The legislature should investigate apparent inconsistency in medical marijuana commission's criteria for who gets grower licenses.
When the General Assembly legalized medical marijuana in Maryland, it required the commission running the program to "actively seek to achieve racial, ethnic, and geographic diversity when licensing medical marijuana growers." But the Attorney General's office advised the commission that, absent a study documenting racial disparities in the medical cannabis industry, creating racial and ethnic preferences was unconstitutional. As a result, the regulations the commission adopted make no mention of racial diversity.
But the AG's office advised that seeking geographic diversity was permissible, and the regulations state that "for scoring purposes, the commission may take into account the geographic location of the growing operation to ensure there is geographic diversity in the award of licenses."
Still, when the time came to fill out applications, prospective licensees were evidently confused about the geographic diversity requirement — and no wonder; the application didn't actually ask where in the state an applicant planned to grow the crops. A frequently asked questions document on the commission's website includes three entries on the subject. One posted Oct. 13, 2015, said "the proposed location is not relevant for purposes of the stage 1 application," and another from the same day said, "an applicant does not need to demonstrate that they are promoting geographical diversity in their choice of premises." The third, posted Oct. 27, repeats the language in the regulations but italicizes the word "may" and does not specify whether such consideration might occur in the first or later stages of the application process.
Months went by as the Regional Economic Studies Institute at Towson University, with the help of outside experts in the field, evaluated the applications using a double-blind process that obscured the identities of the applicants. In June, the commission asked applicants for the locations of their prospective operations, but that information didn't factor into the RESI scoring, which focused instead on factors like horticultural expertise, security and employment practices. In July, a subcommittee of the commission voted 5-0 to give preliminary approval to the top 15 growers based on RESI's evaluations.
Two days later, the chairman of that subcommittee persuaded three other members to reverse their vote and swap two lower-ranked firms into the top 15 for the sake of geographic diversity. The full committee formalized their decision two weeks later, prompting litigation from the two companies that were passed over.
The method by which the commission determined geographic diversity is curious. Neither the state law nor regulations define what that means, and rather than seeking balance by counties or what most Marylanders would readily identify as the state's regions (the Baltimore area, Washington suburbs, Western Maryland, etc.), it used a Maryland Agricultural Region Map produced by UMBC. The map lumps together Washington, Frederick, Montgomery, Howard, Carroll, Baltimore and Harford counties and Baltimore City in one region known as the north central zone — a massive area that included 10 of the 15 highest scoring applicants under RESI's evaluation. (It also is home to 60 percent of the state's population.)
It seems unlikely that the General Assembly's interest in geographic diversity revolved around ensuring marijuana plants would be cultivated under different growing conditions — particularly since, for security and other reasons, medical marijuana is almost exclusively grown indoors. Moreover, the two companies dropped from the list of preliminary licensees were not the lowest-ranked applicants in their agricultural region in the original top 15.
But the agricultural zone rubric did afford the opportunity to move one of the licenses from the north central region to Prince George's — which, for these purposes, counts as Southern Maryland, a region that had only one grower among the original top 15. (Another of the preliminary licenses was moved to the lower Eastern Shore, which previously had no growers, though Dorchester County had two.)
Prince George's is where the grower location subcommittee chairman, Cheverly Police Chief Buddy Robshaw, is from. Because of the double-blind nature of the process, Mr. Robshaw should not have known the identity of the firm he was advocating to promote, Holistic Industries LLC, but it happens to be one with strong connections to Prince George's politics. Its key players include Ismael "Vince" Canales, the head of the state Fraternal Order of Police and a former Prince George's police officer with Mr. Robshaw; and Richard Polansky, the son-in-law of top Annapolis lobbyist Gerard E. Evans, who represents the firm and secured a letter of recommendation for the company from Senate President Thomas V. Mike Miller. (The letter, according to the Washington Post, was not part of the application that commissioners saw.) A distant cousin of Senator Miller is also among the firm's partners.
Members of the Legislative Black Caucus say they will seek to halt the licensure process to ensure that minority-owned firms are included. (None of the top 15 is a minority-owned firm.) We share their concern that a new, multi-million-dollar industry reflect Maryland's diversity and will be eager to hear ideas for ameliorating the situation within the confines of the law. But at least the commission was consistent in the case of racial diversity. Geography was a different story. The commission told applicants geography was not relevant and then made decisions based upon it. The legislature needs to investigate that issue, too; Del. Cheryl Glenn, the Black Caucus chairwoman, already raised questions about it at a hearing Thursday, calling the commission's explanation of its actions "laughable."
Our interest is not whether one company or another gets a license that could be worth tens of millions of dollars a year. The courts will sort that out. Our concern is whether the process was conducted fairly, openly and transparently, and the facts as they are known at this point give cause for concern.