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A Real Solution to the 2019 Cannabis RFA Appeals

By Joshua S. Bauchner, a partner of Ansell, Grimm & Aaron, head of the firm’s cannabis law practice group and the attorney who filed challenges on behalf of applicants in the 2018 and 2019 Request for Applications rounds. Find him on LinkedIn

In the last issue of Cannabis Insider, a guest columnist purported to offer “several” solutions to the pending appeals of the 2019 RFA process, which actually yielded only two proposals, neither of which are viable. 

The first, a settlement, was squarely rejected by the state Department of Health. The second, waiving oral argument, at best expedites resolution by a few weeks, and wholly ignores the appellants’ Constitutional right to due process. 

That said, there is a real solution: The DOH simply could agree to consider all applications on the merits and award licenses to the most qualified candidates. Any allegedly corrupted files would be submitted in hardcopy with a certification that they are the same as in August of 2019. Scoring could begin anew, and we’d be off to the races. 

The guest columnist also noted that other applicants are suffering hardship from the delay and, of course, the New Jersey cannabis patient population is suffering the most. To expedite resolution, other applicants could join in requesting that the DOH conduct a merit-based review, perhaps convincing the powers that be that a licensing decision is better than a litigation (confident applicants should have no objection to competition!). 

The issues in the appeals are real and cannot be overlooked. The primary issue is whether the DOH acted arbitrarily, capriciously, and unreasonably in disqualifying numerous applicants for a technological issue that rested wholly within the DOH itself — as confirmed by multiple IT experts. In response, the Health Department only offers the contrivance, “No applicants reported any technical issues with the electronic submission to the Department.” 

The problem with this assertion is applicants could not have reported problems of which they were entirely unaware. As we all know, the DOH did not tell applicants about the problems, and, consequently, the applicants had no idea there was an issue until the Department belatedly notified them three months later. 

Tellingly, the extent of the DOH’s investigation was limited to a single chat session with software maker Adobe. The Adobe representative requested additional information and documents from the DOH for his analysis, but after much delay, the DOH inexplicably replied “[w]e can close the case [because] I don’t think there is anything that we can do further.” 

That single chat session represents the entirety of the DOH’s self-proclaimed “investigation” and serves as the sole basis for its self-serving conclusion “that the 

problem did not rest with the Department.” The DOH likewise has tellingly failed to: 

  1. Produce the IT report upon which it relied in an unsigned and undated internal 

memorandum regarding the corrupted file issue. 2. Define exactly what it did to “continuously monitor the online submission 

system to ensure that it continued to function properly,” or identify who performed this task. 3. Produce any of the allegedly corrupt files, which are solely in its possession. 4. Explain why it failed to reach out to the affected applicants in an effort to 

determine the actual cause of the corrupted files. 

Appellants simply request to be included in the general applicant pool for consideration on the merits of their applications, which were, in fact, timely and complete. 

This fair request could have been granted over seven months ago — when the DOH discovered its pervasive technological error — but it refused to take a reasonable approach by affording affected applicants a hearing, or to even communicate with them, in order to get to the root of the problem and fix it through resubmission of corrupt files. 

Nevertheless, that quick and easy solution remains viable today and is the only real option to address the “hardship” suffered by everyone: appellants, other applicants, and New Jersey patients alike.