Beinor v. Indus. Claim Appeals Office of State , 10CA1685.

Docket NºNo. 10CA1685.
Citation262 P.3d 970
Case DateAugust 18, 2011
CourtCourt of Appeals of Colorado

262 P.3d 970

Jason M. BEINOR, Petitioner,
INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado and Service Group, Inc., Respondents.

No. 10CA1685.

Colorado Court of Appeals, Div. VII.

Aug. 18, 2011.

[262 P.3d 971]

Jason M. Beinor, Pro Se.John W. Suthers, Attorney General, John August Lizza, First Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office.Opinion by Judge RICHMAN.

This unemployment compensation benefits case raises a question of first impression: whether an employee terminated for testing positive for marijuana in violation of an employer's zero-tolerance drug policy may be denied unemployment compensation benefits even if the worker's use of marijuana is “medical use” as defined in article XVIII, section 14 of the Colorado Constitution. We conclude the benefits were properly denied in this case.

Claimant, Jason M. Beinor, appeals the final order of the Industrial Claim Appeals Office (Panel) disqualifying him from unemployment compensation benefits under section 8–73–108(5)(e) (IX.5), C.R.S.2010

[262 P.3d 972]

(disqualification for the presence of “not medically prescribed controlled substances” in worker's system during working hours). He contends that he is entitled to benefits because he legally obtained and used marijuana under the Colorado Constitution for a medically-documented purpose and consequently had a right to consume the drug. We conclude that although the medical certification permitting the possession and use of marijuana may insulate claimant from state criminal prosecution, it does not preclude him from being denied unemployment benefits based on a separation from employment for testing positive for marijuana in violation of an employer's express zero-tolerance drug policy. We therefore affirm the Panel's decision.
I. Background

Claimant was employed by Service Group, Inc. (employer) as an operator assigned to sweep the 16th Street Mall in Denver with a broom and dustpan. He was discharged in February 2010 for violating employer's zero-tolerance drug policy after testing positive for marijuana in a random drug test ordered by employer. Employer's policy states: “[I]f a current employee is substance tested for any reason ... and the results of the screening are positive for ... illegal drugs, the employee will be terminated.”

Claimant contends, and employer does not dispute, that he obtained and used the marijuana for severe headaches, as recommended by a physician pursuant to article XVIII, section 14 of the Colorado Constitution, which provides an exemption from state criminal prosecution to individuals issued a “registry identification card” to use marijuana for medical purposes. Colo. Const. art. XVIII, § 14(2)(b).

In pertinent part, the amendment provides:

[I]t shall be an exception from the state's criminal laws for any patient or primary care-giver in lawful possession of a registry identification card to engage or assist in the medical use of marijuana, except as otherwise provided in subsections (5) and (8) of this section.

Colo. Const. art. XVIII, § 14(2)(b) (emphasis added). The amendment also specifies:

A patient may engage in the medical use of marijuana, with no more marijuana than is medically necessary to address a debilitating medical condition. A patient's medical use of marijuana, within the following limits, is lawful:

(I) No more than two ounces of a usable form of marijuana; and

(II) No more than six marijuana plants, with three or fewer being mature, flowering plants that are producing a usable form of marijuana.

Colo. Const. art. XVIII, § 14(4)(a).

Claimant asserts that his use and possession of marijuana was therefore legal. A deputy initially denied claimant's request for unemployment benefits, but a hearing officer reversed that decision, finding that claimant was not at fault for his separation from employment because there was “no reliable evidence to suggest that ... claimant was not eligible for a medical marijuana license” or that his use of the substance negatively impacted his job performance. Moreover, the hearing officer noted that “claimant has a state constitutional right to use marijuana.”

Although claimant did not produce a registry identification card, he did produce a physician certification form, contending that he had not yet been provided with the registry card. Employer did not contest his eligibility to receive the registration card. Nor did employer argue that the use of marijuana negatively impacted his job performance.

On employer's appeal, the Panel disagreed and set aside the hearing officer's order. Relying on a precedential case decided by the entire Panel, the Panel here concluded that article XVIII, section 14 of the Colorado Constitution does not create an exception to section 8–73–108(5)(e) (IX.5), which disqualifies from benefits an employee who tests positive for the presence of “not medically prescribed controlled substances” in his or her system “during working hours.” The Panel accordingly disqualified claimant from receiving benefits pursuant to section 8–73–108(5)(e)(IX.5). Claimant now appeals.

[262 P.3d 973]

II. Analysis

Claimant contends that the Panel erred in setting aside the hearing officer's decision because the Colorado Constitution protects his marijuana use. He argues, essentially, that his constitutional right to “medical use” of marijuana was violated by the application of the disqualifying provision to his situation and the Panel's consequent denial of his request for unemployment benefits. He also argues that the Panel should have recognized that employer's categorization of marijuana with other more harmful illegal substances is inappropriate and “prejudicial” because marijuana can remain in one's system for several days after its use and long after it has lost its influence, as demonstrated by the lack of evidence that claimant's use of marijuana negatively affected his job performance.

Although claimant appears pro se, we liberally interpret his brief and discern that his appeal raises three separate issues: (1) whether the statutory disqualification in section 8–73–108(5)(e) (IX.5) applies to claimant's case; (2) if so, whether the statute violates a constitutional right of claimant; and (3) whether the record was sufficient to support the Panel's decision.

We are not persuaded that the statute was misapplied in this case or that any of claimant's rights under article XVIII, section 14 of the Colorado Constitution were violated. Because the record supports the Panel's determination, we affirm it.

A. Application of the Disqualification Provision

Under Colorado's unemployment compensation provisions, an employee may be disqualified from receiving unemployment compensation benefits if a separation from employment occurs because of

[t]he presence in an individual's system, during working hours, of not medically prescribed controlled substances, as defined in section 12–22–303(7), C.R.S., ... as evidenced by a drug ... test administered pursuant to a statutory or regulatory requirement or a previously established, written drug ... policy of the employer and conducted by a medical facility or laboratory licensed or certified to conduct such tests.

§ 8–73–108(5)(e) (IX.5) (emphasis added); see Slaughter v. John Elway Dodge Sw./AutoNation, 107 P.3d 1165, 1170 (Colo.App.2005) (“[Section] 8–73–108(5)(e) (IX.5) ... provides that an employer shall not be charged for unemployment benefits when it has a previously established written drug policy and terminates an employee as the result of a drug test showing the presence of marijuana in the employee's system during working hours.”). A “controlled substance” is defined in relevant part as “a drug, substance, or immediate precursor ... including cocaine, marijuana, [and] marijuana concentrate.” See § 12–22–303(7), C.R.S.2010 (incorporating the definition of “controlled substance” set forth in section 18–18–102(5), C.R.S.2010).

As noted above, the disqualification from receiving unemployment benefits is triggered if an employee tests positive for the presence of a controlled substance that is “not medically prescribed.” § 8–73–108(5)(e) (IX.5). Underlying claimant's argument is an assumption that his authorization to use medical marijuana is equivalent to a medical prescription. This assumption is inaccurate.

Under article XVIII, section 14, a physician does not prescribe marijuana, but may only provide “written documentation” stating that the patient has a debilitating medical condition and might benefit from the medical use of marijuana. See Colo. Const. art. XVIII, § 14(2)(c)(II). Indeed, a physician's inability to prescribe marijuana under Colorado law is reflected in the very physician certification upon which claimant relies to legally consume marijuana. That document specifies that “[t]his assessment is not a prescription for the use of marijuana” (emphasis added).

Moreover, federal law, to which Colorado physicians are subject, requires a practitioner prescribing controlled substances to be registered with the Drug Enforcement Administration (DEA). See 21 C.F.R. § 1301.11 (2009). Such registration for the prescription of controlled substances can only be obtained for Schedule II through V controlled substances. See

[262 P.3d 974]

21 C.F.R. § 1301.13 (2010). Marijuana, in contrast, remains a Schedule I controlled substance under the applicable federal statute and consequently cannot be prescribed. 21 U.S.C. § 812(c) (1999); see United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483, 491, 121 S.Ct. 1711, 149 L.Ed.2d 722 (2001) (“In the case of the Controlled Substances Act, the statute reflects a determination that marijuana has no medical benefits worthy of an exception.... Whereas some other drugs can be dispensed and prescribed for medical use, the same is not true for marijuana. Indeed, for purposes of the Controlled Substances Act, marijuana has ‘no currently accepted medical use’ at all.”)...

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