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State’s pot plant limitation for dispensaries ruled ‘arbitrary’

SANTA FE – A state District Court judge has ruled that the state Department of Health’s 450-plant limit on medical marijuana dispensaries is arbitrary and capricious and has no factual basis.

Judge David Thomson issued his 60-page ruling Thursday and is giving the DOH 120 days to come up with a new rule on plant limits. He wrote that the department has been “impeding the purpose” of New Mexico’s medical pot statute.

Bernalillo County resident Nicole Sena filed a lawsuit against the DOH in 2016 because she couldn’t find CBD oil, which requires several marijuana plants to produce, that she needed to treat her young daughter’s medical condition. She said she had to move to a “neighboring state” in order to get the oil.

Marijuana producer Duke Rodriguez, CEO of Ultra Health, later became a plaintiff in the suit. A bench trial concluded in August 2017.

Sena and Rodriguez were represented by Brian Egolf, a state representative and speaker of the House who also has a law firm in Santa Fe.

DOH spokesman Paul Rhien said in a text message Thursday: “The Department has received the judge’s decision and we are considering our next steps. Our focus will always be on ensuring that patients have safe access to medicine.”

Thomson ruled that the state Lynn and Erin Compassionate Use Act, which governs the medical marijuana program, gives the DOH discretion to develop a distribution system, come up with requirements for producers and set procedures for obtaining a license. But the judge found that the statute doesn’t allow to department to “limit the production of medicinal cannabis that has no articulated fact-based correlation between the 450 plant limit and what meets the adequate supply needs of patients.”

“In essence, DOH is using its regulatory authority in a manner and with an end toward impeding the purpose of the Act,” Thomson wrote.

“Further, its regulatory mandate of 450 plants is not based on fact or reliable data and is not rationally related to its regulatory authority. More importantly, it impedes the ability to assure medical patients have an adequate supply.”

The DOH moved the plant limit from 150 to 450 after a 2013 survey of medical marijuana patients, but Thomson ruled that the survey didn’t account for future growth of the program and noted that the department has not conducted another survey since. There were 9,760 patients in 2013, and as of September there are 58,782 patients in the program, according to DOH data.