Posted by: Patricia Salkin | January 27, 2020

IL Appellate Court Reverses Trial Court’s Order Finding Award of Permit for Marijuana Cultivation Center Erroneous

This post was authored by Matthew Loescher, Esq.

The Compassionate Use of Medical Cannabis Pilot Program Act became effective on January 1, 2014, and provides that dispensaries, cultivation centers, and their agents are not subject to arrest, prosecution, civil penalties or disciplinary action for the dispensation or cultivation of medical cannabis. Registration and oversight of medical cannabis cultivation centers is enforced by the Illinois Department of Agriculture (“IDOA”). Plaintiff, Medponics Illinois, and defendant, Curative Health Cultivation, each filed an application for a cultivation center permit with the IDOA. After Medponics was provided with a “Notice of Denial of Medical Cannabis Cultivation Center Permit”, Medponics filed a verified complaint in the Lake County Circuit Court for administrative review. Curative, and Medponics then filed an unopposed motion for leave to file the administrative record under seal and joint motion for a protective order. The trial court held that the confidentiality provisions of the Compassionate Use of Medical Cannabis Pilot Program Act did not compel the seal of the record on administrative review.
At the outset, the court reversed the trial court’s November 30, 2017, order finding the award of the cultivation center permit to Curative to be clearly erroneous. Medponics contended that the R-1 and R-5 districts remain zoned exclusively for residential use in the AZO even when non-residential uses were allowed. While this may have been a reasonable interpretation, that fact did not make the IDOA’s interpretation of its own regulations clearly erroneous, arbitrary, or unreasonable. The IDOA’s interpretation that zoning districts R-1 and R-5 were not “exclusively residential” as defined by its own rules and, therefore, the Act, was a reasonable interpretation based on the administrative record in this case.
The Act was silent on whether administrative review in the trial court needs to be conducted with a sealed record. While the language of section 145 included confidentiality provisions regarding the IDOA’s handling of information contained within the applications filed, including criminal penalty for the breach of confidentiality, that did not mean that the courts were bound to seal or impound materials filed for administrative review. Here, the trial court allowed the parties to enter into an agreed protective order to ensure access to all material provided. As such, the trial court’ acted within its discretion and nothing in the Act supported Curative’s contention that the trial court erred in finding that their application was not protected by the confidentiality provisions of the Act. Thus, the trial court’s order granting, in part, and denying, in part, the motion for leave to file the administrative record under seal was affirmed.
Medpoinics Illinois, LLC v Illinois Department of Agriculture, 2019 IL App (2d) 170977-U (unrep. 10/7/2019)

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