iHaving spent nearly every day of the last three years thinking about Alabama’s medical cannabis licensing, and the past year closely following the seemingly endless litigation that continues to this day, I took special note of a recent decision of the Missouri Supreme Court affirming the denial of a cannabis license to an applicant that had not complied with the rules governing applicants.
That decision could serve as persuasive precedent for Alabama courts facing similar issues in the coming days.
Recently, the Missouri Supreme Court ruled that it was appropriate to deny Mo Cann Do’s application for a medical marijuana cultivation facility license, finding that its submission was ineligible because it did not include a certificate of good standing from the secretary of state. According to the court:
Because MCD did not include a certificate of good standing in its application as was required by regulation to demonstrate its authority to operate as a business in Missouri, MCD failed to meet the minimum standards for licensure.
There does not appear to be any dispute that Mo Cann Do failed to include this document with its initial submission, and reasonable people can — I suppose — believe that its failure to submit a perhaps perfunctory document should not prevent it from receiving a medical cannabis license.
Mo Cann Do certainly believed that was the case, and it made two primary arguments before the Missouri Supreme Court to establish that the denial was arbitrary, capricious, and unreasonable. Mo Cann Do argued that the state had waived the need for the document because (1) it failed to “notify [Mo Cann Do] if an application is incomplete and will specify in that notification what information is missing” and (2) another rule that gives the state permission to “waive, for good cause, provisions of this chapter on its own initiative or by request,” according to the court record.
The court was not convinced. Although it recognized that the arguments were “creative,” the court refused to recognize that the state could implicitly waive the requirements of the applicable rules.
So, what does this have to do with Alabama’s medical cannabis program? I am aware of a number of applicants that have been awarded (but not yet issued) medical cannabis licenses that have not provided all of the information required in their applications. To date, neither the Alabama Medical Cannabis Commission nor the state court overseeing the litigation surrounding the awarding and issuance of licenses have meaningfully examined whether those applicants meet the relevant requirements.
If Alabama is going to have a credible medical cannabis program, Alabamians must have confidence that the providers of that medicine are qualified to provide safe and effective medication. The Missouri Supreme Court has provided the roadmap for making the hard call of denying a license based on what may appear to be a technicality. But when we’re talking about manufacturing medicine, isn’t it the technicalities that matter?
I look forward to the opportunity for the AMCC and Alabama courts to examine whether the putative medical cannabis licensees have complied with statutory and regulatory requirements. Nothing less than the health and safety of Alabamians is at stake.
