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Md. medical marijuana: The pot thickens

Kimberly Eiten reports.

To those trying to make sense of the dizzying mess that is Maryland's medical marijuana program, the upshot of Friday's legal action is that the state's highest court stopped a lower court from stopping the state from issuing licenses to grow the drug. For the moment, anyway. Lawyers for the various interested parties filed more briefs today, and the Court of Appeals still needs to rule on the question of whether the preliminary license holders should have the right to intervene in a case brought by an African-American owned firm that was unsuccessful in the licensure process.

What it all serves to underscore is that the courts are not the right place to resolve the problems that have beset this nascent industry. They may well be capable of determining whether the Maryland medical marijuana commission followed state law in making its preliminary license awards — at issue in this case is whether the commission erred in failing to consider racial and ethnic diversity in its awards; in another, it's whether the commission erred in the way it gave weight to geographic diversity. But courts are not likely to be able to craft a solution that protects and promotes the interests of patients waiting for the drug, the state's policy goals and the legitimate economic interests of those who have made good faith investments to start growing operations.

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The preliminary licensees' case that they have a vested interest in the outcome of the litigation is unassailable. They have collectively invested an estimated $150 million in buying land, getting zoning approvals, building growing facilities, and so on. One firm was able to pass its state inspections and receive a full license before the litigation shut the process down; the commission is continuing its inspections, but its executive directors says it will hold off on issuing new licenses until it gets further direction from the courts. The possibility that a judge could throw out the entire licensing process would clearly represent a massive economic loss for firms that have done nothing more than play by the state's rules.

The state has a legitimate policy interest in seeing diversity among the licensees. It included a requirement that the commission actively seek racial and ethnic diversity in its applicants. The commission did not because of advice by the attorney general's office that to do so without a study demonstrating racial disparities in the industry would be unconstitutional. Why the commission thought it was better to ignore the law than to request state funding for such a study, we have no idea. But the case at hand by Alternative Medicine Maryland LLC may not be the perfect vehicle to consider the issue. As both the attorney general's office and preliminary licensees note in their briefs today to the Court of Appeals, potential procedural deficiencies could invalidate the AMM suit before it even gets considered on the merits.

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And patients and their caregivers have every reason to be frustrated. Entities that stand to make millions depending on how this process plays out are contributing to one of the slowest (if not the slowest) roll-outs of a medical marijuana industry in the nation. Starting over from scratch would mean a delay of potentially two more years, based on the time required to run a new evaluation process for potential licensees and for the winners to set up operations.

There is no perfect solution at this point, but only the legislature and governor can get us something close. Gov. Larry Hogan has ordered an expedited disparity study to provide the legal basis for a ranking system that takes race and ethnicity into account. The legislature was close at the end of its annual session to a compromise that would have allowed for the issuance of up to five additional licenses under such a system. The hang-up — a desire by Senate President Thomas V. Mike Miller to guarantee another two licenses to the firms who are suing over their exclusion on geographic diversity grounds — has been largely defused by the willingness of one of those companies to drop its efforts to be guaranteed a license through legislation, though some sticking points remain.

Assuming the disparity study comes back with the results most of those involved expect, legislators could pass a cleaner version of the bill that died in April in a special General Assembly session of a day or two. Doing so wouldn't supersede any of the court cases; the parties could continue to pursue their interests. It wouldn't make the preliminary licensees happy, but it would be a lot better than a complete do-over. It wouldn't guarantee that minority owned firms would succeed in getting the new licenses, but it would at least create a process that honors the legislature's clearly stated policy goals. Most of all, it would create a path forward that would finally allow patients to access medication that could relieve crippling symptoms of cancer and other diseases.

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