438 P.3d 676
Ariz. Ct. App.2019Background
- Arizona voters enacted the Arizona Medical Marijuana Act (AMMA); applicants for nonprofit medical marijuana dispensary registration must file an application with the Department of Health.
- JH2K applied for a dispensary registration; the Department found the application substantively incomplete and requested 17 items, including documentation that the proposed dispensary is at least 500 feet from any public or private school.
- JH2K submitted a map measuring 513.75 feet from the dispensary building to the school administration building; the Department measured property-line to property-line and determined the distance was 424 feet, concluding the site violated the 500-foot separation requirement.
- The Department denied JH2K’s application; an ALJ recommended affirmance, the Director adopted that recommendation, and the superior court affirmed. JH2K appealed.
- JH2K argued (1) the 500-foot documentation requirement did not apply at the initial application stage, (2) distance should be measured building-to-building, and (3) the Department expanded the definition of “school”; it also raised equal protection and due process claims for the first time on judicial appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the initial application must include documentation that the proposed dispensary is >=500 feet from a school | JH2K: R.9-17-304 governs initial application and contains no separation requirement, so the Department cannot require distance documentation at initial stage | Department: AMMA §36-2804(B)(1)(b)(ii) and A.A.C. R9-17-322(A)(1) require the application to show the physical address is not within 500 feet of a school | Court: Requirement applies at initial application stage; Department did not abuse discretion |
| Proper method to measure distance to a school and scope of “school” | JH2K: Measure building-structure to building-structure; “school” should not automatically include surrounding grounds | Department: Statute/regulation definitions and practice allow measuring from property line to property line; school includes buildings and grounds where instruction occurs | Court: “School” includes school property/grounds; measuring property-line to property-line is consistent with statute and voter intent |
| Timeliness and reviewability of constitutional claims (equal protection/due process) | JH2K: Department treated applicants differently; constitutional claims raised on appeal | Department: Issues were not raised administratively and are forfeited; no jurisdictional exception | Court: Claims were not raised before the agency and are not preserved for judicial review; not considered on appeal |
Key Cases Cited
- Gaveck v. Ariz. State Bd. of Podiatry Exam'rs, 222 Ariz. 433 (App. 2009) (agency factual findings supported by substantial evidence are upheld)
- JHass Grp. L.L.C. v. Ariz. Dep't of Fin. Insts., 238 Ariz. 377 (App. 2015) (appellate review of agency legal conclusions de novo)
- Azore, LLC v. Bassett, 236 Ariz. 424 (App. 2014) (use plain language to determine statutory meaning)
- State v. Petrak, 198 Ariz. 260 (App. 2000) (give terms ordinary meaning absent statutory definition)
- Indus. Comm'n of Ariz. v. Old Republic Ins. Co., 223 Ariz. 75 (App. 2009) (apply clear statutory terms without further analysis)
- Berndt v. Ariz. Dep't of Corrections, 238 Ariz. 524 (App. 2015) (construe related statutes together to give effect to all provisions)
- Fleming v. Dep't of Public Safety, 237 Ariz. 414 (App. 2015) (statutory construction principles for related provisions)
- Kilpatrick v. Superior Court, 105 Ariz. 413 (1970) (words given usual meaning absent indication of different intent)
- State v. Schoner, 121 Ariz. 528 (App. 1979) (court interpreted “school” to refer to entire organization including grounds)
- DeGroot v. Arizona Racing Comm'n, 141 Ariz. 331 (App. 1984) (failure to raise an issue administratively precludes judicial review except for jurisdictional issues)