Thursday, July 7, 2016

Ocean City firefighter who was prescribed medical marijuana challenged his suspension in court.

 Update: July 12, 2016

On June 9, 2016, Cape May County Superior Court Judge J. Christopher Gibson issued an eleven-page written decision holding that Wiltshire is not entitled to an injunction because he had not yet exhausted his administrative remedies.

Judge Gibson did, however, find that "the purpose of the New Jersey Compassionate Use Medical Marijuana Act is to protect patients, such as [Wiltshire] from being subjected to penalties for the use of medicinal marijuana. Although the Act does not explicitly address adverse employment action, the legislative intent and the pending legislation of Assembly Bill 2482 show that [Wiltshire] would be protected by the statute and Defendant must establish that the lawful use of medical marijuana has impaired the Plaintiffs ability to perform his job responsibilities as a firefighter."  Judge Gibson further found that the "determination of impairment is based on mere suspicion not supported by any expert or medical testimony in the record, nor does the policy articulate the basis for the threshold amount."

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On February 5, 2016, a twenty year veteran Ocean City firefighter who served as an acting captain for seven years filed a lawsuit against the City of Ocean City (Cape May County) for suspending him without pay on November 12, 2015 because of his use of medical marijuana to treat a disease that causes involuntary muscle spasms and which he claimed could have rendered him unable to function if left untreated.

The Court's computer lookup portal show that the lawsuit was dismissed on June 9, 2016 and an Open Public Records Act has been filed to determine if the dismissal resulted from a ruling on the merits or a settlement by the parties.

In his lawsuit, Donald Brad Wiltshire claimed that he has Meige Syndrome and that marijuana "is the most comprehensive and effective medical treatment that his has experienced since being diagnosed in 2006."   Given that extended shifts gives him several days off per week, Wiltshire said that he can treat on his days off "and then perform without hesitation or limitation on his assigned work shifts.  He claimed that he "never brings his prescription medication to the workplace [or] takes that medication during his assigned work hours . . . and has never reported to duty while impaired by any medication."  He claimed that he had disclosed his marijuana use to command supervisors.

Shortly after the Ocean City Fire Department adopted a drug testing policy but prior to the policy's implementation, Wiltshire met with Fire Chief Christopher Breunig to review the policy and discuss what would happen if a random drug test resulted in Wiltshire testing positive for marijuana use.  The lawsuit claims that the City's drug policy initially exempted medical marijuana from its scope but that the exemption had been removed prior to the policy's final adoption.

According to the lawsuit, Breunig responded to the meeting by immediately removing Wiltshire from active duty and requiring him to take a drug test even though "it was plain and clear that the drug screen would reveal the metabolites of medical marijuana." Wiltshire was suspended without pay on November 12, 2015 "and that suspension according to defendant Breunig is with intent that plaintiff's position be terminated."

Wiltshire's lawsuit sought a declaration of his legal rights under the New Jersey Compassionate Use of Medical Marijuana Act and a court ruling "that the medical use of marijuana pursuant to the Compassionate Care Act cannot be deemed an 'illegal use' for the purpose of the City's drug policy."