On Wednesday night, Bernie Barriere, a co-founder of Vermont Green Grow LLC, issued a statement on their Facebook page saying that their application for the license to operate the state’s next medical marijuana page had been officially denied by the Department of Public Safety.

However, in an exclusive interview, the Bennington-based group has filed a civil lawsuit against the State of Vermont where they are disputing the grounds for their application’s denial.

Via a press release sent Thursday morning, the founders of Vermont Green Grow said that they had been informed in early August that their application would not be considered and had been disqualified due to lack of missing materials.

According to that press release, the group were told by DPS that they had had the application disqualified because they had failed to meet basic standards of the application, including providing signatures, articles of incorporation, zoning information, and more:

The de minimis deficiencies cited by Ms. Wells included a claim the Application was not signed by Bernard Barriere on behalf of Vermont Green Grow – which was not true; a claim Vermont Green Grow did not provide Articles of Incorporation and By-Laws for the company – which would not legally be possible as Vermont Green Grow is a Limited Liability Company and therefore does not have Articles of Incorporation or By-Laws. The submitted Application did in fact have copies of a print-out from the Vermont Secretary of State’s Office confirming the existence and recognition in Vermont of Vermont Green Grow; a claim Vermont Green Grow did not provide evidence that the proposed dispensary would be legally situated in the Town of Bennington – Documentation, photographs, maps and satellite images, along with a letter from the Bennington Town Manager were in fact submitted; a claim Vermont Green Grow did not submit financial data to document specified expenses, including an acknowledgment that Vermont Green Grow would pay for the costs associated with registry identification cards – full financial statements were included in the Application, including a very specific line item for the requisite costs for registry identification cards; a claim that Vermont Green Grow did not provide a list of “all individuals or entities proposed that will have direct or indirect entitlements to the land or building(s) – Every individual associated with Vermont Green Grow were fully revealed as part of the Application submission.

When reached for comment, an official with the Vermont Marijuana Registry said that due to the ongoing nature of the situation, “we do not have an official comment at this time.”

In an exclusive interview with Heady Vermont, Jack Tomarchio, Esq., General Counsel for Vermont Green Grow, said that following the notification, the group reached out to the Department of Public Safety to schedule a meeting. Tomarchio and the press release describe the meeting as “tense” and he says that the heart of his complaint is that DPS justifications were ‘de minimis’ and minor issues with wording, not the substance of the application itself.

Tomarchio, a Vermont Law School alumnus and former Army JAG Officer who is a part of the Vermont Green Grow team, says that as a former federal government official, he thought the meeting was to address a minor issue – a box left unchecked or signature line left unsigned – but said he was surprised by what he described as an adversarial tone.

According to Vermont Green Grow, the issues that DPS raised in that meeting and had apparently used to disqualify their application were based on wording and style, rather than a lack of substance or incomplete information.

One example was the section addressing the location, saying that his group had provided maps and location details of their facilities, but hadn’t used the exact phrase, “the building is at least 1000 feet from a childcare facility’ — that the officials were looking for ways to disqualify the Vermont Green Grow application.

Between the adversarial tone and the minor nature of the terms used to disqualify their $2500 application, Tomarchio says that the Vermont Green Grow group feel that their application wasn’t reviewed in an impartial way.

“I suspect they reviewed it (the application), but I suspect they reviewed it with an eye towards disqualification. I don’t know if they reviewed the documents in an impartial and fair manner. Based on what I noticed from their behavior and demeanor during our meeting, I would be surprised if they did. When we had first asked for a meeting, they denied it.”

After that meeting made it clear their application was being disqualified, Tomarchio officially filed a **civil suit against the State of Vermont Department of Public Safety on September 8 on behalf of Vermont Green Grow. The purpose of that emergency ex parte injunction was to halt the ongoing application process for the fifth dispensary license until their complaints and civil suit were addressed.

“We asked for an ex parte hearing, which would be a hearing before the judge, not necessarily with the DPS being there. An emergency hearing because we thought the award was going to be made on September 11.”

The complaint was heard by Judge Mary Miles Teachout, presiding Judge of Washington County Superior Court Civil Division, who issued a same-day ruling denying the emergency injunction stating that, “the facts do not show that Plaintiff would have received the sole available license if its application had not been denied.”

While the injunction was denied and the state’s fifth medical marijuana license will be awarded — the recipient is being notified today, Thursday, 9/21 — the State does still have to respond to the complaint by September 28, twenty days after it was filed.

Tomarchio says he expects to get a response from DPS and said that his group will “see where that goes”. When asked if his group had spoken to other applicants about joining the suit, Tomarchio said,

“We haven’t discussed it with any other applicants and it’s not something we’re considering at this time.

Heady Vermont will update this story as it develops.

Full Audio Interview with Jack Tomarchio, Esq., General Counsel, Vermont Green Grow, LLC:

** Full Text of Docket No. 515-9-17 Wncv; Vermont Green Grow, LLC vs. State of Vermont Department of Public Safety