July 18, 2019

DOH puts non-resident’s medical cannabis applications on hold

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The New Mexico Department of Health could face a legal challenge from one of its most prominent critics, who also runs a high profile medical cannabis dispensary. 

Duke Rodriguez, president and CEO of New Mexico medical cannabis company Ultra Health, told NM Political Report that DOH “effectively denied” his application to become a medical cannabis patient in New Mexico. 

Rodriguez added the qualifier “effectively” because DOH did not officially deny his application, but did ask for more information. His application is officially on hold until he provides more documentation. 

“We have checked the documents you sent us and two items are needed,” a letter from DOH read.

The two items missing were a valid New Mexico photo ID and a New Mexico address on his patient information form. 

The “effective” denial is the latest in a back-and-forth between the department and Rodriguez regarding whether or not non-residents of New Mexico can become a medical cannabis patient in New Mexico. 

In June, days before a change to the state’s medical cannabis law went into effect, Ultra Health bought radio ad space in southeastern New Mexico notifying listeners that New Mexico changed its law to allow non-residents the chance to become a medical cannabis patient. A bill signed by Gov. Michelle Lujan Grisham in March, which made sweeping changes to the medical cannabis law, replaced the words “resident of New Mexico” with the word “person” in the definition of “qualified patient.”

The bill’s sponsor, Sen. Gerald Ortiz y Pino, D-Albuquerque, said the change was tied to a section that outlined regulations on reciprocity for other states with medical cannabis programs. The law changes allow for medical cannabis patients from other states to use their respective cards to obtain medical cannabis in New Mexico. The state has until next March to promulgate reciprocity rules. 

Shortly after Ultra Health’s ads ran, DOH announced that qualified medical cannabis patients must be residents of New Mexico. 

Rodriguez said he is already a medical cannabis patient in Arizona where he spends most of his time. He owns a home and has a car that is registered in New Mexico, but does not have a New Mexico driver’s license. According to the state Taxation and Revenue Department a resident is someone with a permanent home in New Mexico or someone who spends at least 185 days a year in the state. Rodriguez said neither of those are true of his living situation. 

Of course, Rodriguez could list his New Mexico home address and get a New Mexico ID, but he said he won’t lie about his official residence in Arizona.  

“The state is encouraging me to seek product from unlicensed, untested or out of state sources,” Rodriguez said. “I prefer to continue to follow the laws of New Mexico and seek my legally authorized medical cannabis card.”

Rodriguez wouldn’t say what Ultra Health’s next step is, but if history is any indication it probably involves a judge. Ultra Health has sued the state numerous times regarding medical cannabis. Most recently a judge ruled in the company’s favor and ordered the state to come up with a new plant limit for producers based on reliable data. That case led to a last-minute emergency rule change which temporarily increased plant limits by more than 400 percent. A permanent plant limit is pending the department secretary’s approval. 

David Morgan, a spokesman for DOH, told NM Political Report he could not discuss specifics of patients’ applications due to privacy laws. But he did say DOH rules are clear. 

“Department of Health rules require that qualified patients be residents of New Mexico, and require that producers and couriers verify that patients have a valid New Mexico-issued photo identification card,” Morgan said. 

Morgan also said it’s common practice for DOH to give applicants a chance to fix their application. 

“Speaking in general, the department does not deny patient applications when they are deficient,” Morgan said. “The Department allows the applicant time to correct the deficiency and return the requested information back to the program.”

In a previous statement, DOH said allowing non-residents to enroll in the medical cannabis program would encourage people to cross state lines with cannabis, which is a federal crime. 

But Rodriguez said that’s not true.

“I’m not that case nor are other people like me,” Rodriguez said. 

According to Rodriguez there are nearly a dozen other people he knows of who received similar letters asking for a valid New Mexico ID and valid New Mexico address.