ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS
ARIZONA DEPARTMENT OF HEALTH SERVICES, WILL HUMBLE, et al
|Docket No.: 2014-MMR-T181-DHS
Case No.: 2014C-MMR-0312-DHS
RESONSE TO RESPONDENTS RESPONSE TO REQUEST FOR
DISCOVERY AND ADMISSION OF
(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
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
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
Matthew A. Hesketh
Sherman & Howard L.L.C.
201 East Washington Street, Suite 800
Phoenix, Arizona 85004-2327
Arlin Troutt July 20, 2014