Arizona Court of Appeals Division One holds that mere “solicitation” to violate a controlled substance law can disqualify a person from being a marijuana dispensary agent.

Under the Arizona Medical Marijuana Act, a person cannot be a marijuana dispensary agent if he or she has been convicted of an “excluded felony offense.”  A.R.S. § 36-2804.01(D).  The term “excluded felony offense” includes a violation of a “controlled substance law” that is classified as a felony.  A.R.S. § 36-2801(7)(b).

For example, Arizona’s controlled substance laws prohibit possession of a dangerous drug for sale.  A.R.S. § 13-3407(A)(2).  A person who commits this crime cannot be a marijuana dispensary agent.  But what about a person who merely “solicits” possession of a dangerous drug for sale?

Such was the position of Mr. Murro, who pled guilty to solicitation to commit possession of a dangerous drug for sale, then applied to be a marijuana dispensary agent.  The Arizona Department of Health Services deemed Murro’s crime an excluded felony offense that disqualified him.  The superior court affirmed.  So did the Court of Appeals.

Murro argued that solicitation is not a violation of a controlled substance law, but part of a separate class of crimes.  It is a “preparatory” offense, not a “substantive” offense.  See State v. Tallez, 165 Ariz. 381, 383 (App. 1989) (drawing this distinction).  And it is categorized as an inchoate offense under Arizona’s criminal code (A.R.S. § 13-1002), not as part of the controlled substance laws (A.R.S. § 13-3401 et seq.).

The Court of Appeals rejected this argument.  The court reasoned that solicitation, like other inchoate offenses (attempt, conspiracy, facilitation), is a crime whose type depends on the underlying substantive offense.  After all, solicitation requires an “intent to promote or facilitate the commission of” the underlying offense.  A.R.S. § 13-1002(A).  And the classification of the solicitation offense depends on the classification of the underlying offense.  A.R.S. § 13-1002(B).  Because Murro solicited a violation of a controlled substance law, his solicitation was itself, a violation of a controlled substance law, for purposes of the Arizona Medical Marijuana Act.

Presiding Judge Morse Jr. delivered the opinion.  Judge Thompson and Vice Chief Judge Swann joined.