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Parsons v. Arizona Department of Health Services

Court of Appeals of Arizona, First Division

May 2, 2017

JIMMY PARSONS, Plaintiff/Appellant,
v.
ARIZONA DEPARTMENT OF HEALTH SERVICES, Defendant/Appellee.

         Appeal from the Superior Court in Maricopa County No. LC2015-000135-001 The Honorable Crane McClennen, Judge Retired

         COUNSEL

          Thomas W. Dean, Esq., Phoenix Counsel for Plaintiff/Appellant

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

          Presiding Judge Randall M. Howe delivered the opinion of the Court, in which Judge Lawrence F. Winthrop and Judge Jon W. Thompson joined.

          OPINION

          HOWE, Judge

         ¶1 This appeal is from the superior court's ruling affirming the Arizona Department of Health Services's ("DHS") order revoking Jimmy Parsons's caregiver registration card under the Arizona Medical Marijuana Act, A.R.S. §§ 36-2801 through -2810 ("AMMA"), because Parsons had committed an "excluded felony offense" in 2005, making him ineligible to be a designated caregiver. Parsons argued that because his conviction had been set aside pursuant to A.R.S. § 13-907, DHS and the superior court erred by using it as a ground for revocation. Specifically, he argued that ineligibility for a caregiver registration card is a "penalty or disability" released upon the setting aside of the conviction.

         ¶2 Whether a set-aside conviction may be considered by DHS as a ground for revoking a license pursuant to the AMMA is an issue of first impression. We hold that ineligibility for a caregiver registration card under the AMMA is not a penalty or disability under A.R.S. § 13-907 and that DHS may therefore consider the felony in determining whether to grant, deny, or revoke a caregiver registration card.

         FACTS AND PROCEDURAL HISTORY

         ¶3 In May 2005, Parsons pled guilty to one count of possession of narcotic drugs (cocaine) for sale, a class 2 felony. The superior court suspended the imposition of a sentence, placed Parsons on five years' probation, and required him to pay a fine. Parsons successfully completed the terms of his probation and paid the imposed fine. Accordingly, the court discharged him from probation in 2008.

         ¶4 After Parsons was discharged, he twice moved to have his 2005 conviction set aside under A.R.S. § 13-907, but the superior court denied the motions. Parsons tried again in February 2012. Two months later, the superior court issued an order granting Parsons's application. The order formally set aside the judgment of guilt, "dismissing the accusations or information and releasing [Parsons] from all applicable penalties and disabilities resulting from the conviction" pursuant to A.R.S. § 13-907. The court also ordered that Parsons's civil rights be restored, except his right to possess or carry a firearm.

         ¶5 Two years later, Parsons applied to DHS for a designated caregiver registration card under the AMMA. As part of his application, DHS required Parsons to attest that he had not been convicted of an excluded felony as defined in A.R.S. § 36-2801(7)-which includes felony violations of state or federal controlled substances law-and required Parsons to mail in copies of his fingerprints. Parsons signed the attestation, representing that he had not been convicted of an excluded felony offense. The attestation form that Parsons signed included a notice that his fingerprints would be used to run a criminal background check.

         ¶6 Upon receiving Parsons's application, DHS sent Parsons's fingerprints to the Arizona Department of Public Safety to obtain his criminal history report. Generally, when DHS receives a criminal history report, it reviews the report for excluded felonies that would make a person ineligible for a caregiver card. This process can take up to several months. However, because the AMMA requires that DHS issue or deny caregiver applications within 15 days, see A.R.S. § 36-2804.03(A), DHS approved Parsons's application and issued him a caregiver registration card before completing the background check.

         ¶7 When DHS ultimately received Parsons's criminal history report, it learned of his 2005 conviction for possession of narcotic drugs for sale and the superior court's subsequent order setting the conviction aside. Upon consulting with its counsel, DHS concluded that Parsons's conviction was an excluded felony offense under the AMMA, disqualifying him from being a caregiver. Specifically, DHS concluded that setting aside a conviction does not eliminate the conviction and restores only civil rights irrelevant to the issuance of a caregiver identification card under the AMMA. Accordingly, DHS issued a notice of intent to revoke Parsons's caregiver card in September ...


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