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New legal filing seeks to remove Cannabis Commission from licensing process

The filing by Alabama Always asks a Montgomery County judge to appoint a special master to determine applicant compliance.

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In a lengthy new filing, a plaintiff in one of the many lawsuits filed against the Alabama Medical Cannabis Commission is asking the court to appoint a special master to determine which applicant companies comply with the statutory regulations of the state’s medical cannabis laws – a move that would essentially remove the AMCC from the licensing process. 

The new filing from Alabama Always, which filed the original litigation against the AMCC, lays out in stark detail the many, many failings of the Commission, and details the instances in which the AMCC has subverted the requirements placed in the law for cannabis companies. It comes as the Alabama Legislature is considering a pair of bills from Sen. Tim Melson that would essentially rework the licensure process, removing the AMCC from many of the decisions. 

According to attorney Will Somerville, who has led the plaintiffs’ attorneys throughout the litigation, Monday’s filing would serve as a sort of backstop should the legislature fail to act and would also make it clear that the plaintiffs are seeking to get the AMCC out of the process. Melson’s bill, in its current form, stops just short of that, allowing the AMCC to be involved in the third step of a three-step process.  

“I’ve heard that there’s an intent to get AMCC out of that bill,” Somerville said. “If that’s the case, we’d be willing to work with that. We need to make sure that the licensure process happens in the public eye so the kind of shenanigans that the AMCC has been involved in can’t happen again.”

Asked why it was so important to have the Commission removed entirely, Somerville said to simply look at their history – much of which he documented in his filing on Monday. 

“They’ve done such a bad job,” Somerville said flatly. “They’ve never followed the law a single time. They keep violating the open meetings and the Alabama Administrative Procedures Act. They’re not going to do their job no matter how many chances they get.” 

Somerville said that the plaintiffs in the case are not trying to jump in front of the legislature. Instead, their intent with Monday’s filing is to make it clear that they’re seeking only to open the process to public scrutiny and to follow the original laws written by the legislature. 

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“We don’t know that (Melson’s legislation) is going to pass,” Somerville said. “If it doesn’t, we need to make sure we’re not stuck with what we have. The law passed was a good law. Had some really great substantive aspects to it. I can’t think of a single thing that I would criticize in that law. We just want to make sure that it’s followed.”

It’s unclear if Montgomery County Circuit Court Judge James Anderson, who is presiding over the collection of lawsuits against the AMCC, would be open to appointing the special master, but there is reason to believe he might. Anderson has shown increasing frustration with the Commission’s inability to follow the basic laws and his directives from the bench. 

Last week, Anderson granted Alabama Always’ petition for judicial review, which essentially notifies the AMCC that the court will allow legal action to move forward that questions its awarding of licenses on Dec. 12. He also has previously ruled that the plaintiffs in the lawsuits have a right to take depositions of AMCC commissioners and staff in order to determine why specific decisions were made and if anything improper occurred. 

Anderson isn’t alone, apparently, in his weariness of the AMCC’s failures. After more than three years and $12 million in taxpayer funds – and without a single prescription filled – the legislature is also tired of the problems. 

Melson’s recent legislation came close to removing the AMCC from the licensing process. In a three-step process, it placed a panel created by the Alabama Securities Exchange Commission in charge of determining if applicants met basic requirements of the law and if they held the capabilities to distribute product in a timely manner. Only after those two steps were satisfied could an applicant move on to be judged by the AMCC on predetermined criteria. 

The plaintiffs, however, believe even that lone responsibility is too much. And Alabama Always’ latest filing spells out exactly why. 

For example, the filing notes that the AMCC, instead of simply mandating that applicants meet statutory requirements – such as obtaining a $2 million performance bond, ensuring that ownership had the required growing experience, securing a facility for production and other requirements – the commission instead created a 48-page scoring system that awarded points for non-requirements but not for some statutory requirements. 

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That scoring system is what upended the AMCC’s initial awarding of licenses last June after Alabama Always filed suit challenging the process and the odd scoring. (In addition to the arbitrary scoring system, the way scores were assigned were also apparently arbitrary and often nonsensical. In one instance, an applicant for an integrated license was given a top score by one grader for its facility’s security plan, but was assigned one of the worst recorded scores by another grader for the same plan.)

The secretive nature of the licensing process also has caused issues, as it failed to meet the requirements of the Alabama Open Meetings Act and the Alabama Administrative Procedures Act. That 48-page scoring system wasn’t disclosed to applicants beforehand, as required by the AAPA, and then the Commission utilized an executive session during an official meeting to discuss, vote on and award licenses based on that scoring, a clear violation of the AOMA.

Josh Moon is an investigative reporter and featured columnist at the Alabama Political Reporter with years of political reporting experience in Alabama. You can email him at [email protected] or follow him on Twitter.

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