Court ruling to affect state's weed plans

By: Mike Davis
Asbury Park Press

USA Today network - New Jersey

TRENTON - The supply-and-demand issues hindering the state's 12 medical marijuana dispensaries and 100,000 medical marijuana patients could worsen after a judge ruled that the process for issuing state dispensary licenses was rife with flaws.
..... Appellate Judge Clarkson Fisher Jr. rule in favor of eight losing dispensary applicants who argued the state Health Department hadn't appropriately considered their 2018 applications, stating that the "arbitrary, capricious and unreasonable" process was full of errors.
.... There were "numerous, indisputable anomalies in the scoring of the appellants' applications prevent us from having sufficient confidence in the process adopted by the Department or its results for the approval of (dispensaries) in this important industry," Fisher wrote in the November 25 [2020] decision.
..... "We have considerable concerns about the Department's processes and the results produced that - without further agency proceedings and explanation - would leave us to conclude that the decision in question are arbitrary, capricious and unreasonable," he added.

WHAT LED TO THE DECISION?

.... The health Department awarded six medical marijuana licenses in 2018 - two each in North, Central and South Jersey - after a months-long process of reviewing 146 applications from 103 different companies looking to win a dispensary.
..... That round of licenses was supposed to be the first of many, an attempt by the state to begin quashing supply-and-demand issues that had hindered the New Jersey Medical Marijuana Program virtually since its inception.
.... Instead, the process prompted a lawsuit by eight losing applicants that had already resulted in an injunction that stopped the Health department from issuing any more licenses, including those the state was supposed to award last year. [2019]
..... With Fisher's opinion now calling the entire system into question, attorney Joshua Bauchner said the state should award licenses to the plaintiffs - he represents five of them - involved in the lawsuit to ensure the market can begin to rebound.
.... "Our clients want a licenses, first and foremost. How they get there is up to the DOH, he said. "The path of least resistance is to award licenses to these applicants. There's no dispute they're all qualified - it was just a limited number of licenses available and, if you correct for one (of many) variables, you have different winners."
..... Bauchner said that he'd had preliminary conversations with the state over settling his clients' issues and awarding them licenses.
..... Health Department spokeswoman Donna Leusner said the department was "reviewing the court decision" and declined to comment further.

A GROWING INDUSTRY:

.... There are more than 100,000 registered medical marijuana patients in the state, but the Health Department has only awarded dispensary licenses to 12 "alternative treatment centers" since the program started, including the 2018 licensees.
..... Of those six new licensees, only three dispensaries - TerrAsscent in Phillipsburg, RISE in Paterson and Columbia Care in Vineland - have opened.
..... In total New Jersey has just 12 dispensaries operated by nine companies or nonprofits, including satellite locations.
..... The result is a limited stock of options for patients - many of whom require specific strains and specific forms, such as edibles or oils - where the cost-per-ounce is often more expensive than a plane ticket.
..... Many medical marijuana activists have said the Legislature's refusal to allow patients to grow their own cannabis plants has deprived them of the cheapest way to obtain their medication.
..... New Jersey is the only state with legal weed that doesn't allow its medical marijuana patients to grow at least a limited number of cannabis plants.
..... "The supply just isn't meeting the demand. Rather than litigate or fight it out, we know we have these appealing applicants who are qualified, ready, willing and able," Bauchner said.
..... "Let's give them a license and let them do what everyone wants, build a robust cannabis market in the state of New Jersey."

SCORING FLAWS DRAW SCRUTINY:

.... There were numerous, across-the-board issues with the application scoring, the court found.
..... In one category, applicant Pangaea Health and Wellness received a perfect score by some application judges but a zero by others.
.... The zeros should have been rendered moot, Fisher wrote, as the DOH told its review committee to reserve zero-point scores for instances where the applicate did not submit the required document or didn't answer the question.
.... It came into play during another category in which Pangaea received some zero-point scores when asked to submit a flood plan.
..... Since the company did submit a floor plan, it should have been protected from a zero, the court and plaintiffs argued.
.... The court also called into question the expertise of those chosen to score the dispensary applications, which included four Health Department employees and one each from the Treasury and Agriculture departments.
..... "Despite this cross-over into areas not likely within a member's bailiwick, each member's vote was equally weighed," Fisher wrote. "In other words, the Agriculture member's vote on financial matters possessed the same value as the Treasury member's vote on the same subject."
..... The appellate decision could also have an impact on the state's future policies on legal weed for recreational purposes.
.... While the ballot measure to legalize marijuana passed with a 2-to-1 ratio, the first recreational dispensaries are unlikely to open until 2022.
.... In other states, medical marijuana dispensaries have been allowed to sell recreationally in the meantime.
..... That is unlikely to happen in New Jersey.
..... The medical marijuana program floundered under former Governor Chris Christie, who opposed the program.
..... Under Governor Phil Murphy, the program has expanded exponentially but was hamstrung by the lawsuit, injunction and legislators' frequent insistence of grouping in medial marijuana with previous attempts to legalize weed.

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