Alabama Judge Will Clear Way For Some Medical Marijuana Licenses With Amended Restraining Order On Regulators

“The Medical Association has a rule that doctors can’t recommend medical cannabis until there’s at least one license issued in every category.”

By Alander Rocha, Alabama Reflector

A Montgomery judge Wednesday agreed to amend a temporary restraining order on the Alabama Medical Cannabis Commission (AMCC), potentially opening the door to limited licensing in the near future.

Montgomery Circuit Court Judge James Anderson decided to make the change after AMCC, which is fighting numerous lawsuits over the process, asked him to lift the temporary restraining order before its next meeting.

“If your honor were to dissolve the [temporary restraining order], then what the commission intends to do is to lift the administrative stay, revisit the decisions that were made in the August meeting, and then move forward with the ones who will be making presentations, we anticipate that all that will be done before Christmas,” Mike Jackson, an attorney for the AMCC, said.

Anderson denied AMCC’s request but asked lawyers for the commission and plaintiffs to determine a path forward for license categories that do not have applicants involved in the lawsuit.

The current restraining order allows the commission to rescind licenses but does not allow the commission to award or issue licenses. It also suspends all deadlines in regard to fee payments and a hearing request from denied applicants.

The amended restraining order would allow the AMCC to move the licensing process forward for cultivators, transporters and labs.

The commission plans to void licenses awarded to dispensaries, processors and integrated facilities—facilities that can produce medical cannabis from seed to store shelves—at its next meeting.

Lawyers for medical cannabis firms suing the commission objected to lifting the restraining order, saying it already allows the commission to void licenses. Completely lifting the stay, they argued, would allow the commission to issue licenses currently subject to litigation.

“I’m concerned about any action that could be taken that would cause time deadlines to start running again,” said Wilson Green, counsel for Jemmstone Alabama, an integrated facility denied a license.

AMCC Executive Director John McMillan said after the meeting the commission will at most only void licenses awarded in August to dispensaries, processors and integrated facilities.

The earliest the commission would award licenses for cultivators, transporters and labs is in the November meeting. But even with some firms being able to operate, McMillan said, patients wouldn’t necessarily benefit.

“The Medical Association has a rule that doctors can’t recommend medical cannabis until there’s at least one license issued in every category,” McMillan said.

Alabama authorized a medical cannabis program in 2021, allowing medical cannabis to be used to treat about 15 diseases and chronic illnesses.

The AMCC awarded licenses to produce and distribute medical cannabis in June, but inconsistencies in the scoring of applications led to multiple lawsuits and a halt to the licensing process. Companies denied licenses have alleged that the commission was conducting much of its business behind closed doors, a violation of the Open Meetings Act.

Score keeping

The AMCC adopted new application and licensing rules last week after months of legal disputes and amid stalled settlement negotiations over the commission’s evaluation process.

The rules will allow the commission to keep scores it gave to prior applications but give applications the chance to outline deficiencies. Applicants will have the opportunity to present their proposals to the commission in a public meeting.

Plaintiffs’ lawyers Wednesday also asked Anderson to bar scores previously used in the last two attempted awards from being used in the third do-over.

Ben Espy, attorney for Bragg Canna of Alabama, an integrated facility applicant denied a license, argued the new rule put the scores “front and center.” There is no way to consider any of the new changes without taking the old scores into consideration, he said.

“There’s no way to get away from them. There’s not a situation where we can go give a presentation and ignore the score,” Espy said.

Espy said that the changes the commission made to the rules—allowing firms to submit applications that are over 10 MB, remove redactions, presentations—if the scores will still be used. He said that if applicants will be able to resubmit applications with new material, keeping the old scores does not make sense.

“There’s nothing within this rule that requires anybody, whatsoever, to consider the new information contained in those 10 megabytes affected documents,” Espy said. “So how are they going to do it? The commission is going to take dozens and dozens of those documents and compare it to the old documents to see how they fit? They’re not going to do that.”

With the scores at “front and center,” he said that each company would have to “attack” the scores of the other companies to provide a comparison and justification as to why they deserved a better score.

“What they have done is set up a scenario where there’s a presumption that my client is not good. And now I have to rebut that presumption, and they don’t even give me the tools to do that,” Espy said.

Anderson denied the request and said the AMCC may or may not use the scores, saying the commission “has discretion to use whatever matters they want to use,” as long as it’s in statute.

This story was first published by Alabama Reflector.

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