ARIZONA DEPARTMENT OF HEALTH SERVICES
ARIZONA DEPARTMENT OF HEALTH SERVICES
WILL HUMBLE, ROBERT LANE, TINA WESOLOSKIE, JEFF BLOOMBERG, et al
|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
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.
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.
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,