Board’s Response

On January 18, 2019, the Iowa Board of Pharmacy filed its response to my petition for judicial review.  The response can be found at: https://www.iowamedicalmarijuana.org/cases/olsen-pharmacy.html

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I sent the petition to the administrator by email after hand delivering a paper copy to the board’s physical location and receiving a date-stamped (July 5, 2018) copy of the front page in return.  A copy of that front page with the date-stamp is attached to the Petition for Judicial Reivew, filed on August 15, 2018, at page 4.

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I did not disagree with the administrator’s May 31, 2017, analysis of my petition for agency action (Proposed Exhibit), so I did not request further agency action on it or seek judicial review.  I did not waive my right to petition the agency.  The fact the administrator responded to it proves I had a right to file it.  If the administrator had failed to respond, it would have been remanded back to the agency from judicial review.  The Iowa Administrative Procedures Act gives any intereted party the right appeal from any agency action or lack of action, so a petition is just a formal courtesy.  See Iowa Code Chapter 17A.1; and §17A.19(1) (“A person or party who has exhausted all adequate administrative remedies and who is aggrieved or adversely affected by any final agency action is entitled to judicial review thereof under this chapter”).

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The Respondent says the legislature did not authorize the board to consider religious use when making scheduling recommendations.  This is an error in logic.  Religious use is a right guaranteed in the constitution, so it’s the foundation of all statutory law.  All the factors the board must consider apply to religious use, just as they apply to any other use.  The religious use is no different than the 900 people already using cannabis extracts under Iowa Code Chapter 124E, so the analysis would be the same for religious use as it would be for secular use under Chapter 124E.  The board has no authority to determine a religious claim is different than any other claim, although the board could raise an objection as to whether the claim was actually religious if it had evidence showing the claim is not religious.  Equal protection means treating secular and religious use the same.

I did ask the board to recommend revising the listing for marijuana in a similar way to the listing of peyote, so I can see why the Respondent is talking about a universal exemption as opposed to an individual exemption.  It would be hard to imagine I m the only person in Iowa with a religious claim, but I am the only person in Iowa with a petition for judicial review on the question.  Resolving that question could simply mean an indivual exemption, but does not require complete dismissal of the question.

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We never asserted the board is required to accept petitions from private individuals.  We asserted the board has accepted them and the only reason the board has given for not accepting this one is because it is a religious claim.  The board does not dispute it is a religious claim.

The Iowa Constitution is an Iowa law and the board is required to interpret the law that governs it.  There is no exemption in the Iowa Constitution for state agencies.

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The board says is has no rules for handing religious requests.  Nothing prevents the board from making such rules, and it should.

The board has a valid point about a “universal” exemption, but what is the board offering as an alternative (least restrictive means)?  The peyote exemption is a “universal” exemption and provides the only existing example for the creation of a second religious exemption.

I’m not sure if the DEA would have to create an “individual” exemption as opposed to a “universal” exemption.  In either case, the DEA would have to do one or the other.

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Iowa does not need a religious freedom restoration act.  The principles articulated in Mitchell County v. Zimmerman are the appropriate legal standard.

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What prevents the board for making rules for considering religious petitions granting religious exemptions to individuals or organizations?

The recommendation the board made in 2010 was passed in the Iowa Senate on April 27, 2017, by a vote of 45-5, plus they added THC to it.  See S.F. 506; S.J. 1037.

The President of the Iowa Senate recently told me he thinks the board should have considered my request.