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The latest lawsuit against the state Department of Public Health in connection with its process of approving medical marijuana dispensaries highlights a questionable system for scoring dispensary applications. It claims different dispensary teams that used nearly identical wording on portions of their applications received vastly different scores.
Prospect Lake, Inc., of Great Barrington in Berkshire County, filed suit against DPH and its commissioner, Cheryl Bartlett, this week in Suffolk Superior Court. The company was denied provisional approval for a dispensary license when those approvals were announced Jan. 31.
Prospect Lake used the same consultant as another dispensary team that was ultimately approved for a provisional license. That company, Brighton Health Advocates, wants to open a dispensary in Fairhaven. The consultant who helped both teams with their applications is Seth Bock, who runs a medical marijuana dispensary in Rhode Island. Bock wrote out sections of the applications, allowing the companies' directors to tweak them as desired, according to Prospect Lake CEO Michael Marino. But in several sections, the wording remained almost exactly the same.
"We feel that virtually identical sections that were almost verbatim copies between groups were scored completely differently," Marino said. "So we don't understand that. We call it disparate scoring."
Below are sections from the two applications, which were included in an exhibit with the lawsuit. On the left is the Brighton Health Advocates application, which received the highest possible score (5) on each of these sections, according to the suit. On the right is the wording from Prospect Lake's application, which received the lowest possible score (1) for each of these portions:
Brighton Health Advocates received a total score of 152 for its application. Prospect Lake got a total score of 112. Marino says he believes his team is due at least 28 more points for the seven sections of the two applications that were worded almost identically but scored differently. Those additional points would put the application above the score of 137, which DPH designated as the threshold for winning proposals.
The discrepancy underscores claims from many other dispensary applicants that the scoring was arbitrary and flawed. Prospect Lake is at least the fourth rejected dispensary applicant to file suit against DPH claiming the agency's process for vetting and scoring applicants was shoddy.
In response to a request for explanation of the scoring inequities claimed in the lawsuit, DPH issued the following statement: “No licenses have been awarded at this point and any applicant that fails to comply with the regulatory requirements or is otherwise found to be unsuitable will not receive a license.”
Prospect Lake is represented by EvansCutler Attorneys in Northampton. Attorney Michael Cutler says he will also file suit next week on behalf of The Timothy Walsh Foundation, which had its application to open a dispensary in Middleborough denied.
Among the dispensary teams DPH provisionally approved, some have been accused of misstating support from local and state leaders for their dispensaries. In other cases, there are claims of conflicts of interest between dispensary applicants and DPH employees.
The suits call for an injunction to prevent the state from granting any dispensary licenses until the process is revisited. Prospect Lake's suit calls for the court to compel DPH "to reconsider the plaintiff's application using a rational process that follows the state and federal constitutions, statutory law, applicable regulations and common sense."
In its lawsuit, Prospect Lake also accuses DPH of not following through on its mandate that teams that did not precisely follow the application's rules would be disqualified. The suit cites the case of Medical Marijuana of Massachusetts, led by former Congressman William Delahunt, which changed its mission and vision statement between its Phase 1 and Phase 2 applications. The application instructions clearly stated that "failure to comply with any instruction will result in disqualification," and those instructions included the following:
Answers must clearly indicate if any changes have been made to the organization's membership, mission and vision statement, management structure, or financing model since submission of the Phase 1 application.
DPH has not responded to multiple requests for comment as to why Medical Marijuana of Massachusetts and any other team that did not follow that instruction was not disqualified.
On Jan. 31, DPH announced the 20 teams it had "approved for provisional licensure to operate." Since then the agency has said those 20 companies are now in the "verification phase," will include thorough vetting and background checks before any provisional or final licenses are issued.