stickydankAZ
01-05-2011, 07:09 AM
ACTION MOVING AGAINST ADHS AND MPP
FOR IMMEDIATE RELEASE
Contact: January 4, 2011
Allan Sobol
The Consiglieri Group, LLC (Marketing Agent)
Voice 602 504-6050
Fax 866 521-8606
[email protected]
Arizona Association of Dispensary Professionals
10640 N 28th Ave
Suite C-205-2
Phoenix, AZ 85029
AZDHS and MPP Acting in Collusion to limit access to Dispensary Applicants.
Monopolization abuses outlined in letter to Arizona Heath Department.
This is the formal response from the Arizona Association of Dispensary Professionals , (AZADP), to the Arizona Department of Health Services, ( AZDHS) concerning the implementation of the Arizona Medical Marijuana Act.
The AZADP is an organization comprised of over 4600 members. AZADP membership includes concerned dispensary candidates, individuals who believe they are qualifying patients, Physicians and other individuals and entities involved in the Marijuana industry.
While we want to believe Mr. Humble when he states that, ( EXHIBIT A), ??Fairness and Transparency are the keys to effectively implementing the AZ Medical marijuana Act?, the evidence contained herein suggest otherwise.
We believe that the AZDHS has been influenced by and is conspiring with other organizations, namely the Marijuana Policy Project, (MPP) and their recently established association, the Arizona Medical Marijuana Association, (AzMMA), to create an elitist and monopolistic program where only the wealthy influential, informed sponsors of MPP will qualify for one of the 125 licenses. We believe that the following evidence will show that the AZDHS in collusion with MPP are intentionally developing program rules that are so complicated and costly so as to preclude otherwise qualified applicants merely on the basis of wealth and influence. We believe it is the intention of MPP to control the marketplace.
Accordingly, we submit the following:
Citations:
Arizona Medical Marijuana Act, hereinafter referred to as ??TITLE 36?
Arizona Department of Health Services, hereinafter referred to as ??AZDHS?
Marijuana Policy Project hereinafter referred to as ??MPP?, a national political action committee who sponsored Proposition 203 in Arizona. MPP has a local chapter in Arizona.
Arizona Medical Marijuana Association hereinafter referred to as ??AMMA?. An association recently established by MPP.
Arizona Association of Dispensary Professionals hereinafter referred to as ??AZADP?. An independent association comprised of concerned citizens.
Arizona Voter??s protection Act hereinafter referred to as ??AVPC?. A 1998 voter approved initiative petition amending the Arizona Constitution, to revoke the government??s power to amend an initiative measure approved by a majority of the votes cast thereon, unless the amending legislation furthers the purposes of such measure. (AZ Cons. Article 4 Section 1(6)(c).
Regulatory Bill of Rights, (A.R.S 41-1001.01) hereinafter referred to as ??TITLE 41?. An Arizona law to ensure fair and open regulation by state agencies, limiting a state agencies rule making ability to subject matter listed in the specific statute and provides for citizens right to file a complaint with the States Administrative Rules Oversight Committee.
Affirmative Defense, (A.R.S. 36-2802), hereinafter referred to as ??ARS36-2802?. Qualifying Patients and Caregivers mat assert medical purpose as a defense to any prosecution of an offense involving marijuana.
Sherman Antitrust Act: To establish a violation of The Sherman Act, Monopoly Power may be defined as the power to fix prices to exclude competitors, or to control the market in the relevant geographical area in question.
Prefatory Statement:
AZADP was established as a direct concern of so many individuals who are alarmed at the direction the AZDHS is taking in their rule making progress. Prior to the election some of our members where involved with MPP and provided us with internal documents generated in the course of MPP??s campaign operations. These documents will be produced herein and used as evidence to support our arguments.
In September, 2010 MPP established an advisory committee. According to the local Campaign Manager for MPP, Andrew Meyer, this Advisory Committee was established at the request of AZDHS. Presumably, AZDHS was concerned that should the voters approve Prop 203, their understaffing and budget cuts would curtain their ability to complete the rule making process in the time allowed under the law. ( 120 days). According to Meyers, AZDHS asked MPP if they could assist AZDHS by preparing some proposed rules for consideration by AZDHS. ??A blueprint to help AZDHS start the process?. MPP agreed to assist AZDHS and established the Advisory Committee, also known as the ??Roundtable?. MPP invited 12-14 of its members to join the Roundtable and create proposed rules for consideration by AZDHS. Presumably most of the members on the Roundtable were either dispensary candidates or have other business interest in the medical marijuana industry.
The members of the roundtable were divided into ??task forces? each given a specific assignment. (EX: Cultivation rules, testing /quality control, security, applications, qualifications, etc). The roundtable participants also worked together to develop and establish the MMP Association, ??AzMMA?. It is no coincidence that the acronym for MPP??s Association and Title 36 are identical; ??AzMMA?. MPP took ownership of Title 36, and intended to impose its own agenda on the people of Arizona. MPP??s stated agenda was to limit the competition and to assure that as many of their own members as possible received dispensary licenses. During the weeks leading up to the election, the Round table became fractured. Some of the members realized the true agenda of MPP and resigned from the group.
Let us first understand that MPP is funded and sponsored by very wealthy individuals and organizations. The following evidence will show that MPP invested over half a million dollars of its money to secure an elitist program designed to solely promote the interest of their sponsors. The agenda of MPP is to make the dispensary application process as difficult and expensive as possible to preclude all applicants except the well informed wealthy members of MPP. As evidenced by the attached internal memorandum ( EXHIBIT ??B?), MPP, in the process of establishing it??s Association , recommended that, ?? AZDHS implement dispensary applications and licensing standards that are rigorous enough to deter trivial applications, but that do not unduly impair the ability of serious applicants to operate successfully?. It would be a serious conflict of interest to allow a Association comprised of wealthy future dispensary owners to determine what a ??trivial application? is, but that is exactly what they moved on to do. Contained within the same documents MPP makes the following recommendations to AZDHS;
Would require applicants to provide proof that they have obtained dispensary and /or cultivation facilities that meet the requirements of the ACT and local zoning.
Requiring that the applicant provide a business plan demonstrating that the licensee will be operational within a specific time frame.
Requiring the applicant provide proof of financial competency through a BOND or other means.
Requiring that the applicant demonstrate medical expertise by having physicians or pharmacists on staff or engaged as consultants.
Contrary to the assertions of Mr. Humble, (EXHIBIT A), clearly these MPP proposals have had significant influence on AZDHS, since all of them are incorporated into the AZDHS proposed rules. Additionally, these proposed rules, should they be adopted, will further the agenda of MPP by adding momentous increases to the cost of obtaining a dispensary license for the following reasons:
Section 36-2804, of Title 36, among other requirements, necessitates an applicant to provide AZDHS with a ??Physical address of both the Dispensary and Cultivation center, and a sworn statement that the applicant is in compliance with local zoning requirements. This in and of itself creates a significant expense to an applicant, since they will have to secure a physical location without ever knowing if they will qualify for the license. However AZDHS has added a significant additional expense to the cost of the applicant by requiring a Certificate of Occupancy. This adversely changes the intent of Title 36. Under proposed rule R9-17-302, B-5 AZDHS is requiring an applicant, as part of the initial application process, to produce a Certificate of Occupancy This would require a applicant to not only secure a location for his/her dispensary and Cultivation center, but build-it-out as well at a cost of hundreds of thousands of dollars, all at risk, since all is done without any assurances that they will obtain a license. This rule alone will serve to eliminate all but the wealthiest of applicants.
At the request of MPP, (See EXHIBIT C ), AZDHS??s proposed rules regarding business operations are outrageously over-regulated. We recognize the need to maintain strict business operations, but the proposed rules are simply overkill, intended to play into the hands of MPP??s agenda. (More on this below).
There are no provisions in Title 36 that requires an applicant to produce a Bond. According to statements made by MPP all applicants with less than a million dollars of cash liquidity are considered ??Trivial? and should be required to post a two hundred thousand dollar bond.( See Exhibit D ). While there is no clarity or designation as to the purpose, type , amount or third party beneficiary of said bond, AZDHS has nevertheless, under proposed rule R9-17-302,15-D, and as part of the initial application , asks the question, ??Whether the dispensary has a surety bond and , if so, how much?? While we have sought clarification from AZDHS on this point, none has been provided. Attention must also be given to the availability of said bond. Because of the unique nature of the medical marijuana business model, obtaining such a bond might be impossible or extremely costly. Under federal law Medical Marijuana Dispensaries are considered a criminal enterprise; consequently, most if not all insurance companies would consider a request for a bond a very high risk. Therefore, potential applicants may be denied a license merely because he/she is not a millionaire.
The prompting by MMP to have a medical director on the staff of each dispensary is not necessarily a bad idea. Unfortunately, AZDHS, at the urging of MPP has taken the Medical Directors position to place where no Doctor will go thereby making it impossible to comply with this rule, unless you are wealthy enough to afford a full time Doctor on your staff. A medical director retained to provide assistance in developing the medical aspects of the program for a Dispensary is a welcomed idea; however, to have the Medical Director interact with patients or develop any materials for use by patients could be considered interference in a patient-physician relationship. All qualified patients of a dispensary must have a recommending, primary doctor to obtain their registration card. Any log books, rating scales, or guidelines for patient??s self-assessment, as set forth in AZDHS proposed rule R9-17-310-2, may create a conflict of interest for the medical Director. This again plays into the main scheme of MPP.
We are deeply concerned about the AZDHS??s plans concerning the selection process. As you will note AZDHS??s proposed rules are silent on this matter. On October 29th 2010, Director Humble wrote on his blog, (Copy Attached EXHIBIT E), that he had three choices before him, He asserted that method 3, ( Evaluate the complete application using some kind of objective criteria), is probably the best because we??d be able to select the best qualified applicants. Humble went on to say, ?? An Interesting twist on method 3 would be to send the completed
(And blindfolded) applications to a 3rd party (e.g. a consulting law firm) and ask them to score the applications for us. It is perhaps more than coincidence that just prior to that Blog entry, MPP sent AZDHS a proposal to use their new Association (AMMA) as an Application Review Board. (SEE EXHIBIT F ). This is the most outrageous conflict of interest we have ever heard of. A group of weathly potential dispensary owners, reviewing their own applications!
We demand that AZDHS immediately disclose their selection process.
We further suggest, in fairness, and in compliance with AZDHS proposed rule R9-17-319, a, 2, g, that any member of the MPP roundtable be excluded from consideration of a dispensary license.
We would further ask that Director Humble make a full public disclosure as to whether or not any member of AZDHS has had any contact with MPP, AMMA or any representative or agent of said organizations.
As most people know, MPP staff actually wrote Prop 203, now the Arizona Medical marijuana Act. Title 36. What most were not aware of is the fact that under section 6 of Title 36, AZDHS compliance under A.R.S 41-1001 is waived. Title 41, The Regulatory Bill of Rights, is an Arizona law to ensure fair and open regulation by state agencies, limiting a state agencies rule making ability to subject matter listed in the specific statute and provides for citizens right to file a complaint with the States Administrative Rules Oversight Committee. Any reasonable person would have to cast a sinister eye on MPPS reasoning in exempting AZDHS from compliance with these provisions. This exemption eliminates the public??s ability to object to the abusive behavior of the AZDHS.
Point by Point Objection to AZDHS Proposed Rules:
1. Medical Director Definition: Should change to include any Doctor who is permitted under Title 36 to recommend Medical Marijuana.
2. Ongoing Definition: this is merely an attempt on the part of AZDHS to create an artificial bottle neck, choking off a potential revenue stream for struggling new dispensary owners. This is an unfair, abuse of authority on the part of AZDHS, intending to further the agenda of MPP. This rule is intended to dissuade marginal (??Trivia?l) applicants from submitting applications. AZDHS should rely on the recommendation of a Arizona licensed Physician, regardless of the relationship period, so long as the recommending physician complies with the provisions of Title 36, or until such time as there is evidence of fraud.
3. ARS 36-2803.4 of the Arizona Medical Marijuana Act requires that the Arizona Department of Health Services rule making be implemented ??without imposing an undue burden on nonprofit medical marijuana dispensaries?.?
4. ARS 28.1 Section 2 ??Findings? of the Arizona Medical Marijuana Act requires the department to take notice of the numerous studies demonstrating the safety and effectiveness of medical marijuana. Arizona's pharmacies and physician offices dispense addictive, dangerous, and toxic drugs that, unlike marijuana, are potentially deadly, yet Arizona's pharmacies and physician offices are not required to have 12 foot walls, constant on-site transmission of video surveillance, residency requirements for principals, or any of the other cruel, arbitrary, and unreasonable regulations proposed by the department.
5. R 9-17-101.10 is an undue and unreasonable burden. 9 foot high chain link fencing, open above, constitutes reasonable security for outdoor cultivation.
6. R 9-17-101.15 is unreasonable and usurps authority denied to the department. It violates the 1998 Arizona Voter Protection Act. The department does not have the authority to deny the involvement of naturopathic and homeopathic physicians as defined by ARS 36-2806.12.
7. R 9-17-101.16, R 9-17-101.17, R9-17-202.F.5(e)i-ii , R9-17-202.F.5(h), R9-17-202.G.13(e)I , R9-17-202.G.13(e)iii , R9-17-204.A.4(e)i-ii, R9-17-204.A.4(h), R9-17-204.B , R9-17-204.B.4(f)I, and R9-17-204.B.4(f)Iii are cruel, arbitrary, unreasonable, and usurp authority denied to the department. Those sections violate the 1998 Arizona Voter Protection Act. ARS 36-2801. 18(b) defines an assessment, singular, as sufficient. The Arizona Medical Marijuana Act does not give the department authority and the 1998 Arizona Voter Protection Act denies the department authority to require multiple assessments, require ??ongoing? care, or redefine the patient-physician in any way, much less to promulgate a relationship among patient, physician, and specialist that is found nowhere in the practice of medicine. Nowhere in medicine is a specialist required to assume primary responsibility for a patient??s care. Nowhere else in the practice of medicine does Arizona require a one-year relationship or multiple visits for the prescription or recommendation of any therapy, including therapies with potentially deadly outcomes. Marijuana is not lethal, but the department usurps authority to treat it with cruel and unreasonable stringency far beyond the stringency imposed upon drugs that are deadly. Plainly, it is dangerous and arbitrary for the department to suggest that a cannabis specialist assume primary care of cancer, HIV/AIDS, ALS, multiple sclerosis, Hepatitis C, and other potentially terminal qualifying conditions when the cannabis specialist may not have the requisite training or experience to do so. The department??s regulations are a cruel, unreasonable, and arbitrary usurpation of authority and denial of patients?? rights of choice, including their rights to choose other medical providers, other sources of care or information, or even to choose not (or cannot afford) to seek other medical care at all (whether prior or subsequent to application).
8. R9-17-102.3, R9-17-102.4, R9-17-102.7, R9-17-102.8, R9-17-104.5 , R9-17-105.4, R9-17-203.A.3, R9-17-203.B.8, R9-17-203.C.5, R9-17-304.A.11 usurp authority denied to the department. ARS 36-2803.5 only gives authority to the department for application and renewal fees, not for changes of location or amending or replacing cards.
9. R9-17-103, R9-17-202.F.1(h), R9-17-202.G.1(i), and R9-17-204.B.1(m) are cruel, arbitrary, and unreasonable. Though many qualifying patients, qualifying patients?? parents, and their caregivers suffer financial and medical hardship, the sections make little or no provision for patients, parents, and caregivers without internet skills or internet access.
10. R9-17-106.A(2) is cruel, arbitrary, and unreasonable. The regulation does not allow for addition of medical conditions that cause suffering, but do not impair the ability of suffering patients to accomplish their activities of daily living. For example, conditions such as Post-Traumatic Stress Disorder (PTSD), Anxiety, Depression, and other conditions may cause considerable suffering, yet still allow patients to accomplish their activities of daily living.
11. R9-17-106.C is cruel, arbitrary, and unreasonable. The regulation only allows suffering patients of Arizona to submit requests for the addition of medical conditions to the list of qualifying medical conditions during two months of every year.
12. R9-17-202.B is cruel, arbitrary, and unreasonable. Qualifying patients may need more than one caregiver to ensure an uninterrupted supply of medicine.
13. R9-17-202.F.5(e)i-ii , R9-17-202.F.5(h) cruel, arbitrary, unreasonable, and usurps patients?? rights to choose other providers or sources of information
14. R9-17-202.F.6(k)ii, R9-17-204.A.5(k)ii , R9-17-204.C.1(j)ii , R9-17-302.B.3(c)ii, R9-17-308.7(b), R9-17-308.7(b), and R9-17-309.5(b), are arbitrary and unreasonable. If a caregiver already has a valid caregiver or dispensary agent registry card, no additional fingerprints need to be submitted.
15. R9-17-205.C.2 and R9-17-320.A.3 are arbitrary and unreasonable. A registry card should not be revoked for trivial or unknowing errors. Revocation of a card should not be allowed unless the applicant knowingly provided substantive misinformation.
16. R9-17-302.A, R9-17-302.B.1(f)ii, R9-17-302.B.1(g), R9-17-302.B.3(b) , R9-17-302.B.3(d)i-ix, R9-17-302.B.4(c), R9-17-302.B.4(d), R9-17-302.B.15(a), R9-17-302.B.15(b), R9-17-302.B.15(d), R9-17-306.B, R9-17-307.A.1(e), R9-17-307.A.3, R9-17-307.C, R9-17-308.5, R9-17-319.A.2.(a), R9-17-319.B are arbitrary, unreasonable and usurp authority denied to the department. These sections violate the 1998 Arizona Voter Protection Act. The department does not have the authority to establish residency requirements, control the occupation of the principal officers or board members, require surety bonds, require a medical director, require security measures that are an undue burden (security measures for non-toxic marijuana that exceed security measures required for toxic potentially lethal medications stored at and dispensed from Arizona pharmacies and physician offices), require educational materials beyond what the law requires, require an on-site pharmacist, require constant, intrusive, or warrantless surveillance, or regulate the portion of medicine cultivated, legally acquired by a dispensary, or transferred to another dispensary or caregivers.
17. R9-17-310 is arbitrary, unreasonable and usurps authority denied to the department. These sections violate the 1998 Arizona Voter Protection Act. The department has no authority to require a medical director, much less to define or restrict a physician??s professional practice.
18. R9-17-313.B.3 is arbitrary, unreasonable and usurps authority denied to the department. This section violates the 1998 Arizona Voter Protection Act. The department has no authority to place an undue burden on recordkeeping for cultivation or to require the use of soil, rather than hydroponics or aeroponics, in cultivation of medicine.
19. R9-17-313.B.6 is arbitrary, unreasonable and usurps authority denied to the department. This section violates the 1998 Arizona Voter Protection Act. The department has no authority to place an undue burden on recordkeeping by requiring the recording of weight of each cookie, beverage, or other bite or swallow of infused food.
20. R9-17-314.B.2 is arbitrary, unreasonable and usurps authority denied to the department. This section violates the 1998 Arizona Voter Protection Act. Especially in the absence of peer-reviewed evidence, the department has no authority to require a statement that a product may represent a health risk.
21. R9-17-315 is arbitrary, unreasonable and usurps authority denied to the department. This section violates the 1998 Arizona Voter Protection Act. The department has no authority to place an unreasonable or undue burden by requiring security practices to monitor a safe product, medical marijuana, that is not required for toxic, even lethal, products.
22. R9-17-317.A.2 is arbitrary, unreasonable and usurps authority denied to the department. This section violates the 1998 Arizona Voter Protection Act. The department has no authority to require the daily removal of non-toxic refuse.
ADDITIONAL RECOMMEDATIONS:
23. SURETY BOND: Clarify the purpose, the type, the amount and the third party beneficiary, of the surety bond, or eliminate its reference from the rules.
24. NON-PROFIT ENTITY: Clarify the need to establish a non-profit entity. Title 36 only requires an applicant to operate the dispensary under a non-profit ??basis?. Can an applicant establish a LLC or other entity so long as his/her bylaws comply with Title 36?
25. 70% COOPERATIVE GROW: Clarify if a group of dispensaries can form a cooperative to grow their medical marijuana under one roof, so long as the facility is in compliance with Title 36 and the AZDHS rules.
26. SEEDS: Please clarify where a dispensary owner can purchase his initial seeds.
27. LANDLORD RIGHTS: Please clarify landlord rights with respect to entry and inspection of a dispensary/ cultivation facility. (Assuming the landlord is not a registered agent of the Dispensary). Additionally, please clarify access by a repair service to enter upon the restricted areas of a dispensary/cultivation to make necessary repairs.
28. TWO STAGE APPLICATION PROCESS: R9-17-302 Applying for Dispensary Registration Certification; we believe the proposed rules regarding the application process are inherently unfair and favor the wealthy. The average person who may otherwise qualify would be reluctant to invest hundreds of thousands of dollars in a dispensary application without knowing if they will get a license. In order to equalize the application process we believe AZDHS should adopt a two stage application process as follows:
Review the principals and legal entity first. Perform whatever background checks AZDHS desires, including FBI and all the other requirements as set forth in the proposed rules relevant to the principals and legal entities.
Issue a conditional License to the 125 most qualified individuals subject to approval of the facilities. ( dispensary and cultivation sites)
The conditional license would require that the applicant to complete the build-out and/or construction of the facilities within 90-120 days.
Thereafter, the conditionally approved applicant would submit the second half of his application ( Facilities) for inspection and approval.
The second half of the application must meet all the requirements of the proposed rules relevant to the facilities.
Provided the applicant meets all the facility requirements he/she would then be issued a Dispensary Registration Certificate
This system allows for fairness across all demographic and financial groups.
It would not preclude individuals simply because they are not millionaires, and would allow those that are chosen to obtain the financing they need to complete the project.
Fairness and transparency requires AZDHS to adopt this application process or similar one.
IN CONCLUSION:
Taken in totality, it appears that AZDHS is working in collusion with MMP to make this application process as difficult as possible, beyond what is fair and reasonable. What was alleged to be ??fair and transparent?, has now become biased and opaque, demanding a comprehensive review and explanation.
The sole agenda of AZADPs is to assure the success of the Arizona Medical Marijuana Act. To bring the dispensaries out of the dark corner of society into the main stream of America. We understand that to accomplish that we need to change the image, we need to exceed the highest standards, and we need to conduct ourselves and our businesses with the utmost professionalism, always in full compliance with the law.
While you allege that ??nobody outside the department is involved in the development of your informal draft rules?, it appears that is not correct. The fact remains you may not know if MPP is communicating with your underlings. The answer to your problem is to embrace ALL these organizations rather than create the illusion that you are NOT being influenced by some. You may want to establish a round table of your own, invite all the organizations, associations and industry leaders in Arizona including MPP, to offer and exchange ideas. That way nobody feels left out, and you perhaps may even learn a few things.
We would welcome the opportunity to assist you in organizing a round table of industry, leaders. In the alternative we hope you will make a full disclosure of your involvement with MPP.
Sincerely,
Allan Sobol
President/ AZADP
602 504-6050
FOR IMMEDIATE RELEASE
Contact: January 4, 2011
Allan Sobol
The Consiglieri Group, LLC (Marketing Agent)
Voice 602 504-6050
Fax 866 521-8606
[email protected]
Arizona Association of Dispensary Professionals
10640 N 28th Ave
Suite C-205-2
Phoenix, AZ 85029
AZDHS and MPP Acting in Collusion to limit access to Dispensary Applicants.
Monopolization abuses outlined in letter to Arizona Heath Department.
This is the formal response from the Arizona Association of Dispensary Professionals , (AZADP), to the Arizona Department of Health Services, ( AZDHS) concerning the implementation of the Arizona Medical Marijuana Act.
The AZADP is an organization comprised of over 4600 members. AZADP membership includes concerned dispensary candidates, individuals who believe they are qualifying patients, Physicians and other individuals and entities involved in the Marijuana industry.
While we want to believe Mr. Humble when he states that, ( EXHIBIT A), ??Fairness and Transparency are the keys to effectively implementing the AZ Medical marijuana Act?, the evidence contained herein suggest otherwise.
We believe that the AZDHS has been influenced by and is conspiring with other organizations, namely the Marijuana Policy Project, (MPP) and their recently established association, the Arizona Medical Marijuana Association, (AzMMA), to create an elitist and monopolistic program where only the wealthy influential, informed sponsors of MPP will qualify for one of the 125 licenses. We believe that the following evidence will show that the AZDHS in collusion with MPP are intentionally developing program rules that are so complicated and costly so as to preclude otherwise qualified applicants merely on the basis of wealth and influence. We believe it is the intention of MPP to control the marketplace.
Accordingly, we submit the following:
Citations:
Arizona Medical Marijuana Act, hereinafter referred to as ??TITLE 36?
Arizona Department of Health Services, hereinafter referred to as ??AZDHS?
Marijuana Policy Project hereinafter referred to as ??MPP?, a national political action committee who sponsored Proposition 203 in Arizona. MPP has a local chapter in Arizona.
Arizona Medical Marijuana Association hereinafter referred to as ??AMMA?. An association recently established by MPP.
Arizona Association of Dispensary Professionals hereinafter referred to as ??AZADP?. An independent association comprised of concerned citizens.
Arizona Voter??s protection Act hereinafter referred to as ??AVPC?. A 1998 voter approved initiative petition amending the Arizona Constitution, to revoke the government??s power to amend an initiative measure approved by a majority of the votes cast thereon, unless the amending legislation furthers the purposes of such measure. (AZ Cons. Article 4 Section 1(6)(c).
Regulatory Bill of Rights, (A.R.S 41-1001.01) hereinafter referred to as ??TITLE 41?. An Arizona law to ensure fair and open regulation by state agencies, limiting a state agencies rule making ability to subject matter listed in the specific statute and provides for citizens right to file a complaint with the States Administrative Rules Oversight Committee.
Affirmative Defense, (A.R.S. 36-2802), hereinafter referred to as ??ARS36-2802?. Qualifying Patients and Caregivers mat assert medical purpose as a defense to any prosecution of an offense involving marijuana.
Sherman Antitrust Act: To establish a violation of The Sherman Act, Monopoly Power may be defined as the power to fix prices to exclude competitors, or to control the market in the relevant geographical area in question.
Prefatory Statement:
AZADP was established as a direct concern of so many individuals who are alarmed at the direction the AZDHS is taking in their rule making progress. Prior to the election some of our members where involved with MPP and provided us with internal documents generated in the course of MPP??s campaign operations. These documents will be produced herein and used as evidence to support our arguments.
In September, 2010 MPP established an advisory committee. According to the local Campaign Manager for MPP, Andrew Meyer, this Advisory Committee was established at the request of AZDHS. Presumably, AZDHS was concerned that should the voters approve Prop 203, their understaffing and budget cuts would curtain their ability to complete the rule making process in the time allowed under the law. ( 120 days). According to Meyers, AZDHS asked MPP if they could assist AZDHS by preparing some proposed rules for consideration by AZDHS. ??A blueprint to help AZDHS start the process?. MPP agreed to assist AZDHS and established the Advisory Committee, also known as the ??Roundtable?. MPP invited 12-14 of its members to join the Roundtable and create proposed rules for consideration by AZDHS. Presumably most of the members on the Roundtable were either dispensary candidates or have other business interest in the medical marijuana industry.
The members of the roundtable were divided into ??task forces? each given a specific assignment. (EX: Cultivation rules, testing /quality control, security, applications, qualifications, etc). The roundtable participants also worked together to develop and establish the MMP Association, ??AzMMA?. It is no coincidence that the acronym for MPP??s Association and Title 36 are identical; ??AzMMA?. MPP took ownership of Title 36, and intended to impose its own agenda on the people of Arizona. MPP??s stated agenda was to limit the competition and to assure that as many of their own members as possible received dispensary licenses. During the weeks leading up to the election, the Round table became fractured. Some of the members realized the true agenda of MPP and resigned from the group.
Let us first understand that MPP is funded and sponsored by very wealthy individuals and organizations. The following evidence will show that MPP invested over half a million dollars of its money to secure an elitist program designed to solely promote the interest of their sponsors. The agenda of MPP is to make the dispensary application process as difficult and expensive as possible to preclude all applicants except the well informed wealthy members of MPP. As evidenced by the attached internal memorandum ( EXHIBIT ??B?), MPP, in the process of establishing it??s Association , recommended that, ?? AZDHS implement dispensary applications and licensing standards that are rigorous enough to deter trivial applications, but that do not unduly impair the ability of serious applicants to operate successfully?. It would be a serious conflict of interest to allow a Association comprised of wealthy future dispensary owners to determine what a ??trivial application? is, but that is exactly what they moved on to do. Contained within the same documents MPP makes the following recommendations to AZDHS;
Would require applicants to provide proof that they have obtained dispensary and /or cultivation facilities that meet the requirements of the ACT and local zoning.
Requiring that the applicant provide a business plan demonstrating that the licensee will be operational within a specific time frame.
Requiring the applicant provide proof of financial competency through a BOND or other means.
Requiring that the applicant demonstrate medical expertise by having physicians or pharmacists on staff or engaged as consultants.
Contrary to the assertions of Mr. Humble, (EXHIBIT A), clearly these MPP proposals have had significant influence on AZDHS, since all of them are incorporated into the AZDHS proposed rules. Additionally, these proposed rules, should they be adopted, will further the agenda of MPP by adding momentous increases to the cost of obtaining a dispensary license for the following reasons:
Section 36-2804, of Title 36, among other requirements, necessitates an applicant to provide AZDHS with a ??Physical address of both the Dispensary and Cultivation center, and a sworn statement that the applicant is in compliance with local zoning requirements. This in and of itself creates a significant expense to an applicant, since they will have to secure a physical location without ever knowing if they will qualify for the license. However AZDHS has added a significant additional expense to the cost of the applicant by requiring a Certificate of Occupancy. This adversely changes the intent of Title 36. Under proposed rule R9-17-302, B-5 AZDHS is requiring an applicant, as part of the initial application process, to produce a Certificate of Occupancy This would require a applicant to not only secure a location for his/her dispensary and Cultivation center, but build-it-out as well at a cost of hundreds of thousands of dollars, all at risk, since all is done without any assurances that they will obtain a license. This rule alone will serve to eliminate all but the wealthiest of applicants.
At the request of MPP, (See EXHIBIT C ), AZDHS??s proposed rules regarding business operations are outrageously over-regulated. We recognize the need to maintain strict business operations, but the proposed rules are simply overkill, intended to play into the hands of MPP??s agenda. (More on this below).
There are no provisions in Title 36 that requires an applicant to produce a Bond. According to statements made by MPP all applicants with less than a million dollars of cash liquidity are considered ??Trivial? and should be required to post a two hundred thousand dollar bond.( See Exhibit D ). While there is no clarity or designation as to the purpose, type , amount or third party beneficiary of said bond, AZDHS has nevertheless, under proposed rule R9-17-302,15-D, and as part of the initial application , asks the question, ??Whether the dispensary has a surety bond and , if so, how much?? While we have sought clarification from AZDHS on this point, none has been provided. Attention must also be given to the availability of said bond. Because of the unique nature of the medical marijuana business model, obtaining such a bond might be impossible or extremely costly. Under federal law Medical Marijuana Dispensaries are considered a criminal enterprise; consequently, most if not all insurance companies would consider a request for a bond a very high risk. Therefore, potential applicants may be denied a license merely because he/she is not a millionaire.
The prompting by MMP to have a medical director on the staff of each dispensary is not necessarily a bad idea. Unfortunately, AZDHS, at the urging of MPP has taken the Medical Directors position to place where no Doctor will go thereby making it impossible to comply with this rule, unless you are wealthy enough to afford a full time Doctor on your staff. A medical director retained to provide assistance in developing the medical aspects of the program for a Dispensary is a welcomed idea; however, to have the Medical Director interact with patients or develop any materials for use by patients could be considered interference in a patient-physician relationship. All qualified patients of a dispensary must have a recommending, primary doctor to obtain their registration card. Any log books, rating scales, or guidelines for patient??s self-assessment, as set forth in AZDHS proposed rule R9-17-310-2, may create a conflict of interest for the medical Director. This again plays into the main scheme of MPP.
We are deeply concerned about the AZDHS??s plans concerning the selection process. As you will note AZDHS??s proposed rules are silent on this matter. On October 29th 2010, Director Humble wrote on his blog, (Copy Attached EXHIBIT E), that he had three choices before him, He asserted that method 3, ( Evaluate the complete application using some kind of objective criteria), is probably the best because we??d be able to select the best qualified applicants. Humble went on to say, ?? An Interesting twist on method 3 would be to send the completed
(And blindfolded) applications to a 3rd party (e.g. a consulting law firm) and ask them to score the applications for us. It is perhaps more than coincidence that just prior to that Blog entry, MPP sent AZDHS a proposal to use their new Association (AMMA) as an Application Review Board. (SEE EXHIBIT F ). This is the most outrageous conflict of interest we have ever heard of. A group of weathly potential dispensary owners, reviewing their own applications!
We demand that AZDHS immediately disclose their selection process.
We further suggest, in fairness, and in compliance with AZDHS proposed rule R9-17-319, a, 2, g, that any member of the MPP roundtable be excluded from consideration of a dispensary license.
We would further ask that Director Humble make a full public disclosure as to whether or not any member of AZDHS has had any contact with MPP, AMMA or any representative or agent of said organizations.
As most people know, MPP staff actually wrote Prop 203, now the Arizona Medical marijuana Act. Title 36. What most were not aware of is the fact that under section 6 of Title 36, AZDHS compliance under A.R.S 41-1001 is waived. Title 41, The Regulatory Bill of Rights, is an Arizona law to ensure fair and open regulation by state agencies, limiting a state agencies rule making ability to subject matter listed in the specific statute and provides for citizens right to file a complaint with the States Administrative Rules Oversight Committee. Any reasonable person would have to cast a sinister eye on MPPS reasoning in exempting AZDHS from compliance with these provisions. This exemption eliminates the public??s ability to object to the abusive behavior of the AZDHS.
Point by Point Objection to AZDHS Proposed Rules:
1. Medical Director Definition: Should change to include any Doctor who is permitted under Title 36 to recommend Medical Marijuana.
2. Ongoing Definition: this is merely an attempt on the part of AZDHS to create an artificial bottle neck, choking off a potential revenue stream for struggling new dispensary owners. This is an unfair, abuse of authority on the part of AZDHS, intending to further the agenda of MPP. This rule is intended to dissuade marginal (??Trivia?l) applicants from submitting applications. AZDHS should rely on the recommendation of a Arizona licensed Physician, regardless of the relationship period, so long as the recommending physician complies with the provisions of Title 36, or until such time as there is evidence of fraud.
3. ARS 36-2803.4 of the Arizona Medical Marijuana Act requires that the Arizona Department of Health Services rule making be implemented ??without imposing an undue burden on nonprofit medical marijuana dispensaries?.?
4. ARS 28.1 Section 2 ??Findings? of the Arizona Medical Marijuana Act requires the department to take notice of the numerous studies demonstrating the safety and effectiveness of medical marijuana. Arizona's pharmacies and physician offices dispense addictive, dangerous, and toxic drugs that, unlike marijuana, are potentially deadly, yet Arizona's pharmacies and physician offices are not required to have 12 foot walls, constant on-site transmission of video surveillance, residency requirements for principals, or any of the other cruel, arbitrary, and unreasonable regulations proposed by the department.
5. R 9-17-101.10 is an undue and unreasonable burden. 9 foot high chain link fencing, open above, constitutes reasonable security for outdoor cultivation.
6. R 9-17-101.15 is unreasonable and usurps authority denied to the department. It violates the 1998 Arizona Voter Protection Act. The department does not have the authority to deny the involvement of naturopathic and homeopathic physicians as defined by ARS 36-2806.12.
7. R 9-17-101.16, R 9-17-101.17, R9-17-202.F.5(e)i-ii , R9-17-202.F.5(h), R9-17-202.G.13(e)I , R9-17-202.G.13(e)iii , R9-17-204.A.4(e)i-ii, R9-17-204.A.4(h), R9-17-204.B , R9-17-204.B.4(f)I, and R9-17-204.B.4(f)Iii are cruel, arbitrary, unreasonable, and usurp authority denied to the department. Those sections violate the 1998 Arizona Voter Protection Act. ARS 36-2801. 18(b) defines an assessment, singular, as sufficient. The Arizona Medical Marijuana Act does not give the department authority and the 1998 Arizona Voter Protection Act denies the department authority to require multiple assessments, require ??ongoing? care, or redefine the patient-physician in any way, much less to promulgate a relationship among patient, physician, and specialist that is found nowhere in the practice of medicine. Nowhere in medicine is a specialist required to assume primary responsibility for a patient??s care. Nowhere else in the practice of medicine does Arizona require a one-year relationship or multiple visits for the prescription or recommendation of any therapy, including therapies with potentially deadly outcomes. Marijuana is not lethal, but the department usurps authority to treat it with cruel and unreasonable stringency far beyond the stringency imposed upon drugs that are deadly. Plainly, it is dangerous and arbitrary for the department to suggest that a cannabis specialist assume primary care of cancer, HIV/AIDS, ALS, multiple sclerosis, Hepatitis C, and other potentially terminal qualifying conditions when the cannabis specialist may not have the requisite training or experience to do so. The department??s regulations are a cruel, unreasonable, and arbitrary usurpation of authority and denial of patients?? rights of choice, including their rights to choose other medical providers, other sources of care or information, or even to choose not (or cannot afford) to seek other medical care at all (whether prior or subsequent to application).
8. R9-17-102.3, R9-17-102.4, R9-17-102.7, R9-17-102.8, R9-17-104.5 , R9-17-105.4, R9-17-203.A.3, R9-17-203.B.8, R9-17-203.C.5, R9-17-304.A.11 usurp authority denied to the department. ARS 36-2803.5 only gives authority to the department for application and renewal fees, not for changes of location or amending or replacing cards.
9. R9-17-103, R9-17-202.F.1(h), R9-17-202.G.1(i), and R9-17-204.B.1(m) are cruel, arbitrary, and unreasonable. Though many qualifying patients, qualifying patients?? parents, and their caregivers suffer financial and medical hardship, the sections make little or no provision for patients, parents, and caregivers without internet skills or internet access.
10. R9-17-106.A(2) is cruel, arbitrary, and unreasonable. The regulation does not allow for addition of medical conditions that cause suffering, but do not impair the ability of suffering patients to accomplish their activities of daily living. For example, conditions such as Post-Traumatic Stress Disorder (PTSD), Anxiety, Depression, and other conditions may cause considerable suffering, yet still allow patients to accomplish their activities of daily living.
11. R9-17-106.C is cruel, arbitrary, and unreasonable. The regulation only allows suffering patients of Arizona to submit requests for the addition of medical conditions to the list of qualifying medical conditions during two months of every year.
12. R9-17-202.B is cruel, arbitrary, and unreasonable. Qualifying patients may need more than one caregiver to ensure an uninterrupted supply of medicine.
13. R9-17-202.F.5(e)i-ii , R9-17-202.F.5(h) cruel, arbitrary, unreasonable, and usurps patients?? rights to choose other providers or sources of information
14. R9-17-202.F.6(k)ii, R9-17-204.A.5(k)ii , R9-17-204.C.1(j)ii , R9-17-302.B.3(c)ii, R9-17-308.7(b), R9-17-308.7(b), and R9-17-309.5(b), are arbitrary and unreasonable. If a caregiver already has a valid caregiver or dispensary agent registry card, no additional fingerprints need to be submitted.
15. R9-17-205.C.2 and R9-17-320.A.3 are arbitrary and unreasonable. A registry card should not be revoked for trivial or unknowing errors. Revocation of a card should not be allowed unless the applicant knowingly provided substantive misinformation.
16. R9-17-302.A, R9-17-302.B.1(f)ii, R9-17-302.B.1(g), R9-17-302.B.3(b) , R9-17-302.B.3(d)i-ix, R9-17-302.B.4(c), R9-17-302.B.4(d), R9-17-302.B.15(a), R9-17-302.B.15(b), R9-17-302.B.15(d), R9-17-306.B, R9-17-307.A.1(e), R9-17-307.A.3, R9-17-307.C, R9-17-308.5, R9-17-319.A.2.(a), R9-17-319.B are arbitrary, unreasonable and usurp authority denied to the department. These sections violate the 1998 Arizona Voter Protection Act. The department does not have the authority to establish residency requirements, control the occupation of the principal officers or board members, require surety bonds, require a medical director, require security measures that are an undue burden (security measures for non-toxic marijuana that exceed security measures required for toxic potentially lethal medications stored at and dispensed from Arizona pharmacies and physician offices), require educational materials beyond what the law requires, require an on-site pharmacist, require constant, intrusive, or warrantless surveillance, or regulate the portion of medicine cultivated, legally acquired by a dispensary, or transferred to another dispensary or caregivers.
17. R9-17-310 is arbitrary, unreasonable and usurps authority denied to the department. These sections violate the 1998 Arizona Voter Protection Act. The department has no authority to require a medical director, much less to define or restrict a physician??s professional practice.
18. R9-17-313.B.3 is arbitrary, unreasonable and usurps authority denied to the department. This section violates the 1998 Arizona Voter Protection Act. The department has no authority to place an undue burden on recordkeeping for cultivation or to require the use of soil, rather than hydroponics or aeroponics, in cultivation of medicine.
19. R9-17-313.B.6 is arbitrary, unreasonable and usurps authority denied to the department. This section violates the 1998 Arizona Voter Protection Act. The department has no authority to place an undue burden on recordkeeping by requiring the recording of weight of each cookie, beverage, or other bite or swallow of infused food.
20. R9-17-314.B.2 is arbitrary, unreasonable and usurps authority denied to the department. This section violates the 1998 Arizona Voter Protection Act. Especially in the absence of peer-reviewed evidence, the department has no authority to require a statement that a product may represent a health risk.
21. R9-17-315 is arbitrary, unreasonable and usurps authority denied to the department. This section violates the 1998 Arizona Voter Protection Act. The department has no authority to place an unreasonable or undue burden by requiring security practices to monitor a safe product, medical marijuana, that is not required for toxic, even lethal, products.
22. R9-17-317.A.2 is arbitrary, unreasonable and usurps authority denied to the department. This section violates the 1998 Arizona Voter Protection Act. The department has no authority to require the daily removal of non-toxic refuse.
ADDITIONAL RECOMMEDATIONS:
23. SURETY BOND: Clarify the purpose, the type, the amount and the third party beneficiary, of the surety bond, or eliminate its reference from the rules.
24. NON-PROFIT ENTITY: Clarify the need to establish a non-profit entity. Title 36 only requires an applicant to operate the dispensary under a non-profit ??basis?. Can an applicant establish a LLC or other entity so long as his/her bylaws comply with Title 36?
25. 70% COOPERATIVE GROW: Clarify if a group of dispensaries can form a cooperative to grow their medical marijuana under one roof, so long as the facility is in compliance with Title 36 and the AZDHS rules.
26. SEEDS: Please clarify where a dispensary owner can purchase his initial seeds.
27. LANDLORD RIGHTS: Please clarify landlord rights with respect to entry and inspection of a dispensary/ cultivation facility. (Assuming the landlord is not a registered agent of the Dispensary). Additionally, please clarify access by a repair service to enter upon the restricted areas of a dispensary/cultivation to make necessary repairs.
28. TWO STAGE APPLICATION PROCESS: R9-17-302 Applying for Dispensary Registration Certification; we believe the proposed rules regarding the application process are inherently unfair and favor the wealthy. The average person who may otherwise qualify would be reluctant to invest hundreds of thousands of dollars in a dispensary application without knowing if they will get a license. In order to equalize the application process we believe AZDHS should adopt a two stage application process as follows:
Review the principals and legal entity first. Perform whatever background checks AZDHS desires, including FBI and all the other requirements as set forth in the proposed rules relevant to the principals and legal entities.
Issue a conditional License to the 125 most qualified individuals subject to approval of the facilities. ( dispensary and cultivation sites)
The conditional license would require that the applicant to complete the build-out and/or construction of the facilities within 90-120 days.
Thereafter, the conditionally approved applicant would submit the second half of his application ( Facilities) for inspection and approval.
The second half of the application must meet all the requirements of the proposed rules relevant to the facilities.
Provided the applicant meets all the facility requirements he/she would then be issued a Dispensary Registration Certificate
This system allows for fairness across all demographic and financial groups.
It would not preclude individuals simply because they are not millionaires, and would allow those that are chosen to obtain the financing they need to complete the project.
Fairness and transparency requires AZDHS to adopt this application process or similar one.
IN CONCLUSION:
Taken in totality, it appears that AZDHS is working in collusion with MMP to make this application process as difficult as possible, beyond what is fair and reasonable. What was alleged to be ??fair and transparent?, has now become biased and opaque, demanding a comprehensive review and explanation.
The sole agenda of AZADPs is to assure the success of the Arizona Medical Marijuana Act. To bring the dispensaries out of the dark corner of society into the main stream of America. We understand that to accomplish that we need to change the image, we need to exceed the highest standards, and we need to conduct ourselves and our businesses with the utmost professionalism, always in full compliance with the law.
While you allege that ??nobody outside the department is involved in the development of your informal draft rules?, it appears that is not correct. The fact remains you may not know if MPP is communicating with your underlings. The answer to your problem is to embrace ALL these organizations rather than create the illusion that you are NOT being influenced by some. You may want to establish a round table of your own, invite all the organizations, associations and industry leaders in Arizona including MPP, to offer and exchange ideas. That way nobody feels left out, and you perhaps may even learn a few things.
We would welcome the opportunity to assist you in organizing a round table of industry, leaders. In the alternative we hope you will make a full disclosure of your involvement with MPP.
Sincerely,
Allan Sobol
President/ AZADP
602 504-6050