Marijuana Commission's new Catch 22. No court appeal possible for losers. | Arkansas Blog

Friday, July 13, 2018

Marijuana Commission's new Catch 22. No court appeal possible for losers.

Posted By on Fri, Jul 13, 2018 at 10:05 AM

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We reported yesterday that the state Medical Marijuana Commission had voted to keep marijuana cultivation permits "active" for two years so that should any of the five winning permit applicants fall by the wayside another could be elevated. This, however, amounts to a Catch 22 to prevent lawsuits by losing applicants.

Here's why.

Commission rules say applicants may appeal denial of a permit to circuit court.

Indeed, the Arkansas Supreme Court, in reversing Circuit Judge Wendell Griffen's invalidation of the top five cultivation applicants, wrote:

“However, the arguments concerning the denial of the license were not ripe for the circuit court to hear. Because the appellees have not been issued denial letters subsequent to an adjudication, the issue was not ripe; therefore, we reverse.”
With yesterday's action, no denial letters will be issued for at least two years, thus ..... no appeal is possible.

I asked Scott Hardin, the Department of Finance Administration spokesman, if I was reading the action, rule and law correctly.  Does they mean no one can appeal a denial because there's been no denial?

He responded:

That is correct. Keeping the applications active does two things…1. If for any reason one of the five cultivation licenses issued this week is revoked, the Commission may then provide that license to the next highest score (which would be the sixth place application) and 2. Commissioners, at any point, may decide to issue the three additional cultivation licenses (rules allow for eight total). If a year from now that decision is made, the Commission can simply go to the existing, active cultivation applications to award those three licenses, avoiding an entirely new application and review period, which would take several months.
To the best of my knowledge so far, the commission hasn't come up with a way to block complaints about specific winners. But add this Catch 22 to the scoring irregularities, conflicts of interest and bribery allegation that have already put the process in low repute.

Hardin later added about Commission procedures:

While there is not a process by which an unsuccessful applicant goes before the Commission for a hearing, there is still a process by which unsuccessful applicants may file a letter of complaint/appeal. Under the rules, the authority to investigate any appeal is now under the jurisdiction of ABC’s Enforcement Division, a full law enforcement agency. Similar to the work they do on alcohol permits, this division will conduct an investigation upon receiving any formal concern or appeal. The Division consists of 18 agents (including former FBI). The protest letters that were filed with the MMC are now under investigation at ABC Enforcement. Again, similar to alcohol permits, Enforcement’s investigation may result in a permit being revoked.

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