iIn the coming, frenzied 90 days, the Alabama Medical Cannabis Commission likely will save or ruin the future of medical cannabis in Alabama.
I suggest listening to this ominous ode from Jim Morrison as you read this post:
This is the end
The end of our elaborate plans
The end of everything that stands
Last Thursday, the AMCC voted to adopt an emergency rule that, by its terms, would (1) attempt to address most, but not all, of the issues raised in ongoing lawsuits filed by applicants who have not previously been awarded medical cannabis licenses and (2) provide for the award of medical cannabis licenses in early December and their issuance as early as January.
For those whose sole wish is that Alabama’s medical cannabis licensing process come to a long-overdue conclusion, the emergency rule should come as welcome news. But – and anyone who regularly follows the Budding Trends blog knows this already – not everyone has welcomed the news.
What Does the Emergency Rule Provide?
Specifically, the emergency rule provides for the following:
- Applicants whose applications were deemed submitted by the AMCC but, because of file size limitations in the application portal, were either (i) unable to submit all or portions of exhibits associated with such application, or (ii) required to submit exhibits that were compressed, truncated or otherwise distorted, shall be permitted to submit by November 9 a sworn statement certifying that the documents sought to be submitted were in existence as of the original December 30, 2022, application deadline and provide metadata showing that the documents have not been altered since then.
- The AMCC will make applications, including newly submitted documents, public except for any redactions submitted to the AMCC by November 9. With limited exceptions, applicants may only redact (a) personally identifiable information and (b) trade secrets or competitively sensitive information. Information bearing on the financial ability of the applicant shall generally not be deemed competitively sensitive information. The AMCC is permitted to make further redactions if it determines that an applicant’s redactions are not consistent with the rule.
- The AMCC will provide notice to all applicants who are preliminarily determined to have failed one or more pass/fail item(s) and any such applicant shall have 10 business days to show cause, through a written submission, as to why their application should not be rejected due to such pass/fail item(s).
- Each applicant will be given an opportunity, but not the obligation, to address their application and to answer questions from the commissioners or the AMCC staff. Integrated applicants will have 45 minutes for their presentations, and other applicants will have 20 minutes. The presentations will be open to the public. Applicants may submit a written brief of not more than 20 pages accompanying their presentation or video evidence, although the running time of any video will be counted against the time allotted for the presentation.
- Regarding third-party scoring data and tabulations previously generated for applications by the University of South Alabama, by November 9 the AMCC will make available to all applicants (1) general scoring criteria utilized by the third-party scorers, along with information in the AMCC’s possession regarding each scorer’s training and qualifications, excluding personal identifying information, and (2) notice of any instance where the same scorer was not used in scoring the same sections of applications within a license category.
- In addition, the AMCC will, upon written request received by the AMCC by November 26, provide any such requesting applicant with the opportunity to inspect scoring sheets and any specific notes of third-party evaluators for such applicant in the AMCC’s possession, subject to the prior redaction of personal identifying information of the evaluator or third parties other than the applicant. Applicants may be charged for the redaction and copying of any such materials.
- The AMCC remains the primary decisionmaker with regard to licensing, and each commissioner retains full discretion to act independently of the previously generated third-party scoring and evaluations in applying the statutory and regulatory criteria.
- As soon as practicable after the presentations are completed for an individual license category, the AMCC will conduct a meeting to deliberate and award licenses in such license category. In order to determine the order in which applicants should be considered, each commissioner will be given an opportunity to submit, in an open meeting, a written form providing an overall preliminary rank, in descending order, of each of the applicants in the license category, giving due consideration to all statutory and regulatory criteria. Such forms shall be tabulated and averaged by the AMCC staff and used solely to determine the order in which individual applicants are subsequently considered. In those instances where two or more applicants receive identical average rankings, the order shall be determined by a drawing.
Here is the calendar of events scheduled to occur from now through January. As you’ll see, the author no longer has a need to make plans for the holiday season.
What Does All of This Mean?
One clear upside of the new rule is that it purports to bring conclusion to the licensing program in relatively short order. That is nothing to sneeze at, even if reasonable people can question whether the AMCC is able meet the aggressive timeline it set out for itself. Another upside is that the rule seeks to address the concerns about the prior process raised by litigants over the past five months – thereby hopefully heading off future litigation about those existing issues.
But it’s not all upside. Not all the concerns raised by litigants have been addressed in the new rule. For example, the AMCC will still have access to the third-party scores from the University of South Alabama, and many applicants believe that any process that relies in any way on the scores from the University of South Alabama is inescapably flawed because the scoring process arguably was not in compliance with the Alabama Administrative Procedures Act and because of a series of questionable decisions on specific scores that applicants are certain to raise during their public presentations. And applicants have raised additional concerns in a series of lawsuits and motions filed in the past few weeks and months.
So, What Will Happen?
This is something you always want to hear from a lawyer: I’m not sure. Gun to head, I think the court allows the AMCC to move forward with its process and award licenses in December, provided the AMCC is able to meet its own timeline. And if I’m forced to make a prediction (fully aware I am writing this of my own volition and therefore forced to do no such thing), I suspect the results of this process will look very similar to the prior awards. My main basis for thinking so is that I believe there will be tremendous institutional inertia – meaning that it will be difficult for commissioners to move away from the third-party scores and their own prior votes. But that is with a huge caveat for the integrated facilities category. Rumors are swirling that one or more applicants previously awarded a license may have eligibility issues, and there will be tremendous public pressure on commissioners to consider a wide range of factors in awarding those five coveted licenses.
Whatever happens, it’s time for this to be the end of the licensing process. If not, I’m haunted by the prophecy of T.S. Eliot when he first wrote about the Alabama medical cannabis program:
This is the way the [Alabama medical cannabis program] ends
This is the way the [Alabama medical cannabis program] ends
This is the way the [Alabama medical cannabis program] ends
Not with a bang but a whimper
Let’s not do that.
