FOR DECLARATION OF RIGHTS AND INJUNCTION AGAINST WILL HUMBLE AND THE ARIZONA DEPARTMENT OF HEALTH SERVICES TO STOP DISSEMINATION OF INACCURATE AND DAMAGING INFORMATION AND REQUEST FOR SANCTIONS FOR MISREPRESENTATION OF MATERIAL FACTS IN THIS CASE

 

 

The Honorable Judge

Crane McClennen

 

 

 

 

BACKGROUND

1. Arlin Troutt (“the Plaintiff”) requests reconsideration of the Minute Entry filed with the Clerk of Courts on January, 26, 2015 in this matter. Judge McClennen Denied the Plaintiff’s (November 14, 2014) REQUEST FOR INJUNCTION AND DE NOVO HEARING OF CASE NO.: 2014C-MMR-0312-DHS and the Plaintiff’s (January 2, 2015) REQUEST FOR DECLARATION OF RIGHTS AND INJUNCTION AGAINST WILL HUMBLE AND THE ARIZONA DEPARTMENT OF HEALTH SERVICES TO STOP DISSEMINATION OF INACCURATE AND DAMAGING INFORMATION AND REQUEST FOR SANCTIONS FOR MISREPRESENTATION OF MATERIAL FACTS IN THIS CASE (“the Requests”).

2. In the (December 8, 2014) APPELLEE’S RESPONSE TO “RESONSE [SIC] TO MINUTE ENTRY AND REQUEST FOR INJUNCTION AND DE NOVO ARIZONA DEPARTMENT OF HEALTH HEARING OF CASE NO.: 2014-C-MMR-0312-DHS (“the Response”), the Arizona Department of Health Services (“AzDHS”) used the word “stay” 13 times. The Plaintiff would remind this Honorable Court that the Plaintiff never used the word “stay” or requested a stay on an administrative decision once.

3. It seems the Court has ruled with the AzDHS and Denied the Plaintiff’s November 14, 2014 and January 2, 3015 motions in this continuing effort to get a “plain and simple statutory interpretation of A.R.S. § 36-2804.02(A)(3)(f) from the Arizona Courts.

4. The following was taking from the Plaintiff’s November 14, 2014 Request: “There should be no argument here that the Appellant is at a great disadvantage in simply trying to get a clarification and rulings in this dispute over the intent, meaning, interpretation and the actual legal authority that is granted in the Arizona Medical Marijuana Act (“AMMA”).” (Page 3, lines 10-13.

5. The following is taken from the “RELIEF REQUESTED” in the Plaintiff’s November 14, 2014 Request: Request #2: “The Appellant respectfully requests this Honorable Court to review the intent, meaning, language and the authority granted by the AMMA and clarify this time-sensitive dispute over the intent, language and authority granted in the AMMA as quickly as possible.” (Page 4, lines 23-25) and Request #3: “The Appellant respectfully requests this Honorable Court to issue and Order an Injunction that would protect the Appellant and other critically ill patients from harm caused by this mischaracterization of the intent of the AMMA and the misinterpretation of A.R.S. § 36-2804.02(A)(3)(F).” (Page 5, lines 1-4).

6. The Plaintiff was clearly not “requesting a stay” on a Decision by the AzDHS that is not even supported by the English language much less the intent and meaning of the law.

7. This confusing (December 8, 2014) AzDH Response forced the Plaintiff to file another motion on January 2, 2015 to stop this damaging mistranslation of the English language and the misrepresentation of material facts in this case.

8. The Court noted in the January 26, 2015 Minute Entry that: “Troutt has filed an appeal from the Decision of the AzDHS dated August 19, 2014″. This is correct but the Plaintiff filed a complaint with the AzDHS on May 10, 2014 prior to expiration of the Plaintiff’s AzDHS identification card and the AzDHS refusal to renew. The AzDHS did not even deny Plaintiff’s right to cultivate until May 14, 2014.

9. The following is taken from the original complaint filed by the Plaintiff in this matter on May 10, 2014: “The State of Arizona (State), the Arizona Department of Health Services (ADHS), and ADHS director Mr. Will Humble have a long andwell-documented history of opposing medical marijuana use and obstruction of the electorate’s intent to legalize marijuana since 1996. There is dangerous and damaging confusion that has required declaratory judgments, injunctions and rulings by the court regarding the same or similar complaints of abuse by the State and ADHS concerning the actual language and protections in the ARIZONA MEDICAL MARIJUANA ACT (AMMA). The legality and or constitutionality of this language, obstruction of the ADHS rulemaking process, interpretations and promulgation of these interpretations by the State, ADHS and their agents and employees has all come into question.(Page 1, lines 22-25 to Page 2, lines 1-6)

10. The following was also taken from the Plaintiff’s (May 14, 2014) Response to the AzDHS Denial to cultivate: Plaintiff did not “submit a request”, and did not request to cultivate marijuana plants based on the “Plaintiff’s residence” as Robert Lane alleged. (Page 11, lines 20-25)

11. On June 2, 2014 the Plaintiff delivered the: RESPONSE TO ARIZONA DEPARTMENT OF HEALTH SERVICES NOTICE OF RIGHT TO APPEAL AND COMPLAINT AGAINST DEPARTMENT FOR INTIMIDATION, COERSION, THREATS AND OTHER DAMGES ASSOCIATED WITH AN AGENCY ACTION REGARDING FEES AND APPLICATION RENEWAL MODIFICATION

12. The AzDHS is alleging to this Court that their translation of the 37 words in A.R.S. § 36-2804.02(A)(3)(f) is a restriction. It is not. The (December 8, 2014) ADHS RESPONSE states: “The twenty-five mile rule was intended to be a restriction on the personal cultivation of marijuana under AMMA.” (Page 10, lines 14-15)

13. The AzDHS (December 8, 2014) RESPONSE states: “A.R.S. § 36-2804.02(A)(3)(f) is the only provision in AMMA that allows a qualifying patient to request authorization to cultivate.” (Page 6, lines 27-28 to Page 7, line 1) A.R.S. § 36-2804.02(A)(3)(f) does not mention a request for authorization to cultivate. A “written certification” from a physician is an authorization to cultivate and use marijuana. That “written certification” and “authorization” does not come from the AzDHS. The Plaintiff was required to submit information not a request.

14. The AzDHS (December 8, 2014) RESPONSE includes the “exact” language of A.R.S. § 36-2804.02(A)(3)(f): “A. A qualifying patient may apply to the department for a registry identification card by submitting: 3. An application, including: f) A designation as to who will be allowed to cultivate marijuana plants for the qualifying patient’s medical use if a registered nonprofit medical marihuana dispensary is not operating within twenty-five miles of the qualifying patient’s home.” (Page 7, lines 2-9)

15. The AzDHS (December 8, 2014) RESPONSE then goes on to state: The Department interpreted A.R.S. § 36-2804.02(A)(3)(f) to mean exactly what it says”. (Page 7, lines 21-22)

16. This statement by the AzDHS is false, ridiculous and insulting to the Plaintiff’s intelligence. This AzDHS statement is a blatant misrepresentation of a material fact in this case. The Plaintiff humbly requests this Honorable Court to resolve this matter before the filing date of the Plaintiff’s Opening Brief.

17. The first 18 words of A.R.S. § 36-2804.02 (A)(3)(f) only tells a “certified patient” what to submit to get an AMMA registration card. There’s no restriction found in these plain and simple words.

18. The last 37 words in A.R.S. § 36-2804.02 (A)(3)(f) only asks a certified patient to nominate a preference based on the patient’s belief.

19. The AzDHS is claming that the exact meaning of A.R.S. § 36-2804.02(A)(3)(f) “says” that A.R.S. § 36-2804.02(A)(3)(f) is a restriction on personal cultivation. Where is a “restriction” of any kind found in the plain and simple language of A.R.S. § 36-2804.02 (A)(3)(f)? Who is Correct?

20. The Plaintiff cannot afford expert witnesses on the translation of the English language or expert testimony from law professors on the statutory construction and statutory interpretation of law to clarify the intent and meaning of A.R.S. § 36-2804.02(A)(3)(f).

21. However, the Plaintiff has made a study of the process of “statutory construction and interpretation and offers the following to the Court: Statutory Construction is the process of determining what a particular statute means so that a court may apply the statute accurately. Any question of statutory interpretation starts with a look at the plain language of the statute to discover its original intent. To discover a statute’s original intent, courts first look to the words of the statute and apply their usual and ordinary meanings. The court is merely an interpreter of the law.

22. The United States Supreme Court has this to say about statutory construction and statutory interpretation: “We begin with the familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.:” Consumer Product Safety Commission et al. v. GTE Sylvania, Inc. et al.,447 U.S. 102 (1980). “[I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Connecticut Nat’l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). Indeed, “when the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’” 503 U.S. 249, 254.

CONCLUSION

23. This dispute is not about the proximity of the Plaintiff’s residence to an AzDHS pot shop and it never was. This simple dispute regards a translation of the plain and simple meaning of the English language that the Plaintiff and all Arizona voters were provided before they approved the removal of criminal statutes for the cultivation and medical use of marijuana.

24. This is a matter of fact that has been well documented and ignored by the AzDHS. For this reason the Plaintiff agrees with this Honorable Court’s Order denying the Plaintiff’s request for a De Novo Hearing of this case. The Plaintiff is not asking for stays, delays or word game plays in this case.

25. However, the Court’s Denial of the Plaintiff’s (January 2, 2015) REQUEST FOR DECLARATION OF RIGHTS AND INJUNCTION AGAINST WILL HUMBLE AND THE ARIZONA DEPARTMENT OF HEALTH SERVICES TO STOP DISSEMINATION OF INACCURATE AND DAMAGING INFORMATION AND REQUEST FOR SANCTIONS FOR MISREPRESENTATION OF MATERIAL FACTS IN THIS CASE has put the Plaintiff at a great disadvantage.

26. Denying a “stay” that the Plaintiff never asked for instead of issuing a statutory interpretation of law that the Plaintiff has begged for from the beginning to clarify the intent and meaning of A.R.S. § 36-2804.02(A)(3)(f) confuses and concerns the Plaintiff.

Eventually someone must tell the Emperor he wears no clothes.

 

RELIEF REQUESTED

1. Whereas the Plaintiff requests this Honorable Court to Reconsider the Denial of the Plaintiff’s ongoing quest to get an English translation and a statutory interpretation of the plain and simple language that constructs A.R.S. § 36-2804.02(A)(3)(f).

2. Whereas the Plaintiff requests this Honorable Court to make a ruling that A.R.S. § 36-2804.02(A)(3)(f) does not construct, constitute or authorize a restriction on cultivation in the AMMA.

Respectfully submitted on February 13, 2015

 

 

 

 

 

 

 

 

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REQUEST FOR DECLARATION OF RIGHTS AND INJUNCTION

 

Arlin Troutt

 

Plaintiff and Appellant

                  

                   v.

 

ARIZONA DEPARTMENT OF HEALTH SERVICES, WILL HUMBLE, et al

 

Defendants and Respondents

 

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Case No.: LC2014-000443-001 DT

 

 

REQUEST FOR DECLARATION OF RIGHTS AND INJUNCTION AGAINST WILL HUMBLE AND THE ARIZONA DEPARTMENT OF HEALTH SERVICES TO STOP DISSEMINATION OF INACCURATE AND DAMAGING INFORMATION AND REQUEST FOR SANCTIONS FOR MISREPRESENTATION OF MATERIAL FACTS IN THIS CASE

 

 

The Honorable Judge

Crane McClellan

 

 

 

 

BACKGROUND

1. On November 14, 2014 I, Arlin Troutt, (“the Plaintiff”) filed a RESPONSE TO MINUTE ENTRY AND REQUEST FOR INJUNCTION AND DE NOVO HEARING OF CASE NO.: 2014C-MMR-0312-DHS. (“the REQUEST”).

2. On that same day the Plaintiff personally addressed and mailed (via United States Postal Service) a copy of the REQUEST to Attorneys Gregory Falls and Matthew Hesketh at 201 East Washington St., Suite 200, Phoenix, Arizona 85004-2327. The Plaintiff’s REQUEST was returned on November 20, 2014 with a hand written notation “Not in Arizona Directory” and with “Return to Sender” stickers across the correct names and address of these same attorneys involved in this complaint (originally filed May 10, 2014) against Will Humble as head of the Arizona Department of Health Services (“ADHS”).

3. Plaintiff removed the stickers and emailed photographs of the correctly addressed but returned envelope and a copy of the REQUEST that was inside the envelope to Mr. Falls and Mr. Hesketh, through Anne Morrone via their office emails on November 20, 2014.

4. Plaintiff received (via United States Postal Service) APPELLEE’S RESPONSE TO “RESONSE [SIC] TO MINUTE ENTRY AND REQUEST FOR INJUNCTION AND DE NOVO HEARING OF CASE NO.: 2014C-MMR-0312-DHS” signed and dated by Gregory W. Falls on December 8, 2014 (“ADHS RESPONSE”).

5. Mr. Fall’s appears to be confused by the Plaintiff’s continuing effort to get a ruling on misrepresented material facts and a declaration of Plaintiff’s rights and legal status. Plaintiff is requesting this Honorable Court to resolve this protracted dispute regarding the intent of the Arizona Medical Marijuana Act (“AMMA”), the definition of “medical use”, and the meaning of A.R.S. § 36-2804.02(A)(3)(F) in the AMMA.

6. A.R.S. § 12-1832 authorizes any person whose rights, status, or other legal relations are affected by a statute to have determined any question of construction arising under the statute and to obtain a declaration of rights thereunder.

7. The central question presented in this appeal and complaint against the ADHS concerns Plaintiff’s rights, status and other legal relations affected by the AMMA. Plaintiff seeks clarification and a declaration of his rights and legal status from this Honorable Court. The Plaintiff has requested little more than a clarification of the intent of the AMMA and the meaning and legal translation of the 37 English words the ADHS is using to misinterpret A.R.S. § 36-2804.02(A)(3)(f) and penalize the Plaintiff.

8. The intent and legal definition of “medical use” and the meaning of A.R.S. § 36-2804.02(A)(3)(f) are material facts in this matter and the ADHS has misrepresented these material facts to this Honorable Court.

9. The ADHS has used this misinterpretation and misrepresentation of these material facts to promulgate rules and disseminate inaccurate and misleading information to the public with damaging statements such as the following, published in the ADHS AMMA Program Newsletter, (July 2013, pg. 3.): “The law says that patients who live within 25 miles of an operating dispensary cannot grow their own medical marijuana. This was part of what voters passed, and ADHS cannot change it.”

10. On December 4, 2014 Plaintiff received (via United States Postal Service) an Arizona Medical Marijuana Program Newsletter for November 2014. On page 3 of this publication the Arizona Department of Health Services (“ADHS”) stated: “State law prohibits qualifying patients from growing “medical marijuana plants” if they are within 25 miles of a licensed, operating dispensary.” (EXHIBIT A)

11. This (December 8, 2014) ADHS RESPONSE to Plaintiff’s (November 14, 2014) REQUEST continues to blatantly misrepresent material facts in this matter that must be ruled on and rectified before this dispute can be resolved and the damage stopped.

12. The ADHS RESPONSE misleads the Court in stating: “A qualifying patient may request authorization to cultivate a limited number of marijuana plants (twelve of them) “if” a nonprofit medical marijuana dispensary is not operating within twenty-five miles of the qualifying patient’s home. A.R.S. § 36-2804.02(A)(3)(f)”.” (Page 2, lines 12-15), “He (the Plaintiff) requested authorization to cultivate marijuana plants.” (Page 2, line 21), “Troutt refused to withdraw his request for authorization to cultivate.”(Page 3, lines 9-10) “The Department issued Troutt a card without cultivation rights, and denied his request to cultivate.” (Page 3, lines 10-11)

13. ADHS RESPONSE states: “The issue is whether AMMA “permits” Troutt to cultivate. It does not. A.R.S. § 36-2804.02(A)(3)(f) is the only provision in AMMA that allows a qualifying patient to request authorization to cultivate.” (Page 6, lines 27-28 to Page 7, line 1).

14. The ADHS is misrepresenting a material fact in this matter. A.R.S. § 36-2804.02(A)(3)(f) does not allow or require a “request for authorization to cultivate” as the ADHS is alleging to this Honorable Court.

15. The ADHS RESPONSE ironically included the evidence of their misrepresentation to the Court in the actual 37 words that construct A.R.S. § 36-2804.02(A)(3)(f): A designation as to who will be allowed to cultivate marijuana plants for the qualifying patient’s medical use “if” a registered nonprofit medical marijuana dispensary is not operating within twenty-five miles of the qualifying patient’s home. (Page 6, lines 26-28 to Page 7, lines 1-9)

16. According to A.R.S. § 36-2808 (A.), it is “A REGISTERED QUALIFYING PATIENT’S” PREFERENCE REGARDING WHO MAY CULTIVATE MARIJUANA FOR “THE REGISTERED QUALIFYING PATIENT” class. This designation is an optional nomination, an appointment or a selection based on a critically ill patient’s belief. There is a great difference in a “required request for authorization” and an “optional designation of preference”.

17. A.R.S. § 36-2804.02(A)(3)(f) and A.R.S. § 36-2808 (A.) both make the distinction between THE “REGISTERED” QUALIFYING PATIENT CLASS and THE “REGISTERING” QUALIFYING PATIENT that has an option to “nominate” or “choose” who he or she “will” or “will not” allow to cultivate marijuana for the AMMA Donation and Dispensary Program (“DDP”). “If” the “registering” qualifying patient wishes to cultivate marijuana or “if” he or she wishes to designate a caregiver to cultivate marijuana for the DDP and or “if” a “registering” qualifying patient believes he or she might reside further than 25 miles from a beneficial or “operational” dispensary then A.R.S. § 36-2804.02(A)(3)(f) is only a “Big If” not an “Only If”.

18. According to A.R.S. § 36-2804.05 (A.) the ADHS has the “option” not a “requirement” to DENY A RENEWAL APPLICATION OF A REGISTRY IDENTIFICATION CARD “ONLY IF” THE APPLICANT DOES NOT PROVIDE THE INFORMATION REQUIRED.

19. The Plaintiff provided the required information. ADHS did not have an option, mandate or the authority to deny the Plaintiff’s right to cultivate or alter the Plaintiff’s “renewal” card or penalize the Plaintiff. The ADHS was not authorized to issue an altered identification card without approval or consent from the Plaintiff or his physician.

20. A.R.S. § 36-2804.02(A)(3)(f)only asks for a preference based on the belief of a registering qualifying patient. This “Patient Preference” only pertains to people that “believe” they might live more than 25 miles from a legally operational dispensary. This “Patient Preference” does not even pertain to anyone the ADHS “believes” might live less than 25 miles from a dispensary.

21. The ADHS describes the Plaintiff’s interpretation of A.R.S. § 36-2804.02(A)(3)(f)as “nonsensical” after telling this Court: “The Department interpreted A.R.S. § 36-2804.02(A)(3)(f.) to mean exactly what it says: There is a “twenty-five mile rule.” If you live within twenty-five miles of a dispensary, you are not authorized to cultivate marijuana. Any other interpretation, including those advanced by Troutt, would be nonsensical and render the reference to “twenty-file miles” meaningless.” (Page 7, lines 21-25)

22. The ADHS is well aware that they authorize marijuana cultivation for “designated caregivers” that live within 25 miles of a dispensary and qualifying patients are not required to disclose cultivation locations.

23. The ADHS is also well aware that their limited authority to regulate dispensaries does not trump a physician’s recommendation for a beneficial and specific form of naturally cultivated marijuana for a patient’s medical use. The ADHS is not being truthful with this Honorable Court.

24. This question of immunity and protection has been decided in Arizona’s courts and is “Ground Zero” in this long running dispute over immunity, marijuana money, and the definition and meaning of “medical use” in the AMMA.

25. The term “Medical Use” is used 45 times and is clearly defined and decriminalized in the AMMA: A.R.S. § 36-2801 (9.): “MEDICAL USE” MEANS THE CULTIVATION AND USE OF MARIJUANA TO TREAT OR ALLEVIATE A REGISTERED QUALIFYING PATIENT’S MEDICAL CONDITION.

26. The ADHS RESPONSE states: “AMMA is a permissive statutory scheme laid on top of the Criminal Code that decriminalizes certain specific conduct associated with the medical use of marijuana. A.R.S. § 36-2811(B) (qualifying patient not subject to arrest, prosecution or penalty under state criminal laws for “medical use of marijuana pursuant to this chapter”)” (Page 6, lines 6-10)

27. Mr. Humble and Mr. Fall’s defense of these ADHS actions are disingenuous, damaging and require sanctions. The ADHS is only now admitting to this court in their RESPONSE that: “Cultivation is a “use” of medical marijuana. A.R.S. § 36-2801(9)” (Page 6, lines 17-18).

28. However, this is where ADHS blurs the words and the line between a limited authority and responsibility to regulate dispensaries and the Plaintiff’s legal right to cultivate “natural marijuana” for personal and beneficial medical use based on a physician’s recommendation.

29. The ADHS RESPONSE states: “The twenty-five mile rule was intended to be a restriction on the personal cultivation of marijuana under AMMA. It cannot be ignored to allow for the type of “unrestricted natural cultivation of marijuana” that Troutt seeks. Doing so would violate the intent of the electorate and impermissibly rewrite AMMA to create a law that was not intended.” (Page 10, lines 14-18)

30. It is the ADHS that has impermissibly rewrote the AMMA to restrict “natural cultivation of marijuana” with a blatant misinterpretation of the English language to create a damaging rule that was not intended by the electorate or authorized in the AMMA.

31. There is no “natural cultivation restriction” found in the AMMA and there is no authority granted for the ADHS to market artificially cultivated marijuana or synthetic marijuana substitutes in Arizona. The ADHS 25-mile “As the Crow Flies” rule was clearly intended to restrict the personal cultivation of natural marijuana and promote profits from artificial cultivation and synthetic marijuana substitutes. However, this ADHS agenda was neither intended by the electorate nor authorized in the AMMA.

32. A.R.S. § 36-2804.03 (B.)(3.)(c) authorizes a qualifying patient’s physician to make all decisions that “CONTROL THE ACQUISITION OF THE MARIJUANA, THE DOSAGE AND THE FREQUENCY OF THE MEDICAL USE OF MARIJUANA BY THE QUALIFYING PATIENT.

33. According to A.R.S. § 36-2801 (18): a “WRITTEN CERTIFICATION” requires a PHYSICIAN to SPECIFY THE QUALIFYING PATIENT’S DEBILITATING MEDICAL CONDITION ONLY IN THE COURSE OF A PHYSICIAN-PATIENT RELATIONSHIP AFTER THE PHYSICIAN HAS COMPLETED A FULL ASSESSMENT OF THE QUALIFYING PATIENT’S MEDICAL HISTORY.

34. On September 5, 2014 Dr. Elaine M. Burns generated and signed a letter for the court that states: “it is important for Mr. Troutt to use pesticide/mold/bacteria free medication as these would cause a strain on his liver to try and detoxify from his system. Acceptable forms of cannabis that would be effective for Mr. Troutt include not only the dried plant but also juicing of the plant and making a tincture from the root.”(EXHIBIT B)

35. On November 20, 2014 the decision of Arizona Superior Court Judge Ralph E. Hatch was AFFIRMED in Division One of the Arizona Court of Appeals (No. 1 CA-CR 13-0852). This Superior Court ruling regarding this disputed matter of immunity was appealed by the State. Judge Patricia K. Norris delivered the Opinion for the Arizona Court of Appeals, in which Judge Lawrence F. Winthrop and Judge John C. Gemmill joined.

36. According to Judge Norris: the AMMA provides that a “qualified patient” with a “debilitating medical condition” may obtain a registry identification card from the Arizona Department of Health Services (“DHS”) and with it, immunity from State prosecution for marijuana acquisition, possession, cultivation and use within the AMMA’s limits. See A.R.S. §§ 36-2801. http://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2014/1%20CA%20CR-13-0852.pdf

37. The ADHS RESPONSE states: “Troutt apparently believes “AMMA does not authorize the [Department] to limit or constrain the manner, source and/or the form of marijuana that the appellant requires for medical use. The very definition of `medical use’ in the AMMA specifically includes cultivation for registered qualifying patients.” Motion, p. 4, ¶13. Who is correct? This is the issue on appeal.” (Page 4, lines 6-10)

38. The ADHS knows Judge Katherine Cooper was correct: HONORABLE KATHERINE COOPER SUPERIOR COURT OF ARIZONA MARICOPA COUNTY (CV 2013014852) MINUTE ENTRY filed 03/21/14: In applying the plain language of the statute to the rules of statutory interpretation, the Court concludes that nothing in the statute limits the form in which patients may use medical marijuana. “The plain and ordinary meaning of the AMMA’s text is reflected in the Merriam-Webster Dictionary definitions of these words: “Usable” is defined as “a convenient or practicable use. http://www.merriam-webster.com/dictionary/usable.”

39. The ADHS RESPONSE states: Troutt contends that he legally may acquire marijuana “from any transaction or source.”(Page 6, lines, 19-20). The Plaintiff would remind the Court that Troutt’s contention came from the AMMA and ADHS: (R9-17-101) Definitions: In addition to the definitions in A.R.S. § 36-2801: “Acquire” means to obtain through any type of transaction and from any source.

STATEMENT OF FACTS

40. Proposition 203 was proposed by an “INITIATIVE PETITION RELATING TO THE MEDICAL USE OF MARIJUANA”.This initiative measureAmended TITLE 36, ARIZONA REVISED STATUTES, BY ADDING CHAPTER 28.1; AMENDING ARIZONA REVISED STATUTES; RELATING TO THE “MEDICAL USE” OF MARIJUANA; PROVIDING FOR CONDITIONAL REPEAL.

41. According to A.R.S. § 19-125 (D.) There shall be printed on the official ballot a descriptive title containing a summary of the principal provisions of the measure, not to exceed fifty words, which shall be prepared by the secretary of state and approved by the attorney general stating the essential change in the existing law should the measure receive a majority of marks indicating voter preference.

42. According tothe first 20 words in“The DESCRIPTIVE TITLE” of the Proposition 203 Ballot Guide: “THE USE OF MARIJUANA IS ALLOWED FOR PEOPLE WITH DEBILITATING MEDICAL CONDITIONS WHO OBTAIN A WRITTEN CERTIFICATION FROM A PHYSICIAN.”

43. Completely separate and secondary to this clearly stated immunity and protection for critically ill patients that engage in the “medical use of marijuana” was a time-sensitive mandate (20 words):“AND ESTABLISH A REGULATORY SYSTEM GOVERNED BY THE ARIZONA DEPARTMENT OF HEALTH SERVICES FOR ESTABLISHING AND LICENSING MEDICAL MARIJUANA DISPENSARIES”.

44. The Secretary of State and Attorney General still had 10 words left to “essentially state”: THE CULTIVATION OF MEDICAL MARIJUANA FOR PERSONAL USE IS RESTRICTED OR CULTIVATION IS NOT INCLUDED IN THE DEFINITION OF MEDICAL USE. However, the remaining 10 words were never used, the intent was clear.

45. According to the Proposition 203 Ballot Guide “INITIATIVE PETITION RELATING TO THE MEDICAL USE OF MARIJUANA”: A “yes” vote shall have the effect of authorizing the use of marijuanafor people with debilitating medical conditions who obtain a written certification from a physician. A “yes” vote shall also have the effect of establishing a regulatory system governed by the Arizona Department of Health Services for “establishing and licensing medical marijuana dispensaries”.

46. According to the ANALYSIS BY LEGISLATIVE COUNCIL: Proposition 203 would generally provide that any person who acts in conformity with the requirements of the proposition is not subject to any governmentally imposed sanction relating to the medical use of marijuana.” “In order to register with DHS, a qualifying patient must submit a signed written certification issued by the physician recommending the medical use of marijuana. The certification must be made in the course of a “physician-patient relationship”.

47. According to Section 2. Findings (A.), the intent and purpose for removing the criminal statues and civil penalties for the “natural cultivation” of marijuana for medical use is crystal clear: “The People of the State of Arizona found and declared that: Marijuana’s recorded use as a medicine goes back nearly 5,000 years, and modern medical research has confirmed beneficial uses for marijuana.”

48. According to Section 2 (D.): “Consequently, changing state law will have the practical effect of protecting from arrest the vast majority of seriously ill patients who have a medical need to use marijuana.”

49. According to Section 2 (E.): Arizona removed state-level criminal penalties for the medical use and cultivation of marijuana for the health and welfare of its citizens.

50. According to the clearest language of the AMMA in Section 2. (G): Hence, the purpose of this act is to protect patients with debilitating medical conditions, as well as their physicians and providers, from arrest and prosecution, criminal and other penalties and property forfeiture if such patients engage in the “medical use of marijuana”.

51. The ADHS RESPONSE alleges: “nowhere in the General Election Ballot Guide does it say: “If this proposition passes, any qualifying patient may cultivate medical marijuana anywhere, statewide.” (Page 10, lines 10-13)

52. In fact, that is exactly what Section 2 of the AMMA does specifically state. The voters of Arizona removed state-level criminal penalties for the medical use and cultivation of marijuana.

 

CONCLUSION

53. The clear intent of the electorate, the Descriptive Title, the Analysis by Legislative Council, the Definitions, the Provisions and the general context of the language in the AMMA and the many court ruling on this same matter support the Plaintiff’s clear right to naturally cultivate marijuana for private and beneficial medical use.

54. The AMMA primarily protects the legal rights of the patient/physician relationship and secondarily and separately provides for the safe and legal regulation of marijuana dispensaries.

55. The AMMA did not intend or authorize an “As The Crow Flies Rule” to restrict natural cultivation or place limitations and constraints on the medical use of marijuana. Nor did the AMMA authorize the ADHS to approve and protect the sale of artificially cultivated marijuana and or contaminated commercial marijuana products.

  1. Natural cultivation and crime reduction is most certainly and specifically included in this “permissive statutory scheme” that is based on 5,000 years of natural cultivation history, decades of national crime statistics and the traditional recommendations of a physician.

57. A.R.S. § 36-2801 (8.) and (15.)define “MARIJUANA” and “USABLE MARIJUANA” to include all parts of the plant (in any number or amount) whether growing or not and specifically decriminalizes possession of “THE SEEDS, STALKS AND ROOTS OF THE PLANT”.

58. Seeds, stalks and roots (growing or not) are the source of all marijuana cultivation and the key to reducing the crime, violence, pain, suffering and death the electorate intended to end with the decriminalization of this destructive and deadly marijuana prohibition.

59. The AMMA was based on a 5,000-year of natural cultivation that took place long before this underground and unpredictable synthetic marijuana market immerged under artificial light. Naturally cultivated and uncontaminated marijuana is a recommended requirement for the Plaintiff from his physicians.

60. The Plaintiff has cultivated and used medical marijuana for relief since 1965. No one knows more about the specific medical uses that benefit the Plaintiff than the Plaintiff. It was the Plaintiff that authorized and paid the ADHS to issue the Plaintiff’s identification card and the ADHS refused to renew the terms of that card in a safe, legal and timely manner.

61. Seeds, stalks and roots (growing or not) are the source of all marijuana cultivation and the key to reducing the crime, violence, pain, suffering and death the electorate intended to end with the decriminalization of this destructive and deadly marijuana prohibition

62. The 19 Provisions and 18 Definitions in the AMMA prioritize and protect the critically ill patient’s rights. These provisions and definitions secondarily mandate the ADHS responsibility to establish a regulatory system for dispensaries. The ADHS has failed to establish this system in a safe, legal and timely manner.

63. The legality of ADHS interpretations and actions have been hotly contested and ruled on in our courts and ignored by the ADHS. The ADHS still insists on blurring the lines of the legal immunity and protection offered to critically ill patients and their physicians even after the courts have clearly ruled in these matters.

64. The ADHS RESPONSE asks this court “Who is Correct?” Judge Katherine Cooper is correct: HONORABLE KATHERINE COOPER SUPERIOR COURT OF ARIZONA MARICOPA COUNTY (CV 2013014852) MINUTE ENTRY filed 03/21/14: “In applying the plain language of the statute to the rules of statutory interpretation, the Court concludes that nothing in the statute limits the form in which patients may use medical marijuana.” “The plain and ordinary meaning of the AMMA’s text is reflected in the Merriam-Webster Dictionary definitions of these words: “Usable” is defined as “a convenient or practicable use.” http://www.merriam-webster.com/dictionary/usable. “Conclusion: The Court is solely concerned with the interpretation of the AMMA as written. The AMMA does not limit the form in which that medicine can be administered.” “Proponents’ and Voters’ Intent: “Ballot materials demonstrate that proponents and voters did not intend patients to be prosecuted for using medical marijuana in the form that is the most beneficial to them.”

65. The ADHS director Mr. Will Humble has a long andwell-documented history of opposing medical marijuana use. The ADHS has made an unauthorized and damaging grab at controlling medical marijuana cultivation with misrepresentations, misinterpretations and over-regulation of the AMMA. The ADHS has misrepresented material facts in this case.

RELIEF REQUESTED

 

1. Whereas the Plaintiff requests this Honorable Court to Declare that A.R.S. § 36-2804.02(A)(3)(f) does not require a request for authorization to cultivate marijuana.

2. Whereas the Plaintiff requests this Honorable Court to Declare that A.R.S. § 36-2804.02(A)(3)(f) does not pertain to individuals the ADHS believes live within 25 miles of an operational dispensary.

3. Whereas the Plaintiff requests this Honorable Court to Declare that A.R.S. § 36-2804.02(A)(3)(f) only asks a qualifying patient to designate a preference based on that patient’s beliefs.

4. Whereas the Plaintiff requests this Honorable Court to Declare that A.R.S. § 36-2804.02(A)(3)(f) does not require or authorize the ADHS to restrict a qualifying patient’s right to naturally cultivate marijuana for specific and personal medical use.

5. Whereas the Plaintiff requests this Honorable Court to Declare that the ADHS was not required or authorized by the AMMA or A.R.S. § 36-2804.02(A)(3)(f) to deny and or delay the Plaintiff’s application for an identification card renewal.

6. Whereas the Plaintiff requests this Honorable Court to Declare that neither the AMMA nor A.R.S. § 36-2804.02(A)(3)(f) authorized the ADHS to alter and or issue the Plaintiff an identification card without approval or consent from the Plaintiff or his physician.

7. Whereas the Plaintiff requests this Honorable Court to Declare that in the AMMA, the use and definition of “medical use” includes the right to cultivate marijuana.

8. Whereas the Plaintiff requests this Honorable Court to Declare that the ADHS has failed to establish a dispensary regulatory system in a timely and legal manner.

9. Whereas the Plaintiff requests this Honorable Court to Order an Injunction against the ADHS to stop the promulgation of unauthorized rules and the dissemination of inaccurate and damaging information and acts the ADHS has misrepresented to this court as being intended, authorized and required by the AMMA.

10. Whereas the Plaintiff requests this Honorable Court to Declare that Will Humble and his attorneys, Gregory Falls and Matthew Hesketh, have misrepresented material facts in this case.

11. Whereas the Plaintiff requests this Honorable Court to Order Sanctions or other action this Honorable Court deems appropriate against Will Humble, Gregory Falls, Matthew Hesketh for misrepresenting material facts to This Honorable Court.

 

Respectfully submitted on January 2, 2015

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Arlin Troutt

 

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JULY 23rd AZ HEARING on NATURAL CANNABIS CULTIVATION

ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS

Arlin Troutt

 

Appellant

                  

                   v.

 

ARIZONA DEPARTMENT OF HEALTH SERVICES, WILL HUMBLE, et al

 

Respondents

 

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Docket No.: 2014-MMR-T181-DHS

Case No.: 2014C-MMR-0312-DHS

 

 

RESONSE TO RESPONDENTS RESPONSE TO REQUEST FOR

DISCOVERY AND ADMISSION OF

DOCUMENTARY EVIDENCE

 

(Assigned to Hon. Tammy Eigenheer)

 

 

 

 

1. The Arizona Department of Health Services (“ADHS”) and their attorneys (“the Respondents”) have submitted a July 18, 2014 response to Arlin Troutt’s (“Appellant”) REQUEST FOR DISCOVERY AND ADMISSION OF DOCUMENTARY EVIDENCE submitted to the court on July 11, 2014.

2. Gregory Falls (“Mr. Falls”), the head attorney for the ADHS is not defending Columbian drug lords here. This is an administrative hearing to resolve a dispute regarding the English language, the Respondents’ interpretation of the law, and the intent, purpose and meaning of A.R.S. § 36-2804.02(A)(f).

3. A.R.S. § 36-2804.02(A)(f) only has 199 words and this controversy and the litigation and damage of these illogical interpretations seem to have no “ADMINISTRATVE END” in sight according to the Respondents.

4. The Respondents should not be allowed to limit the scope of an administration hearing to resolve or conceal criminal conduct. The Appellant and Respondents are not in a criminal court with these 199 words of voter initiated law and administrative rules.

5. The preponderance of evidence is in comparing the intent, content and context of the 199 words in A.R.S. § 36-2804.02(A)(f). The Appellant compares them to the volumes of ADHS rules the Respondents have relied on to exploit the AMMA and citizens of Arizona.

TITLE 9. HEALTH SERVICES

CHAPTER 17. DEPARTMENT OF HEALTH SERVICES MEDICAL MARIJUANA PROGRAM

 

5. Once again: The same following 199 words are the source of this conflict and dispute on the meaning of A.R.S. § 36-2804.02(A)(f):

36-2804.02. Registration of qualifying patients and designated caregivers:

(A.) A QUALIFYING PATIENT MAY APPLY TO THE DEPARTMENT FOR A REGISTRY IDENTIFICATION CARD BY SUBMITTING:

1. WRITTEN CERTIFICATION ISSUED BY A PHYSICIAN WITHIN THE NINETY DAYS IMMEDIATELY PRECEDING THE DATE OF APPLICATION.

2. THE APPLICATION FEE.

3. AN APPLICATION, INCLUDING:

(a) NAME, MAILING ADDRESS, RESIDENCE ADDRESS AND DATE OF BIRTH OF THE QUALIFYING PATIENT EXCEPT THAT IF THE APPLICANT IS HOMELESS NO ADDRESS IS REQUIRED.

(b) NAME, ADDRESS AND TELEPHONE NUMBER OF THE QUALIFYING PATIENT’S PHYSICIAN.

(c) NAME, ADDRESS AND DATE OF BIRTH OF THE QUALIFYING PATIENT’S DESIGNATED CAREGIVER, IF ANY.

(d) A STATEMENT SIGNED BY THE QUALIFYING PATIENT PLEDGING NOT TO DIVERT MARIJUANA TO ANYONE WHO IS NOT ALLOWED TO POSSESS MARIJUANA PURSUANT TO THIS CHAPTER.

(e) A SIGNED STATEMENT FROM THE DESIGNATED CAREGIVER, IF ANY, AGREEING TO BE THE PATIENT’S DESIGNATED CAREGIVER AND PLEDGING NOT TO DIVERT MARIJUANA TO ANYONE WHO IS NOT ALLOWED TO POSSESS MARIJUANA PURSUANT TO THIS CHAPTER.

(f) A DESIGNATION AS TO WHO WILL BE ALLOWED TO CULTIVATE MARIJUANA PLANTS FOR THE QUALIFYING PATIENT’S MEDICAL USE IF A REGISTERED NONPROFIT MEDICAL MARIJUANA DISPENSARY IS NOT OPERATING WITHIN TWENTY-FIVE MILES OF THE

QUALIFYING PATIENT’S HOME.

6. These 199 words simply cannot produce the multiple interpretations and over-regulation the Respondents relied on to collect over $9 million and violates federal and state law.

7. Distributing and or representing counterfeit preparations and or contaminated controlled substances to the public for profit is above and beyond any authority given to the ADHS in the AMMA or A.R.S. § 36-2804.02(A)(f).

8. A.R.S. § 13-3451. (2.) “Counterfeit preparation” means a preparation that has an appearance which imitates another preparation but that, in fact, is a different preparation.

9. The Director of the Arizona Department of Health Services, Will Humble (“Mr. Humble”), attempted to convince Judge Thomas Shedden that marijuana had no medical value for victims of Post Traumatic Stress Disorder by utilizing Marinol Studies. There is a big legal, chemical and medical difference in Marinol and the natural marijuana the electorate approved for medical use.

10. The fact that the Appellant reported to the ADHS that the Appellant had become sick using artificial cannabis products and was threatened and retaliated on by ADHS administrators for reporting this health hazard to the ADHS has everything to do with this appeal.

11. The difference in marijuana and drugs and the nonsensical interpretations of law that created and perpetuates this parade of costly, confusing and damaging litigation is ripe for administrative remedy.

12. The rotten fruit of over-regulation and criminal violations should have been stopped at an administrative level before it contaminated and threatened the public health and violated the public trust.

13. A.R.S. § 13-3451. (4.) “Imitation controlled substance” means a drug, substance or immediate precursor which does or does not contain a controlled substance that by texture, consistency or color or dosage unit appearance as evidenced by color, shape, size or markings, apart from any other representations, packaging or advertisements, would lead a reasonable person to believe that the substance is a controlled substance but it is a counterfeit preparation.

14. Marinol, SPICE and artificially produced marijuana products, by definition, are “imitation controlled substances”.

15. The Respondents are battling to keep evidence off the record that will expose them to criminal prosecution. The Respondents are trying to narrow the scope of Appellant’s appeal by attempting to suppress evidence in bad faith to narrow the scope of a valid administrative hearing. Using this administrative hearing to avoid exposure to criminal prosecution is a violation of Appellant’s right to Due Process of Law.

16. Mr. Falls’ previous misleading statements to the press and the following statement demonstrate the Appellant’s reason and need for an English interpreter just to clarify and document these damaging statements.

17. Mr. Falls: “It appears Troutt has formed a conclusion that the “nearest operating dispensary” to his residence sells medical marijuana that is artificially cultivated, contains mold and is contaminated by chemicals used “for fumigation and ingestion.” Request, p. 3.” (Page 1, 22-27)

18. Mr. Falls is deliberately insulting the Appellant and misleading the court or he simply does not know the difference in bug infestation chemicals and the common medical terms for oral consumption and inhaling medications into the lungs.

19. Appellants health and safety concerns triggered Mr. Falls’ conclusive apparition and or malicious allegation to the court. The Appellant stated:

7. The ADHS should be especially aware of their responsibilities for the safety of the public and these problems with artificial cultivation and contamination of medical marijuana products produced primarily for fumigation. (Paragraph 7, Page 2, lines 15-18)

10.The Appellant requests the court to order Respondents to turn over all information the ADHS possesses that relates to the drawbacks, risks and dangers of artificial cultivation, mold, chemical contamination of plants used for fumigation and ingestion. Paragraph 10, Page 3, lines 13-16)

20. If the Respondents don’t know the difference in “Bug spray and Fumigation” how could the Respondents ask this court to ethically refuse the evidence the Appellant has submitted or the important discovery the Appellant has requested.

21. How could the Respondents ask this court to “affirm the Department’s denial of Appellant’s request for authorization to cultivate” when a request to cultivate does not exist in the AMMA or in the 199 words of A.R.S. § 36-2804.02(A)(f).

22. The Appellant formally informed the ADHS and complained that this same disputed dispensary advised the Appellant that they did not carry the naturally cultivated and cured medical marijuana that is safe and beneficial to the Appellant and that no ADHS dispensary in the state sells marijuana that is naturally cultivated, medically beneficial and or safe for the Appellant to consume.

23. Respondents admit: “Troutt should know whether there are pesticides present when he purchases his medical marijuana from a dispensary because the product label must include, among other things, “[a] list of all chemical additives, including non-organic pesticides, herbicides, and fertilizers, used in the cultivation and production of the medical marijuana. Arizona Administrative Code § R9-17-317(A)(6).” (Page 4, lines 17-24)

24. The Appellant knows there are pesticides in artificially cultivated marijuana because the Appellant is an expert in the cultivation of marijuana and knows that mold and chemical contamination are a reality of artificial cultivation.

25. Appellant’s appeal is securely supported by the court rulings, scientific reports, studies and the ADHS publications the Respondents are desperate to keep off the administrative desk and record.

26. The Appellant still possesses the bottle and content label that contained the moldy marijuana that stinks of artificial air freshener that Respondents refer to in the Arizona Administrative Code § R9-17-317(A)(6).

27. Appellant submits as evidence a photo of the label and bottle that contained the dispensary marijuana that made the Appellant sick on April 2, 2014. EXHIBIT

28. The Respondent’s allegation to the court that there are 8 of these dispensaries within 25 miles of the Appellant’s residence is a ridiculous claim and moot argument even if these dispensaries were legally operational, which they are not.

29. The map the Respondents have submitted to the court as evidence in their response to Appellant’s REQUEST FOR DISCOVERY AND ADMISSION OF DOCUMENTARY EVIDENCE only proves that the ADHS interpretation of A.R.S. § 36-2804.02(A)(f) is a deliberate violation by the Respondents of the equal protection rights that Judge Cooper so clearly warned the Respondent’s about in her ruling on A.R.S. § 36-2804.02(A)(f).

30. How could the Respondents ask this court to deny the Appellants appeal under these circumstances and how could this court ethically and legally grant this protection to the Respondents?

31. The Respondents admit: “The term “artificial cultivation” is not defined. (Page 1, lines 26-27) The reason artificial cultivation and Marinol is not defined in the AMMA is because it is not authorized in the AMMA.

32. However, what was specifically authorized in the AMMA is the naturally cultivated marijuana with the 5,000-year history of beneficial medical use that the voters approved back in 2010 and the ADHS is restricting today.

33. The Respondent’s have told this court: “If Troutt means he

expects to harvest marijuana plants growing naturally in the desert, he is mistaken.” (Page 1, lines 26-27)

34. The Respondents misguide the court by alleging: “Nothing in the Arizona Medical Marijuana Act, A.R.S. §§ 36-2801 through 2819 (“AMMA”), provides for the harvesting of naturally growing marijuana plants. (Page 1, line 28 to Page 2, line 1)

35. 5,000 years of marijuana history also confirms that marijuana will naturally grow in the greatest extremes of the wilds. This is one of the many reasons humans have worshiped God for this unmatched gift of food, fuel, fiber and medicine for thousands of years.

36. The Respondents incorrectly inform the court: “Nothing may grow in the wild. If Troutt is unhappy with this, he needs to work to change AMMA.”

37. According to the AMMA and the ADHS any registered qualified patient can simply choose to “acquire” marijuana for medical use from any source possible: (R9-17-101) Definitions: In addition to the definitions in A.R.S. § 36-2801:1. “Acquire” means to obtain through any type of transaction and from any source.,

38. The Respondents appear to know very little about marijuana or the language of the AMMA or even the rules of the ADHS. It seems more logical that the Respondents are pretending not to understand in an effort to avoid criminal prosecution.

39. Respondents’ allege to the court that: “The law is clear.” Let’s get this “the law is clear” fantasy behind us, as we should have from the beginning. The language that the framers of the AMMA employed and the ADHS exploited “is written in a way that no ordinary person could understand what conduct is prohibited.”

40. Respondents state in their July 18, 2014 HEARING MEMORANDUM: ”Appellant bears the burden of proving that the Department’s statutory interpretation is unreasonable and that his proposed cultivation is authorized. See A.R.S. § 41-1092.07(G)(1); State v. Fields ex rel. County of Pima, 232 Ariz. 265, 269, ¶ 14, 304 P.3d 1088, 1092 (App. 2013) (“[I]t is the defendant’s burden to ‘plead and prove,’ by a preponderance of the evidence, that his or her actions fall within the range of immune action.”) (Page 3, lines 2-16)

41. Judge Richard Fields had sent State v. Fields ex rel. County of Pima back to the Grand Jury because the prosecutor only instructed the jury on the ADHS interpretation of the AMMA.

42. Appellant confirmed with the Pima County Clerk of Court’s Office on July 18, 2014 that on July 2, 2014 Judge Richard Fields dismissed CR-2013 4266. Appellant requests admission of this ruling into evidence: Judge Fields stated in his Under Advisement Ruling: ”Defendant has filed a motion to dismiss pursuant to Rule 16.6 of the Arizona Rules of Criminal Procedure. Predicated on the argument that, under his interpretation of the Arizona Medical Marijuana Act (“AMMA”), he could admit to all of the acts in the Indictment and still not have violated the law. He further argues that if the court does not agree with the interpretation, the rule of lenity applies and the case must be dismissed because the statute is written in such a way that no ordinary person could understand what conduct is prohibited. On the other hand, the state argues that the statute is not ambiguous and the motion should be denied. The court has read the pleadings, reviewed the statutes, and listened to arguments. For the following reasons, the Motion IS GRANTED and the case is DISMISSED.” EXHIBIT

43. If A.R.S. § 36-2804.02(A)(3)(f) is interpreted by the court to restrict cultivation of medical marijuana for certain patients based on residence then that is a violation of state and federal equal protection laws and A.R.S. § 36-2804.02(A)(3)(f) is a constitutional violation.

44. The Appellant is requesting this court to rule in the Appellant’s favor, accept the Appellant’s interpretations of the AMMA and resolve this damaging controversy over interpretations of law and A.R.S. § 36-2804.02(A)(3)(f) that no reasonable person could understand what conduct is prohibited. It is time to declare that the “Emperor Wears No Clothes”

 

I, Arlin Troutt, reside in Arizona and I swear that the information I have undersigned today is true to the best of my knowledge and if I am called on to testify regarding these matters I will do so.

Respectfully submitted on July 20, 2014

————————————–

Arlin Troutt

 

COPY of the forgoing sent via fax, email and/or U.S. Mail on July 20, 2014 to:

Clerk of the Department

Arizona Department of Health Services

1740 West Adams, Room 203

Phoenix, AZ 85007

 

Gregory Falls

Matthew A. Hesketh

Sherman & Howard L.L.C.

201 East Washington Street, Suite 800

Phoenix, Arizona 85004-2327

gfalls@shermanhoward.com

mhesketh@shermanhoward.com

 

——————

Arlin Troutt July 20, 2014

 

 

 

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AZ Health Services Threatens Medical Marijuana Patient

ARIZONA DEPARTMENT OF HEALTH SERVICES

 

Arlin Troutt

 

Appellant/Plaintiff


v.

 ARIZONA DEPARTMENT OF HEALTH SERVICES

WILL HUMBLE, ROBERT LANE, TINA WESOLOSKIE, JEFF BLOOMBERG, et al

 

Respondents

 

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Docket No.: 2014-MMR-T181-DHS

 

RESPONSE TO ARIZONA DEPARTMENT OF HEALTH SERVICES NOTICE OF RIGHT TO APPEAL AND COMPLAINT AGAINST DEPARTMENT FOR INTIMIDATION, COERSION, THREATS AND OTHER DAMGES ASSOCIATED WITH AN AGENCY ACTION REGARDING FEES AND APPLICATION RENEWAL MODIFICATION

 

 

(Registry Application

 #AZQP0016870000161953)

 

INTRODUCTION

 

Arlin Troutt, referred to herein as “Plaintiff, is critically ill, does not have funds to hire an attorney, and has a limited education with no formal legal training. Plaintiff respectfully requests consideration regarding inadvertent deficiencies, errors or offense as a result of these disadvantages.

The proceeding is in response to Arizona Department of Health Service (ADHS) acceptance of fees and failure to renew Arlin Troutt’s (Plaintiff) Arizona Department of Health Services Registration Card (ADHSRC) in a safe, legal, timely and meaningful manner. Additionally, Plaintiff complains of subsequent threats from ADHS Administrators and their unauthorized modification and issuance of an unauthorized ADHSRC in the Plaintiff’s name.

Basis for Appeal and Compliant

1. ADHS Administrators’ methods and reasons for failure to renew the Plaintiff’s ADHSRC and subsequent issuance of an unauthorized and modified ADHSRC are in error and violate Arizona Administrative rules, Arizona Revised Statues and damage the Plaintiff, his family and community.

2. Arizona Revised Statutes (“A.R.S”) § 36-132(A)(1) delegated responsibility to the Arizona Department of Health Services for the protection and health of the people of the State of Arizona.

3. A.R.S. § 36-136(F) authorizes and requires the Director of the ADHS to “make and amend rules necessary for the proper administration and enforcement of laws relating to the public health.”

4. A.R.S. § 36-136 (G) provides that the director may define and prescribe emergency measures for detecting, reporting, preventing and controlling infectious diseases or conditions if the director has reasonable cause to believe that a serious threat to public health and welfare exists. Emergency measures are effective for no longer than eighteen months.

5. A.R.S. § 36-136 (H)(4) provides that the director, by rule, shall Prescribe reasonably necessary measures to assure that all food or drink, sold at the retail level, provided for human consumption is free from unwholesome, poisonous or other foreign substances and filth, insects or disease-causing organisms.

6. A.R.S. § 36-136 (H)(11) prescribes reasonably necessary measures to keep confidential information relating to diagnostic findings and treatment of patients, as well as information relating to contacts, suspects and associates of communicable disease patients. In no event shall confidential information be made available for political or commercial purposes.

7. A.R.S. § 36-136(I) provides that the rules adopted under the authority conferred by this section shall be observed throughout the state and shall be enforced by each local board of health or public health services district, but this section does not limit the right of any local board of health or county board of supervisors to adopt ordinances and rules as authorized by law within its jurisdiction, provided that the ordinances and rules do not conflict with state law and are equal to or more restrictive than the rules of the director.

8. Pursuant to A.R.S. § 36-136(K), the director, in establishing fees authorized by this section, shall comply with title 41, chapter 6. The department shall not set a fee at more than the Department’s cost of providing the service for which the fee is charged.

9. A.R.S. § 36-2803(A)(2) provides that the Department shall adopt rules “establishing the form and content of registration and renewal applications submitted under” A.R.S. Title 36,

10. Chapter 28.0. A.R.S. § 36-2803(A)(3) provides that the Department shall adopt rules governing the manner in which it shall consider applications for and renewals of registry identification cards “for the purpose of protecting against compromising the confidentiality of cardholders”.

11. ADHS is in violation of A.R.S. § 41-1092,03., and other Arizona Revised Statutes including but not limited to “A.R.S.” § 36-132, A.R.S. § 36-136, A.R.S. § 36-2801 et seq.

12. In addition to the definitions in A.R.S. § 36-2801, the following definitions apply: R9-17-101. (1.) “Acquire” means to obtain through any type of transaction and from any source. (3.) “Amend” means adding or deleting information on an individual’s registry identification card that affects the individual’s ability to perform or delegate a specific act or function.

13. Pursuant to A.R.S.” § 41-1493.01.(A.) Plaintiff’s right to Free exercise of religion is a fundamental right that applies in this state even if laws, rules or other government actions are facially neutral.

14. Pursuant to A.R.S.” § 41-1493.01.(D.): A person whose religious exercise is burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.

15. Rules adopted by the ADHS for Arizona Administrative Code (“A.A.C.”) R9-17-101 et seq., to implement the AMMA violates aforementioned statutes and creates damages for Plaintiff and his family as well as public safety and health risks.

16. The ADHS rulemaking exemption violates A.R.S. § 36-2803(A)(3) by failing to promulgate rules for the ADHS AMMA program in a safe, legal, timely and meaningful manner.

17. The following is taken from the “25-mile cultivation preference” in the AMMA: A.R.S. § 36-2804.02(A)(3)(f), Registration of qualifying patients: “A QUALIFYING PATIENT “MAY” APPLY TO THE DEPARTMENT FOR A REGISTRY IDENTIFICATION CARD BY SUBMITTING: (2) THE APPLICATION FEE, (f.) A DESIGNATION AS TO WHO “WILL” BE ALLOWED TO CULTIVATE MARIJUANA PLANTS FOR THE QUALIFYING PATIENT’S “MEDICAL USE” IF A REGISTERED NONPROFIT MEDICAL MARIJUANA DISPENSARY IS NOT OPERATING WITHIN TWENTY-FIVE MILES OF THE QUALIFYING PATIENT’S HOME.”

18. SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2013-005901 07/29/2013 HON. RANDALL H. WARNER ruled: ““There have been legal challenges, political challenges, and a reluctance or unwillingness on the part of many public officials to facilitate or participate in the distribution of medical marijuana. Nothing in the Act or the Rules guarantees that every dispensary with a DRC will be able to open. Nothing guarantees there will be a dispensary in every CHAA.”

19. Pursuant to A.R.S. § 36-2804.05(A) Denial of registry identification card: “THE DEPARTMENT “MAY” DENY AN APPLICATION OR RENEWAL OF A QUALIFYING PATIENT’S REGISTRY IDENTIFICATION CARD “ONLY IF” THE APPLICANT: (1). DOES NOT MEET THE REQUIREMENTS OF SECTION 36-2801, PARAGRAPH 13, (2). DOES NOT PROVIDE THE INFORMATION REQUIRED, (3). PREVIOUSLY HAD A REGISTRY IDENTIFICATION CARD REVOKED FOR VIOLATING THIS CHAPTER, (4). PROVIDES FALSE INFORMATION.”

20. A.R.S. § 36-2804.05(A) does not authorize AMMA administrators to amend, alter, revoke, restrict, constrain or refuse to renew the same terms of Plaintiff’s 3 prior ADHS registrations. ADHS Administrators arbitrarily and capriciously violated the Plaintiff’s right to renew his pre-existing ADHS identification card in a timely, meaningful and legal manner.

21. According to A.R.S. § 36-2808. Notifications to department, the Plaintiff cultivation designation is a “preference” coming from the Plaintiff not a “request” to the ADHS to cultivate medical marijuana.

22. “The Plaintiff does not and will not be coerced to designate or authorize a dispensary to cultivate marijuana for the Plaintiff or the ADHS AMMA program.”

23. There is nothing in the AMMA that would authorize the ADHS to prohibit, restrict constrain or limit the cultivation, acquisition or use of naturally cultivated medical marijuana. R9-17-101 (1.) “Acquire” means to obtain through any type of transaction and from any source.

24. There is nothing in the AMMA that would ever authorize the ADHS to allow the distribution of artificially cultivated and or contaminated and or harmful marijuana. Pursuant to R9-17-320 (A) (1.) the ADHS is required to protect the public from contaminated medical marijuana. However, ADHS Administrators retaliated on Plaintiff for reporting contaminated medical marijuana being sold at an ADHS dispensary.

TIME FRAME

25. Plaintiff was issued an ADHSRC in 2011 and renewed this card in 2012, 2013 and again applied and paid fees to the ADHS for a renewal of this same ADHSRC on April 29, 2014.

26. On April 29, 2014 Plaintiff gave Dr. Elaine Burns $75.00 for the ADHS renewal fee and $99.00 for a Doctor’s renewal recommendation fee discount. Additionally, it was necessary to pay a $20.00 fee for a 3rd party, from Dr. Burn’s office, to submit the required renewal information via ADHS email, to the ADHS.

27. On May 2, 2014 @ 3:41 PM ADHS sent Plaintiff an email after Plaintiff’s renewal had been “processed” with a “Notice of Deficiencies” attached that included a list of the information or documents needed to complete the application from AZMedicalMarijuana@azdhs.gov stating:

“Your Application for a Qualifying Patient Registry Identification Card (Registry Application #AZQP0016870000161953 has been received by the Medical Marijuana Program (‘Program’), Arizona Department of Health Services (‘Department). The following issue(s)with your application was/were identified by the Program: The patient date of birth listed on the “physician certification form does not match the date of birth listed in the application and/or the identification document submitted. Please re-submit the corrected information and /or documents to the Program via the Department’s online application system at: https://medicalmarijuana.azdhs.gov/PatientResubmissionSearch.aspx?id=F8737738F57627A8E044002128B5C820 “Renewal Application AZQP0016870000161953 has been processed and it has been determined that some items need to be corrected.”

28. Plaintiff immediately brought this electronic “deficiency notice” to Dr. Burn’s office staff and was assured they had corrected their error. ADHS confirms that this May 2, 2014 “Deficiency Notice issue” had been resolved on May 2, 2014.

29. Had there been any other issues to correct or amend, those issues should and would have been processed and listed on that ADHS Notification at that time.

30. However, ADHS was using the lapsing expiration date of Plaintiff’s valid cultivation ADHSRC to coerce Plaintiff into withdrawing his cultivation designation privilege and legal right to cultivate medical marijuana.

31. On May 8, 2014 @ 12:51 ADHS sent a second email notification that was identical to the ADHS May 2, 2014 email Notice of Deficiency. This notice claimed that Plaintiff lived within 25 miles of an operating dispensary and advised the Plaintiff he could not cultivate marijuana.

32. The only options this ADHS “blocked response” email system offered Plaintiff was to make it appear that Plaintiff chose to terminate the terms of Plaintiff’s prior agreement with the ADHS and transfer cultivation rights to an ADHS “designer drug dispensary”. The only other option was to demand the legal right to cultivate marijuana and submit the requested and required information documents to the ADHS within 10 days of this May 8, 2014 unauthorized ADHS notification.

33. On May 8, 2014 Plaintiff spoke to Flora who advised Plaintiff that Tina Wesoloskie was reviewing Plaintiff’s cultivation designation renewal. Flora provided Plaintiff with Tina Wesolowskie’s contact information to send the information documents requested per instruction of the untimely May 8, 2014 Notice of Deficiency.

34. Plaintiff faxed a 33 pages, detailed information and explanation packet with an emergency request for relief regarding contaminated marijuana sold at the Apache Junction ADHS dispensary. This information included the violations of Plaintiff’s medical confidentiality and extreme harassment by local law enforcement based on the ADHS failure to implement the rules of the AMMA program in a safe, legal, timely and meaningful manner.

35. On May 11, 2014 Plaintiff sent copies of this request for information documents with Plaintiff’s emergency request for relief and complaint of public safety concerns to Tina Wesolowskie and Jeff Bloomberg.

36. Tina Wesolowske did not respond to Plaintiff’s emails regarding complaints of damage and dangers to the Plaintiff his family and community. However Jeff Bloomberg did respond by threatening the Plaintiff via email.

37. On May 13, 2012 @ 4:06 PM Jeff Bloomberg threatened to force the Plaintiff into a lawsuit after he read Plaintiff’s information documents the ADHS requested on May 8, 2014.

38. Jeff Bloomberg sent these threatening emails to Plaintiff immediately after ADHS Administrators had deliberately allowed Plaintiff’s May 12, 2013 ADHSRC to lapse (#AZQP0016870000161953).

39. Jeff Bloomberg sent copies of his May 13, 2014 threat for Plaintiff to “sue him personally” to Robert Lane and Tina Wesoloskie,

40. Pursuant to Time-Frames: R9-17-107 et seq. the ADHS was required to issue or deny Plaintiff’s ADHSRC no later than May 8, 2014. It would be disingenuous for the ADHS to claim that their May 8, 2014 Deficiency Notice was a “written comprehensive request” for supplemental information at such a late and lapsed date instead of a “Notice of Administrative Completeness” the ADHS was required to issue no later than May 8, 2014.

41. The following was generated by ADHS and signed by Robert Lane on May 14, 2014. This was two days after Plaintiff’s valid ADHSRC had lapsed and one day after Jeff Bloomberg threatened the Plaintiff. Plaintiff received Mr. Lane’s ADHSRC renewal delay and appeal information on May 17, 2014. Plaintiff received the ADHS authorized modification of Plaintiff’s ADHSRC on May 21, 2014 also delivered via United States Postal Service.

42. The ADHS states: “ORDER DENYING REQUEST TO CULTIVATE AND NOTICE OF RIGHT TO ADMINISTRATIVE APPEAL”. Pursuant to A.R.S. § 36-2804.02(A)(3)(f), a qualifying patient applying to the Department for a qualifying patient’s registry identification card must submit an application that includes “[a] designation as to who will be allowed to cultivate marijuana plants for the qualifying patient’s medical use if a registered nonprofit medical marijuana dispensary is within twenty-five miles of the qualifying patient’s home, neither the qualifying patient nor the qualifying patient’s designated caregiver may be granted authority to cultivate marijuana plants.” (Pg.1, line 21-23 to page 2, lines 1-5)

43. The ADHS “ORDER DENYING REQUEST TO CULTIVATE AND NOTICE OF RIGHT TO ADMINISTRATIVE APPEAL” states: “REASONS FOR DEPARTMENT’S DENIAL OF APPLICANT’S REQUEST TO CULTIVATE: The Application, submitted to the Department on April 29, 2014, included a request for authorization to cultivate marijuana plants based on the Applicant’s Residence.” (Page 2, lines 13-15)

44. “ORDER DENYING REQUEST TO CULTIVATE AND NOTICE OF RIGHT TO ADMINISTRATIVE APPEAL”: “On May 8, 2014, the Department issued a Request which notified the Applicant for a second time that his Residence “is within 25 miles of an operating dispensary.” The Request also invited Applicant to withdraw his request to cultivate. The Applicant did not withdraw his request to cultivate.” (Page 3, lines 7-10).

45. The ADHS May 2, 2014 Deficiency Notice did not list Plaintiff’s the 25-mile cultivation preference nor did that notice advise the Plaintiff that the “Applicant’s Residence was located approximately 7.8 miles “from” an operating nonprofit medical marijuana dispensary” as Robert Lange incorrectly alleged and misrepresented in his sworn statement on May 14, 2014. (Page 2, lines 15-18)

46. Robert Lane’s justifications and misrepresentations for delay and modification of Plaintiff’s ADHSRC are in error. Plaintiff’s trip “from” the nearest ADHS dispensary was calculated at 26 miles by the vehicle used and this dispensary was only selling marijuana that made the Plaintiff sick.

47. Naturally cultivated and beneficial marijuana is not offered or required in ADHS dispensaries. Naturally cultivated medical marijuana has been systematically prohibited by the ADHS to protect the sale of artificially cultivated and dangerous “designer dope”.

48. This is so even though the electorate exclusively voted for decriminalization of naturally cultivated marijuana. Compare the 5,000-year preponderance of historic evidence that the electorate relied on to approve the AMMA to the history of the sodium light bulb, cloning solutions and vegetable growth hormones and designer drugs.

49. A.R.S. § 36-2804.02(A)(3)(f) does not provide for the medical use and dispensing of artificially cultivated marijuana. Artificially cultivated marijuana was recently developed for illegal secrecy and marketing with synthetic growth and maturity enhancements for dangerous designer drug effects and high profit.

50. Artificially accelerating the growth, maturity and curing time of cannabis can result in adverse reactions. These “bad trips” are especially problematic in inexperienced medical marijuana users.

51. The Plaintiff has absolutely no intentions of designating his cultivation rights to an ADHS street dope dispensary. However, there was no way to submit this information via the ADHS “Please do not respond to this email it was automatically generated by the processing system”.

52. The Plaintiff did not “submit a request”, and did not request to cultivate marijuana plants based on the “Plaintiff’s residence” as Robert Lane alleged. Plaintiff submitted a renewal application and paid the appropriate fees to continue the natural cultivation and use of the only medical marijuana that is effective, beneficial and available to the Plaintiff and the ADHS accepted those fees.

53. However there was no way to transmit any of this information via the ADHS mandatory “no-response” system.

54. Plaintiff was astounded when he received an altered ADHSRC delivered via U.S. Postal Service. Again, Plaintiff has no intentions of authorizing an ADHS dispensary to cultivate and distribute artificially cultivated marijuana in the Plaintiff’s name or under authority of an altered ADHSRC generated by the ADHS against the Plaintiff’s will.

55. Abuse of administrative authority and “deadline rules” to delay, intimidate, threaten and coerce Plaintiff and his family for applying for ADHSRC renewals or for reporting damaging rules and conditions will not be tolerated by an Administrative Law Judge.

56. Plaintiff has an extensive marijuana criminal history and is deeply concerned about being denied due process of law. Plaintiff has valid concerns regarding ADHS violations associated with conflicts of interest, unauthorized accumulation of large sums of money combined with an unauthorized and unjustifiable rulemaking purpose and process.

CONCLUSION

57. The ADHS approved a marijuana dispensary that sold unsafe, unaffordable and unregulated marijuana that made the Plaintiff sick while systematically violating the Plaintiff’s confidentiality and then intimidated and threatened the Plaintiff for reporting the problems as Administrators allowed Plaintiff’s valid ADHSRC to lapse for the sake of coercion.

58. After Plaintiff’s April 2, 2014 sickness from contaminated marijuana and violation of medical confidentiality, Plaintiff spoke many times with Ester, Flora, Martie and Lynn from the ADHS administration office. Plaintiff explained the damages suffered and the emergency situation to these ADHS employees and faxed a 33-page information document requesting review for emergency action and relief to avoid damages at an administrative level.

59. Pursuant to A.R.S. § 36-2804.02(A)(3)(f) interpretations by ADHS Administrators create unequal privileges that exploit different classes of registered cardholding patients and vendors that all pay “fees” to the ADHS for the right to cultivate, dispense, administer and “donate” medical marijuana legally across the state. Plaintiff renewed his ADHSRC to continue cultivating the uninterrupted, safe, and beneficial medical marijuana that the Plaintiff cannot obtain from any other source. The Plaintiff also wants to enjoy the right to donate naturally cultivated medical marijuana to qualified cardholders that can’t get beneficial medical marijuana from other sources and cannot afford to pay for marijuana.

60. This was explained fully in the information documents the ADHS requested on May 8, 2014. On May 13, 2012 Jeff Bloomberg threatened to force the Plaintiff into a lawsuit after he read Plaintiff’s report of contaminated marijuana products at an ADHS dispensary and other abuses associated with ADHS rules.

61. Plaintiff and ADHS Director Will Humble have had many direct public discussions regarding ADHS interpretations and rules and the damages ADHS promulgations are causing. ADHS Administrators have created a wide net of insecurity and legal uncertainty in several areas that require judicial guidance to replace so much arbitrary and capricious disparity.

62. Since 1992 Plaintiff and his family have been widely published, high profile proponents for medical marijuana and prohibition reform.

Plaintiff believes Will Humble, Mr. Lane, Ms. Wesolowskie and Mr. Bloomberg are well aware of the Plaintiff and his family and our well-known name, reputation and dedication to the education of citizens on the catastrophic damages caused by decades of marijuana prohibition.

63. After Plaintiff’s April 2, 2014 sickness from contaminated marijuana, Plaintiff spoke many times with Ester, Flora, Lynn and Martie from the ADHS administration office in an effort to administratively resolve these issues that were met with hostile intimidation, undue delay, undue prejudice, threats and retaliation.

64. The ADHS is involved in many similar legal conflicts of interest and legal challenges with warnings, rulings, orders and public communications and comments. Plaintiff incorporates this public information and conclusions of law into this appeal and complaint for consideration.

65. However, the overwhelming preponderance of evidence to support Plaintiff’s appeal and complaint of arbitrary and capricious disparity and damage is easily found within the ADHS Administrators promulgated rules themselves. ADHS rules use the word “Dispensary” 674 times and “natural and artificial lighting” are used twice regarding the placement of dispensary security cameras. Mold is not mentioned.

66. This same obstructive mentality that has damaged the Plaintiff and his family existed when Arizona legalized medical marijuana in 1996 with a 65% margin. Citizens were then forced to pass the Voter’s Protection Act in 1998 and the AMMA in 2010 to protect citizens from government officials. This culture of retaliatory resistance against the will of the electorate for 18 years supersedes the medical marijuana issues here.

67. Sec.2. Findings: “The People of the State of Arizona find and declare the following: (A.) Marijuana’s recorded use as a medicine goes back nearly 5,000 years, and modern medical research has confirmed “beneficial uses” for marijuana in treating or alleviating the pain, nausea and other symptoms associated with a variety of debilitating medical conditions”.

68. This 2010 voter declaration was based on the acknowledgement and concession by the established medical community that humans have suffered unwarranted criminal penalties and suffered unnecessary pain, death and the loss of loved ones in mass for almost 80 years as a result of the prohibition of the cultivation and use of marijuana. According to Section 2, (D) in the AMMA the State of Arizona and not the Federal Government make 99% of criminal marijuana arrests.

69. ADHS Administrators need a clearer message than what the Arizona electorate and our Arizona Courts have provided over the past 18 years. The Plaintiff respectfully requests a review from the Arizona Office of Administrative Hearings on such an important and alarming issue.

I, Arlin Troutt, reside in Arizona and I swear that the information I have undersigned today is true to the best of my knowledge and if I am called on to testify regarding these matters I will do so.

Respectfully submitted on June 2, 2014,

 

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Arlin Troutt

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