Key Votes in April for Alabama Medical Cannabis Commission

The Alabama Medical Cannabis Commission held its regularly scheduled monthly public meeting last Thursday. Although the commission did not make any significant decisions during the meeting, we did learn some important information, including what will happen during the hugely consequential next public meeting scheduled for April 13. A few notes and takeaways from the meeting:

  1. All 94 applicants who submitted an application by the December 30, 2022, deadline received a deficiency notice of some kind.

  2. The University of South Alabama, which is assigned with the responsibility of leading the efforts to grade the applications, is making progress in staffing and is on track to be fully staffed by next month when grading begins.

  3. The commission plans to hire several new employees between now and the scheduled issuance of licenses in July to handle patient services, licensing, compliance, and inspections.

The next scheduled public meeting, which is set for 11 a.m. CST on April 13, will be the most important public meeting to date. The commission is scheduled to cast five votes during that meeting:

  1. The commission will vote on whether each applicant actually submitted proposed corrections in response to the deficiency notices. Importantly, this vote is not whether the deficiencies were corrected, but whether the proposed corrections actually arrived at the commission in a timely manner. Although important, this vote should not be controversial as establishing submission in a timely manner should be relatively straightforward.

  2. The commission will vote on whether those applicants who requested additional time to submit proposed corrections to deficiency notices met the standard of showing that extraordinary circumstances existed to warrant an extension. This vote is critically important for any applicant who did not submit proposed corrections by March 3 because a “no” vote will mean that the application has not been corrected and, presumably, will not proceed to the next step when applications are submitted for grading. It is not yet clear exactly how the commission will determine whether an applicant seeking additional time met the standard of “extraordinary circumstances,” and commission staff indicated that it would provide additional information to commissioners offline. The phrase is defined in rules previously issued by the commission, but not in great detail. What we know is that the commission will consider “[r]easons offered by the Applicant for needing additional time to file proposed corrections in response” and that “the presumption shall be against allowing such additional time.”

  3. In what may be the most critical vote for many applicants, the commission will vote on whether properly submitted, proposed corrections should be deemed formally “corrected” or not. In other words, whether the applicant sufficiently corrected the identified deficiencies. Presumably applicants who did not correct each identified deficiency will not proceed to the grading portion of the application process. This could be controversial if the commission takes a strict approach to whether deficiencies were, in fact, “corrected.”

  4. The commission will vote on whether those applicants who petitioned to submit amended applications due to “extenuating circumstances” should be allowed to substitute their original application for an amended application.  The rules provide insight into the amendment process and whether an amendment will be allowed by the commission:

    • “Extenuating circumstances” is defined, in relevant part as “[r]easons offered by the Applicant for needing to amend its application after the window for filing original Applications has closed, to be explained by the Applicant in a Petition to Amend Application Based on Extenuating Circumstances.”

    • “[F]iling an amended application does not preclude an applicant from responding to a notice of deficiency provided by the Commission and proposing corrections for approval by the Commission.”

    • The petition for permission to file an amended application based on extenuating circumstances must show in detail the changes being requested and the alleged extenuating circumstances that have prevented the applicant from including the information in the original application or in a timely amendment thereto. The burden is upon the applicant to demonstrate that the application should be allowed to be amended.

    • “[T]he Commission’s rejection and refusal to consider applications as to which the proposed amendment were not filed, untimely filed, improperly filled out, or improperly formatted, shall not constitute a breach of due process nor permit the Applicant a right of appeal under the Act, this Chapter or any provision of the [Alabama Administrative Procedures Act.]” In layman’s terms, that means that the decision of the commission is final. This vote is significant for any applicant who attempted to amend its application because a finding that the applicant did not meet its burden of establishing extenuating circumstances will likely prohibit the applicant from proceeding to the next step when applications are submitted for grading.

    • Finally, and most significant but in what should be a straightforward vote following the previous four, the commission will vote on whether each submission should be accepted as final and deemed “submitted” so as move to the grading stage.

Those applications that move to the grading stage will then enter a 60-day grading period, during which time there will be an opportunity for public comment on the applications from April 14 through May 14. Initial licenses are scheduled to be granted on June 12, after which there will be a four-week period for those denied a license to request a public hearing to appeal the decision. Licenses are scheduled to be issued on July 10 unless appeals are ongoing.


© 2023 Bradley Arant Boult Cummings LLP
National Law Review, Volume XIII, Number 72

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