NJ Appeals Court Vacates and Remands 2018 MMJ Disqualification Decisions: Victory for Appellants, Government Transparency, and NJ MMJ Patients

Posted on November 25th, 2020

The New Jersey Appellate Division this morning issued its Decision vacating the Department of Health’s final agency decision in the 2018 Medical Marijuana Request for Applications process and remanding for further proceedings to address the endemic scoring defects and related problems.  The Decision is available here.

In its 75-page Decision, the Court extensively reviewed the scoring irregularities which rendered the DOH’s disqualification of Appellants arbitrary, capricious and unreasonable:

In short, all roads lead to the same point: 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 ATCs in this important industry that provides ‘beneficial use[s] for . . . treating or alleviating the pain or other symptoms associated with’ certain medical conditions. N.J.S.A. 24:6I-2(a). It is for this chief reason that we remand to the Department to undertake further steps to ameliorate these concerns.

The Court concluded that “the Department tolerated too great a degree of ‘relative error’ in its scoring, its decisions were arbitrary, capricious and unreasonable. This argument, with which we agree, is demonstrated by numerous examples that simply cannot be rationally explained on the record before us.”

The Court further unequivocally rejected the Department’s excuses for the scoring anomalies:

The Department has done little to justify these anomalies or explain why they should be disregarded. We would characterize the Department’s contentions as falling into two general assertions: (1) the divergent scores in some instances are the product of “each member appl[ying] his or her unique expertise to the scoring process,” and (2) all applicants were subject to the same process and, therefore, all buoyed or dragged down by the varying scores. The former is unconvincing because it runs counter to the fact that the Department provided each review committee member the same set of instructions that it presumably sought to have applied in the same way, as well as the rather obvious likelihood that the Department did not intend – nor should it have intended – to allow reviewers’ personal views to enter into the calculus. We are also unpersuaded by the Department’s false-equivalency argument. It is certainly true that the winning and losing applicants were subjected to the same review committee, and there may be evidence of similar inconsistent scoring of the winning applications, but that doesn’t mean that they were entirely treated the same way.

In dismissing these arguments, the Court succinctly explained:  “There is no escaping the fact that some of these scores simply ‘don’t compute’ and that, no matter how the Department and the other respondents may attempt to slice it, the results are still unsettling.”  The Court then ordered that:  “The Department must address the numerous questions posed about its scoring procedures and explain the basis for its resolution of the remand proceedings before we can ever adequately review whatever final agency decisions come from those proceedings.”

In reaching its Decision, the Court also telegraphed its concerns regarding the pending 2019 Medical Marijuana Request for Applications:

We intervene in the administrative proceedings that have taken place so far to ensure the public’s confidence in both the results achieved at the agency level so far and to ensure that future similar proceedings will be likewise subjected to a measure of scrutiny at the agency level that will guarantee the process does not produce determinations that are arbitrary, capricious or unreasonable.

As to a remedy, the Court explained that it “will not dictate to the Department what it is that it should do following today’s remand, other than to hold that it must engage in some sort of additional process for receiving and considering the appellants’ contentions and must explain its determinations on those contentions.”  As an administrative hearing likely only will reveal additional problems, and the Court repeatedly noted the option to award more licenses, there is hope on the horizon for expanding patient access in New Jersey to much-needed medicine in the near term.

Ansell Grimm Adds Application Writer-Attorney To Cannabis Law Practice

Posted on November 10th, 2020

Ansell Grimm & Aaron, PC announces that Ariana Van Alstine will be coordinating with the firm to assist in the preparation of applications for cannabis licenses in the State of New Jersey.  The addition of Ms. Van Alstine expands the firm’s already robust Cannabis Law Practice Group, enabling it to further support its clients in licensing, corporate formation and governance, commercial leasing, contract negotiation and drafting, employee issues, capital raising and financing, and regulatory and municipal compliance.

Ms. Van Alstine is an attorney and consultant to the cannabis industry who is widely recognized for her ability to support clients to accomplish business goals within the context of complex regulatory frameworks.  Ms. Van Alstine has successfully worked with clients to win numerous local competitive license processes, guided the state license process for nearly every license type, guided clients through multi-state expansion processes, and navigated the cannabis regulatory hurdles in dozens of commercial, real estate, and acquisition agreements. In addition to working with cannabis businesses, she works with platforms and financial service providers to navigate cannabis regulatory hurdles.

Prior to founding AAVA Consulting, Ms. Van Alstine was Vice President of Legal and Regulatory Affairs at Connected California, a vertically integrated multi-state cannabis business. At Connected, she oversaw the company’s legal, compliance, and regulatory affairs departments.

Ms. Van Alstine is regularly invited to share her unique knowledge of cannabis law. She taught an executive training on cannabis licensing for University of the Pacific, McGeorge School of Law, and has provided continuing legal education to the Sacramento County Bar Association. Past speaking engagements include California Cannabis Industry Association’s Risk Management Conference, The State of Cannabis, Urban Exchange Speaker Series, California Cannabis Courier’s Association: Ask the Lawyers, McGeorge School of Law: Cannabis Law Symposium; McGeorge School of Law Cannabis Licensing Seminar; Sacramento County Bar Association: Cannabis Law Section on Licensing, Sacramento County Bar Association: Cannabis Law Section on Record Keeping, and Payroll Systems: MRB Compliance Seminar.

Ms. Van Alstine is a California Super Lawyer, Rising Star. She sits on the Board of Women Lawyers of Sacramento, and on the Advisory Board for Khemia Manufacturing and Tracy Cannabis Collective. She has also sat on the California Cannabis Industry Association’s Legislative and Insurance Subcommittees. Ms. Van Alstine is a member International Cannabis Bar Association, the Women in Cannabis Chamber of Commerce, the Sacramento County Bar Association, and Barristers’ Club of Sacramento. In her spare time, she volunteers as an Alumni Coach for the McGeorge School of Law Honors Board Asylum competition.

Ansell Grimm is pleased that Ms. Van Alstine is bringing her extraordinary experience to service its cannabis clients.  Our dedicated Cannabis Law Practice Group stands ready to assist applicants with ensuring they are prepared when the Request for Applications is issued for adult use cannabis, as well as for additional medical licenses.  Please contact Joshua S. Bauchner, head of the Cannabis Law Practice Group, at jb@ansellgrimm.com or (973) 247-9000 to get started today.

Recreational Marijuana Legalized by New Jersey Voters

Posted on November 5th, 2020

As the New York Times reported, after years of legislative failures, New Jersey voters on Tuesday authorized the legal use of recreational marijuana in a year when supporters rallied around the disproportionate number of arrests for the drug in minority communities.

The ballot question passed as expected, by a wide margin, according to preliminary results from The Associated Press.  The vote allows New Jersey officials to begin the thorny, potentially lengthy process of establishing rules related to regulating and testing cannabis and issuing licenses, including how many permits to grant — and to whom.

The question New Jersey voters approved called for a 6.625 percent state tax on marijuana sales to customers 21 or older, and permitted municipalities to charge an extra 2 percent tax. But most other implementation details must now be worked out by the Legislature and a Cannabis Regulatory Commission with five members — only one of whom has been appointed.

The potential for extra tax revenue and new jobs may serve as a powerful motivator to move quickly in New Jersey, which is struggling to plug budget gaps left by a pandemic now stretching into its ninth month. The measure is expected to generate about $126 million a year once the market is established.

Ansell Grimm & Aaron, PC’s dedicated Cannabis Law Practice Group stands ready to assist applicants with ensuring they are prepared when the Request for Applications is issued, including, among other things:  corporate formation and governance, leasing, property acquisition, capital raising and financing, distribution agreements, licensing, and regulatory and municipal compliance.

Please contact Joshua S. Bauchner, head of the Cannabis Law Practice Group, at jb@ansellgrimm.com or (973) 247-9000 to get started today.

The State of Cannabis: NJ’s Upcoming Ballot Referendum on Adult-Use

Posted on September 22nd, 2020

October 28th, 2020 6:00pm-8:00pm

Via Zoom

Join us on October 28th for a timely and important discussion where our distinguished group of panelists will address cannabis at the federal level, and then hone in on what’s happening in NJ with the current medical operators, the prospect for adult-use if the referendum passes, and the viability of applying for and securing a license to operate.

Our moderator is Joshua S. Bauchner, head of the Cannabis Practice Group at the law firm Ansell Grimm & Aaron PC, who will be joined by panelists Art Hance, President, Hance Construction, Todd Johnson, Executive Vice President and Head of New Jersey Operations for Justice Grown and President of Community Greenhouse, and Jeff Monat, Senior Partner at Merida Capital.

To register for the event, click here.

Pro Football Players, Military Veterans, and Mothers Join Fight to Legalize Marijuana Nationwide

Posted on September 14th, 2020

Ansell Grimm & Aaron files amicus brief to ask U.S. Supreme Court to weigh in on the ‘arbitrary and irrational classification of cannabis as a Schedule 1 drug,’ preventing injured athletes and wounded veterans from accessing medical treatment for debilitating, life-threatening conditions

 

OCEAN, N.J. (September 2020) – In a landmark appeal that could change U.S. drug policy forever, Ansell Grimm & Aaron has filed an amicus brief before the U.S. Supreme Court demanding that the federal statute that criminalizes marijuana, the Controlled Substances Act, be declared unconstitutional.

Filed in the case ​Washington v. Barr, the brief represents the interests of injured pro football players, wounded military veterans, and mothers whose lives, quite literally, depend upon the outcome of the case.

“Patients today face an untenable choice,” said leading cannabis attorney Joshua S. Bauchner. “They can either risk federal prosecution for using medical cannabis in accordance with state and local laws at the advice of their doctors, or risk serious, even fatal, health consequences. This is an unacceptable trade off that no one should be forced to make any longer.”

Bauchner, the Honorable Anthony J. Mellaci, Jr. (ret.), and Rahool Patel, Ansell, Grimm & Aaron attorneys, represent five organizations with a vested interest in the outcome of the issue.

  • Athletes for CARE, a nonprofit organization founded by former professional athletes who are united in using their influence to advocate for research, education, and compassion in addressing vital health issues for the next generation of athletes, including the availability of medical cannabis.
  • After The Impact Fund, a nonprofit organization that helps military veterans and retired professional athletes receive customized treatment for unseen traumatic injuries from the field, including anxiety, depression, post-traumatic stress disorder, addiction, and thoughts of suicide.
  • Canna Research Foundation, a nonprofit organization focused on comprehensive and evidence-based epidemiological research of medical cannabis with the ultimate goal of providing better pain relief and improved quality of life for patients in need.
  • NFL Sisters in Service, Inc., a non-profit organization comprised of the spouses, daughters, and mothers of current and former NFL players who advocate on behalf of those players and their families. In particular, the Sisters have assisted dozens of players and their loved ones with disability-related issues arising from their time in the NFL, including but not limited to chronic traumatic encephalopathy and amyotrophic lateral sclerosis.
  • ISIAH International, LLC, a holding company founded and wholly owned by former Detroit Pistons NBA Hall of Famer Isiah Thomas that has interests in various companies, including two in the medical cannabis and hemp industries.

Each of these organizations has a strong interest in advocating for the legalization and decriminalization of cannabis for medical use. Many of their members have depended on medical cannabis to treat debilitating conditions and manage pain when other prescription medications or treatments have failed or resulted in unbearable side effects. They are far from alone. More than 3 million people in the United States require medical cannabis on a regular basis to manage chronic conditions, reduce debilitating pain, and, in some instances, to survive from one day to the next.

Former NHL star and four-time Stanley Cup winner Darren McCarty is one of them. The longtime Detroit Red Wings player credits cannabis with saving his life.

Injured after 17 years of professional hockey, McCarty was unable to use legal, medical cannabis to treat his debilitating pain. He relied on prescription drugs and alcohol, which, while having the benefit of being legal, wreaked their own havoc on his body. By November 2015, his doctor told him he was on the verge of multiple organ failure and at high risk of death if he did not significantly change his lifestyle. After stints in rehab, therapy, and substance abuse programs, McCarty was able to stop drinking after he found cannabis.

“Without cannabis, I would be dead, period,” said McCarty. “I suffered for so many years, and I know there are millions of people like me who are suffering in silence right now. We can end that suffering by educating ourselves and changing our laws to treat cannabis as what it rightfully is: essential medication that saves lives.”

Although 38 U.S. states and territories have legalized the use of cannabis for medical reasons, the federal government persists in classifying cannabis as a Schedule 1 drug with “no accepted medical use.” This means that people whose lives depend upon treatment with cannabis cannot legally enter onto federal land and cannot travel by air or other federally regulated modes of transportation. Worse, they live in constant fear that their lifesaving medication may be taken from them and that they will be arrested.

The continued failure of the DEA to take appropriate action to reschedule cannabis, and of Congress to mandate that the DEA do so by statute, has for decades deprived countless Americans of access to life-changing, and often life-saving, medical cannabis in violation of their constitutional rights.

“The decision to use cannabis for medical reasons is no less important than the decision to use common prescription drugs,” said Ansell, Grimm & Aaron’s Mellaci, a retired Superior Court Judge. “It is no less personal than the deeply intimate decision to refuse medical treatment for ethical or other reasons. My own son, Daniel, age 30, suffers from ALS and requires medical cannabis to have any quality of life. The federal government’s placement of cannabis in Schedule I would relegate him, and other patients, to a lifetime of suffering. It’s time to end that suffering.”

To read the full amicus brief, click here.

About Ansell Grimm & Aaron, PC: Founded in 1929, Ansell Grimm & Aaron, PC (www.ansellgrimm.com) has a long history of delivering the advice, experience, and sophistication to clients who come to us to resolve legal matters. A general practice law firm, Ansell Grimm & Aaron’s practice areas are powered by experienced attorneys who understand that the best outcome is the one that serves the needs of each client.

 

New state program to assist small business owners, tenants

Posted on August 3rd, 2020

A new state grant program will provide up to $10,000 in relief to eligible small businesses struggling due to the COVID-19 outbreak.

“We are committed to helping small businesses across our state survive this unprecedented crisis, Governor Phil Murphy said. “A stronger and fairer New Jersey starts from the bottom up.

The Small Business Lease – Emergency Assistance Grant Program will infuse much needed funding into local economies by assisting both small businesses and the landlords that they rent from.”

For more information about your eligibility contact Josh Bauchner at jb@ansellgrimm.com or 973-247-9000.

For more information from the state about the program,

https://www.nj.gov/governor/news/news/562020/approved/20200723a.shtml

The Stay Stays in Medical Marijuana RFA Case

Posted on July 13th, 2020

Since December of last year the New Jersey Department of Health (DOH) has been barred from moving forward in the request for application process for medical marijuana facilities after being sued for unfairly excluding some applicants due to allegedly corrupt PDF files submitted as part of their applications.

The applicants contend the alleged corruption of the documents was caused by the DOH’s own submission portal and should not cause the disqualification of their applications.

The DOH sought to lift the stay but the Appellate Division recently denied the request, according to a recent story in NJCannabis Insider by Justin Zaremba.

“Hopefully, the DOH will now focus on settling the appeal by scoring all applications on merit so as to best serve the state’s growing medical marijuana patient population rather than engaging in wasteful and dilatory motion practice,” Joshua Bauchner, a partner in Ansell Grimm & Aaron P.C. who represents several of the entities suing the DOH told NJCannabis Insider.

Zaremba’s full story is reprinted here with permission.

Court Rejects DOH Request to Dissolve Stay

Decision on Stay of 2019 RFA for Medical Marijuana Facilities Could Come Within Weeks

Posted on July 2nd, 2020

The next step in the long delayed 2019 RFA process for medical marijuana facilities in New Jersey could come as early as the middle of this month.

In June the state Department of Health filed a motion to dissolve a stay preventing 2019 applications from moving forward, a move, not surprisingly, opposed by those who requested the stay.

As Ansell Grimm & Aaron partner Joshua Bauchner, (who represents several clients who requested the stay in an attempt to remedy what they contend is their unfair exclusion from having their requests considered) told Justin Zaremba of NJCannabis Insider, “If the court stays the course (pun intended) then we are still awaiting oral argument which they may expedite, but is otherwise set for the fall.”

Zaremba’s full story, is reprinted here with permission.

Court to Decide on Stay for 2019 RFA Case as Early as Mid-July

 

New Jersey’s DOH Continues Court Fight for Problem It Could Solve Administratively

Posted on June 23rd, 2020

Justin Zaremba of NJ Cannabis Insider has covered the latest developments in the ongoing dispute between the New Jersey Department of Health and litigants claiming to be unfairly excluded from the state’s Medical Marijuana facility licensing program due to a corrupt PDFs.

NJDOH sought to dissolve the stay preventing the 2019 RFA process from moving forward while those appealing what they view as an unfair process caused by a failure on the DOH’s part continue to fight to have their applications receive a fair review.

Zaremba’s full story is available here:

Get ready to hurry up and wait for the next turn of the screw on the 2019 RFA case.