DOCUMENT 177

ELECTRONICALLY FILED
8/1/2024 5:10 PM
03-CV-2024-900524.00
CIRCUIT COURT OF
MONTGOMERY COUNTY, ALABAMA
GINA J. ISHMAN, CLERK

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

ALABAMA ALWAYS, LLC, )

)
Plaintiff, )
)
V. ) CV-2024-900524
)
ALABAMA MEDICAL )
CANNABIS COMMISSION, )
ET. AL., )
)
Defendants. )

SUSTAINABLE ALABAMA, LLC’S MOTION TO MODIFY

THE TEMPORARY RESTRAINING ORDER

This Court has maintained an injunction against the issuance of any integrated facility

licenses since they were first awarded over a year ago. Sustainable Alabama, LLC

(“Sustainable”) has been awarded an integrated facility license three times, and this Court has

enjoined the issuance of that license each time in accommodation of various arguments made

by the Plaintiff. Sustainable moves the Court to modify its July 11, 2024, Temporary Restraining

Order to allow the Commission the modifications it requests and the ability to take actions in

furtherance of the issuance of an integrated facility license to Sustainable. This equitable relief

is needed to protect the interests of all involved and those who are not, namely the public.

Without modification, the Court will virtually guarantee that the Legislature’s effort to make

medical cannabis available to the public will fail.

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A. The Commission’s Motion

With the December award, utilizing a process that the Plaintiff expressly agreed to before

this Court, Sustainable was the highest ranking and first recipient of an integrated facility license

award. The Court again prohibited the Commission from issuing that license with its January 2024

restraining order. After the Alabama Court of Civil Appeals vacated that injunction, the Court

entered virtually the same broad injunction in this case.

Prior to doing so, the Court shed light on its main concern: that in limited license categories

the denied applicants would have no meaningful review of the Commission’s adverse licensing

decision if the limited licenses were issued. In its July 2 hearing, the Court clearly indicated that

it was inclined to lift or modify any restraining order to require the Plaintiff and others to engage

the Commission’s investigative hearing process if the Court was satisfied that the Commission

would not issue licenses before that process was completed. About an hour before the Court

entered its restraining order, the Commission voted to do just that. The Commission’s imposition

of a stay provides the assurance the Court said it needed that the Commission would not issue

licenses. Sustainable therefore joins in the Commission’s motion to modify the current restraining

order to allow the investigative hearing process to begin.

B. Sustainable’s Additional Modification.

Sustainable also moves the Court to further modify the restraining order to allow the

Commission to take all actions needed in furtherance of the issuance of Sustainable’s license.

Sustainable requests this equitable relief to protect the interests of the public, existing licensees in

other categories, and all applicants in the integrated category, (including the Plaintiff itself), and

to sustain the stated goals of the Legislature in passing the Hall Compassion Act. The continued

maintenance of comprehensive injunctive relief that prohibits the issuance of at least one integrated
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license jeopardizes the entire program and harms everyone. Respectfully, the Court should utilize

its equitable power and discretion to prevent that unequitable result.

The Court has full discretion to fashion any injunctive relief to obtain an equitable result.

Classroomdirect.com, LLC v. Draphix, LLC, 992 So. 2d 692, 708 (Ala. 2009) (“This Court

entrusts the fashioning of injunctive relief to the discretion of this state's trial courts.”). “A court

should ‘balance the equities’ in deciding whether to grant an injunction and may specifically

consider the ‘convenience’ of the requested relief to both the plaintiff and defendant.” Alabama

Power Co. v. Drummond, 559 So. 2d 158, 162 (Ala. 1990) (upholding the denial of an injunction

requested by Alabama Power that would have unfairly injured the defendant as compared to the

benefit provided to Alabama Power). The Court may “’consider and weigh the relative

convenience and inconvenience and the comparative injuries to the parties and to the public which

would result from the granting or refusal of the injunction sought.’” West Town Plaza Associates,

Ltd. V. Wal-Mart Stores, Inc., 619 So. 2d 1290 (1993); (quoting 42 AmJur. 2d Injunctions, § 56 at

799 (1969)).

In Classroomdirect.com, the plaintiff was an educational materials supplier who claimed

that the defendant, a competitor, violated the Lanham Act. After successfully obtaining an

injunction, the plaintiff appealed to argue that the Circuit Court “tailored its injunction too

narrowly to afford Classroom Direct the more sweeping relief” it argued was necessary to prevent

unfair competition under the Lanham Act. The Alabama Supreme Court affirmed, emphasizing

“that the trial court tailored a remedy here by balancing the equities and by considering the

potential harm to both companies and the public interest.” 992 So. 2d at 707. The Court expressly

considered the potential harm to non-parties, such as the defendant’s creditors, that could result

from the sweeping, broad relief sought by the plaintiff.

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The Alabama Supreme Court also reinforced its previous application of the comparative

injury doctrine in fashioning injunctive relief. Classroomdirect.com, 922 So. 2d at 708 (citing

Saunders v. Florence Enameling Co., 540 So. 2d 651, 655 (Ala. 1988); Daniels v Chapuis, 344

So. 2d 500 (1977)). Quoting those cases, the Supreme Court again said:

“ ‘The “comparative injury doctrine” has been generally recognized in American

jurisprudence and is but a species of the balancing of the equities principle. Thus, we adopt
this doctrine for application in appropriate cases as it is set forth in 42 Am.Jur.2d,
Injunctions, § 56, pp. 798, 799. (See also Restatement, Torts, § 941):

“ ‘ “Injunctions are never granted when they are against

good conscience, or productive of hardship, oppression, injustice, or
public or private mischief, and it may be said to be the duty of the
court whose jurisdiction is invoked to secure injunctive relief, when
considering the application, to consider and weigh the relative
convenience and inconvenience and the comparative injuries to the
parties and to the public which would result from the granting or
refusal of the injunction sought.” ’

Classroomdirect.com, 922 So. 2d at 708.

The Court’s current restraining order does not weigh the comparative injuries to the parties

or to the public. It completely bars the Commission from taking any action in furtherance of the

issuance of any integrated license, creating a dead stand-still that has been in place now for over a

year. The restraining order imposes inequitable hardship and financial burden on Sustainable who,

awarded a license three separate times, continues to burn through cash to sustain base operations,

employees, dispensary locations, and its farm. When the injunction was entered in January,

Sustainable was only days away from inspection. To sustain its status, Sustainable must continue

to pour money into operations. The only other option is to quit, and the continued imposition of

the Court’s sweeping injunction now puts that on the table.

That is, the top-ranked applicant in the integrated category, led by some of Alabama’s most

influential physicians, farmers, pharmacists, developers and citizens, who no other applicant can
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legitimately question as suitable for a license, now faces a mounting decision of whether

maintaining the effort to obtain the license is worth it. At some point the potential of profits will

never overcome the mounting losses this legal quagmire has created.

If the Court does not provide more equitable relief through some type of modification of

the restraining order, it will virtually guarantee that the qualified awarded businesses make a

business decision to walk away. The Court would then be essentially telling all involved that it

will be up to the Legislature to modify or remove the licensing caps at some point next year – that

the Court itself will take no action that might allow a license to issue. The Court will be

announcing that a new or modified law is needed, which could not as a practical matter result in

licenses being issued for at least another year. And that, without question, would create the worst

model for a medical cannabis program that can be used. Evidence abounds from other states that

have instituted medical cannabis programs to show that a limited license state is the most effective

way to build a sustainable industry. The Legislature researched licensing limits by studying

successful medical cannabis programs like those in Arkansas, Florida, Missouri and Louisiana. 1

Conversely, the entire nation is aware of the disaster unlimited licenses has caused in Oklahoma

and Mississippi.

Without some modification of the restraining order, the Legislature too will likely only

assume there is no point in moving forward with the effort. By application of a restraining order,

the Plaintiff (and others) had an entire legislative session to propose new bills, lobby legislators,

1
The courts in the states referenced above did not restrain the new cannabis programs because of lawsuits. No year-
long injunctions issued. Alabama Always investors know this all too well. They attempted to have a Florida Court
enjoin the issuance of licenses when they applied in Florida and were denied a license. Alabama Always investors
made nearly identical arguments in the litigation in Florida over the 5 initial licenses the law in Florida allowed.
Members of Alabama Always were eventually successful in receiving a license as a result of the litigation. That
result is possible in Alabama as well. Furthermore, every state who instituted a competitive licensing process has
seen litigation. Every state that allowed the program to move forward has seen licenses grow as the market matures.
Alabama could be a similar success story. The question is, does this Court want a medical cannabis program for
Alabama citizens with litigation or does this Court want litigation with no medical cannabis program.
 DOCUMENT 177

utilize public relations, and generally try to obtain some legislative fix to the problems it created

and now bemoans. All to no avail. The net effect, as of the close of the session, was discussion

of repealing the law. Like Sustainable, the Legislature, having authorized the expense of millions

of dollars thus far to establish a program that now only grows lawsuits, may decide the juice isn’t

worth the squeeze. There is undoubtedly a fast-approaching breaking point that is created by the

current injunction.

The temporary restraining order gives unbalanced weight to the interests of the Plaintiff.

It halts the process entirely while the Plaintiff pursues ever-expanding arguments. First, it was

application size limits, then scoring methods, then open-meetings law questions, then futility, then

lack of scoring, and now the argument that an administrative appeal process must have been in

place and available preceding any award of a license by the Commission (which first occurred in

June 2023). Wash, rinse, repeat. And there is the fundamental problem of immunity that merely

naming the Commissioners does not resolve, which is one of several issues before the Court of

Civil Appeals in countless appeals and writs. “If it’s not a mess, it’ll do ‘til a mess gets here” to

quote a Cormac McCarthy novel. Litigation will always exist. That has been made clear in so

many states previously. It is the sweeping injunctive relief that enables the Plaintiff to continually

poison the well publicly in its crusade against the Commission, its members and its staff. In doing

so, the net effect is to erode both the public and Legislature’s confidence in the Commission and,

by extension, any applicant such as Sustainable that was awarded a license.

The Court can immediately remedy these problems and provide some stability to the

program itself by allowing the Commission the ability to issue a license to Sustainable. The

Legislature’s goal in passing the Hall Act should not be forgotten:

(3) There are residents in Alabama suffering from a number of medical conditions
whose symptoms could be alleviated by the administration of medical cannabis
 DOCUMENT 177

products if used in a controlled setting under the supervision of a physician licensed

in this state. . .

(5) Establishing a program providing for the administration of cannabis derivatives

for medical use in this state will not only benefit patients by providing relief for
pain and other debilitating symptoms, but also provide opportunities for patients
with these debilitating conditions to function and have a better quality of life[.]

Ala. Code §20-2A-2. It is time for this Court to make sure the program gets started and ensure it

does not become a casualty of litigation. Allowing the Commission to issue a license to Sustainable

will not impact Plaintiff’s claims or ability to pursue them, disturb the Commission’s current

appeals, or alter its efforts to require Plaintiff and others to engage the investigative hearing

process. Plaintiff has consistently said that it has the public’s interest in mind through the various

iterations of its lawsuits. There can be no better way to validate such position than to support

Sustainable’s proposed modification to the restraining order.

s/ Joel Connally (CON038)

Attorney for Sustainable Alabama, LLC

OF COUNSEL:
STRENGTH & CONNALLY, LLC
7020 Fain Park Dr., Ste. 3
Montgomery, AL 36117
334-387-2121
jc@strengthconnally.com
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CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the foregoing on all counsel of record

electronically via AlaCourt on this the 1st day of August, 2024.

s/ Joel Connally (CON038)