Medical marijuana patient sues Nevada

May 18, 2005

Matt O\'Brien, Las Vegas City Life

For five years, Pierre Werner has fought defiantly to open Nevada's first legal cannabis club. He has fought anti-pot activists, Metro Police and conservative politicians. He has fought Clark County, the state and even the feds. In short, the diminutive Las Vegan has taken on all comers -- regardless of their size, power and influence.

And now, he's really getting dirty.

On May 11, Werner -- a medical marijuana patient -- filed a lawsuit against the Nevada Department of Agriculture in Clark County District Court. The suit alleges the department, which oversees the state's medical marijuana program, wrongfully interfered with Werner's plan to open a cannabis (or 'compassion') club in Clark County and unlawfully disclosed patient information to the media.

The lawsuit seeks to change state law, recoup all costs related to the suit, and get Department of Agriculture employees Jennifer Bartlett and Don Henderson terminated or transferred.

Werner seems particularly concerned with Nevada Administrative Code 453A.150, which says patients cannot supply marijuana to other patients and that licensed suppliers (known as 'caregivers') can only provide to one patient.

'This [lawsuit] was one of the only ways I could start a club,' said Werner, explaining that his goal is to provide a safe and reliable place for patients to get medication. 'There are actually two ways to repeal this administrative code [453A.150]. One is to have the department investigate how it contradicts the statute and have them withdraw the code. Two, a private party can file a complaint to have it repealed.'

Werner, who said he uses marijuana to combat insomnia and nausea possibly related to a bipolar disorder, insisted the lawsuit was a last resort.

'I called Don Henderson, the head of the Department of Agriculture, and I explained to him that he could repeal this code or I'm going to file a lawsuit,' said Werner. 'Mr. Henderson told me to move to California [where cannabis clubs are legal]. I called my attorney right away and told him to file the lawsuit.'

Added Ryan Mortier, Werner's attorney: 'I really think this case has a great chance. The statutes are clear. And what they [the Department of Agriculture] have done is in direct violation of the statutes. It's really black and white.'

In 2000, Nevada voters granted the Department of Agriculture (in cooperation with the Department of Motor Vehicles) the right to prepare and issue medical marijuana cards to citizens with chronic or debilitating conditions and diseases. By law, these cardholders can possess up to 1 ounce of marijuana, three mature marijuana plants and four immature plants at a time. They can grow their own marijuana or get it from one of the state's 63 licensed caregivers.

The Department of Agriculture, however, does not advise the 600 or so patients on how to get the medication.

Gina Session, senior deputy attorney general, reviewed the lawsuit shortly after it was filed. Speaking on behalf of the Department of Agriculture, Session characterized the action as frivolous.

'I really don't see that there's a real basis for any kind of liability on the part of the department,' she said. 'It appears to me that Mr. Werner wants to open a cannabis club. He is saying that our regulation that restricts the number of patients to caregivers is beyond the scope of our authority under the statute. But the statute gives us really broad authority to regulate the program and to pass regulations.'

Nevada Revised Statute 453A.700 was also referenced in the lawsuit. It says that the Department of Agriculture must maintain the confidentiality of patients who have applied for or been issued a medical marijuana card. The suit alleges the department breached the confidentiality requirements when Bartlett and Henderson spoke to a Review-Journal reporter in April 2004.

'I want the resignations of Mr. Henderson and Mrs. Bartlett,' Werner said. 'I find them both to be incompetent bureaucrats with their own agendas.'

Session replied: 'I believe they are both very competent. And I think the evidence will bear that out.'

Once the attorney general's office receives the lawsuit, it has 30 days to respond. Depositions, trial dates and court proceedings will follow. The suit, Mortier explained, will probably not be resolved for a couple of years.

'I've had enough,' said Werner. 'I got the lawsuit filed and now I'll just wait. I'm ready to move to California and open up a shop there. And then once this code is repealed, I'll move back [to Nevada] and open up my club.'

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