At least three more groups that were denied cultivation licenses by the state’s Medical Marijuana Commission have filed lawsuits challenging the commission’s means of choosing five winners among 95 applicants. The five cultivation permits are already frozen due to an injunction issued last week in a separate lawsuit by rejected applicant Naturalis Health.
The Democrat-Gazette’s Hunter Field identified two of the new plaintiffs in Friday’s newspaper. One, Boll Weevil Farms of the Delta LLC, is represented by attorney David Couch, the man who authored the medical marijuana amendment passed by voters in 2016. Couch filed suit in Pulaski County. The other complaint was brought by Pine Bluff Agriceuticals LLC, also filed in Pulaski. Add to that list a third suit filed yesterday in Drew County by Heritage Farms of Eastern Arkansas LLC.
The five members of the Medical Marijuana Commission scored each applicant separately using a rubric and chose the top five. Heritage Farms, Boll Weevil and Pine Bluff Agriceuticals were respectively scored 14th, 18th and 20th.
The complaints from Heritage Farms and Pine Bluff Agriceuticals piggyback on the existing Naturalis case, in which the plaintiff said the commission’s entire scoring process is arbitrary and capricious and should be tossed out based on alleged conflicts of interest among the commissioners and alleged scoring irregularities. Pulaski County Circuit Judge Wendell Griffen agreed with Naturalis and declared the commission’s earlier scores to be null and void. The state attorney general’s office — which represents the marijuana commission — is appealing to the Arkansas Supreme Court. The Heritage Farms and Pine Bluff Agriceuticals complaints attach Griffen’s ruling as an exhibit and cite few other facts.
Couch’s complaint on behalf of Boll Weevil is different. Rather than challenging the evaluation process as a whole, it asks the court to order the Commission to award Boll Weevil another 22 points, thereby placing it among the top five applicants:
The Commission should adjust Applicant’s score based on (i) inconsistencies in the scoring of schedules 2 and 3 in its application compared to the scoring of identical schedules 2 and 3 of a competing application and (ii) failure to award points in schedule 3(b) when the requested information was included in the application. These adjustments would result in Applicant gaining at least 22 points and finishing with a minimum total score of 434, which would place applicant in the top five scores and make Applicant eligible for the award of a cultivation license.
The competing application in question is that of Heritage Farms of Eastern Arkansas. Couch clarified to the Arkansas Times on Friday that Boll Weevil and Heritage Farms are not affiliated but both worked with the same consulting firm to prepare their applications. Schedules 2 and 3 of both applications outline identical business plans in regards to operations, construction, security and a timeline, Couch said.
However, Heritage Farms received a score on schedules 2 and 3 that was 21 points higher than Boll Weevil. Most of the discrepancy seems to have come from Commissioner Carlos Roman, who scored that section of the Boll Weevil application 14 points lower than the Heritage Farms application, according to Couch’s complaint. (Neither application was immediately available from the Medical Marijuana Commission for verification, but a spokesperson said they would be made available soon.)
Couch said Commissioner Travis Story made a different error on Boll Weevil’s application by failing to award any points on schedule 3(b), which simply asks whether the applicant has a business plan. An applicant should receive one point even if the plan is deemed “underqualified,” Couch said, and the other four commissioners awarded Boll Weevil more than one point on that section, but Story assigned zero points. Couch said he thought that was “just an oversight” on Story’s part.
Couch also noted that if the plaintiffs prevail in the Naturalis complaint, his case would be moot. However, “if they don’t prevail … mine should still proceed,” he said.