from the Superior Court in Maricopa County No.
LC2015-000135-001 The Honorable Crane McClennen, Judge
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.
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.
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.
AND PROCEDURAL HISTORY
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.
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.
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.
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.
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 ...