By Zach Arnold | April 26, 2012
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04/24/2012 10:46:06 AM
Ross C, Goodman
Nevada Bar No. 7722
GOODMAN LAW GROUP, P.C.
520 S. Fourth St., 2nd Floor
Las Vegas, Nevada 89101
Telephone: (702) 383-5088
Facsimile: (702) 385-5088
Case No.: A-12-660642-C
Dept. No: XXXII
COMES NOW, Plaintiff Nicholas Diaz (“Diaz”), by and through his attorney, Ross C. Goodman Esq., of the Goodman Law Group, and hereby alleges against the above-named defendant as follows:
1. Plaintiff Diaz is a professional mixed martial artist resident in Stockton, California.
2. Defendant Nevada State Athletic Commission (“NSAC”), a commission within the State of Nevada’s Department of Business and Industry, is vested with the sole direction, management, control and jurisdiction over all contests or exhibitions of unarmed combat to be conducted, held or given within the State of Nevada, including mixed martial arts contests.
3. On February 4, 2012, Diaz participated in a professional mixed martial arts contest at the Mandalay Bay Events Center in Las Vegas, Nevada (the “Contest”), which Contest was conducted under the direction, management, control and jurisdiction of the NSAC.
4, Prior to the event, Diaz applied to the NSAC for a license as a mixed martial artist, and the NSAC duly issued and approved such license before the Contest.
5. Following the Contest, the NSAC’s Executive Director filed a complaint against Diaz, dated February 8, 2012 (the “Complaint”).
6. In the Complaint, the NSAC alleged that a urine sample provided by Diaz immediately following the Contest reflected a positive result for the presence of marijuana metabolites, and that such metabolites were prohibited by NSAC regulation.
7. On or about February 9, 2012, the NSAC’s Executive Director suspended Diaz’s license under NRS 233B. 127(3) and NRS 467.117(1) (the “Summary Suspension”).
8. In reliance on representations that a hearing of the Complaint would be scheduled “in the near future” Diaz did not initially challenge the Summary Suspension.
9. On February 22, 2012 the NSAC resolved to continue the Summary Suspension pending a final determination of the Complaint.
10. Diaz filed a Reply to the Complaint and supporting affidavits on March 7, 2012. That reply and supporting affidavits stated that, inter alia:
- a) Diaz is an authorized medicinal marijuana patient for treatment of attention deficit hyperactivity disorder (“ADHD”);
- b) marijuana metabolite is not a prohibited substance under NSAC’s regulations;
- c) the NSAC and the World Anti-Doping Agency prohibit the consumption of marijuana only “in competition”;
- d) Diaz’s practice is to discontinue medical marijuana treatment eight days before any fight to eliminate the possibility of any behavioral and psychological effects associated with medicinal marijuana’s active ingredient; and
- e) Diaz has committed no violation of the NSAC’s regulations.
11. Following delivery of the Reply to the Complaint, the Attorney General’s representative, Mr, Christopher Eccles, provided further assurances that the Complaint would be 11 heard in April.
12. On March 29, 2012, the NSAC’s Executive Director delivered to Diaz a revised Complaint (the “First Amended Complaint”).
13. The First Amended Complaint made further allegations against Diaz including, inter alia, allegations that Diaz provided false or misleading information to the NSAC by indicating on a ‘Pre-Fight Questionnaire’ that (i) he does not have any serious medical illnesses, (ii) he had not taken or received any prescribed medications in the last two weeks before the Contest, and (iii) he had not taken or received any over the counter medication or products in the last two weeks before the Contest.
14. On March 29, 2012, April 2, 2012, and April 3, 2012, Diaz, through his attorneys, sent further requests to Mr. Eccles and the NSAC’s Executive Director requesting a firm date for I the hearing of the complaint. No response to this correspondence was provided.
15. On April 11, 2012, Diaz through his attorneys delivered to Mr. Eccles and the II NSAC’s executive director:
- a) Diaz’s filed reply to the First Amended Complaint on behalf of Diaz (the “Reply to FAC”); and
- b) correspondence (i) enclosing Physician’s Statements that constituted the requisite written documentation that qualified Diaz to use medical marijuana pursuant to California Health & Safety Code 11362.5, (ii) objecting to the production of any further medical records on grounds of relevance and privilege, and (iii) requesting confirmation that the disciplinary action against Diaz would be formally added to the April 24, 2012 agenda.
16, In the Reply to FAC Diaz stated, inter alia:
- a) the First Amended Complaint does not allege any facts supporting that. Diaz violated any NSAC rule;
- b) marijuana metabolite is not a drug or injection that has not been approved by the NSAC under NAC 467.850;
- c) all answers provided by Diaz on the Pre-Fight Questionnaire were “true and accurate to the best of [Diaz'sj ability", and therefore met the standard required by the NSAC;
- d) Diaz does not believe that ADHD is a "serious medical illness";
- e) Diaz does not believe that medical marijuana is a "prescribed medication" and that this belief is consistent with federal law; and
- f) Diaz does not believe that medical marijuana is an "over the counter" medication.
17. On April 13, 2012, Diaz, through his attorneys, demanded that the hearing of the NSAC's complaint be set down for the April 24, 2012 NSAC meeting or else the complaint would be deemed to be abandoned.
18. On April 16, 2012, Mr. Eccles delivered to Diaz's counsel correspondence again demanding a copy of Diaz's medical marijuana card and declining to commit to a date for the disciplinary hearing.
19. On April 18, 2012 the NSAC published the agenda for its April 24, 2012 meeting. The requested disciplinary hearing relating to Diaz's suspension was not on the agenda.
20. Despite repeated requests, neither Diaz nor his attorneys have received any correspondence concerning the date on or by which the hearing of the NSAC's complaint will proceed.
21. Diaz's license has, in effect, been suspended indefinitely, in the absence of any adverse findings having been made against him by the NSAC.
22. Under NRS 233B.127, which applies to all revocations, suspensions, annulments and withdrawals of licenses (including licenses issued by the NSAC), "[p]roceedings relating to the order of summary suspension must be instituted and determined within 45 days after the date of the [suspension] unless the agency and the licensee mutually agree in writing to a longer period” (NRS 233B.127(3)).
23. The Summary Suspension of Diaz’s license was a suspension made pending proceedings for revocation or other action. The Summary Suspension was continued “until [the Commission] makes a final determination” of the complaint, which must be within 45 days under NRS 233B.127(3). The NSAC has not yet set the matter for hearing. Accordingly, the Summary Suspension has lapsed and must be set aside, and the NSAC must not proceed with the matters raised in the complaint as the NSAC has lost statutory jurisdiction to proceed with the complaint.
24, Under NRS 467.117(l) a summary or temporary suspension may be made only where “the action is “necessary to protect the public welfare and the best interests of the sports regulated” [emphasis added].
25. The NSAC has made no finding that a summary or temporary suspension of Diaz’s license is necessary to protect the public welfare.
26. Even had the NSAC made such a finding, which is denied, there would be no reasonable basis for making such a finding and there was no evidentiary basis before the NSAC at its February 22, 2012 meeting upon which such a finding could have reasonable been made.
27. Insofar as the Summary Suspension of Diaz’s license was made on the basis of NRS 467.117, the suspension was effected wholly absent statutory jurisdiction, and must be set aside.
28. The Due Process Clause requires that a statutory provision permitting a temporary suspension pending final determination requires a promptly convened final hearing to determine the merits of a disciplinary complaint.
29. Over two months have transpired since the Summary Suspension of Diaz’s license was effected by the NSAC. The NSAC has still not convened a hearing. Nor has a hearing been scheduled. Accordingly, the NSAC’s application of NRS 233B.127 and/or NRS 467.117 is an unconstitutional deprivation of Diaz’s due process rights.
30. Further, the NSAC’s action taken on February 22, 2012 was procedurally ineffective under NRS 467.
31. Under NRS 467.113(4), in connection with the adjudication rendered at any such disciplinary hearing, the NSAC “shall file a written report of its findings, adjudication and order in the record of the proceedings and send a copy to the accused”.
32. In connection with the February 22, 2012 NSAC meeting:
- a) The NSAC has filed no written report in connection with its findings (if any);
- b) The NSAC has filed no written report in connection with its adjudication of the request for a continuation of the suspension; and
- c) the NSAC has filed no written report of its order effecting a continuation of the suspension of Diaz’s license pending final determination of the Complaint.
33. Accordingly, (i) the NSAC has not complied with the requirements of NRS 467 in connection with February 22, 2012 meeting. By virtue of such failure of compliance, the February 22, 2012 meeting was wholly ineffective to continue the Summary Suspension.
FIRST CLAIM FOR RELIEF (Preliminary and Permanent Injunctive Relief)
34. Plaintiff repeats and realleges the allegations contained in Paragraphs 1 through 33 and incorporates them by reference.
35. Defendant has wrongfully and unlawfully suspended Diaz’s license:
- a) in violation of NRS 233B.127(3), by failing to determine the proceedings relating to the order of summary suspension within 45 days after the date of the suspension;
- b) in violation ofNRS 467.117(l), by suspending Diaz’s license in the absence of any finding that such suspension is necessary for the protection of the public welfare and without any evidence supporting any such finding;
- c) in violation of Diaz’s due process rights, by suspending Diaz’s license pending final determination of a complaint but failing to promptly convene a final hearing to determine the merits of that complaint; and
- d) by purporting to extend the tens (10) day suspension under NRS 467,117(1) without complying with NRS 467.113(4).
36. The NSAC’s wrongful and unlawful Summary Suspension of Diaz has caused and will continue to cause irreparable harm to Diaz.
37. Defendants should be enjoined from further wrongfully and unlawfully continuing the Summary Suspension and Diaz accordingly seeks a stay of the Summary Suspension.
38. Defendant should be enjoined from further wrongfully and unlawfully proceeding with the disciplinary proceedings commenced against Diaz and Diaz accordingly seeks a stay of such proceedings.
SECOND CLAIM FOR RELIEF (Declaratory Relief)
39. Plaintiff repeats the allegations contained in Paragraphs 1 through 38 and incorporates them by reference.
40. Plaintiff seeks declaratory relief under NRS 30.040 to obtain a final determination of his rights under NRS 233E and NRS 467.
WHEREFORE, plaintiff prays for judgment against defendant as follows:
1. Judgment in favor of plaintiff against defendant;
2. For injunctive and declaratory relief; and
3. For such other and further relief as the Court deems just and appropriate.
DATED this 24th day of April, 2012.
GOODMAN LAW GROUP, P.C.