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A Missouri appeals court directed that the state should accept a previously denied medical marijuana cultivation facility license after the state failed to specify what was missing from the company’s application.
The company, MO CANN Do (MCD), first filed for the license in 2019. The Missouri Department of Health and Senior Services’ (DHSS) deficiency letter did not notify MCD that it was missing the certificate of good standing. MCD’s resubmitted application lacked the certificate once again, and the DHSS denied the company’s resubmitted application because it once again didn’t include the certificate, and because it ranked the application below the 60-license cutoff.
MCD had claimed before the Administrative Hearing Commission that its certificate of incorporation could stand in for the certificate of good standing. The commission disagreed and accepted the DHSS’ motion for summary decision, which was affirmed by a circuit court.
On appeal, the company claimed that the DHSS had failed to follow its own regulation that requires it to specify what the deficiencies are in initial applications. MCD requested that the agency be equitably estopped from denying its application.
The Missouri Court of Appeals Eastern District determined that the DHSS had failed to follow its own regulation.
“The DHSS cannot be allowed to undermine the express language of its own regulation by simply directing the applicant to the applicable state regulations to rescue it from its failure to be specific,” Judge James M. Dowd wrote in the Feb. 28 opinion.
Judge Philip M. Hess concurred. Judge Kelly C. Broniec agreed with the majority argument that the DHSS must follow its own regulations, but she argued in a dissent that the agency did not intend this consequence when it wrote the provision.
“Accordingly, I do not believe a court, including this Court, may impose such a sanction in the absence of a clear expression of intent from DHSS,” Broniec wrote.
Paul Brusati of Armstrong Teasdale in St. Louis, an attorney for MCD, declined to comment on the pending case. Jason Lewis of the Missouri Attorney General’s Office represents the DHSS. The office did not respond to an email requesting comment.
The case is MO CANN Do v. Missouri DHSS, ED11032.
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