LITTLE ROCK, Ark. (KTHV) - A Pulaski County judge plans to issue a ruling next week after putting the state’s plans to issue licenses to five medical marijuana cultivators on hold.
Judge Wendell Griffen promised a decision on the status of his temporary injunction after a hearing Friday.
The key words are “arbitrary and capricious.” Naturalis Health, LLC is one of the losing medical marijuana hopefuls, but they claim that's how the state acted when they graded the winning cultivators. That's unconstitutional, and so they sued in Griffen’s court to keep the state from awarding the licenses to the winning would-be cultivators.
“We absolutely would be in the top five based on the strengths in our application,” said Patrick Murphy, in-house counsel and co-owner of Naturalis Health. “We were the only one that I know of that had a current grow facility.”
Murphy said Naturalis spent $3-million on it’s hydroponic lab, growing legal plants and vegetables that they donated to charity. The five commissioners graded the application and placed them 38th out of 95.
He testified that he led an investigation of public records and found cases where members of the medical marijuana commission rushed through the grading process and cases where applicants should have been disqualified.
Among his findings were three potential owners listed by the Arkansas Secretary of State as owing unpaid franchise taxes and an application that should have been disqualified because a computer map indicated the facility would be within 3000 feet of a church.
He said commissioner Travis Story gave a high score to Osage Creek Cultivators because he had a lawyer/client relationship with the owners and that commissioner Dr. Carlos Roman delivered a high score to a fellow medical doctor that shared a patient referral service.
Deputy attorney general Monty Baugh initially tried to get the case dismissed and twice drew pointed rebukes from Judge Griffen over interpretations of case law. But Baugh also painted Murphy’s testimony as speculative or uninformed. He also tried to convince the court that Naturalis could never make up enough points to reach the top five.
Later, Mary Robin Casteel testified as the director of the Alcohol Beverage Control board. State attorney Jennifer Merritt tried to get her to fill in the blanks that Murphy couldn't see in the public files.
“The plaintiff's allegation reads as if certain members of one of the applicants only submitted an affidavit and that affidavit was accepted as proof of residency,” she testified. “That’s not true.”
She and Merritt entered evidence that the commissioners never would have seen information like that because Casteel’s staff went over the applications and made sure they met the requirements for submission.
Joel Dipippa, senior counsel for the Department of Finance and Administration, gave testimony refuting the tax allegations levied by Murphy.
But lawyers for Naturalis also tried to show that commissioners rushed through scoring late in the process and that different commissioners used different criteria in grading applicants. And Judge Griffen pointedly wanted clarification about the different measurements on the application that appeared to site a facility close to a school.
The judge closed the hearing with a promise to make a written decision “within five days.” He also kept referring to an expected appeal no matter what he decides.