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Murro v. Arizona Department of Health Services

Court of Appeals of Arizona, First Division

June 11, 2019

MARK MURRO, Plaintiff/Appellant,
v.
ARIZONA DEPARTMENT OF HEALTH SERVICES, Defendant/Appellee.

          Appeal from the Superior Court in Maricopa County No. LC2017-000413-001 The Honorable Patricia A. Starr, Judge

          Thomas W. Dean, Attorney at Law, Phoenix By Thomas W. Dean Counsel for Plaintiff/Appellant

          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.

          OPINION

          MORSE, JUDGE

         ¶1 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.

         FACTS AND PROCEDURAL HISTORY

         ¶2 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.

         ¶3 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).

         DISCUSSION

         ¶4 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).

         ¶5 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.[1]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."

         ¶6 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 substantive offense.

         ¶7 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 ...


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