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As the process for getting medical marijuana from growers to patients remains stalled within Alabama’s court system, anger over the stagnated process has allowed for a steady stream of misinformation and allegations that frivolous legal action is to blame for it all.
But those allegations defy logical reality, and they have helped to obscure some key problems that actually are to blame for the ongoing quagmire – most notably, the failures of the Alabama Medical Cannabis Commission to follow basic Alabama laws and mandated procedures for all state agencies, particularly those tasked with issuing a limited number of licenses to private operators.
Recently, longtime Alabama attorney John Mooresmith penned an op-ed in which he took the AMCC to task for not following the Alabama Administrative Procedures Act – essentially the state’s legal guidelines for all agencies. Mooresmith would know better than almost anyone about the AAPA, since he wrote it and spent some 40 years practicing law working on issues related to the AAPA.
After reading through his op-ed, in which he states plainly that the AMCC has acted above the law, I contacted Mooresmith to get a better understanding of what the AMCC should be doing and what it has failed to do. In other words, while I didn’t doubt what he was saying, I wanted an easy-to-understand explanation of what the AMCC has done wrong and why this thing is still in court.
According to Mooresmith, the AMCC failed to follow the guidelines of the AAPA when it implemented a licensing process that failed to create “a record of why the AMCC awarded some licenses and denied others.”
Put more in layman terms: The AMCC never held public hearings in which the applicants and their documents could be questioned and cross-examined, and the commissioners making the decisions have never stated publicly – or in document form – why they chose one company and not another.
That’s not just bad governance, according to Mooresmith, it’s flatly illegal, per the regulations of the Administrative Procedures Act. And it’s one of the primary reasons for the ongoing litigation.
When the AMCC’s attorneys crafted its licensing process, the format all but ignored the AAPA’s requirements and basically set up a unique process that failed to meet basic guidelines.
“This was a failure right from the start for the (AMCC),” Mooresmith said. “The AAPA sets very specific guidelines for the manner in which such a process should be carried out. There’s no mistaking the language. The Commission simply chose not to do so. And that’s something that is not allowed under Alabama law – an agency has no right to contract and expand the laws.”
According to Mooresmith and the AAPA, because it was tasked with issuing a limited number of licenses to a group of candidates that – at least for the purposes of this column – met the basic requirements to hold a medical cannabis license – the AMCC had a duty to conduct an administrative hearing. At such a hearing, the applicants would be required to present evidence and witnesses to support their cause. Other applicants would have the right to challenge those witnesses and present counter arguments and evidence.
Such a hearing would create an administrative record and would make it clear why a specific applicant was chosen – both requirements under the AAPA.
“This would get to the real facts and truth that the AMCC should have to make an intelligent decision,” Mooresmith said. “There would also then be a complete record for a judge to review on appeal.”
It’s not a unique process. In fact, every state agency that has to award a limited numbers of licenses is required to implement such a process. As an example, Mooresmith pointed to the Alabama Health Planning and Development Agency, which routinely meets to decide which applicants will be allowed to provide various health care services, such as adding more hospital beds in a particular area or county.
For every decision, the AHPDA goes through an administrative hearing process, like the one described above. It has done so for years now, as have other agencies.
“The Alabama Health Planning and Development Agency does a very similar job (to the AMCC) and it has had in place a hearing process that allows for those who don’t receive a license an opportunity to participate – that’s a key component of the AAPA,” Mooresmith said.
To ensure an absolute level of fairness when otherwise qualified companies were denied a license to provide a service – and to guard against cronyism and backroom dealing – the AAPA established an open and transparent hearing process.
“Sometimes, choices are made between two companies that hold all of the necessary qualifications to deliver the service,” Mooresmith said. “The AAPA process makes sure those companies denied are participants in the process. To date, the AMCC has not done that, and that’s a problem.”
