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Arizona Cannabis Nurses Association v. Arizona Department of Health Services

Court of Appeals of Arizona, First Division

March 16, 2017

ARIZONA DEPARTMENT OF HEALTH SERVICES; DR. CARA CHRIST, in her official capacity as Director of ADHS, Defendants/Appellees.

         Appeal from the Superior Court in Maricopa County No. LC2014-000393-001 The Honorable Crane McClennen, Judge (Retired)

          Ken Sobel, San Diego, CA Counsel for Plaintiff/Appellant.

          Sherman & Howard L.L.C., Phoenix By Gregory W. Falls, Matthew A. Hesketh Counsel for Defendants/Appellees

          Presiding Judge Samuel A. Thumma delivered the opinion of the Court, in which Judge Randall M. Howe and Judge Maurice Portley joined. [1]


          THUMMA, JUDGE:

         ¶1 The Arizona Cannabis Nurses Association (AZCNA) filed a petition with the Arizona Department of Health Services (DHS) to add Post-Traumatic Stress Disorder (PTSD) to the list of debilitating medical conditions under the Arizona Medical Marijuana Act (AMMA). See Ariz. Rev. Stat. (A.R.S.) §§ 36-2801 through -2819 (2017).[2] DHS granted the petition, subject to certain conditions. After unsuccessfully challenging those conditions in superior court, AZCNA now appeals to this court. Because AZCNA has shown no error, the decision is affirmed.


         ¶2 Approved as a voter initiative in November 2010, see State v. Okun, 231 Ariz. 462, 464 ¶ 4 (App. 2013), the AMMA's "'purpose . . . 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, '" State v. Gear, 239 Ariz. 343, 345 ¶ 11 (2016) (citation omitted). The AMMA allows the regulated use of "marijuana to treat or alleviate a registered qualifying patient's debilitating medical condition or symptoms associated with" such a condition. A.R.S. § 36-2801(9). Under the AMMA, "debilitating medical condition" means either (1) specifically enumerated medical conditions or diseases or their treatment, A.R.S. § 36-2801(3)(a), or (2) chronic or debilitating diseases or medical conditions or their treatment that produce "one or more" specified symptoms, A.R.S. § 36-2801(3)(b). The AMMA has a process for DHS to add "[a]ny other medical condition or its treatment" as a debilitating medical condition. A.R.S. § 36-2801(3)(c).

         ¶3 "The public may petition" DHS "to add debilitating medical conditions or treatments to the list of debilitating medical conditions." A.R.S. § 36-2801.01. DHS is required to "approve or deny [such] a petition within one-hundred-eighty days of its submission, " and such action is a final DHS decision subject to judicial review. A.R.S. § 36-2801.01; see also Ariz. Admin. Code (A.A.C.) R9-17-106.

         ¶4 In mid-2013, AZCNA filed a petition with DHS to add PTSD as a debilitating medical condition. The petition contained required information, including "the availability of conventional medical treatments" for PTSD and "[a] summary of the evidence that the use of marijuana will provide therapeutic [meaning healing] or palliative [meaning symptom relief] benefit" for PTSD. A.A.C. R9-17-106(A)(5 & 6); see also Carbajal v. Indus. Comm'n of Ariz., 223 Ariz. 1, 4 ¶ 16 n.2 (2009) (noting palliative use manages "symptoms or mitigat[es] the effects" of illness or injury). After a public hearing and receiving public comments, DHS denied the petition.

         ¶5 AZCNA challenged that denial administratively. That challenge was assigned to an Administrative Law Judge (ALJ), designated by the Office of Administrative Hearings, to receive evidence and prepare a recommended decision for DHS to consider. See A.R.S. §§ 41-1092.08(A) & (B). The ALJ presided over a several-day evidentiary hearing, where AZCNA presented evidence largely addressing whether marijuana use was palliative but not whether it was therapeutic. The ALJ's June 2014 recommended decision found that "[t]he preponderance of the evidence shows that marijuana use provides a palliative benefit to those suffering from PTSD." The ALJ recommended that PTSD be added as a debilitating medical condition.

         ¶6 DHS' July 2014 final decision adopted the ALJ's recommended decision as amended. DHS granted AZCNA's petition, adding PTSD "to the list of debilitating [medical] conditions for which marijuana may be dispensed" under the AMMA. DHS conditioned such use, however, by requiring that a physician's written certification "for the medical use of marijuana for" PTSD (1) "be specifically limited to palliative, non-therapeutic use" and (2) "include an attestation that the patient is participating in conventional treatment for" PTSD (collectively, the Conditions). The Conditions are the focus of this appeal.[3]

         ¶7 AZCNA appealed to the superior court, arguing DHS lacked the authority to require the Conditions and that they violated the constitutional rights of individuals with PTSD. After briefing and oral argument, the court rejected AZCNA's arguments and affirmed DHS' final decision. This court has jurisdiction over AZCNA's timely appeal of the ...

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