Alabama Medical Cannabis Commission v. Southeast Cannabis Company, LLC (Appeal from Montgomery Circuit Court: CV-23-901637).

• Court: Court of Civil Appeals of Alabama
• Decided: March 21, 2025
• Docket: CL-2024-0586
• Status: Published

Opinion

Rel: March 21, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2024-2025 _________________________

CL-2024-0582 _________________________

Alabama Medical Cannabis Commission

v.

TheraTrue Alabama, LLC

Appeal from Montgomery Circuit Court (CV-23-901653) _________________________

CL-2024-0585 _________________________

Verano Alabama, LLC

Appeal from Montgomery Circuit Court (CV-24-900009) CL-2024-0582, CL-2024-0585, CL-2024-0586, and CL-2024-0587

_________________________

CL-2024-0586 _________________________

Southeast Cannabis Company, LLC

Appeal from Montgomery Circuit Court (CV-23-901637) _________________________

CL-2024-0587 _________________________

Yellowhammer Medical Dispensaries, LLC

Appeal from Montgomery Circuit Court (CV-23-901798)

PER CURIAM.

The Alabama Medical Cannabis Commission ("AMCC") appeals

from four interlocutory injunctions ("the injunctions") entered by the

Montgomery Circuit Court ("the circuit court") in separate civil actions;

the injunctions purport to enjoin and restrain the AMCC from taking any

action in furtherance of certain licenses related to medical cannabis

2 CL-2024-0582, CL-2024-0585, CL-2024-0586, and CL-2024-0587

awarded by the AMCC in December 2023. For the following reasons, we

dismiss the appeals.

Background

Pursuant to the Darren Wesley "Ato" Hall Compassion Act ("the

Act"), Ala. Code 1975, § 20-2A-1 et seq., in 2023, TheraTrue Alabama,

LLC ("TheraTrue"), Verano Alabama, LLC ("Verano"), and Southeast

Cannabis Company, LLC ("SCC"), applied to the AMCC for an

integrated-facility license to produce, distribute, and sell medical

cannabis, and Yellowhammer Medical Dispensaries, LLC

("Yellowhammer"), applied to the AMCC for a dispensary license to sell

medical cannabis. After two earlier rounds of licensing decisions in June

and August 2023 had been rescinded, the AMCC awarded all the

dispensary and integrated-facility licenses allowed by law, see Ala. Code

1975, § 20-2A-64(b) (authorizing no more than four dispensary licenses)

and § 20-2A-67(b) (authorizing no more than five integrated-facility

licenses), in December 2023. On December 1, 2023, the AMCC denied

the dispensary-license application submitted by Yellowhammer, and, on

December 12, 2023, it denied the integrated-facility-license applications

submitted by TheraTrue, Verano, and SCC.

3 CL-2024-0582, CL-2024-0585, CL-2024-0586, and CL-2024-0587

TheraTrue, Verano, SCC, and Yellowhammer each commenced a

civil action against the AMCC, in which, among other things, they sought

judicial review of the decision of the AMCC to deny their license

applications, pursuant to Ala. Code 1975, § 41-22-20, a part of the

Alabama Administrative Procedure Act ("the AAPA"), Ala. Code 1975, §

41-22-1 et seq., and requested injunctive and declaratory relief pursuant

to Ala. Code 1975, § 41-22-10, a part of the AAPA, and Ala. Code 1975, §

6-6-220, the Declaratory Judgment Act. On December 28, 2023, the

circuit court entered an injunction in a related case, case number CV-23-

231, enjoining the AMCC "from taking any action in furtherance of the

December 1, 2023[,] awards of licenses in the Dispensary Category,

including without limitation the issuance of any licenses." On January

3, 2024, the circuit court purported to enter an injunction in that same

case, enjoining the AMCC from "taking any action in furtherance of the

December 12, 2023[,] awards of licenses in the Integrated Facility license

category, including without limitation the issuance of any licenses. The

intent of the Court that all rights of all applicants shall be preserved."

This court later determined that all orders that had been entered in case

number CV-23-231, including the December 28, 2023, and January 3,

4 CL-2024-0582, CL-2024-0585, CL-2024-0586, and CL-2024-0587

2024, orders granting the preliminary injunctions, were void. Ex parte

Alabama Med. Cannabis Comm'n, [Ms. CL-2024-0073, June 21, 2024] ___

So. 3d ___ (Ala. Civ. App. 2024) ("AMCC I").

Following the release of the decision in AMCC I, the circuit court

entered in Yellowhammer's action the injunction that it had rendered on

December 28, 2023, and it entered in the civil actions commenced by

TheraTrue, Verano, and SCC the injunction that it had rendered on

January 3, 2024. See Ex parte Alabama Med. Cannabis Comm'n, [Ms.

CL-2024-0532, Sept. 13, 2024] ___ So. 3d ___ (Ala. Civ. App. 2024)

(denying petition for the writ of mandamus precluding the circuit court

from entering the injunctions in the underlying civil actions). The AMCC

timely appealed from the entry of the injunctions.1

1The circuit court referred to each injunction as a "temporary restraining order," but, in substance, the circuit court entered a preliminary injunction in each case. A " preliminary injunction is '[a] temporary injunction issued before or during trial to prevent an irreparable injury from occurring before the court has a chance to decide the case.' " City of Gadsden v. Boman, 143 So. 3d 695, 703 (Ala. 2013) (quoting Black's Law Dictionary 855 (9th ed. 2009)). Based on our disposition, we do not address whether the circuit court complied with Rule 65, Ala. R. Civ. P., when rendering the injunctions.

5 CL-2024-0582, CL-2024-0585, CL-2024-0586, and CL-2024-0587

Standard of Review

On appeal from an order granting an interlocutory injunction,

review is confined to the order itself, and we review de novo whether the

circuit court had subject-matter jurisdiction to enter the order. See

Alabama Med. Cannabis Comm'n v. Alabama Always, LLC, [Ms. CL-

2024-0588, March 7, 2025] ___ So. 3d ___ (Ala. Civ. App. 2025).

Discussion

The AMCC is a state agency that is entitled to sovereign immunity

pursuant to Article I, § 14, of the Alabama Constitution of 2022, which

provides "[t]hat the State of Alabama shall never be made a defendant in

any court of law or equity." A party may not maintain a civil action for

declaratory and injunctive relief against the AMCC, even pursuant to §

41-22-10. Redbud Remedies, LLC v. Alabama Med. Cannabis Comm'n,

[Ms. CL-2023-0352, Mar. 29, 2024] ___ So. 3d ___ (Ala. Civ. App. 2024);

Ex parte Alabama Med. Cannabis Comm'n, [Ms. CL-2024-0463, Oct. 4,

2024] ___ So. 3d ___ (Ala. Civ. App. 2024). The circuit court may grant

injunctive relief against the AMCC only in an appeal from a decision

entered by the AMCC in a contested case, pursuant to § 41-22-20(k).

6 CL-2024-0582, CL-2024-0585, CL-2024-0586, and CL-2024-0587

Southeast Cannabis Co., LLC v. Alabama Med. Cannabis Comm'n, [Ms.

CL-2024-0300, Dec. 20, 2024] ___ So. 3d ___ (Ala. Civ. App. 2024).

The right to appeal from a decision of the AMCC in a contested case

is governed by § 41-22-20(a) which provides:

"A person who has exhausted all administrative remedies available within the agency, other than rehearing, and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter. A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy."

TheraTrue, Verano, SCC, and Yellowhammer have each filed a petition

for judicial review of the decisions of the AMCC denying their license

applications. 2 In those petitions, TheraTrue, Verano, SCC, and

Yellowhammer alleged that the AMCC had failed to comply with the

scoring, averaging, and ranking rules set forth in Ala. Admin. Code

(AMCC), rr. 538-X-3-.10 and 538-X-3-.11, which govern the review of

medical-cannabis applications during the licensing process. However,

2Although the AMCC asserts that Verano did not petition for judicial review, in its complaint, Verano did assert a right to judicial review under § 41-22-20, and Verano did make allegations consistent with a petition for judicial review. Thus, we construe the complaint as being, at least in part, a petition for judicial review. 7 CL-2024-0582, CL-2024-0585, CL-2024-0586, and CL-2024-0587

those petitions did not invoke the subject-matter jurisdiction of the

circuit court.

As this court recently held in Alabama Medical Cannabis

Commission v. Alabama Always, LLC, supra, the AMCC has not entered

a final, appealable decision on the integrated-facility licenses. The record

in these appeals shows that the AMCC also has not made a final,

appealable decision on the dispensary licenses. Multiple requests for

reconsideration of the licensing decisions made in December 2023 have

been submitted to the AMCC, including the requests by TheraTrue,

Verano, SCC, and Yellowhammer for a public-investigative hearing. See

Ala. Code 1975, § 20-2A-56(e). On April 11, 2024, the AMCC stayed

issuance of the integrated-facility licenses pending the completion of the

public-investigative hearings; the record in these appeals shows that that

same stay applies to the issuance of the dispensary licenses. In the

absence of a final decision, no right to appeal the December 2023

licensing decisions accrued under the first sentence of § 41-22-20.

Interlocutory licensing decisions of the AMCC may be immediately

reviewed by the circuit court only if review of the final AMCC licensing

decisions would not provide an adequate remedy. § 41-22-20(a). As also

8 CL-2024-0582, CL-2024-0585, CL-2024-0586, and CL-2024-0587

decided in Alabama Medical Cannabis Commission v. Alabama Always,

LLC, supra, in a review of the final licensing decisions of the AMCC, the

circuit court can remedy any errors the AMCC may have committed in

failing to comply with its internal licensing rules. That remedy is not

inadequate because the AMCC has stayed the issuance of the dispensary

and integrated-facility licenses during the public-investigative-hearing

process, and the circuit court can stay the issuance of any dispensary and

integrated-facility licenses following the completion of that

administrative process. Hence, there is no danger that the licenses for

which TheraTrue, Verano, SCC, and Yellowhammer applied would be

unavailable before judicial review could be completed. Because review of

the final agency licensing decisions would be an adequate remedy,

TheraTrue, Verano, SCC, and Yellowhammer had no right to appeal the

December 2023 licensing decisions.

Conclusion

TheraTrue, Verano, SCC, and Yellowhammer had no right to

appeal from the licensing decisions made by the AMCC in December

9 CL-2024-0582, CL-2024-0585, CL-2024-0586, and CL-2024-0587

2023.3 Thus, the circuit court had no jurisdiction under § 41-22-20 to

enter an injunction to prevent the AMCC from proceeding with its

licensing process. In the absence of subject-matter jurisdiction, the

injunctions entered by the circuit court are void to the extent that they

purport to enjoin the AMCC from taking actions in furtherance of the

dispensary and integrated-facility licenses awarded in December 2023. 4

A void judgment will not support an appeal. See Miller v. Riley, 37 So.

3d 768, 772 (Ala. 2009). An appellate court must dismiss an attempted

appeal from a void judgment. Hunt Transition & Inaugural Fund, Inc. v.

Grenier, 782 So. 2d 270, 274 (Ala. 2000). We therefore dismiss these

appeals, albeit with instructions to the circuit court to dismiss the

petitions for judicial review filed against the AMCC and to vacate the

portions of the injunctions purporting to enjoin and restrain the AMCC

from taking actions in furtherance of the dispensary and integrated-

3Having concluded that the right to appeal never accrued, we do not

address whether the appeals were timely or properly filed.

4We do not address the validity of the injunctions to the extent that

they enjoin other parties, including the individual members of the AMCC, from acting on the license awards. Those parties are not before the court in these appeals. See Rule 3(c), Ala. R. App. P. 10 CL-2024-0582, CL-2024-0585, CL-2024-0586, and CL-2024-0587

facility-license awards made in December 2023. See Vann v. Cook, 989

So. 2d 556, 559-60 (Ala. Civ. App. 2008).

CL-2024-0582 -- APPEAL DISMISSED WITH INSTRUCTIONS.

CL-2024-0585 -- APPEAL DISMISSED WITH INSTRUCTIONS.

CL-2024-0586 -- APPEAL DISMISSED WITH INSTRUCTIONS.

CL-2024-0587 -- APPEAL DISMISSED WITH INSTRUCTIONS.

All the judges concur.