ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS
ARIZONA DEPARTMENT OF HEALTH SERVICES, WILL HUMBLE, et al Respondents
|Docket No.: 2014-MMR-T181-DHS
Case No.: 2014C-MMR-0312-DHS
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)(Assigned to Hon. Tammy Eigenheer)
1. The Appellant responds and complains of the Arizona Department of Health Services and their attorneys (“the Respondents”) repeated inaccurate allegations in their July 11, 2014 response to Appellant’s request for prehearing clarification of A.R.S. § 36-2804.02(A)(3)(f) filed on July 4, 2014.
2. The Respondents continue to incorrectly allege that A.R.S. § 36-2804.02(A)(3)(f) requires a “request for approval to cultivate” . (Page 1, lines 23-25)
3. The Respondents’ are having a very difficult time accepting the reality that the language in A.R.S. § 36-2804.02(A)(3)(f) states that it is “the qualifying patient that is submitting this cultivation designation to the Arizona Department of Health Services” (“ADHS”).
4. The ADHS illegally refused to renew Appellant’s cultivation card in a timely manner and issued an illegally altered card in the Appellant’s name without authority and against the Appellant’s will.
5. The Respondents cannot logically deny this fact and or claim that this “is not the issue” because the AMMA is an authorizing statue. (Page 1, Lines 25-26)
6. The Appellant would remind this court that an authorizing statue comes from the legislature. The statute authorizing the decriminalization of marijuana in 2010 comes from the electorate and is protected from Arizona’s adversarial government by the Voter Protection Act of 1998. Let’s keep in mind that the Arizona Medical Marijuana Act was initiated and approved specifically to protect Arizona’s citizens from Arizona’s government.
7. Respondents clearly “wish” this language prohibited Appellant from cultivating or “acquiring” his own beneficial medical marijuana but the AMMA or A.R.S. § 36-2804.02(A)(3)(f) simply does not grant the ADHS authority or the Respondents’ “wish”: (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 marijuana dispensary is not operating within twenty-five miles of the qualifying patient’s home. (Page 2, lines 9-16)
8. A.R.S. § 36-2804.02(A)(3)(f) certainly does not state or mean: “the ADHS will designate or decide what kind of marijuana or who will cultivate marijuana under the qualifying patient’s name and license.
9. A.R.S. § 36-2804.02(A)(3)(f) only requires the qualified patient to inform the ADHS “who” the qualified patient is going to allow to cultivate marijuana under the registered qualifying patient’s name and license.
10. The location of where a qualified patient may prefer to cultivate is not required and that critical and compromising information is clearly protected by the AMMA. The AMMA was intended to reduce criminal damage by government not create it.
11. A caregiver for a qualifying patient is not required by the AMMA to live a certain distance from a dispensary or divulge where the caregiver cultivates marijuana for the qualifying patient.
12. If a trip of over 25 miles is necessary to acquire marijuana from an operational dispensary then A.R.S. § 36-2804.02(A)(3)(f) requires the qualified patient to “only” inform the ADHS of the qualifying patient’s preference to cultivate his own marijuana but not the cultivation location.
13. The qualifying patient also has the option of designating a registered caregiver to help acquire, cultivate, transport and administer marijuana if necessary. There is no restriction in the AMMA that states a registered caregiver must live outside of a 25-mile trip to a dispensary or inside of a 25-mile trip to a dispensary. A caregiver for a qualifying patient has no requirement to inform the ADHS where the registered caregiver cultivates in safety, privacy and confidentiality. No such language or authority exists in the AMMA and certainly not in A.R.S. § 36-2804.02(A)(3)(f).
14. Qualifying patients living in the rural areas of Arizona do not have the wide access to acquire marijuana that people in the urban areas have. Prior to the approval of the AMMA marijuana was widely available in the urban areas of Arizona illegally and the AMMA was passed to curb the violence, crime and the highest volume of marijuana arrests in our urban areas. According to the AMMA 99% of all marijuana arrests are by the State.
15. Medical marijuana patients living in the rugged geographical rural areas of Arizona do not have the wide access to “acquire” medical marijuana from “any source” that patients in urban areas have.
16. Qualified patients living in rural areas are the only class of medical marijuana patient that A.R.S. § 36-2804.02(A)(3)(f) concerns. If this class of qualified patient believes they have need for protection from an adversarial rural government then they may designate to the ADHS who they prefer to cultivate marijuana for their medical use.
17. If A.R.S. § 36-2804.02(A)(3)(f) is interpreted to be a limit or restriction of medical marijuana cultivation and or that interpretation penalizes any certain class of qualified patient then that would violate equal protection clauses by limiting a certain class of patients ability to “acquire” medical marijuana based on their residence.
18. Judge Cooper addressed this issue in her ruling on A.R.S. § 36-2804.02(A)(3)(f): (CV 2013-011447 11/12/2013) The Court must start with the well-established law that courts presume that statutes are
constitutional. Courts must also construe statutes, if possible, to give them a constitutional meaning. State Compensation Fund v. Symington, 174 Ariz. 188, 193, 949 P.2d 273, 278 (1993). “[N]o court should strike down legislation if there can be found a legal basis for its validity.”
Hernandez v. Frohmiller, 68 Ariz. 242, 249, 204 P.2d 854, 859 (1949).
19. 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.
20. The Appellant’s explicit authorization to cultivate marijuana for his medical use comes pursuant to A.R.S. § 36-2801 (9.) Definitions: “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.
21. Respondents incorrectly allege that: A.R.S. § 36-2804.02(A)(3)(f) is the only provision in the entire AMMA that explicitly authorizes a qualifying patient to request approval to cultivate. (Page 2, lines 6-8)
22. Not only does A.R.S. § 36-2801 (9.) provide explicit authorization for Appellant to cultivate marijuana for his medical use it also clearly states that this decriminalization of marijuana cultivation is intended to make medical marijuana widely available to treat or alleviate the Appellant’s debilitating medical condition and reduce crime. Artificially cultivated designer dope is not mentioned in the AMMA nor do these concoctions do not benefit the Appellant’s medical needs and put the Appellant at risk.
23. According to A.R.S. § 36-2808. Notifications to department: (A.) A REGISTERED QUALIFYING PATIENT SHALL NOTIFY THE DEPARTMENT WITHIN TEN DAYS OF ANY CHANGE IN THE REGISTERED QUALIFYING PATIENT’S NAME, ADDRESS, DESIGNATED CAREGIVER OR PREFERENCE REGARDING WHO MAY CULTIVATE MARIJUANA FOR THE REGISTERED QUALIFYING PATIENT…
24. There is nothing A.R.S. § 36-2808 nor A.R.S. § 36-2804.02(A)(3)(f) that requires or even requests any cultivation notification to the ADHS other than to identify “who” the qualifying patient “prefers” to cultivate for the qualifying patient’s medical use and just in rural areas.
25. The Appellant does not prefer and cannot physically tolerate artificially and commercially cultivated cannabis that is not specifically suited for the Appellant’s medical use.
26. Making the Appellant sick on moldy marijuana for the sake of money is not an operational standard even for the medical marijuana class of sick people. The ADHS is not authorized to sell street dope or create an equal opportunity for the Appellant based on residence.
27. Respondents admit “Cardholders must apply for a new card every year “if they want to retain their cardholder status”. (Page 3, lines 2-3)
Appellant reminds the court that on April 29, 2014, Appellant possessed a valid cultivation card when he applied for renewal in a timely manner, paid required fees and supplied the required information specifically to retain Appellant’s cardholder status”. That “status” was illegally denied and then altered by the ADHS without legal authority.
28. The Appellant had every legal expectation for the ADHS to renew the Appellant’s cultivation status that had been approved since May 10, 2011. The AMMA does not grant authority to the ADHS to arbitrarily and capriciously revoke, deny, limit or alter that legal status.
29. Pursuant to A.R.S. § 36-2804.04. Registry identification cards: the ADHS had a responsibility to renew Appellant’s cultivation card with a “clear indication” that the Appellant “has been authorized” by Chapter 28.1 to cultivate marijuana plants for the Appellant’s medical use.
30. The Appellant was issued his first ADHS cultivation card on May 10, 2011 and maintained that same status until ADHS administrators allowed Appellant’s card to lapse out of retaliation on May 12, 2014.
31. According to U.S. District Judge Susan Bolton’s ORDER (No. CV 11-1072-PHX-SRB) filed January 4, 2012 Will Humble and the ADHS filed a frivolous lawsuit that blocked the implementation of the AMMA on May 27, 2012.
32. On May 2, 2011, the then-United States Attorney for the District of Arizona, Defendant Burke, responded to Director Will Humble’s desire to block the implementation of the AMMA. U.S. Attorney Burke’s response and warning on violating the Controlled Substance Act to Mr. Humble came 10 days after the ADHS had issued the Appellant’s cultivation card on May 10, 2011.
33. Judge Bolton states in her Order that Director of ADHS Will Humble claimed the ADHS had a mandatory duty to implement and oversee the administration of the AMMA. (Page 3, lines 27-28)
34. Judge Bolton declared: “Arizona voters passed the AMMA, an initiative measure, in November 2010, and it was signed into law by Governor Brewer in December 2010. The AMMA decriminalizes medical marijuana under certain circumstances and requires the Arizona Department of Health Services (“ADHS”) to register and certify nonprofit medical marijuana dispensaries, dispensary agents, qualifying patients, and designated caregivers. The AMMA provided time limitations within which the ADHS was to promulgate rules and regulations and begin accepting applications.” (Page 2, lines 18-24)
35. Judge Bolton states in this Order: “the ADHS began accepting applications for qualifying patients and designated caregivers on April 14, 2011, and, as of May 24, 2011, had certified 3696 qualifying patients and 69 designated caregivers.” (Page 2, lines 25-27)
36. According to the ADHS April 14 2011 Applications Monthly Report, 83.20% of the qualified patients had been approved to cultivate marijuana by May 24, 2011.
37. Judge Bolton points out that the ADHS was to begin accepting applications for nonprofit medical marijuana dispensaries and dispensary agents on June 1, 2011 and made exception of the fact that this lawsuit was filed on May 27, 2011. (Page 2, line 28 to Page 3, line 1)
38. The ADHS advised the court in this Notice that they plan to file their Motion to Amend by January 9, 2012, and requested that the Court delay ruling on the pending Motions to Dismiss until after that date. (Page 4, lines 23-25)
39. Judge Bolton was unconvinced with the scant detail in the ADHS Notice and goes on to explain that the ADHS Complaint and Notice lacked subject matter and lacked the presumption of truthfulness attached to the ADHS’s allegations. The ADHS never filed that refined Motion to Amend with Judge Bolton on January 9, 2012. http://www.acluaz.org/sites/default/files/documents/Medical%20Marijuana%20Order%20Granting%20Motions%20to%20Dismiss.pdf
40. Will Humble never made mention publicly of the ADHS dividing Arizona into 126 areas called Community Health Analysis Areas (CHAA) or this 25 mile radius cultivation restriction until January 28, 2012 and after Judge Bolton’s Order on January 4, 2012.
41. Will Humble admits he made his post election decision to use A.R.S. § 36-2804.02(A)(3)(f) and this CHAA to geographically divide, classify and limit qualifying patients right to cultivate by licensing 125 dispensaries throughout Arizona to minimize the number of patients who will be able to grow their own marijuana because the patient does not live within 25 miles of a dispensary.
42. The Arizona Medical Marijuana Grower’s reported and complained that Director Will Humble made it public on January 28, 2012 that he looks to use the CHAA map as a guideline for dispensary placement, but in doing so he is limiting caregivers and patients from cultivating medical marijuana for themselves, which, in turn, will limit the amount of medication that can be donated to a dispensary. Any successful dispensary in the country is prosperous because they have a steady supply of patient and caregiver marijuana donations. Without donations a dispensary is all but forced to break Federal marijuana limits, thus placing their business in jeopardy. http://www.keytlaw.com/arizonamedicalmarijuanalaw/2011/02/chaa-map/
43. On June 25, 2013 the Real Estate Daily News published: Medical Marijuana Dispensaries – CHAA, CHAA, CHAA PublishedJune 25, 2013 | ByEditor
In real estate we all know the phrase, location, location, location; the equivalent in the medical marijuana field is CHAA, CHAA, CHAA. When Arizona voters approved Prop. 203 in 2010 legalizing medical marijuana dispensaries at the state level, Arizona Department of Health Services rules had already divided Arizona into 126 areas called Community Health Analysis Areas (CHAA), that were originally established to track cancer occurrences.
The rules limit the number of Arizona medical marijuana dispensaries in a CHAA to ONE! The goal of ADHS Director Will Humble is to disperse the current 97 dispensary applications throughout Arizona to minimize the number of patients who will be able to grow their own because the patient does not live within 25 miles of a dispensary. http://realestatedaily-news.com/medical-marijuana-dispensaries-chaa-chaa-chaa/
44. When the ADHS issued the Appellant’s first cultivation card on May 10, 2011 there was no notice or mention of minimizing or prohibiting qualified patients from naturally cultivating their own beneficial marijuana for medical use or this residential and economic class division. The ADHS CHAA, CHAA, CHAA interpretation of A.R.S. § 36-2804.02(A)(3)(f) deliberately destroyed the intent of the AMMA.
45. Respondents allege in their response: “Judge Cooper’s decision does not support his position”. (Page 3, lines 11-12)
46. Judge Cooper’s decision in Floyd,et al. v. State, et al., Maricopa County Superior Court Case No. CV2013-011447 ruled that the Plaintiffs failed to state a claim that applied to the AMMA.
47. However, Judge Cooper ruled: The AMMA protects people from criminal prosecution if they choose to use medical marijuana. It does not compel people to use medical marijuana or even to obtain a qualifying registry card. (Page 3)
48. The Respondents admit in their response that: “Judge Cooper also held that the patients failed to adequately plead an equal protection claim. Nothin in her decision supports Appellant’s arguments in this matter”. (Page 3, lines 17-19)
49. Judge Cooper’s “Under Advisement Ruling” also states: “Differential treatment is an equal protection issue, not a question of the applicability of the Amendment to the AMMA. The 25-mile provision does appear to create two groups of AMMA participants based on residence. While this rule may be well-founded, the Court will not rule in a vacuum as to its validity. The claim must first be pled so that the Court can fully consider it as well as any challenge Defendants may bring.
50. Judge Cooper could not have identified this equal protection violation any clearer to the Respondents: “The 25-mile provision does appear to create two groups of AMMA participants based on residence.”
51. Judge Cooper did not recommend the Respondents take a Prozac and hope that Brown v. Board of Education goes away in the morning. She gave the Respondents a prescription for a recommended remedy they were supposed to administer.
52. Respondents are also playing “Tommy the Pinball Wizard” with Judge Cooper’s decision in Welton v.State, et al., Maricopa County Superior Court Case No. CV2013-014852.
53. Just because Judge Cooper dismissed the ADHS and Director Will Humble as Defendants before she ruled does not mean Judge Cooper’s rulings do not support Appellant’s appeal and complaint about the ADHS selling contaminated marijuana that made the Appellant sick.
54. Respondents’ attempt to mislead the court: “Judge Cooper reasoned that “[i]t makes no sense to interpret the AMMA as allowing people with these conditions to use medical marijuana but only if they take it in one particular form.” It is not clear why Appellant cites to this decision as it does not seem relevant to the matters at issue in this hearing.” (Page 3, lines 27-28 to Page 4, lines 1-3)
55. The Respondents disingenuously claim that: “To the extent it is relevant at all, Judge Cooper’s decision allowing for the manipulation of marijuana seems to undermine Appellant’s attack on “artificial cultivation” and “contaminated marijuana.” (Page 4, lines 3-5)
56. The Respondents wish to avoid discussion of the risks and effects of this artificially cultivated and synthetic marijuana substitute “operation” the ADHS is pushing for profit. The ADHS should be well aware of the BOTEC study and their own publications on mold, chemical contaminants and artificial illumination cultivation on plants for human consumption.
57. The ADHS licenses and condones cultivation of marijuana plants to produce up to 5 harvests a year by tricking marijuana plants with expensive electric lighting and dangerous chemicals for maximum profit.
58. The Respondents are denying and ignoring the risks of their experimental, unpredictable and unavoidably molded and chemically contaminated products and their responsibility to insure product safety and public health.
59. Respondents want to avoid the fact that the ADHS is licensing dispensaries that sell contaminated and non-beneficial marijuana and they are illegally using A.R.S. § 36-2804.02(A)(3)(f) to maximize the accumulation of revenue by minimizing the qualifying patients right to cultivate and donate their own beneficial marijuana.
60. The majority of qualifying patients that would pay the absorbent prices and tolerate the low quality of artificially cultivated cannabis simply do not know any better.
61. The Respondents are admitting that: “Judge Cooper reasoned that “[i]t makes no sense to interpret the AMMA as allowing people with these conditions to use medical marijuana but only if they take it in one particular form.”
62. Judge Cooper also supplemented justification for her in depth research and ruling on Statutory Interpretation: “In interpreting a voter initiative, the court’s “‘primary purpose is to effectuate the intent of those who framed it and the electorate that adopted it.’” State ex rel. Montgomery v. Woodburn ex rel. County of Maricopa, 231 Ariz. 215, 216, 292 P.3d 201, 202 (App. 2012)”
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 AMMA applies equally to the plant and to CBD oil. First, the definition of “usable marijuana” does not limit the medicine to just the dried flowers. It includes “any mixture or preparation” of the dried flowers of the marijuana plant. 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.
63. The Appellant has specialized in the cultivation of organically grown naturally high CBD yielding cannabis plants for 47 years. This is the exact ingredient that was so important to 5-year old Zander in Judge Cooper’s ruling.
64. The Appellant has been cultivating and using cannabis and helping people with mental instability and “shell shock” or “Post Traumatic Stress Disorder” with medical marijuana since 1967.
65. The Appellant will not benefit from the artificially cultivated designer pot that is sold in ADHS dispensaries. Judge Cooper’s rulings on the 25-mile provision and on little Zander Welton’s need for specific marijuana that is beneficial fully supports the Appellant’s complaint against the Respondents and ADHS.
66. The Appellant has included all court rulings involving the Respondents and the ADHS by reference and entered into evidence in this hearing. Every ruling has relevance to the Appellant’s appeal and complaints against the Respondents and the ADHS.
67. The court has been provided with ample evidence and information from both parties to rule in the favor of the Appellant at this point.
68. The Appellant is requesting this court to make a prehearing ruling declaring that limiting the Appellant’s options to using artificially cultivated and or contaminated cannabis is not authorized or legal.
69. The Appellant is requesting this court to make a prehearing ruling declaring that A.R.S. § 36-2804.02(A)(3)(f) does not limit or restrict cultivation.
70. The Appellant is requesting that this court make a prehearing ruling declaring that the Respondents have unethically and disingenuously represented their case and the law as written in the AMMA.
71. Pursuant to A.R.S. § 36-2818. Enforcement of this act; mandamus
A. IF THE DEPARTMENT FAILS TO ADOPT REGULATIONS TO IMPLEMENT THIS CHAPTER WITHIN ONE HUNDRED TWENTY DAYS OF THE EFFECTIVE DATE OF THIS CHAPTER, ANY CITIZEN MAY COMMENCE A MANDAMUS ACTION IN SUPERIOR COURT TO COMPEL THE DEPARTMENT TO PERFORM THE ACTIONS MANDATED UNDER THIS CHAPTER.
B. 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.
72. Appellant requests this court to make a prehearing ruling and declare that the ADHS has failed their responsibility to issue the Appellant a valid ADHS registry identification card in a timely manner and declare that Appellant’s application and renewal is deemed valid.
73. The Appellant’s diligent efforts to get clarification from the court on just simple language definitions that are related to this matter to help mitigate this “Administrative Shock and Awe” that is scheduled for July 23, 2014 is baffling. The Appellant renews his request for clarifications of language, law and fact in previous motions for the full record of this matter and favorable rulings the Appellant is entitled to have.
74. Will Humble has publicly and consistently demonstrated an opposition to medical marijuana since 1996 and the courts have documented this obstruction and Mr. Humble’s arbitrary, capricious and frivolous opposition to the AMMA, the intent of the electorate and needs of the community.
75. The Appellant would remind the court that ADHS interpretation are not entitled to deference and should not be affirmed if they put the public at risk, are unauthorized and or in violation of law.
76. The ADHS interpretation of A.R.S. § 36-2804.02(A)(3)(f) puts the public at risk, it is not authorized by the AMMA and this ADHS interpretation is in violation of State and Federal law.
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 16,2014
COPY of the forgoing sent via fax, email and/or U.S. Mail on July 11, 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 16, 2014