State to appeal pot-case decision
Rx proponents fear lengthy wait
Arkansas’ attorney general will appeal a Pulaski County circuit judge’s order that halted the issuance of the state’s first medical-marijuana growing permits.
The decision is seen by medical-marijuana proponents as striking another blow to patients because it could further delay the availability of the drug, which Arkansans voted to legalize in November 2016.
Pulaski County Circuit Judge Wendell Griffen in a Wednesday order issued a preliminary injunction to keep the Arkansas Medical Marijuana Commission from handing out medical cannabis cultivation licenses to five companies.
Griffen ruled that the commission’s process for choosing those companies — a merit-based scoring system — had several flaws that made it unconstitutional.
State attorneys had defended the evaluation system and asked Griffen to toss the lawsuit filed by Naturalis Health LLC, one of 90 cultivation-license applicants that scored outside the top five.
“The Attorney General disagrees with the circuit court and has appealed the ruling to the Arkansas Supreme Court,” Nicole Waugh, Attorney General Leslie Rutledge’s communications director, said Friday in an email.
Attorneys interviewed Friday estimated that it will take at least until fall for the appeal to work its way through the Supreme Court, and more delays await regardless of how the high court rules.
The Medical Marijuana Commission planned to formally award the first five cultivation licenses at a meeting last week, but Griffen issued a temporary restraining order hours before the meeting. He continued barring the permits
with a preliminary injunction Wednesday.
In a notice of appeal, Deputy Attorney General Monty Baugh said the state would appeal both orders.
Griffen heard oral arguments from Naturalis and state attorneys on March 16, and he acknowledged that an appeal was imminent regardless of his ruling.
In his order, the judge lamented that his decision would delay the availability of medical cannabis, but he said it was his duty to uphold the rule of law.
Alex Gray, an attorney for the Arkansas Medical Marijuana Association, expects the appeal to take six to nine months to adjudicate unless the state Supreme Court agrees to expedite it. Once the appeal of the preliminary injunction is adjudicated, the case would go back before Griffen.
On Friday, five different cultivation facility applicants had filed motions to intervene in the suit, and Gray expects more companies to do the same in the coming days, adding to the already hefty stack of legal filings and allegations.
“The biggest loser in this is the patients,” he said. “They’re not going to receive their medicine anytime soon.”
Initially, industry insiders expected the drug to be available later this year or in early 2019. In a statement, the Arkansas Cannabis Industry Association said it hopes the legal process will move quickly.
“We are pleased that the Attorney General has acted quickly to move this process forward,” the statement said. “It is our hope that the Arkansas Supreme Court moves with a sense of urgency in this matter as any delays in this process will result in patients suffering even longer without the medicine that was approved by Arkansas voters over a year ago.”
The five appointed Medical Marijuana Commission members began scoring the 95 applications for cannabis-growing facilities in December. They revealed the top-five scoring bids at a Feb. 27 meeting, and gave each company seven days to submit the $100,000 licensing fee and $500,000 performance bond.
All five did so, and some began hiring employees and making arrangements to begin construction.
One company, Natural State Wellness Enterprises, asked Griffen to let it join Naturalis’ suit on the side of the state to protect its “property interest.”
Griffen, agreeing with several arguments by the plaintiff, Naturalis, declared the growing permit application process “null and void,” citing the state Alcoholic Beverage Control Division staff ’s failure
Alex Gray, an attorney for the Arkansas Medical Marijuana Association, expects the appeal to take six to nine months to adjudicate unless the state Supreme Court agrees to expedite it.
to verify applicants’ compliance with key requirements and the appearance of bias in the scoring of two winning applications.
The commission had also begun scoring the 227 dispensary applications after finalizing the cultivation facility rankings, but Griffen’s order injected uncertainty into that process.
Scott Hardin, a spokesman for the Arkansas Department of Finance and Administration, which provides administrative support to the commission, said Friday that the agency hadn’t yet determined how to proceed with dispensary evaluations.
Under the constitutional amendment, patients who would be allowed to use the drug because they have one of 18 qualifying conditions would be limited to medical marijuana grown and processed in the state.
“There’s a lot more questions than answers at this point,” Gray said.