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Marijuana firms weigh legal action

Some of the companies that were denied medical marijuana dispensary licenses are joining together to consider possible legal action amid widespread criticism over how the state selected the winning applicants.

A lawyer who is organizing the effort and who led a company that lost its bid for a dispensary in Brockton said Thursday that the Department of Public Health “broke its own rules” when awarding the state’s first 20 licenses last month. He urged Governor Deval Patrick to order officials to start from the beginning.

“I think the governor needs to stop this process,” said Jonathan C. Rutley, chief executive of the Striar Center for Compassionate Care. “It needs to start over again because clearly there have been so many violations.”


Rutley said about 19 applicants whose proposals were rejected have expressed interest in working with him to consider their next step. “We are looking at our legal options,” said Rutley, a Canton lawyer and former Norfolk County prosecutor.

The governor’s office declined to comment. But the Legislature has already launched a review of whether the department adequately checked dispensary applicants’ claims of local support, and whether there were conflicts of interest between the agency and some of the winning applicants. Public Health Commissioner Cheryl Bartlett held fund-raisers in the mid-2000s for former Congressman William D. Delahunt, whose company won three licenses.

State Representative Jeffrey Sanchez,who was tapped last week by House Speaker Robert A. DeLeo to investigate how the health department chose the license winners, said in an interview on Thursday that he is finalizing a list of questions to send to the agency next week.

“We have to make sure that whatever process the Department of Public Health and the [Patrick] administration put together, that it stands the legal muster but also the perception muster,” said Sanchez, who chairs the Joint Committee on Public Health.


A major criticism of losing applicants has to do with a lack of transparency and concerns about inconsistencies in the scoring process. The state paid an independent contractor, ICF International, $335,449 to review the 100 applications submitted in November for the final selection process.

ICF, based in Virginia, was instructed by the health department to score each application in seven areas, including siting and local support, financing, staffing, operations, and business experience. It did not direct ICF to independently verify claims firms made in applications, and claims made by several of the winning companies have been called into question.

Public health officials have denied multiple requests during the past three weeks to provide the detailed scoring sheets to the Globe, saying they first want to meet with representatives of each company to explain how they were evaluated.

“At the conclusion of debriefing meetings in March, full scoring sheets for all 100 applicants will be posted on the DPH website,” the agency said.

The agency said it has released scoring sheets to all 51 of the applicants who requested debriefing sessions and that seven sessions have been held, with the rest scheduled for coming weeks. Rutley said he has not received his firm’s scoring sheets though he has requested a meeting. He said he wants the information ahead of time so he can review it.

Among the issues the Legislature will investigate is if the department adequately checked dispensary applicants’ claims of support, said Sanchez.


The Globe reported last week that companies proposing dispensaries in Boston and Haverhill erroneously claimed to have support from local elected officials when they did not. Local support — or at the least, letters of non-opposition from community leaders — were critical in the process.

Sanchez said he will also scrutinize whether state ethics laws need to be changed, citing complaints that a former health department manager, Andy Epstein, who helped craft the state’s marijuana dispensary rules, is a medical director for one firm that won a license.

Epstein, who retired from the health department in May, joined New England Treatment Access Inc., a company that won state licenses.

Epstein, who is a nurse, said Thursday that she had originally intended after retiring to volunteer with a patients’ group that lobbied to legalize medical marijuana because she was impressed with its work, when New England Treatment asked her to work for the company.

She said a department lawyer called her in September and advised her to get a state ethics commission ruling before proceeding, which she said, cleared her of any potential conflict.

Kay Lazar can be reached at Kay.Lazar@globe.com. Shelley Murphy can be reached at shelley.murphy@globe.com .