from the Superior Court in Maricopa County No.
LC2017-000413-001 The Honorable Patricia A. Starr, Judge
W. Dean, Attorney at Law, Phoenix By Thomas W. Dean Counsel
Sherman & Howard, L.L.C., Phoenix By Gregory W. Falls,
Matthew A. Hesketh Counsel for Defendant/Appellee
Presiding Judge James B. Morse Jr. delivered the opinion of
the Court, in which Judge Jon W. Thompson and Vice Chief
Judge Peter B. Swann joined.
A conviction for a felony violation of a state controlled
substance law can be a bar to becoming a dispensary agent
under the Arizona Medical Marijuana Act ("AMMA").
In Arizona, preparatory offenses are distinct from, but
defined by, a substantive offense. We consider whether a
conviction for solicitation to commit possession of a
dangerous drug for sale is a violation of a state controlled
substance law. Affirming the superior court's judgment,
we hold that it is.
AND PROCEDURAL HISTORY
In June 2009, Mark Murro pled guilty to solicitation to
commit possession of a dangerous drug for sale. The court
suspended sentence and imposed probation, from which Murro
was discharged in November 2011. In 2010, voters enacted the
AMMA, which authorizes the Department of Health Services
("DHS") to approve a person to become a dispensary
agent. State v. Gear, 239 Ariz. 343, 344, ¶ 2
(2016); Ariz. Rev. Stat. ("A.R.S.") §
36-2804.01. In 2017, Murro applied for a dispensary agent
registry identification card. In his application, Murro
stated that he had not been convicted of an "excluded
felony offense," and subsequently was approved for a
dispensary agent registry identification card. After a few
months, DHS discovered his conviction for solicitation to
commit possession of a dangerous drug for sale. DHS sent
Murro a Notice of Intent to Revoke Dispensary Agent's
Registry Identification Card and Notice of Right to Request
Administrative Hearing. The Notice alleged that Murro was
convicted of an excluded felony offense and had knowingly
violated the AMMA by submitting false information in his
application and acting as a dispensary agent when he was not
qualified to do so.
Murro requested a hearing with an Administrative Law Judge
("ALJ"), and the ALJ upheld DHS's decision to
revoke Murro's identification card. Murro appealed to the
Director of DHS ("Director"), who adopted the
ALJ's findings of fact and conclusions of law with minor
revisions and revoked Murro's identification card. Murro
appealed to the superior court, which affirmed the
Director's decision. We have jurisdiction pursuant to
A.R.S. §§ 12-913 and -2101(A)(1).
We will uphold the Director's decision unless it is
"contrary to law, is not supported by substantial
evidence, is arbitrary and capricious or is an abuse of
discretion." A.R.S. § 12-910(E). Statutory
interpretation is a question of law that we review de novo.
Id.; see also Compassionate Care Dispensary, Inc. v.
Arizona Dep't of Health Services, 244 Ariz. 205,
211, ¶ 17 (App. 2018)." [W]hen considering the
voters' intent in enacting the AMMA, our task is to apply
the law they have written." Parsons v. Arizona
Dep't of Health Services, 242 Ariz. 320, 324, ¶
15 (App. 2017) (internal quotation marks omitted).
A person convicted of an "excluded felony offense"
is barred from becoming a medical marijuana dispensary agent
under the AMMA, and DHS must revoke the identification card
of a dispensary agent who is convicted of an excluded felony
offense. A.R.S. §§ 36-2804.01(D), -2815(A). An
excluded felony offense includes a felony "violation of
a state or federal controlled substance law," with
certain exceptions that do not apply here.A.R.S. §
36-2801(7)(b). The question is whether solicitation to commit
possession of a dangerous drug for sale is a "violation
of a state . . . controlled substance law."
Solicitation, like Arizona's other inchoate offenses,
does not inherently deal with any particular subject matter.
See A.R.S. §§ 13-1001 (attempt); 13-1002
(solicitation); 13-1003 (conspiracy); 13-1004 (facilitation).
Instead, solicitation is defined by the underlying offense,
such that the elements of solicitation require proof that a
person acted "with the intent to promote or facilitate
the commission" of the underlying offense, and the
classification of the underlying offense determines the
classification of the solicitation offense. A.R.S. §
13-1002(A), (B). Because the crime of solicitation does not
exist without incorporating other laws, solicitation is a law
whose character or type depends wholly on the underlying
For that reason, the law which Murro violated - solicitation
to commit possession of a dangerous drug for sale-is a
controlled substance law. Its status as an inchoate crime
does not change the subject matter of the law that was
violated, and Murro's conviction was for ...