NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

LEFT THUMB LABS, LLC, Plaintiff/Appellee,

v.

STATE OF ARIZONA, et al., Defendants/Appellees.

__________________________________

WILLIAMS HEALTH CENTER, LLC, et al., Intervenors/Appellants.

No. 1 CA-CV 22-0088

Appeal from the Superior Court in Maricopa County

No. CV2021-003384

The Honorable Katherine Cooper, Judge

AFFIRMED

COUNSEL

Sherman & Howard L.L.C., Phoenix

By Gregory W. Falls, Matthew A. Hesketh, Jake Tyler Rapp 

Counsel for Defendants/Appellees

Wilenchik & Bartness, P.C., Phoenix

By Dennis I. Wilenchik, Ross P. Meyer 

Counsel for Intervenors/Appellants

FILED 11-29-2022
LEFT THUMB v. STATE, et al.

Decision of the Court

2

MEMORANDUM DECISION

Judge D. Steven Williams delivered the decision of the court, in which 

Presiding Judge David D. Weinzweig and Judge Randall M. Howe joined.

W I L L I A M S, Judge:

¶1 Appellants Williams Health Center, LLC and Holbrook 

Health Center, LLC challenge the denial of their motion to intervene in a 

mandamus lawsuit seeking to require the Arizona Department of Health 

Services (“ADHS”) to open an application period for marijuana dispensary 

registration certificate (“DRC”) applications. We affirm because they did 

not timely seek to intervene.

FACTUAL AND PROCEDURAL HISTORY

¶2 Under the Arizona Medical Marijuana Act (“AMMA”), an 

entity must apply to ADHS for a DRC before ADHS can approve it to 

operate a dispensary. Saguaro Healing LLC v. State, 249 Ariz. 362, 363, ¶ 2 

(2020) (citing Ariz. Admin. Code (“A.A.C.”) R9-17-304(C), (D), -305(A)). The 

number of issued DRCs generally cannot exceed one-tenth of the number 

of pharmacies registered under A.R.S. § 32-1929. A.R.S. § 36-2804(C). ADHS 

can exceed that number, however, “if necessary to ensure that [ADHS]

issues at least one nonprofit medical marijuana dispensary registration 

certificate in each county in which an application has been approved.” Id.

¶3 ADHS must review current valid DRCs each year to 

determine if it may issue additional DRCs. A.A.C. R9-17-303(A); Saguaro 

Healing, 249 Ariz. at 363, ¶ 3. If ADHS determines it can issue additional 

DRCs, it must open an application period. See A.A.C. R9-17-303(A)(1). Left 

Thumb Labs, LLC (“Left Thumb”) filed a DRC application in July 2020, 

which ADHS rejected because it was not accepting applications at that time.

¶4 Left Thumb sued ADHS and its director in March 2021

seeking to require ADHS to open an application period, which it had not 

done since 2016. In August 2021, the parties filed a stipulated statement of 

facts and asked the superior court to resolve two legal questions:

1. Must ADHS issue new DRCs to empty county applicants 

before following the order of priority found in A.R.S. 

§ 36-2803.01(A)? 
LEFT THUMB v. STATE, et al.

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2. When should ADHS be required to issue the new DRCs if 

a timeframe is required? 

Three months later, the superior court ruled that ADHS must initially 

allocate DRCs to empty counties, but if an empty county has no qualified 

applicant, ADHS must issue the DRC to another qualified applicant under 

the statutory priority rules. The court also ruled that ADHS must review 

existing DRCs annually and, if new DRCs can be issued, must open an

application period annually and issue DRCs to qualified applicants. The 

court directed the parties to “meet and confer . . . to try to resolve the matter 

in light of this Ruling” and file a joint report and scheduling order if they 

could not.

¶5 Approximately two weeks later, Appellants moved to 

intervene in this case, alleging that they had filed DRC applications in 

December 2020 that ADHS rejected.1 Appellants sought a declaratory 

judgment directing ADHS to (1) “determine all applicants that applied in 

each calendar year between 2017 and 2021, when ADHS did not accept 

applications but was required to do so,” and (2) award DRCs to qualified 

applicants who applied during those years, including themselves.

¶6 Shortly thereafter, Left Thumb and ADHS filed a stipulated 

proposed form of judgment. Appellants objected to the proposed form of 

judgment, arguing that it only directed ADHS to “open an allocation period 

during the 2022 calendar year” and did not account for anyone who may 

have applied between 2017 and 2021. The court signed Left Thumb’s and 

ADHS’s proposed form of judgment and denied Appellants’ motion to 

intervene as moot. This appeal followed. We have jurisdiction. Ariz. Const. 

art. 6, § 9; A.R.S. § 12-2101(A)(1), (3); see Anderson v. Martinez, 158 Ariz. 358, 

359 (App. 1988) (“A proposed intervenor may appeal from the order 

denying its motion to intervene and from the judgment entered in its 

absence.”).

DISCUSSION

¶7 On a timely motion, the court must permit anyone to 

intervene who:

claims an interest relating to the subject of the action, and is 

so situated that disposing of the action in the person’s absence 

1 That same day, Appellants sued ADHS seeking the same relief. The 

superior court dismissed that complaint, and that ruling is the subject of a 

separate appeal.
LEFT THUMB v. STATE, et al.

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may as a practical matter impair or impede the person’s 

ability to protect that interest, unless existing parties 

adequately represent that interest.

Ariz. R. Civ. P. 24(a)(2).

¶8 Although the superior court denied Appellants’ motion to 

intervene as “moot,” the court could have denied the motion as untimely,

and we will affirm its ruling if correct for any reason. See Parkinson v. 

Guadalupe Pub. Safety Ret. Loc. Bd., 214 Ariz. 274, 277, ¶ 12 (App. 2007) (“We 

will affirm the superior court if its ruling was ‘correct for any reason, even 

if that reason was not considered’”) (quoting Glaze v. Marcus, 151 Ariz. 538, 

540 (App. 1986)). We review whether a motion to intervene was timely for 

an abuse of discretion. Heritage Vill. II Homeowners Ass’n v. Norman, 246 

Ariz. 567, 570, ¶ 9 (App. 2019). 

¶9 Whether a motion to intervene is timely “hinges on two 

discrete questions: ‘the stage at which the action has progressed before 

intervention is sought and whether the applicant was in a position to seek 

intervention at an earlier stage of the proceedings.’” Heritage Vill. II, 246 

Ariz. at 571, ¶ 13 (quoting Winner Enterprises, Ltd. v. Superior Court, 159 Ariz. 

106, 109 (App. 1988)). The court also must consider whether the delay 

resulting from the motion would prejudice the existing parties. See State ex 

rel. Napolitano v. Brown & Williamson Tobacco Corp., 196 Ariz. 382, 384, ¶ 5 

(2000).

¶10 Appellants here moved to intervene about two weeks after 

the superior court resolved the legal issue they hoped to challenge. Even so, 

Appellants contend their motion was timely because they filed it before the 

parties submitted a joint report or scheduling order. As noted above, the

superior court directed the parties to file a joint report and scheduling order 

only if they did not resolve the matter in their post-ruling meet-and-confer.

Left Thumb and ADHS agreed the matter was resolved. As such, the only 

remaining step was to enter a formal judgment. The stage of the 

proceedings thus suggests Appellants’ motion was untimely.

¶11 Appellants also concede they became aware of this case 

shortly after Left Thumb filed it in March 2021. They contend, however, that

they had no reason to intervene until after the court’s ruling, arguing that 

Left Thumb changed its position to require ADHS only to “begin accepting 

applications at some point in the future.” Appellants seek broad relief for 

anyone who applied between 2017 and 2021, alleging in their motion to 

intervene that ADHS “must determine which applications between 2017 
LEFT THUMB v. STATE, et al.

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and 2021 were complete and then apply the statutory priority to those 

applications.” Left Thumb never sought such broad relief; indeed, 

Appellants argued before the superior court that Left Thumb’s complaint 

did “not account for [ADHS]’s failure to abide by the statutes from 2017 

through 2021.”

¶12 Additionally, the parties’ agreed statement of facts, filed three 

months before Appellants moved to intervene, shows that Left Thumb did 

not intend to rely on its July 2020 application. The parties instead agreed 

that Left Thumb “seeks to apply for a DRC in Wellton, Arizona, which is in 

Yuma County.” Left Thumb also asserted at that time that “new DRCs were 

not available until recently and that all new DRCs should be offered based 

on the priorities outlined in A.R.S. § 36-2803.01.” It should have been clear 

to Appellants by August 2021 at the latest that Left Thumb would not 

contend that ADHS had to consider any past applications. Nonetheless,

Appellants waited three more months to move to intervene, only doing so 

after the court ruled on both legal issues raised by the parties.

¶13 For these reasons, we conclude the superior court did not 

abuse its discretion in denying Appellants’ motion to intervene. See Brown 

& Williamson, 196 Ariz. at 386, ¶ 15 (finding no abuse of discretion in 

denying intervention because party seeking to intervene waited three 

weeks after “it should have been absolutely clear . . . that intervention was 

necessary”).

CONCLUSION

¶14 We affirm. We express no opinion on the merits of 

Appellants’ claims. Appellees may recover their taxable costs incurred in 

this appeal upon compliance with Arizona Rule of Civil Appellate 

Procedure 21.