Superior Court of Massachusetts, Suffolk, Business Litigation Session
Middlesex Integrative Medicine, Inc.
Massachusetts Department of Public Health No. 135846
MEMORANDUM OF DECISION AND ORDER ON PARTIES'
CROSS MOTIONS FOR JUDGMENT ON THE PLEADINGS
P. Leibensperger, Justice
plaintiff, Middlesex Integrative Medicine, Inc. (MIM), filed
this action in the nature of certiorari under G.L.c. 249,
§ 4 against the defendant, the Massachusetts Department
of Public Health (Department), after the Department denied
each of MIM's three applications to operate Registered
Marijuana Dispensaries (RMDs) in Massachusetts. MIM and the
Department have each moved for judgment on the pleadings
pursuant to Mass.R.Civ.P. 12(c). On November 21, 2016, this
court held a hearing on the motions. For the reasons stated
below, MIM's motion for judgment on the pleadings is
DENIED and the Department's motion for judgment
on the pleadings is ALLOWED .
November 2012, Massachusetts voters approved a ballot
initiative allowing for the medical use of marijuana for
qualifying patients. Thereafter, the Legislature enacted
Chapter 369 of the Acts of 2012, known as " An Act for
the Humanitarian Medical Use of Marijuana" (Act). St.
2012, c. 369. The Act authorized the Department to register
at least one, and up to five, RMDs in each Massachusetts
county, up to a total of 35 statewide, during the first year
after the law's effective date (January 1, 2013). G.L.c.
94C, App. § 1-9.
to the Act, the Department promulgated regulations (105 Code
Mass.Regs. § 725.001 et seq.) which established, among
other things, a two-phase application process. In Phase 1,
the applicant paid a non-refundable fee and submitted basic
information that was reviewed by the Department. See 105 Code
Mass.Regs. § 725.100(B)(1). If the applicant submitted
all of the required information in a timely fashion, the
applicant was notified that it could proceed to Phase 2. See
id. at § 725.100(B)(2). In this phase, the
applicant paid a non-refundable $30, 000 fee and submitted an
application containing much more detailed information about
its proposed dispensary, after which the Department evaluated
and scored the application. See id. at §
sought to operate three RMDs--one in Middlesex County
(Everett), one in Norfolk County (Norwood), and one in
Worcester County (Shrewsbury). In August 2013, MIM filed a
Phase 1 application for each location and, along with other
applicants, MIM was invited by the Department to submit Phase
2 applications. On November 21, 2013, MIM paid the Department
$90, 000 and filed three Phase 2 applications. Out of a
possible 163 points, MIM received scores of 118, 127, and 118
on its three applications.
January 31, 2014, the Department announced the selection of
20 applicants to receive a Provisional Certificate of
Registration. On the same day, the Department notified MIM by
letter that its Phase 2 applications had been denied and it
was therefore not one of the selected applicants.
March 7, 2014, MIM participated in an informational briefing
with the Department to discuss the scoring of its
applications and the reasons why the applications did not
sufficiently satisfy the Department's criteria for an
award of a Provisional Registration Certificate. During the
meeting, MIM asked to and was allowed to submit additional
materials which sought to address the alleged deficiencies in
its applications. Several months later, by letters dated June
27, 2014, the Department informed MIM that its " status
has not changed and you have not been selected for a
Department's regulations specify that an applicant
receiving a notice of non-selection may seek judicial review
in the Superior Court under G.L.c. 249, § 4, the
certiorari statute. 105 Code Mass.Regs. § 725.500(D).
MIM invoked this procedure and filed this suit in August
2014. MIM maintains that the Department's denials of its
2013 Phase 2 applications were arbitrary and capricious
because: the Department improperly delegated its authority to
approve or deny the Phase 2 applications to a contractor;
scored its applications unfairly; and failed to consider the
additional materials it submitted at the March 2014 informal
2015, the Department began accepting additional applications
for RMDs using a new application process. Applications are
now reviewed on a rolling basis as they are received. The
applications are no longer scored. Instead, they are reviewed
for compliance with the Act and the applicants are notified
of necessary updates or clarifications.
the revised application process, the applicant first submits
an " Application of Intent" along with an
application fee. After reviewing the application, the
Department invites successful applicants to move on and
submit the more comprehensive " Management and
Operations Profile" (MOP) along with another fee. After
submission of the MOP, the Department reviews the information
and contacts the applicant if clarifications/updates to the
submitted application materials are needed. When the
Department is satisfied with what it has received, the
applicant is invited by the Department to submit a Siting
Profile. Once submitted, the Department reviews the
information in the Siting Profile and, as with the MOP,
contacts the applicant if clarifications/updates to the
submitted materials are needed. After this process is
complete, the Department notifies the applicant whether it
has met the standards necessary to receive a Provisional
Certificate of Registration.
2015, as this lawsuit remained pending, MIM decided to
participate in this new process and filed Applications of
Intent for three dispensaries. It paid a $1, 500 fee for each
Application. In September 2015, the Department invited MIM to
submit a MOP for all three Applications. MIM, however, only
elected to submit a MOP for one proposed facility. In
connection with this MOP, MIM paid an application fee of $30,
000. MIM's application remains pending. It will be
expected to pay a $50, 000 fee if awarded a Provisional
Certificate of Registration and to pay an annual $50, 000
registration fee if finally approved to operate a RMD.
moving for judgment on the pleadings, MIM asserts that "
[t]here is little point to remanding the consideration of
MIM's 2013 Applications for further review or rescoring
by [the Department]" given that " [the Department]
has already changed its application process" and "
MIM has also moved on . . . [and] is now focused on different
opportunities and locations." Pl. Brief at 26.
Accordingly, MIM now seeks only monetary relief rather than
reversal or remand to the Department for further
proceedings. Specifically, MIM seeks an order that
the Department must credit the $90, 000 it paid in connection
with its ...