JUDGE HAMBORG: Good morning. This is admnistrative law judge Carla Hamborg and this is the time set for hearing in appeal number 22IDPH0002. It looks like there are three other people on the line. Do I have attorney Colin Murphy representing the appellant? [0:21]
COLIN MURPHY: Good morning, your honor. How are you? [0:23]
JUDGE HAMBORG: Good morning. I'm fine. I hope you are as well. Is your client also on the line? [0:29]
COLIN MURPHY: He should be on the line, calling in from a different number. [0:32]
CARL OLSEN: Yes.
JUDGE HAMBORG: Carl Olsen, are you on the line? [0:35]
CARL OLSEN: I am. Good morning, your honor. [0:36]
JUDGE HAMBORG: Good morning. And do I also have either Assistant Attorney General Heather Adams or Laura Steffensmeier? [0:46]
HEATHER ADAMS: Yes. Good morning judge. We're both here. [0:49]
JUDGE HAMBORG: Okay. Is there anyone else on the line? It looks like someone else may have just called in. [0:57]
JUDGE HAMBORG: Are you still planning to call Owen Parker? And should I address Ms. Adams or Ms. Steffensmeier? [1:05]
HEATHER ADAMS: Either is fine. This is Ms. Adams. And yes we are planning to call Owen and he is here with us in the conference room. [1:12]
JUDGE HAMBORG: Okay. So you're all on the speaker phone. Okay. Well unless we're waiting for anyone else then, we'll go ahead and get started. For the record, today's date is June 15, 2022, and the time is shortly after 9:00 a.m. The appellant is Carl Olsen. The responded is the Iowa Department of Public Health. [1:30] This hearing is being conducted by telephone at the consent of the parties and is being recorded. [1:36] The issue for hearing identified by Iowa Department of Public Health is whether the department correctly rejected Carl Olsen's application for an Iowa medical cannabidiol registration card. [1:50] The appellant is present for the hearing and is represented by attorney Colin Murphy. [1:55] Iowa Department of Public Health is represented by Assistant Attorneys General Heather Adams and Laura Steffensmeier. [2:03] Also present is Owen Parker, Chief of the department's Bureau of Medical Cannabidiol. [2:08] Am I pronouncing that correctly? Is it cannabidiol, cannabidiol? [2:13]
HEATHER ADAMS: It's cannabidiol. [2:15] But, you can pronounce it ...
JUDGE HAMBORG: Oh, cannabidiol. Okay. [2:20]
HEATHER ADAMS: People often mispronounce it. So if we want to say CBD or MCBD, that's fine too. [2:27]
JUDGE HAMBORG: Well, I'll try for cannabidiol, but I'm afraid I'm going to mess up the acronym if I try that. [2:36]
HEATHER ADAMS: Okay.
JUDGE HAMBORG: We'll go ahead. What I have in the administrative file, I have the department's exhibits 1 through 5 and that does include a statement produced by the appellant as well as his appeal request. [2:51] And then of course I have the original notice of hearing and the orders continuing the hearing to today's date. [2:57] Mr. Murphy, I assume you received the department's exhibits? [3:03]
COLIN MURPHY: Yes, your honor. [3:05]
JUDGE HAMBORG: Is it okay to admit those documents into the record? [3:07]
COLIN MURPHY: I have no objection. I just wanted to clarify the exhibit that you mentioned that contained the declaration that Mr. Olsen filed along with his application, that is part of that exhibit? [3:19]
JUDGE HAMBORG: Yes, I believe it is exhibit, is it 5?
HEATHER ADAMS: It's exhibit 2, judge. Exhibit 2, judge. [3:29]
JUDGE HAMBORG: Exhibit 2. Okay, I ... Let me know ... Yes, it is. [3:35]
COLIN MURPHY: Okay. Thank you. And with that, no objection your honor. [3:37]
JUDGE HAMBORG: I'll go ahead and admit the documents into the record. [3:41] Unless either side has additional exhibits they'd like to produce I'll entertain opening statements. [3:49] Mr. Murphy, it is your burden of proof. Would you like to make an opening statement? [3:56]
COLIN MURPHY: I do. I think an opening would be helpful, your honor. The objection that Mr. Olsen is making through this appeal has to do with his constitutional right to free exercise of religion under both the First Amendment and Article 1 Section 3 of the Iowa Constitution. [4:16] And that free exercise of religion would include the right to purchase medical cannabidiol products from licensed Iowa dispensaries under Iowa Code chapter 124E. [4:28] And possess and use those products. And, as I'm sure that you'll hear, Iowa chapter code, Iowa Code chapter 124E which is the state's medical cannabidiol program has been around since 2014, but didn't become fully operational until a few years later, I believe in 2017, 2018, when retail sales began. [5:00] The reason for that is it took time for the state to approve manufacturers, to have certain strains developed, to plant those seeds, to grow cannabis and then process it and prepare these products for sale to people with medical cannabidiol registration cards. [5:21] Mr. Olsen is a member of the Ethiopian Zion Coptic Church and the sacramental non-drug use of cannabis in bona fide religious worship is one of his sincerely held religious beliefs. [5:26] And you'll hear testimony that Mr. Olsen stopped using cannabis as the sacrament following the U.S. Supreme Court decision in Employment Division v. Smith. [5:47] What he's wishing to do now is resume that religious practice within a manner consistent with the secular use of cannabis extracts that are permitted under Iowa Code chapters 124, 124E, and 453B. [6:03] He submitted that registration card, or the application, paid the fee, but as the record will show, on January 7 the department denied his application. [6:15] The claim that Mr. Olsen will be making is that under the state and federal constitutions, the free exercise prohibits the state from enforcing a regulatory law that's neither neutral nor generally applicable. [6:31] Mr. Olsen takes the position that Iowa Code chapter 124 is not neutral toward religion because it contains a religious exemption for peyote. [6:41] And that peyote exception has been part of the Iowa statutory law for more than 40 years. [6:52] And he also going to contend that Iowa code chapters 124 and 453B are no longer applicable with respect to marijuana as a result of this secular exemption that's been carved out for medical cannabidiol under chapter 124E. [7:08] And we believe that his sincerely held religious belief in the sacramental use of cannabis is at least equal to the secular use of cannabis extracts that are allowed under chapter 124E. [7:19] And maybe this goes more toward how the court wishes to address Mr. Olsen's religious practice but I'd just like to point out that the Ethiopian Zion Coptic Church and Mr. Olsen's participation in that church, his membership, his sincerely held religious belief about the sacramental use of cannabis, that has been detailed and acknowledged by the Iowa Supreme Court, U.S. district courts, various circuit courts of appeal, U.S. Supreme Court opinions. [7:58] And so, to the extent that that issue essentially has already been litigated and factual findings made, all of those in Mr. Olsen's favor, as far as the religion and the sacramental use, we'll ask the court, or ask the agency to consider for purposes of the hearing that he is a member of that religion, that is his sincerely held religious belief. [8:23] And if you need additional testimony in that regard, I'm happy to have Mr. Olsen provide it. [8:28] But I just wanted to point that out what the background is as well as Mr. Olsen's historic role in this issue. [8:37]
JUDGE HAMBORG: Well I think we can wait and see what the state's position is with regard to that issue. [8:45]
COLIN MURPHY: I understand. [8:47] Thank you, your honor. [8:50]
JUDGE HAMBORG: Did you want to continue? [8:51]
COLIN MURPHY: No. I just wanted to give you some background. That wouldn't necessarily be apparent in the application. [8:58]
JUDGE HAMBORG: I appreciate that. [9:02] Ms. Adams, would you like to make an opening statement? [9:05]
HEATHER ADAMS: Thank you, your honor. Yes. As you mentioned, judge, Ms. Steffensmeier and I are representing the Department of Public Health here this morning. [9:13] As you can see in the record, the department did deny Mr. Olsen's application for a medical cannabidiol card in January of this year on the ground that his application failed to include the statutorially required health care practitioner's certification form. [9:30] The department administers the medical cannabidiol program pursuant to a legislative framework that you will see at Iowa Code chapter 124E. [9:40] This law authorizes patients to obtain, to possess, and to use medical cannabidiol only upon receipt of a medical cannabidiol card from the department. [9:51] To obtain such a card the statute requires at 124E.4 that a patient submit to the department a written certification from the patient's healthcare practitioner that the patient is suffering from a debilitating medical condition. [10:09] In November of 2021 Mr. Olsen did submit an application for a medical cannabidiol card. [10:17] His application, however, did not include the required certification from a healthcare practitioner and the department accordingly denied his application. [10:27] In response to request for admissions which you have before you and have been entered into the record as department's exhibit 5, specifically at page 90, Mr. Olsen admits that he does not have a debilitating medical condition as defined by Iowa law and that he did not submit a written certification from a healthcare practitioner as also required by the statute. [10:52] We would assert there is therefore no factual dispute in the matter before you. [10:57] The department will be calling as its sole witness Owen Parker who is chief of the Bureau of Medical Cannabidiol and he will be discussing the program requirements for issuance of a card, Mr. Olsen's application, and the grounds for denial of his application. [11:14] And we will be asking you to affirm the denial of Mr. Olsen's application. Thank you. [11:20]
JUDGE HAMBORG: Okay. Thank you. Before we proceed. I know that there is a corresponding district court action. What is the status of that action? [11:32]
LAURA STEFFENSMEIER: Your honor, this is Ms. Steffensmeier. The matter was dismissed at district court. [11:38] So there is nothing currently pending in district court. [11:42]
JUDGE HAMBORG: Okay. And I don't know much about that action Mr. Murphy. But, I guess I will ask you before we move into evidence do you believe that I have the authority to rule on the constitutional issue or are you here essentially to preserve the issue in the administrative proceeding? [12:10]
COLIN MURPHY: I think both of those are correct, your honor. If I could speak to the district court matter, it's true that there was an order entered by the district court indicating that there was an adequate remedy available through the administrative process and that, despite arguments that we made regarding whether that remedy was adequate, the court found that these constitutional issues are better addressed upon a record at the agency level before the district court would potentially see it and rule on it. [12:53] So that's, it was dismissed. I agree with that. [12:58] And I do think based on the information in chapter 17A regarding judicial review, constitutionality of a statute would be within the purview of the agency to decide. And so, I think you do have the authority, not only from what the district court told us, but also in Iowa Code to address the constitutional issues that Mr. Olsen's raising. [13:26]
JUDGE HAMBORG: Okay. Thank you. Do you want to proceed? I assume you'd like to call your client? [13:35]
COLIN MURPHY: Yes. [13:37]
JUDGE HAMBORG: Mr. Olsen, do you solemnly swear or affirm that the testimony you about to give in this matter will be the truth, the whole truth, and nothing but the truth?
CARL OLSEN: Yes, I swear and affirm I will tell the truth.
JUDGE HAMBORG: Thank you.
CARL OLSEN: Yeah. I don't know what the difference is. Sorry.
JUDGE HAMBORG: I hope it's also the whole truth. [14:02]
CARL OLSEN: Yeah. There you go.
JUDGE HAMBORG: Mr. Murphy? [14:14]
COLIN MURPHY: Oh. I'm sorry, your honor. Mr. Olsen, can you please introduce yourself by your last name for us? [14:21]
CARL OLSEN: Yes. My name is Carl Olsen and my last name is spelled O L S E N. [14:29] First name is C A R L.
COLIN MURPHY: Thank you. Mr. Olsen, you were the applicant who file the paper work seeking a medical cannabidiol card with the Iowa Department of Public Health? [14:49]
CARL OLSEN: Yes. I filed that on November 24, 2021. [14:53]
COLIN MURPHY: And you were seeking a religious exemption for the use of medical cannabidiol through the application process? [15:04]
CARL OLSEN: Right. Instead of a certificate from a healthcare provider, I provided a declaration of my religious activities and beliefs as a substitute, under the theory that that's equivalent. [15:29]
COLIN MURPHY: And the information that you provided, part of that application, this is the declaration?
CARL OLSEN: Yeah. [15:37]
COLIN MURPHY: And is the information on that declaration true and correct? [15:45]
CARL OLSEN: Yes. The purpose of that is that I'm certifying myself, but in that declaration it talks about all the different courts that have certified my claim and the authenticity of the church, so its not really self certification, but its a certification of religious use is what it is. [16:07]
COLIN MURPHY: Have you filed applications seeking, or maybe application's not the right word. Have you acted to raise religious exemptions for the sacramental use of marijuana at the state or federal level in the past? [16:30]
CARL OLSEN: Yes. I presented that issue in Iowa district court in the 70s, and then they got remanded so it went into the 80s, it took quite a while. And then federal courts in the 80s. And the end of that road was the U.S. Supreme Court in 1990. I had a case out of the DC Circuit that rejected my religious claim and the Supreme Court refused to grant certiorari, but they talked about my case in the Employment Division v. Smith case, giving the rationale for my situation. [17:14] And the rationale was that my church didn't have any restrictions on the religious use of marijuana and the peyote exemption apparently they considered that to be a low demand and well controlled. And my use, they said there was a high demand for marijuana and there were no restrictions on my use of it, which is accurate, but anyway. So that whole thing ended. I've exhausted that argument and that's where it ended. [17:53]
COLIN MURPHY: Let's talk a little bit about the argument you were making at the time. And, eventually we'll talk about why its different from the argument that you're making today. [18:02] But, can you briefly describe the argument that you were making in these attempts to exert a religious exemption either at the state or federal level? [18:11]
CARL OLSEN: Yes. That the church was a Christian church and that marijuana was the sacrament that was shared by the congregation as the blood of that organization or that body, which would be the equivalent of the blood in your physical body that that distributes nutrients to the various appendages of your body. [18:35]
COLIN MURPHY: And in terms of those attempts for a religious exemption, were there any situations where the court did not find that the Ethiopian Zion Coptic Church existed or was not a church? [18:54]
CARL OLSEN: Janet Reno sent state prosecutors down to Jamaica and took depositions in 1979 and Sixty Minutes did a story on us in 1979, and the finding was that it was a legitimate religion, centuries old, had regularly used cannabis as its sacrament, and in all of those cases there was no evidence that anyone was injured. There was no evidence that there was any violence involved. There were no weapons founds. It was completely non-violent, so we thought it was protected by the First Amendment, because no harm no foul. But, the Supreme Court said the system of government that we live in allows the legislature to make mistakes and they're not going to second guess that, and what I was asking for was the equivalent of repealing all the marijuana laws, which is probably what it was. [19:57]
COLIN MURPHY: So the, just so we're clear, up until 1990 were there any states that permitted either the medical use or recreational use of cannabis? [20:13]
CARL OLSEN: No. And the peyote exemption at the federal level was created after states had created exemtions for it, so the federal exemption for the religious use of peyote didn't come first. Now, Iowa did enact it in 67 right after the federal government put it in the Code of Federal Regulations in 1966, So, Iowa was after. But, several states had legalized religious use of peyote before the federal government did. So, that situation did not exist for marijuana. There were no states that allowed it. And the federal government did not allow it. So, it was universally prohibited. With no exceptions. [20:54]
COLIN MURPHY: And, the exception that you were seeking at the time up until 1990 was a religious exemption that would allow you as a member of the church to use cannabis despite the fact that that it was an illegal controlled substance at both the state and federal level?
CARL OLSEN: Yeah. I was asking for authorization to do something that nobody else could do. [21:19]
COLIN MURPHY: And, describe ... I know that you mentioned that the use of cannabis ... Can you talk about how cannabis would have been used by a member of the church in 1990? [21:35]
CARL OLSEN: Yes. The primary use of it would be during prayer services which were held three times a day, but then it was eaten. It was used in tea. It was used continually. It was considered to be the king of all the herbs in the herb kingdom and it was placed here for our use to be our sacrament, the same way you don't know how your blood got into your body, but there it is. Your born, you've got blood. So, that was how cannabis was looked at, like an essential thing for life. [22:16]
COLIN MURPHY: Now at some point did you stop using cannabis as a sacrament? [22:24]
CARL OLSEN: Yes. When the Supreme Court said that my religious use was not protected by the First Amendment, up until that time I had believed it was. And so I had to accept that the constitution doesn't just get up and walk around and enforce itself. The constitution is whatever the Supreme Court says it is. So, at that point, I could no longer credibly believe that I was protected by the First Amendment. So I quit using marijuana because my whole thing was obedience to the law. So, out of obedience to the law ... And, the other thing, the Supreme Court left this door open, saying if the law's not generally applicable then you can make a claim based on that. And, that was my claim with peyote, but they said it wasn't the equivalent. The agreed that the law was not neutral toward religion or generally applicable, but then they went further and compared the two practices and found them not equal. So, equal protection requires that they be equal. I agree that the decision made sense. I don't agree with it. I don't like it. But, it did make sense from a judge's viewpoint. [23:41]
COLIN MURPHY: And, so in 1990, after the Smith decision is published you stopped using marijuana, cannabis as a sacrament? [23:53]
CARL OLSEN: Yeah. I organized a group called Iowans for Medical Marijuana with two people enrolled in the federal research program here in Iowa that were legally allowed to smoke 10 marjuana cigarettes ... Well, they got 300 marijuana cigarettes a month from the federal government and they were prescribed, the prescription said they were to, the instructions were to use 10 cigarettes a day. And they were legal and so I hooked up with them because I was no longer a threat to their participation in the program because I wasn't violating any state or federal law. I wanted to stay involved in marijuana reform somehow and so the three of us organized Iowans for Medical Marijuana to promote the federal program which was discontinued the following year in 1991 or 1992. [24:45]
COLIN MURPHY: And so your abstinence from cannabis, marijuana as a sacrament for the church has continued to the present? [25:02]
CARL OLSEN: Right. I've been ... I mean it was apparent to me in 1990 that the laws, everything was unravelling. I mean, the federal government supplying marijuana to people and telling them to smoke 10 cigarettes a day just didn't jive with all the hysteria that was going around about marijuana and I knew that things were changing. And, it wasn't long before in 1996 in California legalized medical use, and their approach to it was to legalize homegrown because they thought that would be the most difficult thing for the federal government to interfere with. [25:36] They didn't set up these consolidated businesses like they're doing now because Iowa didn't come into the picture until after the Cole Memo told everybody to organize these consolidated businesses. So, back in that time ... Anyway, so what California did was radical. The federal government tried to stop it. Conant v. Walters. And, the end result was that doctors have a First Amendment right to recommend this, because they can't prescribe it. [26:08] The court ruled that they could recommend it. And that's where Iowa's got a little but different thing where the doctor certifies and doesn't recommend anything. So, Iowa's moved a little bit further restrictive than Conant v. Walters. [26:26] So the doctor in Iowa, the healthcare provider does not recommend the use of marijuana. They just sign a certificate saying the applicant has the qualifying condition. [26:40] Sorry for the long answer.
COLIN MURPHY: In terms of the sacramental use, you stopped that in 1990? And that's continued to today? [27:00]
CARL OLSEN: Yeah. The court ruled that my religion was bona fide and that I was a sincere member of it and that I'm not allowed to practice. [27:09] So, that sounds bizarre. But, they can do that. [27:13]
COLIN MURPHY: So, before we talk about what's changed since then and why you've made this application, you brought up peyote and the role that it has played in this argument a little but when it started. I'd like to go back to that discussion. Iowa has a provision that allows for the sacramental use of peyote by members of the Native American Church? [27:48]
CARL OLSEN: Right. [27:50]
COLIN MURPHY: And how long do you understand Iowa's had that? [27:54]
CARL OLSEN: That's from 1967. Now, it also says person supplying to the church must register. Since Iowa is identical to the federal regulation and Iowa enacted that the year following the federal regulation, it appears to me that Iowa never ... That's not original language from the Iowa legislature. That's federal language. And when it says that they have to register, well the people who supply peyote to the Native American Church are registered in Texas. They're registered with the state and with the federal government. So, that is how that works. So, in Iowa the marijuana distributors are registered with the state. They don't have the federal registration, but they need to get it. And I've been working with the department to make that happen and the department filed that application in April of last year. And then I filed my own petition with the DEA in May, the following May of last year because I didn't feel the state had their whole heart into the argument and I wanted to make sure that I was able to participate when the DEA considers the exemption for our state program. [29:07] Because, then it would be the equivalent of those peyote distributors in Texas. [29:13]
COLIN MURPHY: Let's go back a little bit. You mentioned department. Are you referring to the Department of Public Health? [29:19]
CARL OLSEN: Yeah. Yes. Owen. [29:21]
COLIN MURPHY: You're also referring to an application. What application are you filing and with what agency are you filing it? [29:31]
CARL OLSEN: I filed a lot of them. Okay. So, the one that we talked about that got exhausted in 1990, that's one of them. And then I filed a couple of them with the DEA, one in 2019 and another one in 2020, or something like that. And then the department agreed to proceed, and so they filed their petition the following year, so I filed a third petition with the DEA on that. So, there's three petitions there. Then I filed this petition for religious exemption with the state. And then I filed one with the DEA two months ago for a religious exemption because the DEA has an application for religious exemption. And that's the whole thing about Iowa, is like: Where's the application for religious exemption? The federal government has one. And, it's like if Iowa is following federal drug law? I mean its a violation of due process to have a religious exemption and nobody else can apply for one. How is that even possible? That's a violation of the Establishment Clause. [30:47]
COLIN MURPHY: Let's go to, let's go back to this application. You indicated that there was one filed with the DEA. It sounds like there were discussions with the department about filing an application. To your best understanding, what are these applications designed to do? [31:11]
CARL OLSEN: They're designed to prevent the authorization of federal criminal activity in Iowa. The manufacturer, and the distributor, and all the patients who are participating are violating federal drug law. And when this law was introduced, the speaker of the house, Linda Upmeyer, said we're violating all kinds of federal laws. And the bill included licensing dispensaries out-of-state, and allowing people to come in, and reciprocity, all kinds of things. And they said, well how can you authorize all of this interstate activity, and she said it doesn't matter, we're violating federal law, we're just violating federal law. And I said, well that's insane. There's an application for an exemption that would make this all legal. Why are we intentionally blowing that off and just creating this situation where all these patients are being exposed to being stigmatized as federal criminals. They're discriminated against in employment, housing, education, healthcare facilities, on and on and on, insurance. This stuff is not guaranteed to be safe and effective. In fact, it's classified as being unsafe for use under medical supervision. So, it's not medically supervised. [32:29]
COLIN MURPHY: So, the application, I don't mean to interrupt you, but the application that you filed in May of 2020 it sounded like? This is an application with the Drug Enforcement Administration to recognize Iowa's program of state sanctioned use of cannabis for certified medical conditions? [32:58]
CARL OLSEN: Well, I filed that three times. I filed one in January of 2019. And, you're my co-petitioner on that one. Then I filed another one in 2020 sometime and you're a co-petitioner on that one. And then I filed another one in May of last year and you're a co-petitioner on that one. That one is the one we filed after the state filed theirs in April of 2021. And the reason we filed that is because we attached the state's application to ours and said we're asking for this again, and now we have the state asking for it. So, we're saying if you can allow the religious use of peyote because you think it is strictly controlled and a low risk of diversion and a low risk of abuse, you can certainly grant an exemption to our state program which has zero diversion and zero adverse health impact. [33:57] It's designed that way, and it actually is that way. Our program is designed to prevent diversion. It does that because there hasn't been any. It's designed to prevent risk to public health. There hasn't been any, so it's successful, and it should be entitled to a federal exemption. [34:18]
COLIN MURPHY: And the request for the federal exemption, that's the multiple applications that have been filed with the DEA? [34:27]
CARL OLSEN: Yeah. That's three of the petitions that I've filed. They denied the first two. And the state filed their after that, so I filed a third one. [34:40]
COLIN MURPHY: And, you also mentioned that ...
CARL OLSEN: In those first two, let me just say, in those first two denials they didn't even acknowledge that there's a peyote exemption. So, I have a problem with that. They don't even want to talk about it. Well, why not? Because that makes our whole argument complete. So, they're just ignoring that and refusing to even acknowledge there's a peyote exemption. That is totally not cool. [35:09]
COLIN MURPHY: And those applications that were filed with the DEA, those are exemptions from federal drug law for the state-sponsored medical program?
CARL OLSEN: Right. [35:22] Yeah. Because there's a peyote exemption in federal regulations. They can create another one for state medical marijuana programs that are well run. I mean, when they create an exemption, they can revoke it. It's not permanent. If they don't like what Iowa's doing, they can revoke it. But, there would be no reason for that. [35:42]
COLIN MURPHY: The application that you filed in April of this year with the Drug Enforcement Administration, what application is that and what was the purpose of it? [35:53]
CARL OLSEN: I filed one in May of 2022 for religious exemption. The purpose of that was to ... I'm going to need a federal exemption to use marijuana religiously no matter what. And rather than waiting for the state to make a decision, I thought I would get the federal application in and have it pending so that I'm not creating a . . ., so that I'm doing everything as efficiently as posssible. [36:33] Because I'm going to need state and federal exemption. And, this so-called medical use, which the supreme court just a couple weeks ago said is not medicine, no matter what they call it, that's the State v. Middlekauff, decided May 27th of this year by the Iowa Supreme Court, that needs a federal exemption, too. [37:00] Nobody should be going around thinking that state law is sufficient to make it legal. It's not. There's a federal controlled substance act and a state controlled substances act. You can't ignore that. You've got two laws you have to deal with. And, of course, all 47 states that have legalized this have totally blown off federal law like it wasn't even there and just thrown everybody to the wind like, go deal with it yourself. Since I've been through the mill, I feel all this. [37:37]
COLIN MURPHY: I understand. Currently, the application that you filed with the state of Iowa, that was denied, that's the subject of this hearing, that is to request a religious exemption for the use of medical cannabidiol in Iowa? [37:58]
CARL OLSEN: Right, under the same restrictions that anyone has to use it. They have to get it from a dispensary. They're not allowed to buy more than 4.5 grams of THC in a 90-day period. They're not allowed to obtain it in a smokable form or an edible form. There's no instructions on how to use it. There's no guarantee. There's no you can't do this or that while you're using it. I would abide by those same restrictions because it would be ridiculous to ask for authorization to do something that's not authorized. [38:38]
COLIN MURPHY: With that application that we're talking about here, you say that you need authorization on the state and federal level in order to consume cannabis again as a sacrament for the Ethiopian Zion Coptic Church? [39:00]
CARL OLSEN: Yes. And the other thing is, the state program would also have to be approved by the federal government because that would be my source where I'm getting it from. [39:10] So, I would need both state and federal exemptions and the program I'm trying to participate in would need both state and federal exemptions. And, I have all those applications pending to do those things. [39:21]
COLIN MURPHY: And so, the, you have the religious exemption covered in this application and the pending one before the drug administration, the Drug Enforcement Administration? [39:38]
CARL OLSEN: Correct. [39:39]
COLIN MURPHY: And then you're talking about the program, meaning the medical cannabidiol program ...
CARL OLSEN: The secular program has an application that the state filed last April and the application that I filed the month following, last May. So, there are two petitions, mine and the state's petition on the secular state program. [40:05] And there are two petitions on the religious use, the one that we're talking about today here in this hearing, and the one I just filed with the DEA in May of this year. [40:14] So, there's four applications pending, two for secular, two for religious. [40:19]
COLIN MURPHY: Let's talk about the religious application. There is a process under federal law to apply for religious exemptions from the Controlled Substances Act? [40:36]
CARL OLSEN: Yes. In 1993 Congress passed the Religious Freedom Restoration Act, 42 U.S.C. 2000bb, and the DEA is now accepting applications pursuant to 42 U.S.C., which is not a DEA ... DEA is title 21 of the U.S. Code. So, this is the result of a Supreme Court decision in 2006 that said the government can't limit the religious use of drugs to peyote, that they have to consider all religious use of controlled substances. [41:13] And they found that the use of ayahuasca, which contains DMT, a Schedule I controlled substance, was legal for religious use by Uniáo do Vegetal, UDV, I can't remember the rest of it, O Centro Espírita Beneficente União do Vegetal. And, it's a recognized religion in Brazil. And, my religion is recognized as a legitimate religion in Jamaica and all over the Caribbean. [41:51]
COLIN MURPHY: So, the application that you filed, is that, filed, I'm referring to the one at the federal level, is that an application for your use of cannabis or is it for the church's use of cannabis? [42:10]
CARL OLSEN: I applied for a personal exemption.
COLIN MURPHY: Can you tell me why you applied for a personal exemption?
CARL OLSEN: The reason I applied for a personal exemption is because I can't control the behavior of other people. So I can't commit to saying that other members of my church would not do anything that's not authorized by state and federal law. So each individual member ..., because the church doesn't say you can use marijuana. I mean, well, of course, the church says you can use marijuana. But, they can't legally defend you if you get arrested. You have to settle that with the state and federal government yourself. So, the only way the church could exists is if the individual members had exemptions. [43:00] And, that's how the genesis of the peyote exemption began. Eventually, the government said, hey, there's too many people claiming membership in this Native American Church, let's just give that church an exemption and they can decide who can use peyote. Well, that's pretty broad. Eventually, my church might get to that status. But, for now, I can only tell you that I will obey the law. I can't make a committment on behalf of anyone else. [43:29] And, another thing, I'm obeying the law as I understand it. Like I don't know what, somebody else might think this is protected by the First Amendment. So, their understanding might be that they're obeying the law, and I understand that not to be the case. [43:47]
COLIN MURPHY: So, the application for the religious exemption at the federal level was done as an individual. You also applied as an individual, and not as a church, for the medical cannabidiol card here? [44:03]
CARL OLSEN: Right. The church is simply evidence of my sincerity and the bona fide nature of the claim. [44:09] But, that's not who is seeking the exemption here. [44:14]
COLIN MURPHY: Before I talk about how things have changed and why you've made this application, you told me about a trademark that you had filed several years ago. I'd like you to briefly discuss the trademark, the purpose of the trademark, and the status of that. [44:36]
CARL OLSEN: Yeah. I was contacted by a church in another state that had incorporated under the name of Ethiopian Zion Coptic Church. And I asked them where they got the authority to do that. And, they said that they had ...
COLIN MURPHY: Can I stop you there? I'd like to be able to stop you there for a second. Why are they reaching out to you? And, at this point in time, what's your relationship with Ethiopian Zion Coptic Church? [45:03]
CARL OLSEN: Well, I was authorized to represent the church in 1984 by the elders in Jamaica to testify in federal tax court and also to file this exemption with the DEA. So, I started to testify in other people's cases, other church members' cases, and I had them testify in mine. And I created a website and my name is, I'm a well known person, so anybody that was to be . . . These people said they lived in Miami when we had all of our court cases going on and they heard about us there and they didn't get authorization from us to use our name. They just did it out of honor and respect. They just thought we were so great. So, that is why they contacted me, because my name is so public. And, so when they told me that they were using our name, I thought, well, you know, you can't stop people from doing that. So I said, you need to get state and federal authorization to use cannabis. And they said, no we don't, we're in a state that has legalization so we don't need state authorization. And I said, well that's not enough, you need federal authorization. And they said, no we don't. And I thought, oh, this is not good. [46:29] So, I got the trademark so that I could further increase my authenticity as the owner of the name and say the only thing this name can be used for is to obtain state and federal authorization. You can't start using marijuana and claim protection because we've exhausted that argument. There is no protection. So, that's what I got the federal trademark for, was simply, if they try call me as a witness, I'm just going to say the purpose of this name is to gain federal and state authorization to use cannabis. That hasn't happened yet. [47:09] And, they're not going to want to call me as a witness. [47:13]
COLIN MURPHY: So, in terms of the program as you understand it and the difference that would make in terms of your use of medical cannabidiol containing THC as a sacrament for church purposes, explain what's different now that wasn't the situation back in 1990. [47:43]
CARL OLSEN: Well, the law is no longer generally applicable because 10,000 Iowans are being allowed to use cannabis extracts. So, they're not synthetic, and they're not created in a lab. It's not like, I don't know if delta-8 THC is a good example, but that is created by doing some kind of chemical process on CBD, on cannabidiol. And because the hemp act legalized hemp, and most of it's used for, in Iowa the majority of it's used to create CBD extract. So, they found out you could make delta-8 THC out of that by running a chemical process on it. And the DEA just said, hey, guess what? Delta-8 THC is legal. Well, last year Iowa changed the definition of THC from delta-9 THC to any isomer of THC, which covers delta-8. So, Iowa outlawed delta-8 by doing that. And the federal government still maintains . . . The DEA says it's legal. So there's a big hoopla about that. But that's a synthetic. I mean, that's not a naturally . . . Delta-8 doesn't occur at a very high level in a natural plant. You have to do some crazy chemical processing on that. Iowa's program is any pharmaceutically pure extract, cannabinoid. And, there's no limit on the terpenes and the flavinoids. [49:23] There's no limit on the cannabinoids either, except you can't have more than 4.5 grams of THC in a 90-day period. But the products themselves do not have any THC limit. There's any formulation of cannabinoids extracted from a marijuana plant. [49:43]
COLIN MURPHY: So, you mentioned there's a limit as to what you can purchase in terms of grams of THC per month now.
CARL OLSEN: Correct. They removed the 3% by volume, or by dry weight, which was ten times greater than the federal limit of .3%, and they replaced that with 4.5 grams of THC per month, which allows the manufacturer to create a product that is 80% THC, 1.5% CBD, and rest of it is terpenes and flavinoids. And it's called Comfort? Anyway, its a vape pen that is produced here in Iowa and sold legally at the dispensaries. [50:34]
COLIN MURPHY: So, in terms of the use of cannabis by the church, or by you as an individual, with a patient registration card, how is the use of that different than what you would have experience back in 1990? [51:03]
CARL OLSEN: Well, that would be a small subset of what I used previously. [51:13] I wouldn't have to use the 80% pure THC product, unless I wanted to. And, that's the way it is with the patients. They don't have to . . . They don't tell them that you have to go buy the 80% THC product. They say you buy whatever works for you. [51:36] It's between them and the dispensary, and the dispensary is operating a federal criminal enterprise. So is the manufacturer. [51:45] They're making people go to the Mafia to get these products. [51:51]
COLIN MURPHY: And if you wanted to use medical cannabidiol in Iowa you would need both the, without criminal prosecution, you would need both a religious exemption in Iowa and a religious exemption at the federal level? [52:12]
CARL OLSEN: Yes, at the minimum. And I might need a secular exemption for the state as well. I don't know. I don't know how the DEA would . . . I mean the DEA deals with all 50 states and not every state's got a program like Iowa. So, if the DEA gave me an exemption, it would probably be, you can't violate any state law. That would make sense. And the federal government's not going to bother you if you're in compliance with a state law. That would be the reasonable way to think about that. I used Iowa as my example because it's a low risk of diversion and a low risk to public health and I want that program to be exempt for the benefit of the 10,000 people that are participating in it. I don't want federal criminal organizations running dispensaries in Iowa. Nothing against the people who run those. I just want them to be legal. [53:06]
COLIN MURPHY: You mentioned risk of health and risk of diversion. Have you had any conversations with state officials regarding those issues? [53:18]
CARL OLSEN: Yes, I talked to . . . Last year, after I filed the petition with the DEA . . . After the state filed thier petition in April of 2021, and I filed a petition, you and I filed a petition in May of 2021, I called the Office of Drug Control Policy and said, are you aware of any diversion from this program under Iowa Code chapter 124E, and the director of the agency said no. And I said, are you aware of any adverse health effects as the result of this program, and the director said no. And I said, well that makes two of us, thank you. So, between now and then, I don't think there's been any evidence of any risk of, any diversion, not just risk. I mean the program is designed to prevent diversion. It works. It's designed to prevent adverse health consequences. It works. That was the point of that. And the Office of Drug Policy agrees with me. And I thought if anybody should know, they should. And so I called them and talked to the director, who actually talked to me. [54:30]
COLIN MURPHY: I just want to review some notes for a second. When we talk about things that have changed, tell me how the program, the existence of the medical cannabidiol program, tell me about the argument you've made in the past and how you're no longer foreclosed from making an argument now with the medical cannabidiol program. [55:02]
CARL OLSEN: Okay. Well, the argument that I made before is that the law is not neutral toward religion, and of course I prevailed on that argument, and it's still not neutral toward religion. So, that stands. The second argument I made was an equal protection argument, which is kind of like an Establishment Clause argument, saying, well you're allowing them but you're not allowing me. Now that we've established both of these controlled substances are being used for religious purposes they are equal. Okay? So, the court said no they're not equal. Peyote is not equal to marijuana and the practice, the way its being used, is not equal either. [55:47] And, the demand is not equal. So, they had all these different things they said were different about marijuana and peyote, or those three things anyway. So, they didn't foreclose the argument that something else might happen later that would be a different equal protection argument. [56:08] So, there's a free exercise argument and an equal protection argument based on peyote. So, now there's a free exercise and equal protection argument based on religion and secular use of marijuana, which is marijuana. They are the same. Whatever the demand for marijuana is, that's the demand for marijuana. This program is aimed to eliminate that risk of diversion. It does that. And, it is also assumed that marijuana is dangerous. It's still classified as Schedule I. Again, State v. Middlekauff, just a couple weeks ago, the Iowa Supreme Court said it has no medical purpose, it's not safe for medical use. But this program guarantees the safety, and it actually has been safe. So that's the equal protection argument that didn't exist previously that now does exist that makes my argument whole today. And it was having to wait for that. [57:11] Over time, laws and facts change. And this is a change in law and a change in fact. [57:19]
COLIN MURPHY: So, if I can paraphrase your argument that, if the state allows people to use cannabis extracts for a secular purpose that your free exercise and maybe establishment clause rights under the state and federal constitution, your equal protection rights under the state and federal constitution, that they are at least equal to the secular use of cannabis. [57:59]
CARL OLSEN: Right. Because the conditions for using cannabis is that you have a debilitating medical condition. Well, deprivation of religious libery is a deprivation that has serious consequences to mental health and physical, too. I mean I can't demonstrate . . . Religious use is just assumed to have that high level of protection. It's protected in the state and federal constitution. Where does it guarantee your right to medicine or debilitating medical conditions? Where's that in the constitution? The First Amendment is religious freedom. How in the world would that not be the equivalent of a serious debilitating medical condition? Only if the government didn't take it seriously, the religious claim, which they don't. That's why the First Amendment's there, because they knew that was going to be the outcome, that government wouldn't respect the rights of minorities. [59:00]
COLIN MURPHY: And so it's not until this medical cannabidiol program comes online that you can bring these arguments to address the change in the law and the change in the fact? [59:16]
CARL OLSEN: Right. I had to wait for the government to do something and then react to that. Yes. Because they said there is no use of marijuana at all back then. And now they're saying it's okay to use it under certain circumstances. Well, they weren't saying that before. It was absolute. [59:34]
COLIN MURPHY: And by applying for a card are you looking for more, less, the same as a person who has been approved to purchase medical cannabidiol products?
CARL OLSEN: Well, because I've already made the claim that I set the rules and that didn't work, I don't see how that could ever work. I'm going to follow the rules that they made. So, this is the only thing I can claim, is something that exists. I want to participate in it. Ten thousand Iowans are participating in it. So, I'm not asking for anything more than what people are already being allowed to do. I'm just saying I want to be included. [1:00:16]
COLIN MURPHY: Thank you, Mr. Olsen. Your honor, I think that's all the questions I have for him. [1:00:23]
JUDGE HAMBORG: Okay, thank you. Ms. Adams, do you have any cross examination, I guess, or questions for Mr. Olsen? [1:00:35]
LAURA STEFFENSMEIER: Yes. This is Ms. Steffensmeier and I do have some questions for Mr. Olsen. Mr. Olsen, can you hear me okay?
CARL OLSEN: Yes. I can. Thank you.
LAURA STEFFENSMEIER: I wanted to ask you about, on your declaration, specifically on page 80 of the state's exhibits. You cited a court case where the quotation is that the church teaches that marijuana is continually smoked all day. Is that correct?
CARL OLSEN: Yes. [1:01:03]
LAURA STEFFENSMEIER: And the claim, you talked about various claims you made to the courts back in the 1970s up through 1990. Were those claims based on smoking marijuana as part of the sacramental use of, for your religion? [1:01:17]
CARL OLSEN: Well, yes, but not limited to that. But, yes.
LAURA STEFFENSMEIER: I want to talk about your personal use, then, in terms of the sacramental use. You did smoke marijuana. Is that correct? [1:01:32]
CARL OLSEN: Correct.
LAURA STEFFENSMEIER: And then, personally, I wanted to ask you, what other methods did you use to consume cannabis, if any?
CARL OLSEN: We used extracts, we used teas, we ate it in food. So, those are the four different ways. [1:01:51]
LAURA STEFFENSMEIER: And you talked during your testimony about how patients in Iowa, they sort of have the opportunity to pick which products works for them. Is that what you testified to? [1:02:03]
CARL OLSEN: Right.
LAURA STEFFENSMEIER: So I guess my question is for you. What works for you in terms of products that are available in Iowa for satisfying your religious purposes? [1:02:16]
CARL OLSEN: Well, since I haven't violated any laws, I don't know. [1:02:19]
LAURA STEFFENSMEIER: Okay. Can you talk a little bit about what property of cannabis makes it important to your religion? [1:02:30]
CARL OLSEN: Well, the plant contains a number of cannabinoids that don't exist in any other context. So, it's a combination of those. I used it pretty much growing out of the ground, and so I didn't know exactly what combination I was getting, but I could feel it. You know, what was more pleasant and what wasn't.
LAURA STEFFENSMEIER: Would you say the effects of using it that make it important? [1:03:09]
CARL OLSEN: Yeah.
LAURA STEFFENSMEIER: And you talked about the, sort of the consequences of not being able to free, have free exercise of your religion. Can you talk directly to what the consequences have been to you of not being able to use since 1990? [1:03:28]
CARL OLSEN: Yeah. Depression. PTSD.
LAURA STEFFENSMEIER: You also talked about the fact that you would need a federal exemption to legally use in Iowa. Was that your testimony? [1:03:44]
CARL OLSEN: Correct.
LAURA STEFFENSMEIER: My question for you then is, if the department did issue you a card, is it your testimony that you would not utilize that card unless you received, you personally, or the program, received a federal exemption? [1:04:00]
CARL OLSEN: Well, it's my understanding nobody has to utilize that card. Just having the card doesn't require you to use it. [1:04:07] So, I don't think that's a valid question. I would use it as evidence in my federal application. [1:04:16]
LAURA STEFFENSMEIER: I guess my question then is, are you seeking a card so that you can use it upon issuance or for some other purpose in getting another exemption? [1:04:27]
CARL OLSEN: Both.
LAURA STEFFENSMEIER: Both. Okay. And, you talked about neutrality . . .
CARL OLSEN: But, I said I won't violate state or federal drug law. Doesn't that answer your question very exactly, precisely? [1:04:44]
LAURA STEFFENSMEIER: Yeah. I have another question for you.
CARL OLSEN: Okay.
LAURA STEFFENSMEIER: You talked about neutrality of laws. Would you agree with me that Iowa's state marijuana laws are neutral toward religion? [1:05:00]
CARL OLSEN: No. I would call that a mischaracterization. Its a controlled substances act. There's no such thing as marijuana laws. [1:05:07]
LAURA STEFFENSMEIER: Is there anything in Iowa law pertaining to marijuana that has any mention of any religion? [1:05:17]
CARL OLSEN: No. Well, I'm sorry. The Controlled Substances Act has a religious exemption for a controlled substance. So, yes, the answer is yes. You keep saying marijuana and I keep saying Controlled Substance Act, which is a whole bunch of different substances. I don't think it's fair to single out marijuana that way. [1:05:41]
LAURA STEFFENSMEIER: I'm just asking you the question. The exemption you've mentioned is for peyote. Is that correct?
CARL OLSEN: Correct.
LAURA STEFFENSMEIER: The religious exemption to the Controlled Substances Act. So my question is, in the Iowa Controlled Substances Act is there anything that exempts any kind of religion from the scheduling of marijuana in Schedule I? [1:06:01]
CARL OLSEN: Well, there's no process to apply for one. How would you get one?
LAURA STEFFENSMEIER: So, is that no then? Is your answer no? [1:06:13]
CARL OLSEN: Well, yeah. It's unconstitutional because you can't apply for one, unless I'm doing that now. [1:06:21]
LAURA STEFFENSMEIER: And you testified that you have not used marijuana since 1990. Is that correct?
CARL OLSEN: Correct.
LAURA STEFFENSMEIER: And, in terms of your religious practice today, can you just talk about what you do to practice your religion without the availability of marijuana? [1:06:40]
CARL OLSEN: It can't. It's essential. That would be like asking how your body could survive if you drained all the blood out of it. It couldn't. You would die. [1:06:52]
LAURA STEFFENSMEIER: So, just to make sure I'm understanding then, there's really not an ability to practice that religion without cannabis. Correct? [1:07:00]
CARL OLSEN: Correct. It would be like trying to live without blood in your body. The body without blood in it is dead. So, the spiritual body is the same. [1:07:09]
LAURA STEFFENSMEIER: Would you agree with me that you are knowledgeable about marijuana laws across the United States? [1:07:18]
CARL OLSEN: I'm very familiar with federal drug law, but I'm not super . . . I'm probably more familiar, well . . . not really, no. Federal drug law, yes. [1:07:32]
LAURA STEFFENSMEIER: Do you know . . . Are you familiar enough to know that some states have legalized marijuana for recreational use at the state level? [1:07:41]
CARL OLSEN: Certainly. Yeah.
LAURA STEFFENSMEIER: And that other states have legalized marijuana for medical use at the state level. Correct?
CARL OLSEN: It's my understanding that a whole lot of states have legalized it for recreational use, but I don't think there are any states, unless Rhode Island, that legalized recreational before legalizing medical use. I think possibly the last state to come online actually did do recreational and didn't do medical. That's my understanding of it. [1:08:17]
LAURA STEFFENSMEIER: Okay. Would you agree that in states that have legalized marijuana for recreational use that somebody that wants access to that doesn't need to go and have any kind of medical diagnosis or need in order to access that for recreational use? Right? [1:08:34]
CARL OLSEN: Correct. Yeah.
LAURA STEFFENSMEIER: And, you agree that Iowa's program is medical based, just broadly as opposed to recreationally based?
CARL OLSEN: I agree with what the supreme court said about it in State v. Middlekauff. The word medicine is deceptive. It's not accurate. It's a recreational program disguised as a medical program, with severe restrictions. [1:08:57]
LAURA STEFFENSMEIER: And you testified that Iowa's program is sort of unique in terms of the different requirements that is has? In other words, it's not, Iowa's program probably is not identical to the program in any other state, to your knowledge?
CARL OLSEN: Right. I think it's one of the more well designed programs in the United States as far as trying to reduce risk of diversion and risk to public health. Whether it's overkill or not, it's definitely designed for those purposes and its effective at reducing diversion and health, risk to health. [1:09:34]
LAURA STEFFENSMEIER: And under Iowa's program currently, the dispensaries are not allowed to sell smokable forms of CBD. Is that correct?
CARL OLSEN: Correct.
LAURA STEFFENSMEIER: And they're not allowed to sell edible forms, either. Is that correct?
CARL OLSEN: That's correct. That's my understanding of it, anyway. Let's put it that way.
LAURA STEFFENSMEIER: Yes. And Mr. Olsen that's all I'm asking for, is your understanding. So I appreciate that.
CARL OLSEN: Yeah.
LAURA STEFFENSMEIER: In terms of access to the cards here in Iowa, you would agree that it requires a certification from a medical practitioner as part of the application? [1:10:14]
CARL OLSEN: Yes, because the statute is underinclusive and doesn't provide for religious use. Yes.
LAURA STEFFENSMEIER: To your knowledge, are you aware if . . . based on your testimony, you seem to be fairly familiar with court decision in the arena. So I guess my question is, are you aware of any court that has made the determination that if a state has marijuana available as part of a medical program that that would necessitate that access also be granted for religious use? [1:10:50]
CARL OLSEN: Well, the decision in the UDV case in 2006 by the U.S. Supreme Court is that all of these things in Schedule I, in the category of hallucinogens in Schedule I, are equally available for religious exemptions. So, they don't talk about marijuana. They talk about controlled substances. And they talk about Schedule I. You're trying to divide marijuana down into a subcategory where only marijuana exists. It's like, I'm not doing that. You can do that, but I'm not aware of any court decision that would make that kind of distinction. [1:11:32]
LAURA STEFFENSMEIER: I guess I'm just asking if you're aware of any court that has . . . basically the claim that you're making, if any court has found that to be valid and has authorized religious use when there is marijuana . . .
CARL OLSEN: Are you asking me if there is any court that has authorized religious use of cannabis? Is that what your question is?
LAURA STEFFENSMEIER: I'm asking you if there is any court in these states that have medical marijuana programs, if there's any decisions that, based on the existence of a medical marijuana program, . . .
CARL OLSEN: Oh, okay. Okay. Okay. I got it.
LAURA STEFFENSMEIER: individuals who want to use religious also have to use. Does that make sense?
CARL OLSEN: Yes.
LAURA STEFFENSMEIER: I'm really just asking if you know of any.
CARL OLSEN: I'm aware of a couple federal court decisions that recognized religious use of cannabis, but not based on an equal protection claim with a state medical cannabis program. Is that what you're asking? [1:12:27]
LAURA STEFFENSMEIER: Yes. Yes. Thank you.
CARL OLSEN: Yeah.
LAURA STEFFENSMEIER: And based on the information you submitted, the Ethiopian Zion Coptic Church came into existence long before Iowa's medical cannabidiol program. Correct? [1:12:41]
CARL OLSEN: Yes, but it was in Jamaica. And the Native American Church was in the United States. So, the Native American Church was involved from the very git go and the creation of the law against peyote. And the Ethiopian Zion Coptic Church existed in Jamaica until the 1970s and it was discovered by white people in the 1970s right about the same time the state and federal drug laws were being created. We had a disadavantage of not being able to get into the game early.
LAURA STEFFENSMEIER: Sure. You submitted an admission that you've never used Iowa approved MCBD products. Correct? Because you follow the law? [1:13:26]
CARL OLSEN: Correct.
LAURA STEFFENSMEIER: Can you explain how, if you were given access, how use of those particular products would align with your religion's belief that marijuana should be smoked continually throughout the day? [1:13:42]
CARL OLSEN: Well, it would be the difference between . . . okay, so you've got two extremes, everything and nothing. Okay? And, in between there you've got all kinds of levels of something. [1:13:56] Okay, so this would be something as opposed to nothing. Right now I have nothing. My religion says everything. The law says nothing. This program creates something in between. So, it's a step in the right direction. It's certainly not where I would want to be. But, I don't want to be at nowhere. Does that make sense? [1:14:20]
LAURA STEFFENSMEIER: Yes, it does. And that answers my question. I don't think I have any more questions for you.
CARL OLSEN: Alright. Well, thank you. [1:14:30]
JUDGE HAMBORG: Okay, I guess the questions that I have are mainly legal questions. I may have some questions for Mr. Murphy during closing arguments. I just have one clarification. When, Mr. Olsen when you talk about trying to avoid injury or diversion, by diversion are you thinking of engagement, or interaction the legal system, court system? That's what you're talking about with regard to diversion? [1:15:06]
CARL OLSEN: Well, it means the unauthorized distribution. So, the Iowa program doesn't allow the patient to share their medicine with anyone. I'm not sure if it prevents . . . I don't think it would prohibit two patients from being in the same proximity to one another, but they would not be legally entitled to share . . .
JUDGE HAMBORG: I'm trying to . . .
CARL OLSEN: Diversion is unauthorized use. I mean that's what diversion is. It means use for some other purpose than what's authorized is what it means. [1:15:40] And abuse means the same thing.
JUDGE HAMBORG: Okay. That's what I wanted. Okay. [1:15:48] Alright, I don't think I have any questions for Mr. Olsen. Mr. Murphy did you have any redirect?
COLIN MURPHY: I do not your honor.
JUDGE HAMBORG: Did you have any additional evidence Mr. Murphy?
COLIN MURPHY: No additional evidence.
JUDGE HAMBORG: Okay. Do we want to take a break? [1:16:08] Before the state's case, or I guess I'll ask you first Mr. Murphy. Do you want a break?
COLIN MURPHY: I'm fine with moving ahead.
JUDGE HAMBORG: Ms. Adams?
CARL OLSEN: I'm fine either way. Yeah.
HEATHER ADAMS: Okay. Could we have five minutes, your honor?
JUDGE HAMBORG: Sure. Why don't, . . . Since its just five minutes, why don't you just hold the line and we'll reconvene. Let's see, why don't we make it about eight, so we'll reconvene at 10:25.
CARL OLSEN: Very good. Thank you.
COLIN MURPHY: Okay.
JUDGE HAMBORG: Okay. Here. Let me make sure that I've got, looks like I've got everyone showing on . . . We're back on the record on appeal 22IDPH0002 Carl Olsen versus the Iowa Department of Public Health. Do I have Colin Murphy on the line representing Mr. Olsen?
COLIN MURPHY: Yes, your honor. [1:17:11]
JUDGE HAMBORG: Good morning again. And Mr. Olsen you're on the line?
CARL OLSEN: Yes, your honor.
JUDGE HAMBORG: Okay. And then do I have assistant attorneys general Laura Steffensmeier and Heather Adams?
HEATHER ADAMS: Yes. We're here judge.
JUDGE HAMBORG: And Mr. Owen Parker are you there?
OWEN PARKER: I am, your honor.
JUDGE HAMBORG: Okay. Thank you. Ms. Steffensmeier or Ms. Adams, do you want to begin with Mr. Parker's testimony? [1:17:41]
HEATHER ADAMS: This is Ms. Adams. We will be calling Mr. Parker at this point in time.
JUDGE HAMBORG: Thank you. Mr. Parker do you solemnly swear or affirm that the testimony you are about to give in this matter will be the truth, the whole truth, and nothing but the truth? [1:17:55]
OWEN PARKER: I do, your honor.
JUDGE HAMBORG: Thank you. Ms. Adams you may proceed.
HEATHER ADAMS: Thank you. Mr. Parker will you state your name and your position with the Department of Public Health.
OWEN PARKER: My name is Owen Parker. I'm the Bureau Chief for the Medical Cannabidiol Program at the Department of Health. [1:18:13]
HEATHER ADAMS: Will you review for us your duties in that position?
OWEN PARKER: So, I've been with the program for four years. I was included in database erection and strategy of the program, licensing facilities, our internal procedures, staffing, administration of our medical cannabidiol board, educating and engaging our program stakeholders.
HEATHER ADAMS: Will you summarize for us Iowa's medical cannabidiol program?
OWEN PARKER: It is a, I would call it a limited medical cannabis program that provides medical cannabidiol products to patients whose practitioners have certified their condition. And we regulate those facilities here at the department to ensure the compliance with the program.
HEATHER ADAMS: In terms of patient card holders can you talk to us about how many applications that the department receives annually and then how many individuals are current card holders? [1:19:16]
OWEN PARKER: Sure. At this point, you know we've processed in the life span of the program about 24,000 patient applications. At this point in the program we're processing over 10,000 per year. And we currently have, as Carl mentioned, just over 10,000 patients in the program. [1:19:39]
HEATHER ADAMS: Would you describe the process that a patient goes through to receive a medical cannabidiol registration card and the statutory requirements that a patient must adhere to in order to obtain that card? [1:19:54]
OWEN PARKER: Sure. So the general route that a patient goes through is they would schedule a consultation with their primary healthcare provider. [1:20:04] At that consultation, if the provider deems it appropriate they will certify the patient's condition on a form that's provided by us. That really starts the process. From that point, a patient must complete a patient application. This can either be done online or we do provide a paper application as well. That just really describes some of the patient's demographic information. From there, again whether by applying on paper or online, the patient provides proof of state residence in the form of a government issued ID or some other alternative documents that we do allow for. Then they must provide payment of an application fee, either $100 or $25 if the patient qualifies for Social Security Disability Income or other security income. [1:21:00]
HEATHER ADAMS: And the statutory requirements that you've just walked us through, those are contained in Iowa Code chapter 124E.4. Is that correct?
OWEN PARKER: That is correct.
HEATHER ADAMS: And the statute talks about a written certification from the patient's healthcare practitioner. Will you discuss what the practitioner is certifying and what that certification establishes? [1:21:24]
OWEN PARKER: For one, it is establishing the relationship between the patient and that provider. The provider is required to go over an educational document that the department provides that covers higher level concerns about use, don't drive, certain issues like that. The practitioner certifies that they've done a physical exam, that they will consider re-certifying them on an annual basis. And that really, does that answer your question Ms. Adams? [1:22:00]
HEATHER ADAMS: And, in terms of what they're certifying, there's been some discussion about whether it's a prescription or a certification, and for Iowa's program they're really just certifying that the patient has a debilitating medical condition. Is that right? [1:22:14]
OWEN PARKER: Yes. We have a tightly prescribed list of conditions that a practitioner can certify a patient for. [1:22:22] The practition must specifically identify the condition for which they are certifying the patient. [1:22:28]
HEATHER ADAMS: And the statute spells out approximately a dozen that are listed as debilitating conditions and then two others have been added through administrative rules. Is that right?
OWEN PARKER: That's correct.
HEATHER ADAMS: And the duties that a healthcare practioner must follow that you've walked us through, those are also contained in the statute and those are at 124E.3. Is that correct?
OWEN PARKER: That is correct.
HEATHER ADAMS: And the department has adopted administrative rules to implement those two provisions and those are also contained in the exhibits before us. Is that right? [1:22:58]
OWEN PARKER: That is correct.
HEATHER ADAMS: Those also require a healthcare practitioner's certification in order for an application to be submitted.
OWEN PARKER: Correct.
HEATHER ADAMS: In conformance with the statute. And let's turn then to Mr. Olsen. Did Mr. Olsen apply for a patient card with your program? [1:23:16]
OWEN PARKER: He did. He applied online. Our process allows you to upload documents or photos and the required forms. So Mr. Olsen did complete a patient application. He did submit a fee. He did provide proof of his government issued ID. However, in lieu of the healthcare practitioner certification form he provided his declaration which is included in the exhibits. [1:23:45]
HEATHER ADAMS: So, let me first ask, the application itself makes clear that a healthcare practitioner certification is required to be submitted, and I'm looking specifically at department's exhibit on page 74. And, again, the information that you provide patients that are looking at submitting an application makes it clear to them that a certification from a healthcare practitioner is a required element? [1:24:11]
OWEN PARKER: It does in the patient access patient statements that are our patients must sign when they apply, either by paper or online. [1:24:19]
HEATHER ADAMS: And Mr. Olsen's application that you referenced, that's contained at department's exhibit 39 page 75. Is that correct?
OWEN PARKER: That is correct.
HEATHER ADAMS: And just to confirm your testimony, this application then did not include that required certification from a healthcare practitioner. [1:24:39] Correct?
OWEN PARKER: That is correct.
HEATHER ADAMS: What action then did you take following the review of the application and the realization that it was missing this required element? [1:24:51]
OWEN PARKER: Certainly. So we do have applications that are missing certain items, whether that's a certain page of an application or maybe a signature was missing. We will always follow up with the patient to correct that information as opposed to denying. In this case it was pretty clear with the attachment of the declaration that Carl did not intend to submit that. This is the first instance of a situation like this coming in, so I did consult my division director, Sarah Reisetter, about the situation. I think I in some ways knew we did not obviously have the authority to approve it, which she did confirm that. [1:25:38] At that time, we did deny Mr. Olsen's application. We refunded him his application fee. And we provided him a formal letter explaining our decision and his process for appeal. [1:25:54]
HEATHER ADAMS: Okay. And is that letter contained in the department's exhibit 3 page 85?
OWEN PARKER: That is correct.
HEATHER ADAMS: And you informed him of the ground for denial, in terms of the absence of the written certification? [1:26:09]
OWEN PARKER: That is correct.
HEATHER ADAMS: Does the department have the authority, the legal authority, to issue a card in the absence of that required healthcare practitioner's certification form? [1:26:19]
OWEN PARKER: We do not, as is clearly called out in our statute, what we need in order to process and approve a patient's application. In this instance, without that we were unable, we had no other recourse but to deny Mr. Olsen's application. [1:26:36]
HEATHER ADAMS: And I think you mentioned this in your testimony that have all of the other patients who currently hold, or have held, a card submitted that required healthcare practitioner's certification? [1:26:47]
OWEN PARKER: They have.
HEATHER ADAMS: I wanted to ask you about the smoking of medical cannabidiol. And does Iowa's statutory program prohibit the smoking of medical cannabidiol? [1:27:04]
OWEN PARKER: That is correct. Patients are not allowed to combust or smoke cannabis. And also, our manufacturers are not allowed to manufacture or produce or sell those products. And that is also very similar language around the manufacture and sale and consumption of edible medical cannabidiol products. [1:27:29]
HEATHER ADAMS: Those are also prohibited?
OWEN PARKER: That is correct.
HEATHER ADAMS: And that prohibition is contained in your statute at Iowa Code section 124E.17. Is that correct?
OWEN PARKER: That is correct.
HEATHER ADAMS: And is there any religious exemption to that prohibition? [1:27:45]
OWEN PARKER: Nothing is . . . No. There's nothing in our statute or rules that would allow for a religious exemption.
HEATHER ADAMS: And, generally, with respect to the statutory framework is there any religious exemption in 124E that would allow for the issuance of a card to Mr. Olsen? [1:28:05]
OWEN PARKER: No. There is not.
HEATHER ADAMS: Those are all the questions that I have for you, then. The administrative law judge may have questions, as well as Mr. Olsen's attorney. Thank you. [1:28:14]
JUDGE HAMBORG: Thank you. Mr. Murphy do you have any questions for Mr. Parker?
COLIN MURPHY: A few questions, your honor. Thank you. Mr. Parker, can we visit about the risk of health and risk of diversion in the program?
OWEN PARKER: Yes.
COLIN MURPHY: Have you been made aware of any risk to health with any patients consuming cannabis extracts that are provided through the program?
OWEN PARKER: No. There has been nothing in regards to an adverse event related to our products, that I am aware of. Nor in the law enforcement, nothing in regards to diversion. [1:29:00]
COLIN MURPHY: With respect to smoking medical cannabidiol, your manufacturers and your retailers do have a product that is vaporizable? [1:29:20]
OWEN PARKER: That is correct.
COLIN MURPHY: And, can you explain the difference between smoking and vaporization in terms of . . ., just how those products are similar or different?
OWEN PARKER: Sure. Generally speaking, vaporization is heating a cannabis extract to the point where it produces a smoke or vaporizes, but there's no addition of a flame. Cumbustion, in the industry standard, in bifurcating the two, usually relates to the plant matter, the biomass of cannabis with the addition of a flame or heat in that regard. [1:30:05]
COLIN MURPHY: Is there any difference in the temperature, to your knowledge, between smokable, let's say using flame to heat plant material to the point of producing smoke and using something other than a direct flame to heat a cannabis extract to produce the smoke or vapor that you mentioned earlier? [1:30:35]
OWEN PARKER: Yes. Part of the reason for the addition of vaporization to our program is that it does heat the extract to a lower temperature which reduces some of those byproducts that are associated with combusting something. [1:30:53] Whereas combustion of the product, you may have some of the other, deleterious, more harmful components that just natually come along with inhaling something that's been burnt or combusted. [1:31:09]
COLIN MURPHY: So both smokable and vaporizable products are inhaled? [1:31:17]
OWEN PARKER: That is correct.
COLIN MURPHY: And would it be fair to say the substance that's being inhaled is in the form of smoke? [1:31:27]
OWEN PARKER: I suppose, I think I would call what's created from vaporization a vapor versus something that's combusted I would call that smoke. Its going to have many other, like I said, some of the more potentially harmful components that are just, again, associated with combusting and inhaling something. [1:31:51]
COLIN MURPHY: And, did I understand that you said you didn't have authority to approve Mr. Olsen's application because it lacked a certification from a medical provider? [1:32:09]
OWEN PARKER: Yes. The list is not necessarily long of things that we require and need to verify and approve. You know we really feel, in a medical program, the corner stone of that is having your healthcare practitioner's certification form. With that missing, I did not have the authority to approve his application. [1:32:30]
COLIN MURPHY: When a healthcare provider certifies that a person has a medical condition are they limiting the patient to particular forms of cannabis extract that are offered for sale in Iowa? [1:32:50]
OWEN PARKER: No. Really, it isn't in the traditional sense like a prescription. Intentionally, what comes along with that is that dosing and titration guidelines or frequency are not really provided by the provider. We certainly encourage that the provider's knowledgeable. [1:33:10] But, usually that type of product selection, at this point in this nascent industry, is done by dispensary staff or by knowledge that the patient has themself. [1:33:23]
COLIN MURPHY: Does the department have an application for religious exemption? [1:33:35]
OWEN PARKER: We do not, that I'm aware of. [1:33:37]
COLIN MURPHY: Have there been any discussions with the department about whether or not to create a religious exemption application similar to what the Drug Enforcement Administration has at the federal level? [1:33:50]
OWEN PARKER: No. [1:33:53]
COLIN MURPHY: Is there anyone at the department that has the requisite experience, or understanding of religious applications that would be able to act as an authority to approve any such applications? [1:34:15]
OWEN PARKER: It's possible. But, not to my knowledge. I'm not aware of any one person that would be in charge of that or have that information. [1:34:27]
COLIN MURPHY: Does the administrative rule making authority that the department has does it contemplate the ability to approach the department and request rules for religious exemptions? [1:34:44]
OWEN PARKER: I do not believe so.
COLIN MURPHY: That's all the questions I have for Mr. Parker. Thank you.
JUDGE HAMBORG: Okay. Thank you. Ms. Adams, any redirect?
HEATHER ADAMS: No. Thank you. [1:35:03]
JUDGE HAMBORG: Any additional evidence?
HEATHER ADAMS: No. Thank you, judge. Just confirming that our exhibits 1 through 5 were admitted at the beginning of the hearing?
JUDGE HAMBORG: Yes. Yes.
HEATHER ADAMS: Okay. Thank you. No further evidence from the department. [1:35:21]
JUDGE HAMBORG: Okay. Then are we ready for closing arguments? Mr. Murphy?
COLIN MURPHY: Your honor, I am ready. I know that the argument is lengthy. I wanted to offer the opportunity to submit it to you in writing? But, if you'd prefer to hear it . . .
JUDGE HAMBORG: I accept that offer. I was going to, I was going to request that you brief me, especially the equal protection issues anyway, as well as the jurisdictional issues, because that I'm kind of curious, so . . . Ms. Adams could you or Ms. Steffensmeier also submit a written argument?
HEATHER ADAMS: Yes.
JUDGE HAMBORG: You're agreeable to that? [1:36:04]
HEATHER ADAMS: We are.
JUDGE HAMBORG: Okay. How much time do you need? I'll ask Mr. Murphy, you first?
COLIN MURPHY: Your honor, I'm going to be out of the office until Monday starting tonight. And I do have a brief I think that's due the 24th in a matter. I'm wondering if you would consider two weeks? Maybe the 29th? [1:36:29]
JUDGE HAMBORG: Sure. Why don't we, why don't we make it, why don't we go to that Friday the 1st?
COLIN MURPHY: Okay.
JUDGE HAMBORG: Now, Ms Adams, do you . . . are you comfortable with submitting your brief at the same time on that date?
HEATHER ADAMS: Well, I think it would be helpful for us if we could have 5 days after submission to review the closing as we would have an opportunity to listen to closing and then respond.
JUDGE HAMBORG: Sure. No. I just wanted to know what your preference was. [1:37:07] Then, why don't we . . . the next week is, . . . Can you submit it by the 8th?
HEATHER ADAMS: Yes.
JUDGE HAMBORG: Okay. Okay. And then I usually do not allow reply briefs Mr. Murphy, but this is an unusual case. If after receiving the state's brief, if you do want some extra time could you just shoot an email to all of us and let me know?
COLIN MURPHY: Absolutely. Thank you.
JUDGE HAMBORG: Okay. I appreciate then all of you coming in today and hope everyone is staying cool in this hot weather.
HEATHER ADAMS: Thank you, your honor.
COLIN MURPHY: Thank you.
CARL OLSEN: Thank you, your honor.
JUDGE HAMBORG: Have a good rest of your day.
CARL OLSEN: You, too.
JUDGE HAMBORG: Thank you, bye bye.
CARL OLSEN: Bye.