Would you support litigation to remove the 25 mile rule from the AMMA?!

Would you support litigation to remove the 25 mile rule from the AMMA?

  • Yes, I would support litigation to remove the 25 mile rule

    Votes: 21 100.0%
  • No, I would NOT support litigation to remove the 25 mile rule

    Votes: 0 0.0%

  • Total voters
    21
  • Poll closed .

farmin

Member
I have a question to ponder for your poll...why would someone attempt a FEDERAL appeal for the 25 mile rule? When that FEDERAL appeal goes in front of a federal judge, they will laugh you out of court...why? Because to the feds MJ is unequivocally illegal PERIOD! There is NO case at that point! So the question is.. what is the REAL reason for your formality case?
 

BeaverHuntr

Well-Known Member
i have a question to ponder for your poll...why would someone attempt a federal appeal for the 25 mile rule? When that federal appeal goes in front of a federal judge, they will laugh you out of court...why? Because to the feds mj is unequivocally illegal period! There is no case at that point! So the question is.. What is the real reason for your formality case?
plugs galore???
 

Bill Hayes

Active Member
I have a question to ponder for your poll...why would someone attempt a FEDERAL appeal for the 25 mile rule? When that FEDERAL appeal goes in front of a federal judge, they will laugh you out of court...why? Because to the feds MJ is unequivocally illegal PERIOD! There is NO case at that point! So the question is.. what is the REAL reason for your formality case?
have you followed what has happened so far at all??

have you read my motion? their response? my response to their response? my response to their threats?? yup, threats, they threaten most of you as well for supporting me.

do you realize no matter how poorly YOU think it was constructed, it has thus far survived the initial attack by the state, in which they attacked formatting errors and have suggested exactly what you've said here...


however, Honorable Judge Susan Bolton did NOT dismiss (as she easily could have) and instead politely reminded me to reply to their motion to dismiss with a response as to why she shouldn't by the fifteenth, which I did. I would suggest you read it.
 

Bill Hayes

Active Member
Case No.: 2:12-CV-00322-SRB


PLAINTIFF’S RESPONSE TO DEFENDANTS’ (AMENDED) MOTION(S) TO DISMISS PLAINTIFF’S COMPLAINT AND MOTION FOR PRELIMINARY INJUNCTION

(Honorable Susan R. Bolton)



COMES NOW, the Plaintiff, Billy B. Hayes, Jr., Pro Se, and hereby submits the within PLAINTIFF’S RESPONSE TO DEFENDANTS’ (AMENDED) MOTION(S) TO DISMISS PLAINTIFF’S COMPLAINT AND MOTION FOR PRELIMINARY INJUNCTION. In support thereof, I state as follows:




Introduction
As a preliminary matter, it should be noted that I am in receipt of both Defendants’ Motion to Dismiss (hereafter “Motion”) and the Defendants’ Amended Motion to Dismiss (hereafter “Amended Motion”) filed on March 1, 2012 and March 2, 2012 respectively. As best I can tell the only distinguishing characteristic is contained in Footnote 2 contained on the second page of both of Defendants’ pleadings. I certainly have no objection to the correction of a clerical, formatting and/or procedural error(s) by the Defendants as the substance of the case is the issue that is of paramount concern to both parties. To the extent that any other distinguishing characteristic(s) is/are recognized, it will be noted herein.

Memorandum of Law and Points of Authority

  1. I. Background
  2. A. The Arizona Medical Marijuana Act (“AMMA”)
I hereby re-affirm the contents of my previously pled background regarding the AMMA. With respect to the Defendants’ Motion to Dismiss (hereafter “Motion”), and Defendants’ Amended Motion to Dismiss (hereafter “Amended Motion”), there is little disagreement as to their stated position regarding the case background. One difference, but certainly noteworthy is the statement by the Defendants that “n addition to growing their own marijuana, the only other permissible way for qualifying patients or designated caregivers to obtain marijuana is from a nonprofit medical marijuana dispensary agent at a nonprofit medical marijuana dispensary.” (citations omitted). (emphasis supplied). See: Amended Motion, p. 3, l. 4-7.
While not mentioned in either the Defendants’ Motion or Amended Motion, (but as pled by me in my original Complaint and Motion for Preliminary Injunction), upon the conclusion of CV 2011-01072-PHX-SRB and the State cases regarding “Compassion Clubs”, Defendant, Governor Brewer, in her official capacity, stated for the record that there would no longer be a challenge to the state’s Medical Marijuana law in court and instead there would be cooperation to see that the voters’ demands are once and for all fully enacted. Said the Governor in a press release:
The State of Arizona will not re-file in federal court a lawsuit that sought clarification that State employees would not be subject to federal criminal prosecution simply for implementing the Arizona Medical Marijuana Act. Instead, I have directed the Arizona Department of Health Services to begin accepting and processing dispensary applications, and issuing licenses for those facilities once a (separate) pending legal challenge to the Department’s medical marijuana rules is resolved. … With our request for clarification rebuffed on procedural grounds by the federal court, I believe the best course of action now is to complete the implementation of Proposition 203 in accordance with the law.

See: Exhibit A, January 13, 2012 Statement by Governor Brewer-Medical Marijuana, Attached hereto and incorporated herein.
Additionally, despite any inadvertent or purposeful failure to disclose, the Arizona Department of Health Services is actively taking accelerative action toward full implementation of the AMMA, including the finalization of Dispensary rules, the submittal of the same to the Secretary of State and the advertising that they will be soon processing applications for, and licensing of, “Dispensaries” as defined by the AMMA. See: Arizona Department of Health Services Director’s Blog, http://directorsblog.health.azdhs.gov/?p=2175. Again, upon the acceptance of and licensing of Dispensaries, the 25-Mile Rule of the AMMA will automatically be triggered if the statutory provision in question (Arizona Revised Statute 36-2804.02(A)(3)(f)) is not immediately addressed by way of injunction. This is far more imminent than the Defendants assert in their pleadings.



  1. B. The Controlled Substances Act
I do not disagree that pursuant to Federal law, under the Controlled Substances Act (hereafter “CSA”), marijuana is currently categorized as a “Schedule I controlled substance”. However, any contention by the Defendants that the CSA is applicable to the instant case beyond the categorical aspect is perplexing. If anything, the case citations and the nature of Defendants’ argument(s) in this section are tantamount to a “veiled threat” as opposed to anything noteworthy in a legal sense that substantiates the Granting of their Motion or Amended Motion.
For example, Defendants point out that “t is also unlawful to aid and abet the commission of a federal crime, 18 U.S.C. sec. 2; assist an offender thereby becoming an accessory to a crime, 18 U.S.C. Sec. 3; and make certain financial transactions designed to promote illegal activities or to conceal or disguise the source of the proceeds of that illegal activity, 18 U.S.C. Sec. 1956” See: Amended Motion, p. 3-4, l. 27; l. 1-4. However, the Defendants do not tie those provisions to any argument in support of their Motion. Arguably such posturing serves no purpose but to attempt to instill fear within myself as a Plaintiff and as a overt message to anyone serving to offer assistance with the within legal battle. Such behavior is consistent with the Defendants’ stance against Medical Marijuana, their publically stated position, their overt actions regarding Medical Marijuana, their indignation toward “Qualifying Patients” and blatant indifference to the will of voters in the State of Arizona since the inception of the AMMA (and prior via Prop 203).
I have never asked the within Court to address the legality of Marijuana which is what makes the Defendants position even that much more disconcerting.
The issue, plain and simple is whether the “25-Mile Rule” is Constitutional under the 14th Amendment to the United States Constitution. Whether the underlying activity leading to the repercussions of the imposition of the 25-Mile Rule relates to Marijuana is of nominal significance when looking at the issue of whether a Motion to Dismiss my Complaint and Motion is appropriate.

  1. II. Argument
While not fully addressed by the Defendants in their (Amended) Motion(s) (albeit tangentially argued at Amended Motion p. 4, l. 24-27; p. 5, l. 1-2), I would be remiss if I did not bring to the Court’s attention the standard of review when assessing a Motion to Dismiss under F.R.C.P. 12(b)(6). Unambiguously stated, “[a] motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the [P]laintiff, a court finds that plaintiff’s claims have facial plausibility.” See: Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007).
Moreover, the Supreme Court has established a two-part approach when measuring the adequacy of pleadings. See: Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Under the Iqbal framework, the Court should isolate the well-pleaded, non-conclusory factual allegations that are entitled to a presumption of truth. Id. Then, considering only the well-pleaded facts and assuming their truth, the court should determine whether those facts give rise to a plausible entitlement to relief. Id. at 1949-1950.

  1. A. Response to Defendants’ Argument that there is a Failure to State a Claim Upon Which Relief May be Granted.

Defendants are correct that I am asserting that the provision of the AMMA, A.R.S. Sec. 36-2804.02(A)(3)(f) violates the Fourteenth Amendment of the United States Constitution and is therefore unconstitutional. See: Amended Motion, p. 4, l. 13-23. (citations to my Complaint omitted).
The Fourteenth Amendment to the United States Constitution provides that no State “hall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV. (Emphasis added).
Despite the Defendants’ contentions to the contrary, I have never argued that I have a Constitutionally protected Right to cultivate Marijuana. Accordingly, the legal authority cited by Defendants (with respect to fundamental rights as they pertain to marijuana) are wholly inapplicable my situation. Moreover case citations to the commercial production and distribution of Marijuana are inapplicable as I am a single individual and have never asserted any contention to produce or distribute Marijuana on a commercial level. Once again, the Defendants cite case law supportive of their position; however their position is not what is being argued here by me and therefore makes the citations inapplicable.
Once more, the sole issue, plain and simple is whether it is Constitutional under the 14th Amendment to the United States Constitution to have State issued criminally punitive sanctions for one group of “qualified patients” while similarly situated “qualified patients”, by the very nature of their geographic location would be subjected to intervention by the State of Arizona legal authorities that would lead to severe criminal sanctions at a State level (regardless of Federal involvement whatsoever). Therein lays the distinguishing characteristic, regardless of whether the Defendants choose to endlessly argue privilege versus right. I will defer to my originally filed Complaint and Motion for Preliminary Injunction in the interest of avoiding duplicitous argumentation regarding this issue.
Plainly stated, if you were to substitute a restriction (that has severe State criminal implications) on the pharmacy I have to go to for my “controlled substance” medications (with a 25-Mile Rule imposition for example), and the Federal government does approve of that controlled substance, the argument remains the same. The Defendants simply seek to defray attention away from the substance of my Constitutional argument by obscuring the issues before the Court based upon their staunch opposition toward Medical Marijuana and the fact that while State approved, it is not on the Federal level. However, the Defendants fail to state how it is that this Court is without the authority to protect against equal protection violations.
Take the Defendants’ own argument, (by way of argumentation)-by the Defendants’ own reasoning, the State of Arizona, et. al would then be complicit in the very same “illegal activity” in which they claim warrants the need to dismiss the within case. See: Amended Motion, p. 2, l. 24-27; p. 3, l. 1-3, “…as of January 27, 2012, the ADHS has registered 19,364 qualified patients and 1,154 designated caregivers. Of the registered qualifying patients, 16,298 have been authorized [by the State of Arizona] to cultivate marijuana”.
The same is true under Defendants arguments for dismissal citing the CSA. The Defendants clearly state that it is “unlawful to aid and abet the commission of a federal crime, 18 U.S.C. Sec. 2; assist an offender thereby becoming an accessory to a crime.” See: Amended Motion, p. 4, l. 1-4. Again, by the Defendants logic, by authorizing cultivation for nearly 17,000 qualified Medical Marijuana patients they themselves have violated the very same federal laws (vis a vis “cultivation”) by authorizing even one patient, much less the number of patients they claim they have already authorized to engage in, as the Defendants termed it, “activity that is prohibited by law”. See: Amended Motion (p. 4, l. 1-4).

  1. B. Form of pleadings
As stated previously, the United States Supreme Court has established a two-part approach when measuring the adequacy of pleadings. See: Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Under the Iqbal framework, the Court should isolate the well-pleaded, non-conclusory factual allegations that are entitled to a presumption of truth. Id. Then, considering only the well-pleaded facts and assuming their truth, the court should determine whether those facts give rise to a plausible entitlement to relief. Id. at 1949-1950.
The Defendants are correct that the commencement of a civil action is “commenced by filing a complaint with the court”. See: F.R.C.P. 3. Furthermore, pursuant to F.R.C.P. 8, as cited by the Defendants,
(a) Claim for Relief. A pleading that states a claim for relief must contain:

(1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;

(2) a short and plain statement of the claim showing that the pleader is entitled to relief

In reviewing my Complaint and Motion it is clear that I complied with F.R.C.P. 8, regardless of how the actual document may “appear” stylistically. Specifically, my Complaint lays out a section for “Parties” addressing jurisdiction/venue, a “Background” section which familiarizes the Court with the AMMA (similar to the one contained in Defendants Motion(s) to Dismiss), and a legal standard and argument section which clearly lay out my claim for relief as well as the legal authority supporting that claim. See: Complaint at p. 3-19.
If Defendants are correct in their assertion that “[t]he purpose of these rules is to ensure that the complaint is sufficiently clear ‘so as to enable each defendant to effectively formulate a response’” (citations omitted), then inarguably, as long as the Defendants have been able to formulate a response, a dismissal would not be appropriate; or at least the Defendants fail to cite one scintilla of legal support for a dismissal on these grounds. Moreover, the ability to formulate a Responsive pleading by the Defendants was further simplified by my inclusion of a Table of Contents that directly references the sections that they claim do not exist.
To the contrary, regardless of form/style, as long as jurisdiction is asserted and the claim(s) for relief is/are clearly delineated the reasoning is articulated fully, and the relief requested from the Court has been properly pled. Alternatively, any alleged “defects” would be curable by an Amended filing as opposed to the extreme measure of case dismissal; similar to the Motion and Amended Motions filed by the Defendants that were designed to cure their formatting defects.
Conclusion
For the foregoing reasons, the Court should DENY Defendants (Amended) Motion(s) to Dismiss Plaintiff’s Complaint and Motion for Preliminary Injunction regarding the 25-Mile Rule. Alternatively, the Plaintiff requests an Oral Argument to address any potential dismissal.
I also hereby renew my request that a preliminary injunction be granted regarding the statutory provision in question, A.R.S. Sec. 36-2804.02(A)(3)(f) pending the resolution of the within issues.
DATED: March 19, 2011
Respectfully Submitted,

____________________
Billy B. Hayes, Jr., Pro Se
15508 W. Bell Rd., Ste. #101
PMB 502
Surprise, AZ 85374
 

irieie

Well-Known Member
I thought about your comment a lot. What bothers me about it is the idea that they'd know. How do they know?
That market is already saturated so if you plan on moving there to grow for anything other than personal use then good luck to you. I don't think the laws and regulations or the industry is that inviting to new comers from out of state. I wish AZ was more like that but it seems that our state want non Arizona residents to come and open dispensaries and send the money elsewhere. Great job again AZ.
 

UnderBelly

Active Member
That market is already saturated so if you plan on moving there to grow for anything other than personal use then good luck to you. I don't think the laws and regulations or the industry is that inviting to new comers from out of state. I wish AZ was more like that but it seems that our state want non Arizona residents to come and open dispensaries and send the money elsewhere. Great job again AZ.
Market? Industry? Those words represent the whole problem. I think we're in a totally different frame of reference here.

I'm planning on moving there because I want to have at least a chance of seeing forests and mountain ranges in the short time I have left. The fact that I'm going to lose my right to grow my own medicine here, but would be able to keep that right if I moved there, makes it seem a little more realistic to do it. Who said anything about marketing or industrials?
 

irieie

Well-Known Member
Market? Industry? Those words represent the whole problem. I think we're in a totally different frame of reference here.

I'm planning on moving there because I want to have at least a chance of seeing forests and mountain ranges in the short time I have left. The fact that
I am sorry I now understand why you are so bitter. If there is anything I can do to help you please feel free to pm me I have clones available and will.soon have meds edibles and concentrates. I am sorry if I upset you previously.
 

valstar

Member
I think the 25 mile rule should have never been in the measure to begin with. For several reasons. Most patients are disabled and cannot afford to pay the rates dispensaries are charging. I dont care what they say about over head ect ect it does not cost 400 dollars an ounce to produce. This should be all about compassion not getting rich. If you are in it to get rich you are ripping sick people off. Disabled people cannot afford to make greedy people rich. Our only option is grow our own.

25 dollars an 1/8 would be fine just like it is other states. That would be closer to cost and if you say its more you need to rethink your business cause you are paying way too much to grow it. You dont have to recoup all your costs in 6 months. Once the equipment is paid for your costs come down dramatically.

Dispensary owners get the dollars signs in their eyes and tend forget if it wasn't for the sick people they wouldn't be able to grow at all.
 

phxfire

New Member
I think the 25 mile rule should have never been in the measure to begin with. For several reasons. Most patients are disabled and cannot afford to pay the rates dispensaries are charging. I dont care what they say about over head ect ect it does not cost 400 dollars an ounce to produce. This should be all about compassion not getting rich. If you are in it to get rich you are ripping sick people off. Disabled people cannot afford to make greedy people rich. Our only option is grow our own.

25 dollars an 1/8 would be fine just like it is other states. That would be closer to cost and if you say its more you need to rethink your business cause you are paying way too much to grow it. You dont have to recoup all your costs in 6 months. Once the equipment is paid for your costs come down dramatically.

Dispensary owners get the dollars signs in their eyes and tend forget if it wasn't for the sick people they wouldn't be able to grow at all.
No doubt my friend!!
 
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