Decision on medical marijuana suit in judge's hands

FILE: Marijuana plants are pictured at the Baker's marijuana nursery at Baker Medical Wednesday, Feb. 26, 2020, in Oklahoma City.
FILE: Marijuana plants are pictured at the Baker's marijuana nursery at Baker Medical Wednesday, Feb. 26, 2020, in Oklahoma City.

As opposing sides exchanged barbs with each other over Missouri's medical marijuana licensing process Friday, Cole County Presiding Judge Patricia Joyce tried to keep the trial on track.

Joyce presided over a two-day trial Thursday and Friday, stemming from a lawsuit filed by Paul Callicoat and his family, who hoped to be named among groups that received medical marijuana production, distribution and manufacturing licenses early last winter.

Voters overwhelmingly passed the state's medical marijuana law in November 2018.

The Callicoat family applied for a cultivation site called Sarcoxie Nursery Cultivation Center LLC in 2019. But they were among thousands of applicants for multiple licenses who were rebuffed because Missouri set limits on how many facilities of all kinds it would license.

Hours of testimony from Amy Moore, deputy director and council for the Section on Medical Marijuana Regulation, and from Missouri Department of Health and Senior Services Director Randall Williams, the plaintiff's first two witnesses, lasted into the evening Thursday.

Joe Bednar, the family's attorney, chose Friday morning to enter his third witness, Lyndall Fraker, director of the section's sworn affidavit as his testimony, rather than bring him to the stand.

Instead, Bednar chose to cross-examine Fraker and Moore after the defense called them to the stand.

On Thursday, Bednar questioned Moore on how the state decided to limit the number of facilities it would license.

He argued the process has prevented many of the people who have received licenses to use medical marijuana to receive the products. (To date, DHSS has issued about 70,000 patient cards.)

Ross Kaplan, with the Missouri Attorney General's Office, on Friday asked Moore to explain the provisions of the constitutional amendment the lawsuit focuses on.

"The primary issues that are relevant within this lawsuit are the limitations on licenses," Moore responded. "And also the geographical scoring increases that are in our rules."

Each step along the way, Moore said, was first to look at the details of the amendment and make them starting points.

And throughout the process, the section asked for public input on the program, she said.

The section also looked at other states, she said. The organization looked at their rules and pulled information that might fit with Missouri's new law.

"If we saw other rules that were good rules, we always came back to 'does that actually fit into that part of Article 14?'" she said.

What about "potential industry input?" Kaplan asked her. What about an email a medical marijuana trade organization sent, listing a number of potential rules the section should consider for medical marijuana?

"You couldn't hardly turn a corner without finding somebody who claimed to be a potential drafter (of the amendment)," Moore said about the email's author. "What he gave us was a pretty hefty stack of proposed rules. My initial read of that is that it didn't closely track with Article 14."

The rules went too far, she said, and would have created a regulatory burden.

The section had to come up with a numeric way of scoring 10 different categories. It talked about addressing the economic impact on communities. The section decided to weight certain questions by 30-40 percent if they may have an effect on employment rates or other impacts for the communities.

There have been misunderstandings about the impact of the factor, Moore said.

"It's 30 or 40 percent on top of a sub-sub-score, not on top of everything," she said. "So, when you get down to it, the actual numeric effect on the score was equal to one to three questions out of 70 questions. So it was a very small effect."

For most applicants, the resulting change was about 3 percent, Moore said.

The process also awarded bonuses to applicants based on geography if they provided better access for patients, Bednar pointed out.

Bednar asked Moore what her testimony was on the effect of geographic benefits (bonuses) for patient access.

"It had a small percentage effect on the final score," Moore replied. "We looked at those while it did bring some facilities up above the cut-off, the final effect was minimal."

He asked her to define minimal.

Moore said her impression was not many were brought up above cut-off.

Bednar asked if she was aware two-thirds of winners of the licenses also received the "ZIP code bonus."

She said she was aware most of the highest scorers received those.

Bednar pressed Moore on what economic factors the section considered when awarding licenses. She replied it relied on information from the state Department of Economic Development.

Bednar questioned why the section used two-year-old data when looking at economic factors, rather than looking at something like unemployment, which is reported monthly.

"What was your interest in jobs? Did you look at the unemployment rate of a county at all in reports that are available from the Department of Labor and Industrial Relations here in the state of Missouri?" Bednar asked.

Moore argued the section looked at two other measures of labor and economic indicators. And it determined to use the one it thought was most appropriate.

"When we talk about ZIP code bonuses and special laws, there are two different issues in evaluation of that. One would be geographic, that the rule of the law applies to an immutable geographic characteristic," Bednar said. "And the second prohibition is against one that has an historic limitation - that takes one period of time and limits it to that category, which can't be changed."

He said he applauds the DHSS for looking at how it could create jobs as an important piece. He asked if the section had looked at more recent factors when considering jobs.

Kaplan objected to the question and said it was irrelevant when it comes to special laws, that the point in time and ZIP code bonus had nothing to do with an immutable statistic.

"This is a simple question: Did you go to Labor and Industrial Relations for unemployment rates?" Joyce asked.

"We did not," Moore replied.

Joyce did not say when she would rule on the case.