Waltz Healing Ctr., Inc. v. Ariz. Dep’t of Health Servs. – 12/4/2018
Arizona Court of Appeals Division One holds that an application to register a medical marijuana dispensary must show that the proposed dispensary is, at the time of the application, in compliance with local zoning restrictions.
Medical marijuana dispensaries in Arizona must register with the Arizona Department of Health Services via application. By statute, each application must include a sworn statement certifying that the proposed dispensary “is in compliance with” any local zoning restrictions. A.R.S. § 36-2804(B)(1)(d). Similarly, by regulation, each application must include documentation from the relevant local jurisdiction that the proposed dispensary’s location “is in compliance with” any local zoning restrictions. Ariz. Admin. Code R9-17-304(C)(6).
The Department began accepting applications for medical marijuana dispensaries in 2012. A company applied at that time but was unsuccessful. The application process closed later that year.
The Department opened another application process in 2016. The company applied again, proposing Tempe as a location. But the only document that the company submitted to show compliance with local zoning restrictions was a letter from Tempe from 2012. The Department denied the company’s application. The superior court affirmed.
The Court of Appeals affirmed for two reasons. First, under the statute and the regulation, an application must show that the proposed dispensary “is” in compliance with local zoning restrictions. The letter from Tempe merely showed compliance in the past, not at the time of the 2016 application. Second, the letter from Tempe expressly stated that it would expire upon termination of the Department’s then-existing application process. Thus, the letter expired by its own terms when the initial application process closed in 2012.
Presiding Judge Johnsen delivered the opinion. Judge Howe and Judge McMurdie joined.