When it comes to increasing access to cannabis in limited license jurisdictions, these days the action is in litigation, not legislation. From Missouri, to Illinois, to Detroit, government attempts to regulate access to licenses are failing, either because they run afoul of state constitutions or because of faulty scoring systems – and sometimes because of both.
In Illinois, state legislators will hear testimony tomorrow on HB1433, the latest attempt to create a new dispensary license process, as licenses have been held up since September by a pair of lawsuits. While the legislature moves forward, attorneys for both groups suing the state have told Grown In that they intend to pursue litigation, and that the solutions presented in current legislation would not persuade their clients to drop their cases.
“I don’t think this is compelling enough, where I would recommend to my clients dropping the litigation,” said the attorney for Hazehaus, Irina Dashevsky. Hazehaus and six other dispensary applicants are suing the state under federal and Illinois state constitution equal protection clauses, arguing that the application scoring system illegally advantaged one group, military veterans, over everyone else.
The Hazehaus suit, along with another, similar case, is temporarily stayed, as the legislature and Gov. J.B. Pritzker’s administration works to craft a solution. Time is running out, however, as the Illinois legislative session ends on May 31.
Meanwhile, Missouri’s heavily conservative state Senate did not pass a single cannabis-related bill in the session that ended last week, while a series of cases are moving through Missouri courts that would either directly award new licenses to applicants, or potentially unravel the state’s license scoring system.
One license appeal filed by Heya Wellness, has resulted in a Missouri Administrative Hearing Commissioner awarding two additional cultivation licenses to the company, on the grounds of scoring errors in application scoring. State regulators have appealed that decision to the circuit court. Meanwhile, on Tuesday, a Missouri appeals court affirmed another applicant’s request to review the state’s archive of cannabis applications to identify scoring errors [read today’s report here]. If the applicant, Kings Garden Midwest, is successful in their appeal they could call into question the integrity of the state’s entire scoring process.
“If that’s true, I think it will result in more licenses issued, not necessarily unlimited, but more. If they all win [applicants appealing the process], it will be several hundred more licenses,” said Dan Viets, an attorney and chair of the committee that drafted and passed the referendum legalizing medical cannabis in Missouri.
Detroit however, has displayed the ultimate pique, as its City Council passed an ordinance limiting adult-use dispensary licenses in the city, but then included a poison pill in the law that says if any portion of the ordinance is invalidated in court, the whole ordinance is null and void.
Detroit to courts: If you don’t like our rules, we’re taking our ball and bat and calling the game off.
Detroit wants to reserve half of the 75 dispensary licenses they’d allow in the city for “legacy” Detroiters, people who have either lived in the city for 15 years, or less, depending on whether or not they or their family has run afoul of the law during the War on Drugs. The city’s ordinance would leave a handful of medical-only dispensaries owned by out-of-towners out in the cold and make it virtually impossible for non-”legacy” Detroiters to open a dispensary of their own.
“They knew this was unconstitutional, because they built in that poison pill,” said Kevin Blair, attorney for Crystal Lowe, who is suing Detroit for the right to obtain an adult-used dispensary license in the city.
As with the Hazehaus case in Illinois, Ms. Lowe is suing Detroit on the grounds that the city is violating the Michigan constitution’s equal protection clause, which prohibits governments from advantaging any one special class of people over another. It’s a legal tactic that’s run like buzzsaw through multiple jurisdictions across the country, including Maryland, Ohio, and Portland, Maine. Each of which have attempted to create social equity programs by advantaging one group over another through legislation.
Because of Illinois, Missouri, and Detroit’s problematic legislation, courts are likely to be busy and licenses are likely to be delayed for some time.