Cape News – A medical marijuana dispensary proposed for Mashpee is back on track after a Boston judge ruled this week that the state failed to follow its own set of regulations when denying the permit, concluding a civil suit filed by the medical marijuana company last year.
Justice of the Superior Court Mitchell H. Kaplan from Suffolk Superior Court signed a memorandum Monday, April 24, allowing Medical Marijuana of Massachusetts, Inc. to move onto the next phase of its bid for an application for a dispensary at a 14-acre property at 95 Echo Road in Mashpee.
Judge Kaplan’s ruling found that the Massachusetts Department of Public Health, and more specifically, the Massachusetts Executive Office of Health and Human Services’ Medical Use of Marijuana Program, failed to act on its own regulations when denying Medical Marijuana of Massachusetts, Inc., its bid in June.
Further, the judge found that the state agency created an additional provision in its procedure and thus acted out of “prejudice.”
“The favorable judgment is a huge step forward for us,” said Jonathan H. Herlihy, the chief of operations for the medical product company. He said January is a safe bet for opening the dispensary doors in Mashpee.
But the news of the judge’s decision has been a surprise at Mashpee Town Hall and some selectmen suggested that they would like to revisit the permit or at least speak with the principals of the medicinal company before they set up shop.
When the board of selectmen originally accepted the application from Medical Marijuana of Massachusetts, Inc., former congressman William D. Delahunt was the president of the company and Raymond A. Tamasi, chief executive officer of Gosnold on Cape Cod, was on the board of directors. Mr. Delahunt left around the same time as media pressure mounted about a possible conflict of interest because of his former ties to Boston City Hall. Mr. Tamasi had already resigned his position on the board of directors.
Selectman John J. Cahalane said following the judge’s decision, he would like to revisit the medical company’s application because it could be a different business without Mr. Tamasi and Mr. Delahunt. He said that those two were the local connection, the reason that he changed his mind from an opponent to a proponent of the application. “I’m a little concerned,” Mr. Cahalane said. “To me, it’s like buying a car because it is the color red. And then, all of a sudden, it’s a yellow car.”
Mr. Cahalane said there have been repeated attempts to have the company back to the town to discuss the application but without any success. He said that there are a number of questions he would like answered.
Mr. Cahalane also said that it could be that nothing has changed in the business, but he would still like to meet the representatives.
Mr. Herlihy said that Medical Marijuana’s next step following the judge’s ruling is to meet with the state Department of Public Health. If the state decides not to pursue an appeal, the next phase in the application process is permitting with the town. Mr. Herlihy added that because of Judge Kaplan’s strong wording, an appeal from the state is unlikely.
The state has 60 days to file an appeal.
Scott Zoback, a spokesman for the state medical marijuana program, issued what he said was the only statement the agency would make in regard to this week’s decision. “As always, the MMJ Program’s top priority is ensuring safe, appropriate patient access across the Commonwealth,” the statement read.
Mr. Herlihy said that the company’s first step following an understanding with the department of health is to grow its medicinal product in a facility in Plymouth. In the judge’s ruling, the company was also approved to pursue a dispensary in Plymouth.
In February 2014, the DPH approved the Medical Marijuana of Massachusetts proposal as well as 19 other applicants in the state out of 100 that applied. Medical Marijuana was the highest-rated company approved of by the state in the first two phases of the application process, given an “expert score” or 160 out of 163 points.
After its successful first stages, the company submitted a $50,000 registration fee required in the process.
According to Judge Kaplan’s findings, there was media attention in the weeks following that attracted political attention and concerns that DPH should re-do the selection process.
In March 2014, Karen van Unen, executive director of the state marijuana program, informed the company that there would be a post-selection “verification phase,” in which DPH would meet with applicants, verify their representations of local support, and a number of other procedures.
On June 27, the state rejected the proposal because of a conflict of interest and a conversation that took place between Mr. Delahunt and then senate president Therese M. Murray.
Judge Kaplan would rule that this “verification phase” was not in the original procedures and therefore the state acted incorrectly. He also said that there was nothing wrong with Mr. Delahunt meeting Ms. Murray, which he had done during the application process.
The state also rejected the application due to the company’s plans to use 25 percent of its revenue to reimburse a management company called Triple M, which has invested in the medical company. The issue raised concerns that the medical company would not be a nonprofit business, which is part of the state medical marijuana restrictions.
Judge Kaplan also rejected the idea, noting that other companies had similar payment structures.