DISTRICT COURT, ARAPAHOE COUNTY, STATE OF COLORADO 7325 South Potomac Street Centennial, Colorado 80112

Plaintiff: BRANDON COATS

COURT USE ONLY

v. Defendant: DISH NETWORK, LLC

Case Number: 11-CV-1464 Div. 309

ORDER RE: DISH NETWORK LLCS MOTION TO DISMISS THIS MATTER comes before the Court on Defendant Dish Network LLCs (Dish) Motion to Dismiss pursuant to C.R.C.P. Rule 12(b)(5) failure to state a claim. The Court having reviewed the pleadings, file and applicable authorities, hereby Finds and Orders as follows: BACKGROUND On August 12, 2011 Plaintiff Brandon Coats (Coats) a former employee of Dish filed a Complaint asserting a claim for relief pursuant to C.R.S. 24-34-402.5, alleging that he was wrongfully terminated from his employment as a telephone Customer Service Representative, following a random drug test that showed the presence of THC, a component of marijuana. (Complaint, s 5, 22, 27, 38, 39 and 49). It is undisputed for purposes of this Motion that Coats suffers from a debilitating medical condition, that he was placed on the Medical Marijuana Registry, and that his use of medical marijuana was limited to use at his home. (Motion, s 2 and 3). On September 20, 2011 Dish filed the within Motion asserting that Coats claim for relief pursuant to 24-34-402.5, which generally prohibits employers from terminating employees based on legal activities, must be dismissed as a matter of law because the consumption of marijuana, even by those persons on the Medical Marijuana Registry is not a lawful activity. (Motion, pp. 3 4). Coats opposes the Motion, arguing that Article XVIII, Section 14 of the Colorado Constitution, the so-called Medical Marijuana Amendment, makes his use of medical marijuana lawful, notwithstanding the fact that the activity may be illegal under federal law.

FINDINGS & ORDER Standard of Review A motion to dismiss pursuant to C.R.C.P. 12(b)(5) tests the sufficiency of the complaint. [citation omitted] A reviewing court must accept all averments of material fact as true and view the allegations in the light most favorable to the plaintiff. [citation omitted] The court cannot grant a motion to dismiss for failure to state a claim unless it appears beyond doubt that no set of facts can prove that the plaintiff is entitled to relief. Lobato v. State, 218 P.3d 358, 367 (Colo. 2009). When addressing a motion to dismiss the general rule is that, although a court primarily considers the pleadings, certain matters of public record may also be taken into account, and matters that are properly the subject of judicial notice may be considered without converting the motion into one for summary judgment. Walker v. Van Laningham, 148 P.3d 391, 397 (Colo. App. 2006). Medical Marijuana Amendment The central issue in this matter is whether or not the use of marijuana in compliance with the Medical Marijuana Amendment constitutes a lawful activity protected by C.R.S. 24-34-402.5. Colorado Courts have interpreted the Medical Marijuana Amendment in a variety of circumstances. In circumstances substantially similar to the facts of this case, the Court of Appeals upheld a denial of unemployment benefits for an employee terminated because of his use of medical marijuana. Beinor v. Industrial Claim Appeals Office, 262 P.3d 970, 977 (Colo. App. 2011). The court in Beinor stated that its ruling was limited to deciding whether the use of medical marijuana pursuant to the referenced Constitutional Amendment shielded a person from a denial of unemployment benefits. Beinor, 262 P.3d at 976 (We are not deciding whether the amendment limits an employer from discharging an employee for using medical marijuana.). Despite this statement the court indicated that the Medical Marijuana Amendment would not prevent an employer from discharging an employee for the use of medical marijuana. Beinor, 262 P.3d at 976 ([W]e note that in the context of wrongful termination cases, language similar to [the unemployment benefits statute] has been interpreted not to require employers to accommodate employees off-site use of medical marijuana. ). In a more recent case the Court of Appeals interpreted the Medical Marijuana Amendment as merely providing an exception from the states criminal laws for any patient in lawful possession of a registry identification card to use marijuana for medical purposes. People v. Watkins, 2012 WL 310776, p.4; 2012 COA 15: 23. The court in Watkins discussed the holding in Beinor that the Amendment created a defense to criminal prosecution and is not a grant to medical marijuana users of an unlimited constitutional right to use the drug in any place or any manner. Watkins, 2012 WL 310776, p.4; 2012 COA 15: 25.

These interpretations of the Medical Marijuana Amendment limit the effect of the amendment as an affirmative defense to criminal prosecution. The amendment does not make the use of medical marijuana a lawful activity, so as to preclude an employer from termination based on this conduct. CONCLUSION Because the Court finds that use of marijuana, even where such use is in full compliance with Colorados Medical Marijuana Amendment, is not a lawful activity, Plaintiffs Complaint must be dismissed pursuant to C.R.C.P. 12(b)(5) for failure to state a claim.

SO ORDERED THIS February 29, 2012. BY THE COURT:

Elizabeth Beebe Volz District Court Judge