Suit to halt Pa. marijuana program may cause 'pain, agony, & death'

If Pennsylvania’s medical marijuana program is delayed, “people will be forced to needlessly endure excruciating pain, agony, and, in some cases, death,” according to State Sen. Daylin Leach, prime sponsor of the 2016 law legalizing medical cannabis in the state.

Leach (D., Montgomery) pleaded Monday morning with an aspiring medical marijuana grower to back down from a lawsuit that could potentially shut down the program before it even launches, although one attorney specializing in the field said that was unlikely.

Attorney Seth Tipton filed court papers late Friday in Commonwealth Court on behalf of Bethlehem’s Keystone ReLeaf LLC seeking an injunction against the state Department of Health. The company has asked the court to rescind all awarded permits and start again from scratch.

Tipton is a partner in the firm Florio, Perrucci, Steinhardt & Fader. Christian M. Perrucci, also a partner, is listed as a managing member of Keystone ReLeaf.

Keystone ReLeaf unsuccessfully applied to win one of 12 permits, of the 25 allowed by law, awarded in June to grow and process marijuana in the state. In addition, it did not win one of  27 permits, of the 50 allowed by law, to open cannabis-product dispensaries. According to an attachment document buried in the suit, the company missed the state deadline by two days.

The state has said it will award a second round of permits sometime in 2018. The company is one of at least 140 failed applicants who have filed appeals challenging the state’s awards.

Keystone ReLeaf maintains that the Department of Health botched the awards process, rendering it “arbitrary, capricious, and unreasonable.” In doing so, the department’s Office of Medical Marijuana broke the regulations it was ordered to uphold, the suit states.

In a letter, Leach begged attorney Tipton “not to seek such relief.”

Citing statistics that suggest states with marijuana programs have a 25 percent lower rate of opioid-related deaths, Leach said a delay of only a few months would result in the deaths of “hundreds of your fellow citizens.”

“I can’t imagine a company such as Keystone ReLeaf … would want to be responsible for harming patients in such a cruel way,” Leach wrote.

Leach was joined by State Rep. Chris Rabb (D., Phila.), who noted, “There are legal remedies available to the company without seeking such a sweeping option that would harm so many vulnerable people.”

Philadelphia attorneys who specialize in marijuana law voiced their concerns Monday about the suit. Similar complaints have held up deployment of medical marijuana programs in Maryland and Florida.

“We expected this to happen and hoped it would not,” said Andrew Sacks of Sacks, Weston, Diamond LLC. “We have worked for 3½ years to see medicine in dispensaries, and lawyers trying to delay children with epilepsy from getting the CBD they need as soon as possible should think twice.” CBD is cannabidiol, the compound in cannabis that is believed to reduce seizures in children suffering from some forms of treatment-resistant epilepsy.

The suit claims the state selection process may have been “infected by bias and favoritism” because the Department of Health has kept the panelists who picked the permit winners secret, in violation of the state’s Right-to-Know law. A recent decision by the state Office of Open Records ruled that the panelists must be identified.

It also claims that regulations were arbitrarily waived for some applicants; that the department failed to conduct adequate criminal background checks; and that a yes-no question eligible for 50 points was graded on a sliding scale — scores varied from five to 41 points.

Keystone ReLeaf also criticized the state for awarding a permit to a Minnesota company currently under criminal investigation because two now-former executives illegally transported $500,000 worth of hashish oil across state lines.

“No applicant understands how or why they scored a certain score in any category,” the suit states, “and when challenged by way of administrative appeal, [the Department of Health] has, to date, utterly refused to explain or defend its scoring decisions.”

The company offered as an example two applications it submitted for separate dispensary facilities. In 11 categories for which it submitted identical information, its answers received different scores.

Medical marijuana attorney Steve Schain of the Hoban Law Group said it was unlikely the Keystone ReLeaf suit would derail the Pennsylvania program.

“At best it’s premature, at worst flat wrong,” Schain said. “While raising many valid factual points, satisfying the `arbitrary, capricious, and unreasonable standard’ is a spectacularly difficult task. Based on their petition and pleading, I believe Keystone ReLeaf LLC has fallen short of establishing they’ve been irreparably harmed.”

 

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Letter from State Sen. Daylin Leach to Seth Tipton.

 

 

 

 

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