Tacoma doctor sues state over sanctions against cannabis ads

Osteopath Scott Havsy alleges interference with his right to free speech

Staff writerMay 26, 2014 

A Tacoma osteopath once known as the city’s top pot doc has taken the state to court, contending a law that prohibits physicians from advertising their marijuana services is unconstitutional.

Everett attorney Mark G. Olson filed the lawsuit on Dr. Scott Havsy’s behalf in Pierce County Superior Court last week. It names the state Department of Health and its secretary, John Wiesman, and state Attorney General Bob Ferguson as defendants.

Havsy, who specializes in pain management, wants a judge to void the law and wipe out a 2013 ruling by a health law judge that found he committed professional misconduct by advertising his marijuana services.

The law violates the First and Fourteenth amendments “as it chills Dr. Havsy’s exercise of his right to engage in commercial free speech as a professional,” according to the lawsuit.

Efforts to obtain comment from the state Attorney General’s Office, which would defend the state against the lawsuit, were unsuccessful.

Havsy, who’s practiced in Washington for 30 years, has battled with health regulators for at least the past three years over language and images on his website and in his print advertisements in which he expresses his willingness to authorize the use of medical marijuana.

A pioneer in the medical marijuana field, Havsy developed a reputation as a go-to guy for green cards needed to obtain medical marijuana.

The state Department of Health filed a complaint against him in 2012, alleging he engaged in unprofessional conduct by advertising medical marijuana services on his website, court records show.

Havsy said he was providing needed information to potential patients.

“The purpose of the information appearing on Dr. Havsy’s website is to provide patients with information concerning the lawful use of marijuana to control pain,” according to the lawsuit.

Efforts to negotiate a settlement were unsuccessful, with Havsy rejecting an offer to settle the complaint by paying a $1,000 fine, attending 10 hours of continuing education in law and ethics and removing the offending advertising from his website.

Havsy argued the state did not have the authority to abridge his free speech rights.

The Health Department, through the Board of Osteopathic Medicine and Surgery, thought otherwise and moved ahead with formal disciplinary proceedings against Havsy.

A hearing was held June 25, 2013, with an assistant state attorney general representing the Health Department. Havsy invoked his Fifth Amendment right against self-incrimination and declined to testify, records show.

Health law Judge Jerry D. Mitchell, who presided over the hearing, said he could not rule on Havsy’s contentions that the law violated his federal and state constitutional rights.

Mitchell did rule that Havsy had violated the law against doctors advertising marijuana services and ordered him to stop immediately. He also fined Havsy $5,000 and placed his medical license on probation for one year.

“The presiding officer considered the following aggravating factors when determining the sanction in this matter: lack of remorse or awareness that the conduct was wrong,” according to the findings of the hearing.

Havsy’s only recourse was to sue in superior court, which he’s now done.

“The inclusion of references to marijuana in Dr. Havsy’s web page and other advertising materials referenced above constitutes commercial free speech by a professional and is entitled to the strongest protection offered under the First Amendment to the United States Constitution and Washington Constitution,” according to the lawsuit.

Adam Lynn: 253-597-8644

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