A southwest Missouri family that didn’t win one of the state’s 60 medical cannabis cultivation licenses awarded in December 2019 still does not have the right to farm, the Missouri Court of Appeals for the Western District ruled May 3.

Paul Callicoat and his family members, who’d hoped to turn their 70-acre Sarcoxie property into a cannabis cultivation site, filed a lawsuit against the Missouri Department of Health and Senior Services (DHSS) shortly after their application was denied in late 2019.

With more than 500 applications submitted for those 60 licenses, the family’s lawyer argued the state should allow the market to decide which cultivation businesses survive and criticized the “geographical bonuses” that favored applicants from ZIP codes with high unemployment rates.

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Roughly a year later, Cole County Circuit Judge Patricia Joyce rejected those arguments that the state’s limit on cultivation licenses violated the family’s “right to farm” under the state Constitution, upholding Missouri’s medical cannabis rules that were adopted after voters approved an amendment in the November 2018 election.

On Tuesday, Missouri Court of Appeals for the Western District Judge Alok Ahuja wrote an opinion that also dismissed the Callicoats’ (the appellants) case. All 11 judges in the judicial body concurred.

“The [DHSS’s] regulations setting limits on the number of licensed medical marijuana-related facilities are consistent with, and expressly authorized by, the plain language of Article XIV,” Ahuja wrote, referencing the voter-approved medical cannabis amendment.

“Appellants have failed to demonstrate that those regulations are arbitrary or capricious, or that they lack a rational relationship to the important governmental interests of ensuring reasonable patient access to medical marijuana, preventing criminal trafficking in marijuana for nonmedical uses, and ensuring the health and safety of Missourians,” Ahuja added in his conclusion. “The Right to Farm amendment found in Article I, [Section] 35 of the Missouri Constitution does not invalidate the Department’s otherwise lawful rules. The judgment of the circuit court is affirmed.”

Adopted by voters in 2014, Article I, Section 35—also known as the right to farm amendment—of the Missouri Constitution protects the right to engage in lawful farming and ranching practices.

But in December 2017, the Missouri Supreme Court ruled that Article I, Section 35 does not protect cannabis cultivation while considering an appeal from Mark Shanklin, who was convicted of producing and possessing more than 5 grams of cannabis with the intent to distribute.

“The prefatory sentence [in Article I, Section 35] recognizes ‘agriculture which provides food, energy, health benefits and security is the foundation and stabilizing force of Missouri’s economy,’” then-Chief Justice Zel Fischer wrote in that unanimous opinion. “The prefatory sentence does not provide a constitutional right to engage in unregulated ‘agriculture.’ It simply provides a purpose and context for the amendment.”

The Supreme Court noted that cannabis cultivation, possessing and distribution had been illegal in Missouri “for decades” before the right to farm amendment was adopted.

The Cole County Circuit Court and Missouri Court of Appeals for the Western District judges referenced that precedent in their rulings on the Callicoat family lawsuit.

“Even if the Right to Farm amendment was applicable, the [Cole County Circuit] court held that the explicit authority given to the [DHSS] to limit the number of medical marijuana-related licenses, in the later-enacted Article XIV, would prevail over the Right to Farm amendment,” Ahuja wrote in Tuesday’s ruling.

The appeals court judges also affirmed the circuit court’s ruling that the DHSS’s license limitations were related to the purposes of avoiding diversion of medical cannabis to the illicit market and ensuring patient safety.

DHSS officials testified that even at the constitutionally approved minimum number of cultivation licenses, the capacity for legal cannabis production will “greatly exceed the demand for medical marijuana” based on licensed qualified patients. And a production excess of legally produced cannabis could be diverted to the illicit market.

In addition, the appeals court upheld the circuit court’s finding that limiting the number of licenses available allows for the proper and active regulation by DHSS officials to ensure patient safety through effective governmental oversight.

Joyce wrote in her ruling that “the department’s regulations fall squarely within its constitutional delegation of authority.”

But the appellants argued that that determination was erroneous because it failed to consider other provisions of Article XIV, which they claimed limit the department’s ability to establish license limitations. Specifically, they argued the DHSS’s license limits are unreasonably restrictive of patient access, “impose an undue burden” on qualifying patients, and “undermine the purposes” of Article XIV.

The appeals court judges didn’t see it that way.

“By seizing on a single phrase, from a single sentence, of the circuit court’s thirty-seven-page judgment, appellants’ argument relies on a distorted caricature of the court’s decision,” Ahuja wrote. “The circuit court plainly recognized that, under Article XIV, the Department of Health and Senior Services is required to consider a number of factors before limiting the total number of medical marijuana facility licenses, including patient access, patient safety, and the risk of diversion of legally produced marijuana into the black market.”