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Attempts at diversity in medical marijuana could spur legal challenges

The medical marijuana industry in Missouri is months away from its first sale, but legal challenges against state regulations could delay any prescription from being filled.

One proposal, aimed at ensuring diversity in the new industry, could draw legal action against the state.

Two Kansas City lawmakers — Sen. Kiki Curls, D-Kansas City, and Rep. Barbara Washington, D-Kansas City — have filed identical bills that would give a direct boost to women and minority-owned businesses seeking a cultivation, dispensary or manufacturing license for medical marijuana.

The language of Amendment 2, which legalized medical marijuana in Missouri, will not necessarily favor Missouri-based applicants ahead of out-of-state corporations.

Curls and Washington declined to comment until their bills are given public hearings, which have not been scheduled.

The bill states that, if adopted, women and minority applicants would receive a “scoring bonus of ten percent.”

The Missouri Department of Health and Senior Services, which oversees the state’s medical cannabis industry, has received 429 applications and over $3 billion dollars in fees as of Tuesday and each applicant pays thousands to the state just to be considered.

“I have a lot of concerns about who is going to be able to afford these licenses to get into the business, and who is going to be excluded,” said Rep. Brandon Ellington, D- Kansas City.

Ellington is the House minority whip as well as a member of the Legislative Black Caucus. He said the caucus is supportive of the bill but could not say the same for the Democratic Party.

Rep. Nick Schroer, R-O’Fallon, chairs the Joint Committee on Administrative Rules, which will likely be the setting where lawmakers vet marijuana-related policies. He said he supports a free market without advantages for specific groups.

“On its face, I’m not really supportive of giving anyone an upper hand or giving them a boost,” Schroer said. “I don’t care if you’re male, female, black, white, disabled, not disabled – you should all get a chance.”

A marijuana law professor said policies similar to the Missouri proposal have been ruled unconstitutional in courts outside of Missouri.

“The courts are skeptical of affirmative action,” said Robert Mikos, a professor of law at Vanderbilt University and author of “Marijuana Law, Policy and Authority.”

“The courts are very skeptical of states whey they use race in the award of licenses or other benefits,” Mikos said. “They want that used as a last resort.”

Policies similar to Curls’ and Washington’s bill have been adopted in Ohio and Maryland, which gave a direct advantage to minority applicants hoping to join the state’s medical marijuana industry.

Mikos said Ohio’s law was challenged in court by non-minority applicants who were not awarded licenses before other, less qualified, minority applicants.

A judge struck down the policy, saying it violated the constitution. Maryland rescinded its policy before awarding any licenses.

“(Ohio’s policy) was struck down on constitutional grounds because the court found that the state really hadn’t done the leg work necessary to justify an affirmative action program,” Mikos said.

No license was rescinded as a result of the ruling in Ohio, but Mikos said it is possible for a business to lose their qualifications as a result of a legal challenge against the state.

“It can you create havoc in the system. When some component of a state law is challenged and there is a threat that if a court invalidates that particular component, that it will gut the entire system and tell the state to, essentially, do a do-over.”

Mikos discussed affirmative action programs, and how they can be upheld in court, with ABC 17 News:

Schroer said he and other lawmakers will likely oppose any bill that could draw legal backlash.

Ellington said he expects something, whether it’s the voter-approved constitutional amendment or the proposed legislation, to be the subject of a legal battle.

“100 percent. No ifs, ands or buts. I’m looking forward to a legal challenge,” Ellington told ABC 17 News.

Ellington said the Black Caucus is actively working with DHSS officials to ensure that no one is unjustly excluded from the industry.

Click here to read the full text for Amendment 2

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