Lawsuit challenges medical pot residence rule

Copyright © 2019 Albuquerque Journal

SANTA FE – Three out-of-state residents – including a former state Cabinet secretary – filed a lawsuit Thursday over the New Mexico Department of Health’s denial of their applications to be license-carrying patients in the state’s medical cannabis program.

The lawsuit, filed in state District Court in Santa Fe, asks a judge to order Health Department officials to issue medical marijuana licenses to the three individuals – and any other out-of-state residents who have a qualifying medical condition and apply for a license.

The dispute hinges on the Department of Health’s interpretation of changes to the state’s medical cannabis program that were signed into law by Gov. Michelle Lujan Grisham and took effect June 14.

Among other changes, the new law amended the definition of “qualified patient” by deleting a previous stipulation that a patient be a New Mexico resident.

One of the plaintiffs’ attorneys is Brian Egolf, who is also New Mexico’s House Speaker. Egolf, a Santa Fe Democrat, has maintained that his legal work with the state’s medical marijuana industry has no influence on his work as a legislator.

Ultra Health LLC, a prominent licensed producer under the state’s medical cannabis program, maintains the new language opened the doors for residents of Texas, Arizona and other states to be license-carrying patients under New Mexico’s program.

The lawsuit was a last resort after Ultra Health, which has also filed previous lawsuits against the Department of Health, had asked the agency to reconsider its position, a company spokeswoman said Thursday.

“When the courts find in favor of the plaintiffs, it will dramatically increase the number of plants needed to serve the expanded program, without a doubt,” said Ultra Health spokeswoman Marissa Novel, who accused the DOH of rejecting the out-of-state license applications due to long-held beliefs within the agency that medical cannabis is an illegal substance.

However, Health Department officials say allowing non-New Mexico residents to obtain medical marijuana cards would encourage the transport of cannabis across state lines, in violation of both federal and state laws.

For that and other reasons, an agency spokesman said last month, the department “does not believe it would reasonable to interpret the statute as permitting nonresidents to enroll in the New Mexico Medical Cannabis Program.”

In addition, the Health Department spokesman said, the Legislature’s wording change was not aimed at allowing out-of-state residents to get a New Mexico medical cannabis card, but rather intended to address reciprocity for licensed patients in other states with medical marijuana laws on their books. The agency plans to enact new reciprocity rules by March 2020 – the date required by the new law.

The Health Department spokesman did not respond Thursday to questions about the lawsuit being filed.

The lawsuits’ three plaintiffs are Harold Meyers and Laura Sias, both Texas residents, and Duke Rodriguez, an Arizona resident who is Ultra Health’s president and CEO. Rodriguez is also a former New Mexico human services secretary.

Two of the plaintiffs suffer from post-traumatic stress disorder, and the other plaintiff has been diagnosed with obstructive sleep apnea, according to the lawsuit. Those two conditions are among the 28 qualifying conditions for participation in New Mexico’s medical cannabis program.

The lawsuit argues that out-of-state residents with state-issued medical pot licenses would not necessarily transport marijuana across state lines, because potential applicants could own second homes in New Mexico or travel to the state for business or medical reasons.

The 198-page lawsuit was assigned to District Judge Bryan Biedscheid, according to court records.

New Mexico launched its medical marijuana program in 2007 – the law is officially called the Lynn and Erin Compassionate Use Act – and the number of people enrolled in the program has skyrocketed in recent years.

There were 74,100 active patients statewide as of June, compared with 48,861 in September 2017.

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