Middlesex Integrative Medicine, Inc. v. Massachusetts Department of Public Health (Lawyers Weekly No. 12-180-16)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 2014-2727-BLS1 MIDDLESEX INTEGRATIVE MEDICINE, INC. vs. MASSACHUSETTS DEPARTMENT OF PUBLIC HEALTH MEMORANDUM OF DECISION AND ORDER ON PARTIES’ CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS The 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. BACKGROUND In 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. Pursuant 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 nonrefundable $ 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 § 725.100(B)(3)-(5). MIM 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 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. On January 31, 2014, the Department announced the selection of 20 applicants to receive […]

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