On July 31, 2018, the Pennsylvania Department of Health (DOH) announced the following recipients of the remaining thirteen permits provided by Pennsylvania Medical Marijuana Act to grow and process medical marijuana for Commonwealth patients:
PennAlt Organics Inc
Pier Cove LLC
PharmaCann Penn Plant LLC
Green Leaf Medicals, LLC
Whole Plants LLC
Parea BioSciences, LLC
Maitri Genetics, LLC
Hanging Gardens LLC
Calypso Enterprises, LLC
With these awards, all 25 grower/processor permits provided for by Pennsylvania’s medical marijuana act have now been awarded, closing the industry to new applicants for the foreseeable future. But, this doesn’t mean hope is lost for the over 75 denied or rejected grower/processor applicants.
What should you do if your application for a medical marijuana grower/processor permit was denied or rejected?
Consult knowledgeable counsel at your earliest opportunity. Under DOH’s amended regulations, an attorney must represent the appellant once the Notice of Appeal is filed, unless the appellant is an individual person appearing on his own behalf In addition to knowledge of Pennsylvania’s medical marijuana industry, counsel should be well-versed in Pennsylvania administrative practice and procedure including the rules applicable to practice before DOH, the General Rules of Administrative Practice and Procedure (GRAPP). Familiarity with GRAPP will help avoid the pitfalls that await the unwary appellant.
Under DOH’s amended regulations you have the right to an appeal that will result in a formal administrative hearing, provided the applicant satisfies DOH’s formal procedural appeal requirements provided by 28 Pa. Code § 1230. This appeal must be filed within thirty days of the date of the denial notification letter from DOH. There also may be a basis for invoking Pennsylvania Commonwealth Court’s jurisdiction without first pursuing an administrative appeal (i.e., “exhausting” administrative and/or statutory remedies), known as an “Arsenal” challenge after the seminal Pennsylvania Supreme Court case in this area, Arsenal Coal Co. v. Dep’t of Envtl. Res., 477 A.2d 1333 (Pa. 1984).
One should pursue this remedy with caution however. A disappointed Phase I applicant, Keystone ReLeaf LLC (ReLeaf), filed an action for declaratory and injunctive relief in Commonwealth Court’s original jurisdiction, alleging infirmities in DOH’s scoring/permitting and administrative review processes, seeking invalidation of all permits issued in Phase I and what amounted to a Phase I do over, as well as a halt to any ongoing appeals from Phase I permit decisions. It is noteworthy but not necessarily dispositive that ReLeaf availed itself of DOH’s appeal process. The Cannabis Law PA and Pennsylvania Appellate Advocate team filed preliminary objections on behalf of a group of intervenors and participated in argument before the court in February 2018. In an en banc opinion issued on April 20, 2018, Keystone ReLeaf LLC v. Pennsylvania Dep’t of Health et al, 186 A.3d 505 (Pa. Cmwlth. 2018), Commonwealth Court held that ReLeaf failed to demonstrate that DOH’s administrative appeal process for permit applications was inadequate, and thus was required to exhaust that process before filing its petition for declaratory or injunctive relief.
Should you wish to consult with an attorney experienced in medical marijuana and Pennsylvania administrative and appellate practice in order to preserve your right to appeal, please contact us for more information.
Cannabis Law PA is a Harrisburg-based law firm committed to providing thorough, effective and complete guidance to cannabis businesses and ancillary service providers, and is supported by Hawke, McKeon & Sniscak, LLP’s appellate practice team, which represents clients before all of Pennsylvania’s appellate courts in matters involving the interaction between state government and regulated businesses.