Marijuana LitigationThis is the first administrative appeal we’ve covered in Canna Case Summaries, and it comes to us from Massachusetts.

In 2008, Massachusetts voters decriminalized the possession of small amounts of marijuana. Massachusetts then became the eighteenth state to legalize medical marijuana when its voters passed a ballot initiative in 2012. 105 CMR 725.000, et seq. sets forth the regulations governing Massachusetts’s medical marijuana program and entrepreneurs.

James Willis is a dispensary agent for New England Treatment Access, Inc. (NETA), a state-registered dispensary. NETA ran a background check on Mr. Willis before accepting him as a member of its cultivation team (as required by Massachusetts state law for any dispensary agent). That background check revealed Mr. Willis had been “convicted of a marijuana crime that occurred in 1998.” Based on that 1998 conviction for possession and manufacturing cannabis, the Massachusetts Department of Public Health (“The Department”) (the agency that oversees the state’s medical marijuana program) sought to suspend and revoke Mr. Willis’s dispensary agent registration for alleged violations of state medical marijuana regulations. Mr. Willis appealed The Department’s summary suspension and proposed revocation of his dispensary agent registration to the Division of Administrative Law Appeals.

The Department then moved for summary judgment against Mr. Willis based on his alleged violations of various Massachusetts regulations, and also moved to dismiss Mr. Willis’s appeal as moot. Mr. Willis cross-motioned for summary judgment. The Administrative Magistrate, Kenneth Bresler, denied both of The Department’s motions and partially granted Mr. Willis’s summary judgment motion.

An administrative magistrate may “decide a case summarily if ‘there is no genuine issue of fact relating to all or part of a claim.'” 801 CMR 1.01(7)(h). And the magistrate may accept hearsay “only if it is the kind of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs…” G.L. c. 30A, S11(2). Based on the facts, Magistrate Bresler ruled against The Department because he did not have “enough basic facts to write a summary decision …  [he had] some hearsay and no stipulated facts.” Magistrate Bresler wrote in his decision that The Department’s summary judgment motion against Mr. Willis was based on hearsay, not facts, because  its own affidavit regarding Mr. Willis’s prior criminal record was based on NETA’s background check on Mr. Willis:

Suspending someone’s registration as a dispensary agent is a “serious affair[]” and “reasonable persons” are not “accustomed to rely” on a party’s factual allegations to decide for that party, especially when the party does not have first-hand knowledge of the factual allegations.

Magistrate Bresler not only denied The Department’s motions on the facts, he also denied those motions based on the law.

The Department alleged that while NETA was preparing to submit Mr. Willis’s dispensary agent application to The Department, Mr. Willis emailed NETA “falsehoods” because he allegedly failed to disclose his marijuana criminal conviction to NETA (the “NETA email”). However, the only document before Magistrate Bresler was the criminal background check NETA submitted to The Department as part of Mr. Willis’s dispensary agent application, and it included the marijuana conviction. Magistrate Bresler noted in his ruling that the regulations govern only the dispensary agent application, not the entire application process. In other words, even if Mr. Willis did mislead NETA in the NETA email, it is immaterial since the application to The Department fully disclosed Mr. Willis’s conviction.

The Department also argued that Mr. Willis’s 1998 conviction amounted to distributing cannabis to an “unauthorized person,” as that term is defined under the Medical Use of Marijuana Program. Magistrate Bresler ruled that since the Medical Use of Marijuana Program did not exist in 1998,  its regulations do not apply to Mr. Willis’s conviction. The ruling also states that the regulation prohibiting distributing cannabis to “unauthorized person[s]” applies only after an agent is registered with The Department. Magistrate Bresler also ruled that the regulations do not prevent an individual from becoming a dispensary agent if they have ever sold, given, or distributed marijuana to another person; the regulations simply bar those who have been “convicted of a felony drug offense.”

The Department’s appeal is still pending and we will report back when there is a decision.

Department of Public Health, Medical Use of Marijuana Program v. James Willis, Docket No. PH-15-589.

NOTE: The above is part of our plan to summarize all cannabis civil cases with a published court decision. By civil case, we mean any case that involves cannabis or the cannabis industry that is not a strictly criminal law matter. These cannabis case summaries are intended both to keep you up to date on cannabis laws as interpreted by the courts and also to serve as a resource for anyone conducting cannabis law research. We also will seek to provide key unpublished cannabis law decisions as well, when available.