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Marijuana licenses will be decided on a case-by-case basis by an Albany County state Supreme Court justice.
An order issued Monday by Judge Kevin Bryant of state Supreme Court in Albany County, there will be no exemptions granted to Bryant's August injunction against new licenses except by an order to show case filed by the state Cannabis Control Board.
The court case is holding up licenses for all dispensaries across the state, including several proposed to open in Chautauqua County.
"No application for an exemption will be considered absent certification under oath and on an applicant-by-applicant and requirement-by-requirement basis that each of the proposed applicants have satisfied each licensing requirement," Bryant wrote in his order. "Requests for exemptions will also not be considered absent documentary proof that the proposed dispensary has been fully inspected and OCM has confirmed that the site meets all public health and safety requirements."
Bryant issued a decision August 18 granting a request from four service-disabled veterans prohibiting the state from issuing CUARD licenses because the CUARD licenses weren't part of the state's original Marijuana Regulation and Taxation Act. Creating the separate licensing class and then awarding those licenses before awarding any other class of license that was actually included in the state law, the veterans argued, could keep them from opening marijuana shops because they fear there won't be sites or markets in some areas if they aren't allowed to open at the same time as the CUARD licensees. Bryant then directed the state to send a list of all CUARD licensees who met all the requirements for licensing so that those who were able to open could do so while the court case over the CUARD licenses is argued.
The state submitted its original list of 30 provisional CUARD licensees with an affadavit saying those licensees met all the conditions for licensing but had not received final approval to open a retail dispensary. The veterans objected to the filing, saying they hadn't been able to conduct discovery to see if those 30 exempt businesses actually met the licensing requirements. The state then reversed itself on August 25, saying only most of the applicants on the list met all the licensing tasks while others were finalizing construction and buildout of their locations. Three days later the state reversed itself again, saying it couldn't certify whether at least one of the CUARD licensees met all of the licensing criteria, prompting Bryant to extend the injunction to all CUARD licenses with no exemptions.
"As to compliance with the court's clear directives, neither of the defendants' September 6 filings attach any underlying supporting documentation at all, let alone sufficient documentation to support a conclusion that any provisional CUARD licenses have met 'all requirements for licensing.' Without the supporting documentation ordered by the court in the August 28 order, it is not possible to 'address each individual licensee on a case-by-case basis,'" wrote Brian Burns, the attorney for the veterans. "And although Mr. (Patrick) Mckeage (first deputy director of the Office of Cannabis Management) claims in the Sept. 6 Mckeage affidavit to be providing 'supporting underlying documentation,' that does not satisfy the court's explicit directive to submit 'supporting underlying documentation.' Defendants' sleight of hand suggests that they are attempting to obfuscate the insufficient evidence they are supplying in support of their request for exemptions to the preliminary injunction, in defiance of the court's clear order."
Included in the Monday court filings is an affidavit from the owner of Polanco Brothers Corporation, a provisional CUARD license holder who testifies company officials have spent $49,472.97 of their personal savings to start a dispensary business as well as outstanding liabilities of $659,819.68 that can't be paid until they open, including rent payments that begin in October.
"Respectfully, my partners and I bear a far greater burden under this preliminary injunction than the plaintiffs do without one," Jose Polanco wrote in his affidavit supporting the state. "Plaintiffs had over a year to challenge this lawsuit and seek an injunction over the CUARD program, yet chose to wait until almost a year after the application period opened. While the plaintiffs may argue they had a right to submit their application at the same time I did, they cannot claim they have a right to receive a license before me. OCM created criteria to preference various social justice and economic equity groups -- and they used their agency discretion to decide that applicants fitting the CUARD program criteria, like me, should receive the license before them."