Omitting facts rarely ends well for people, let alone attorneys. Likewise, disregarding the law usually ends with a party on thin ice. So imagine the cringing surprise that hundreds of applicants for Illinois’ current round of adult use cannabis dispensary licenses felt upon reading this complaint filed by a few of the applicants that received the total points under the flawed scoring analysis conducted in the latest round of Illinois’ cannabis dispensary licensing. That cringe could have resulted from the use of the word “flagrantly” five times. But applicants are a hearty bunch, so the cringe really comes down to the inaccuracies and improprieties of the pleading that somehow led everyone to an agreed compromise to brief the issues and hold a hearing later this week.
Since we’ve got the time, let’s examine the legal work.
Here are some of the false premises from this complaint:
- Paragraph 85, stating those perfect scoring applicants will lose their “opportunity” to participate in the process.
- The multiple assertions that the process, and actions of the department are “illegal.” Again, hyperbole and, quite frankly, the determination for the courts. This affect disregards the the IDFPR broad discretion the Cannabis Regulation and Tax Act provides the Department to implement a system and the fundamental due process and equal protection requirements that the system’s implementation get conducted fairly.
Seriously, just check out this one paragraph:
111. In the absence of mandamus and injunctive relief, Defendants will continue to illegally delay the issuance of Adult Use Licenses pursuant to an illegal process that violates the Act, Plaintiffs will be forced to continue to incur further illegal delays in the issuance of Adult Use Licenses, and Plaintiffs will be forced to continue to participate in an illegal adult use licensing scheme that flagrantly violates the requirements of the Act.
- The conflation of a ministerial – issuing licenses – with the discretionary authority of the Department in holding the lottery, scoring applications, reviewing the premises and other criteria of those that win the lotter before ultimately getting to the point of issuing a license to qualified operators and sites. The IDFPR exercised its discretion and implemented a regulation to hold a lottery based on the Department’s scoring. The regulations and rules for scoring allow for much discretion as well. Seriously, this is a big one. They’re asking for the Court to order the state to issue licenses under the language of the Act, but disregarding the several layers of discretion and processes that need to occur before that. For starters, there’s proper scoring. We know that many applicants had irrationally different scores across identical submissions, and that some applicants failed to receive proper deficiency notices (both failed to receive any notice and failed to receive notices with sufficient clarity to understand and correct the deficiency). Second, there’s the lottery. That’s not a statutory requirement, it’s the IDFPR’s best effort to ensure equal treatment for similarly situated applicants. Third, there’s then determining out of the lottery winners who’s properly provided information and set for inspections to get to the point that IDFPR considers issuing a license. The complaint looks to gloss over the discretionary aspects of IDFPR’s authority and with this smokescreen, somehow claim it has no discretion and must issue licenses based on improper scoring.
- Paragraph 87 – money damages aren’t enough? They’re not presently operating these potential dispensaries, so how could they be losing anything other than money?
- Remedy – Even the lottery doesn’t guaranty them a license, it gets them a chance to get inspected and meet the criteria and then potentially be licensed. Even if they are selected in the lottery, they still have to meet IDFPR and statutory requirements to obtain the license. To ask that the Department be ordered to implement the licensing “process” necessarily involves proper scoring, then the lottery, then the final inspections and analysis of successful lottery winners.
- Standing – this is a potential issue as many of these potential licensees have interrelated officers as well as relations to existing locations that may, quite frankly, result in their inability to hold a license following the lottery. The IDFPR process following the lottery involves determining if everyone is eligible to participate based on this and other criteria, and there’s been no assertion in their complaint that they’d be allowed to participate given the regulatory criteria.
From the articles already published about these plaintiffs, you’ll note that these plaintiffs are by-and-large the same small cadre of applicants, many of whom have questionable ties to the state and other entities, that have decided to press their luck in a last-ditch effort to stop everyone from having a fair go.