LAWRENCE — The nonprofit that unsuccessfully proposed opening a medical marijuana dispensary in Lawrence has sued the state Department of Public Health, claiming the department failed to follow its own regulations and arbitrarily issued provisional certificates to other groups.
BeWell Organic Medicine, which proposed a dispensary on Island Street in Lawrence, demands that the court either grant it provisional status and rescind the rejection of its application, or rescind all the provisional certificates it issued in June.
“We would not be filing if we didn’t think we would win,” said Charles Saba, a Methuen resident and president of BeWell. “It’s very costly, and we’re not just doing it to prove a point. We’re doing it because we believe there were issues within the selection process, we believe there were issues with scoring, and we believe in the end that we should be issued a permit.”
In the complaint, BeWell says the Department of Public health “failed to investigate inconsistencies, irregularities and misrepresentations made in (applications).”
The complaint states some groups received provisional registered marijuana dispensary licenses despite application issues. It also cites inconsistencies and irregularities in the scoring of BeWell’s application.
The nonprofit did not identify the other dispensary applicants in its suit but listed issues that have arisen from other applications that received provisional certificates this summer.
“DPH failed to identify application disqualifying events for several groups that received provisional RMD licenses, including a failure to disclose bankruptcy or insolvency proceedings by executive team members, failure to list individuals as members of the executive management team, which would have resulted in a disqualification of the applicant, and misrepresentations by applicants as to the level of local support received from local representatives and municipalities,” BeWell wrote in its complaint.
James Bowers, an attorney with the Methuen firm Manzi Bonanno & Bowers representing BeWell, said that undermining other groups is not the goal of the lawsuit.
“In the complaint, we spoke to the process being arbitrary and capricious and DPH not following its own set of rules,” Bowers said. “We used those issues for general examples of DPH not following its own process. What BeWell is looking for is that they be granted a provisional license. That’s our goal.”
Questions emerged in February about the veracity of statements made in the application of Healthy Pharms, a nonprofit that won a provisional certificate to operate in Haverhill in June. At least two local officials have said Healthy Pharms’ application misrepresented conversations they had with a company representative. Those conversations were included in a section of the application for demonstrating community support that includes the greatest number of points of any section.
After a second, unplanned review process last spring, DPH did not change any application scores. But in June it axed nine of the 20 applicants it originally selected in January for provisional licenses, six of them for including inaccurate or misleading information on applications.
Healthy Pharms was not one of those nine, and received its provisional certificate June 27. BeWell was not chosen in January as one of 20 applicants to receive a license, or one of 11 that received provisional certificates in June after the second, unscheduled review period.
Four applicants whose proposals did not receive provisional certificates in June were invited to apply in counties without dispensaries.
Last month, the state halted the progress of one nonprofit’s two dispensaries after questions about whether its president, Kevin Fisher, graduated from college.
The voter-approved medical marijuana law envisioned at least one dispensary in each of Massachusetts’ 14 counties, but at least four counties will be without a dispensary after this first round of applications.
Several other applicants have filed lawsuits against the DPH since February, mainly in Suffolk Superior Court. They have accused specific groups of omitting or misrepresenting information on the applications.
According to a letter dated Jan. 31 that is included in the complaint, which BeWell filed on Aug. 22 in Lawrence Superior Court, DPH deferred BeWell’s application until the group resolved an issue uncovered during a background check of one of the group’s board members.
BeWell’s Saba sent a letter Feb. 4 to DPH, stating that the board member resigned. On June 27, the department wrote that BeWell’s “status has not changed and you have not been selected for a RMD (sic) registration.”
BeWell sent two letters to the department this summer, saying that in a Feb. 3 meeting, the department’s attorney told BeWell that “the deferral would be lifted after the issue with the board member was resolved, and that BeWell would (at least) be placed into consideration for an invitation for an alternate location.”
Bowers said BeWell never received a response.
“It left us in a very difficult position where we need to file a lawsuit to get answers,” he said.
The department issued a statement saying, “We are pleased that multiple courts have validated our comprehensive process to ensure patient access and public safety across the Commonwealth. We are focused on moving forward with our inspection phase and the open county process to fulfill the will of voters.”
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