Don’t Bogart that Medical Marijuana Permit: How to Respond to a Denial Notice
Pennsylvania’s medical marijuana permit applicants know that there is stiff competition to obtain a coveted permit from the Pennsylvania Department of Health to dispense and/or grow/process marijuana. With only 39 permits available throughout the Commonwealth (12 grow/process and 27 dispensing), over 500 applicants paid costly, nonrefundable application fees, completed stacks of paperwork about themselves and their proposed organizations, arranged their financial backing, and negotiated with municipalities to find suitable locations for their potential operations. Months of work and thousands of dollars were spent with the hopes of getting in on the ground floor of this new Pennsylvania industry. Now, as the Department is preparing to announce their permit selections, clearly not all applicants will be winners. So what should applicants do when they receive a notice their permit was denied? We recommend that they get answers.
The Medical Marijuana Regulations provide nine reasons why a permit can be denied. There are enumerated technical reasons for rejections, such as failing to provide the information or documentation requested in the application, misrepresenting or failing to disclose material facts in the application, failing criminal background checks, failing to meet adequate funding requirements, and having a medical marijuana license previously rejected/revoked in another state. However, it is expected that most permits will be denied under §1141.34(8) of the Regulations, which provides that the Department may deny the issuance of a permit if the Department determines, in its sole discretion, that the applicant’s permit application has not met the criteria established under the Medical Marijuana Act. Otherwise stated, the Department may deny the application if the applicant did not score enough application points to beat out the other applicants competing in the same regions and/or counties.
Although the Regulations are clear that the Department will provide written notice of denial to the applicants, it is not clear whether this notice will advise the applicants why they were rejected, how may points they received, or how they compared to other applicants. However, the Regulations do provide that applicants may request a “debriefing from the Department within 30 days from the date of notice denial.” §1141.35(b). Further, the Regulations provide that the “debriefing will be limited to a discussion of the applicant’s permit application,” but that the applicant, “may not obtain the names or any other information relating to persons reviewing applications, including a reviewer’s individual application reviews.” §1141.35(b) and (c). As such, the debriefing will be a discussion about the applicant’s application, but will not give the applicant the ability to question the reviewer’s scoring or decisions.
We highly encourage applicants who are denied a permit to promptly obtain legal counsel and request, in writing, the debriefing session within the required 30 day timeframe. Attending a debriefing will be critical for two reasons. First, it can likely provide the applicant with detailed insight as to why the application was rejected, thereby giving the applicant the ability to learn from its mistakes and gain insight into the Department’s scoring if the applicant desires to reapply if future permits are issued. Second, attending the debriefing section will be necessary if applicants desire to administratively appeal the Department’s denial. Either way, the information learned during the debriefing session will be vital to future permit successes or appellate review.
In order to maximize the information gained in a debriefing session, applicants will need to know the right questions to ask and be knowledgeable of the Medical Marijuana Act’s application requirements and scoring criteria. Having legal counsel knowledgeable about the Act and Pennsylvania’s administrative laws and procedures to assist with the debriefing and the inevitable next steps will be key. No retreat. No surrender. Contact us today to learn more about how our HRMM&L’s Medical Marijuana Department can assist you.
January 10, 2018
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