Politico (March 5, 2021) – – Businesses that lost out on a highly competitive application process for medical marijuana licenses in 2018 are reviving their legal battle against New Jersey’s Department of Health, claiming the department hasn’t adhered to a November ruling that called its handling of the request for applications process “arbitrary, capricious and unreasonable.”
On Thursday, Superior Court Appellate Division Judge Clarkson Fisher granted six applicants that had been rejected in the 2018 RFA the ability to file for emergent relief. Motions are due no later than March 9.
Why it matters: If the Appellate Division grants the motions, the health department’s attempts to develop the state’s medical marijuana program will be mired in even more litigation at a time when oversight of the industry is set to transition to the Cannabis Regulatory Commission. Jeff Brown, who oversees the medical marijuana program for the health department was named executive director of the new, as-yet unformed commission by Gov. Phil Murphy last year.
A health department spokesperson did not immediately respond to a request for comment.
What they want: The plaintiffs — five businesses that submitted a combined six applications in the 2018 RFA — want the department to further clarify the process it used to award six available licenses out of a pool of nearly 150 applicants. They also say the November ruling could merit the awarding of additional permits.
The health department announced the winners for the six permits in late 2018, however, and while the court’s November decision found there was nothing precluding the department from issuing additional permits — the department held another RFA offering for medical marijuana cultivation and dispensing licenses in 2019 — “we have no license to increase the number of successful applicants beyond six as the means for moving these proceedings more quickly to the next step. In fact, it is far from clear that any further proceedings will move any appellant into the top six,” according to the previous ruling.
What happened next: The department ultimately responded to the November ruling by setting up a supplemental submission process whereby the plaintiffs could challenge the scores they were awarded. It also set up a “Quality Control Committee” to review the RFA process and scoring criteria, which the November ruling had found to be problematic.
That isn’t enough, according to the applicants’ attorneys.
“The Department’s recalcitrance leaves the 2018 Appellants stuck on a treadmill,” Joshua Bauchner and Rahool Patel of Ansell Grimm & Aaron, wrote in a letter to the court. “The Department has refused to provide Appellants with the most basic additional information regarding the remand process, again leaving Appellants with more questions than answers.”