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Judge: Pot dispensary can remain open after rule violation

April 11, 2017 GMT

A state district judge Monday ordered the New Mexico Health Department not to impose a planned sanction against a medical cannabis dispensary for displaying a marijuana plant at the State Fair last summer, saying the proposed penalty — a five-day closure — is excessive and not supported by law.

Judge David Thomson stayed the sanction at the request of New Mexico Top Organics-Ultra Health after it filed a petition saying the penalty would cost the entity upward of $150,000 and deprive patients of access to medicine during the closure.

The judge upheld the Health Department’s determination that New Mexico Top Organics-Ultra Health violated regulations that govern where it can grow cannabis and the agency’s imposition of a $100 fine. But he wrote that the proposed closure sanction was “one thousand times that allowed” under law and that there was “scant [legal] support … for such a punitive fine.”

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“Top Organics decision to display the seedling was at the very best misguided and the Department is rightly concerned,” Thomson wrote. “The seedling should be treated as medicine and not an item for show and tell. That said the court finds that the Petitioner will likely prevail on the merits of their arguments that the sanction imposed is excessive and without much support in law or regulation.”

Department of Health spokesman Paul Rhien said in an email that the department stood by its decision and that the $100 fine and five-day suspension were “appropriate action for discipline based on the rules governing the program.”

The department and New Mexico Top Organics-Ultra Health will argue the merits of the case at a future hearing, should the legal fight continue.

The nonprofit marijuana producer has dispensaries in Santa Fe, Albuquerque, Bernalillo, Clovis and Hobbs, according to Department of Health data.

Duke Rodriquez, chief financial officer of New Mexico Top Organics-Ultra Health, said in a press release Monday he believes the department lashed out at him over the plant at the fair because he has a pending lawsuit against the agency over its duty to provide “adequate supply” of medical cannabis by approving enough producers. The case is scheduled to go to trial in July.

According to Rodriguez, State Fair officials gave the producer permission to display the plant — a nonflowering marijuana seedling named Dorothy after the Wizard of Oz character. After the plant had been on display for awhile — about seven hours, according to court documents — officials said they had received complaints from “higher up” and asked that the plant be removed, he said.

The Health Department had ordered the producer to close for five days beginning next Monday, which would have encompassed April 20, or “420,” a date that is a holiday of sorts in the cannabis community when many producers offer discounted rates and other promotions.

Rodriguez said his company has paid the $100 fine.

Contact Phaedra Haywood at 505-986-3068 or phaywood@sfnewmexican.com. Follow her on Twitter @phaedraann.