SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-0783- 21 A- 0943

- 21 A- 1326

- 21 IN THE MATTER OF THE DENIAL OF THE DISPENSARY PERMIT ENDORSEMENT FOR AP NJ HEALTH, LLC, TO OPERATE AN ALTERNATIVE TREATMENT CENTER PURSUANT TO THE 2019 REQUEST FOR APPLICATION PROCESS.

______________________________ IN THE MATTER OF THE DENIAL OF DISPENSARY PERMIT ENDORSEMENT FOR GREEN LEAF MEDICAL OF NEW JERSEY, LLC, TO OPERATE AN ALTERNATIVE TREATMENT CENTER PURSUANT TO THE 2019 REQUEST FOR APPLICATION PROCESS.

______________________________ IN THE MATTER OF THE DENIAL OF DISPENSARY PERMIT ENDORSEMENT FOR NJ HOLISTIC HEALTH, LLC, TO OPERATE AN NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court. " Although it is posted on the internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 0783

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ALTERNATIVE TREATMENT CENTER PURSUANT TO THE 2019 REQUEST FOR APPLICATION PROCESS.

______________________________

Argued (A- 0783 -21, A- 1326 -21) and Submitted (A0943 -21) October 11, 2023

– Decided December 8, 2023 Before Judges Whipple, Mayer, an d Enright. On appeal from the New Jersey Cannabis Regulatory Commission. John W. Bartlett argued the cause for appellant AP NJ Health, LLC, in A- 0783 -21 (Murphy Orlando, LLC, attorneys; John W. Bartlett, Jason F. Orlando, and Tyler Newman, on the briefs). Law Offices of Louis N. Magazzu, LLC, attorneys for appellant Green Leaf Medical of New Jersey, LLC, in A- 0943 -21 (Louis N. Magazzu, on the brief). Joshua S. Bauchner argued the cause for appellant N J Holistic Health, LLC, in A

- 1326 -21 (Mandelbaum Barrett, PC, attorneys; Joshua S. Bauchner and Raho ol Patel, on the briefs). Maeve E. Cannon argued the cause for respondent Altus New Jersey, LLC, in A- 0783 -21 (Stevens & Lee, PC, attorneys; Maeve E. Cannon, of counsel and on the brief; Michael A. Cedrone, on the brief). Kathleen McGee (Lowenstein Sandler, LLP) of the New York bar, admitted pro hac vice, argued the cau se for respondent Holistic NJ I, LLC, in A- 0783 -21 (Lowenstein Sandler, LLP, and Kathleen McGee,3 A- 0783

- 21 attorneys; Christopher S. Porrino and Lauren E. VanDriesen, of counsel and on the brief). Jacqueline R. D'Alessandro, Deputy Attorney General , argued the cause for respondent New Jersey Cannabis Regulatory Commission (Matthew J. Platkin, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Jacqueline R. D'Alessandro, on the briefs).
PER CURIAM We consider three back- to -back appeals from Final Agency Decisions (F AD s) denying permit endorsements that each arose from the Request for Applications (RFA) issued by the Department of Heal th (DOH) in July 2019

. The focus of the RFA was to select entities to oper ate Alternative Treatment Centers (ATCs): dispensaries, cultivation sites, a nd vertically integrated (VI) operations to grow, process, and sell marijuana as part of the State's Medicinal Cannabis Program (MCP). The three appellants are AP NJ Health, LLC., (AP) ; NJ Holistic Health, LLC ., ( Holistic) ; and Green Leaf Medical of New Jersey,
LLC (Green Leaf). Each of these appellants argues the selection process resulted in their endorsements being denied. 1 We affirm.

1 Because these endorsements are the functional equ ivalent of permits, the terms were used interchangeably in the RFA.4 A- 0783

- 21 I. The Compassionate Use of Medical Cannabis Act, N.J. S.A. 24:6I-1 to - 56 , (the Act) provides qualifying patients and their ca regivers with protection from arrest, prosecution, and other penalties for posses sing cannabis for medical purposes. N.J.S.A. 24: 6I -2(e). 2 The Act also protects those authorized to produce, process, and dispense cannabis pursuant to the statute's terms. N.J.S.A. 24:6I -7. Initially, the Act charged the DOH with implementin g New Jersey's MCP. Nat. Med., Inc. v. N.J. Dep't of Health & Senior Se rvs., 428 N.J. Super. 259, 262 (App. Div. 2012). This included creating a reg istry of qualified patients and issuing permits for the operation of ATCs. N.J.S.A. 24:6I -4; N.J.S.A. 24:6I-7.1; Nat. Med., 428 N.J. Super. at 262. The Cannabis Re gulatory Commission (CRC) has since assumed the management of the MCP. N.J.S.A. 24:6I-24(a). N.J.S.A. 24:6I- 7( h)(3) requires the CRC "seek to ensure the availabi lity of a sufficient number of [ATCs] throughout the Sta te, pursuant to need." The CRC must issue permits for "at least two [ATCs] eac h in the northern, central, and southern regions of the State." Ibid. These first six ATCs, which were all

2 All citations to the Act are to its current amended form, L. 2021, c. 252.5 A- 0783

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VI, 3 as that was the only permit type then provided for by the Act, were chosen in 2011. Beyond this minimum, "the [CRC] has discr etion to determine how many ATCs are needed to meet the demand for medicin al marijuana and whether the issuance of a permit to a particular applicant would be consistent with the purposes of the Act." Nat. Med., 428 N.J. Super. a t 263. The CRC has promulgated regulations, N.J.A.C. 17:30A-1.1 to -13 .11, which provide the framework through which it issues RFAs for the oper ation of ATCs. 4 In January 2018, Governor Philip D. Murphy issued Executive Order 6 to expand access to medical marijuana. To ensure that the growing population of qualified patients would be adequately served by th e MCP, DOH issued a second RFA to select six more entities for VI ATC permits and chose six winners. Several unsuccessful applicants appealed, asserting issues with the RFA, scoring process, and choice of ATC operators. In a previous set of appeals, we concluded the scores appellants' applications received raised co ncerns about DOH's selection process. In re Application for Med. Marijuana Alt. Treatment

3 VI permit holders are expected to cultivate, manu facture, and dispense cannabis as part of the MCP. See N.J.A.C. 17:30A-7 .1(e).

4 The regulations were initially found at N.J.A.C. 8: 64-1.1 to -13.11 but were amended and recodified as of May 2019. See 50 N.J.R. 1398(a) (June 18, 2018); 51 N.J.R. 732(a) (May 20, 2019).6 A- 0783

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Ctr. for Pangaea Health and Wellness, LLC, 465 N.J. Super. 343 (App. Div. 2020). We found it problematic that those appellants received a wide variety of

scores

— ranging from "zero" to "perfect"

— from different reviewers on some of the same application criteria. We also found the lack of explanation from DOH for these anomalous scores rendered the agency's re jection of the applications arbitrary and capricious and remanded the matter fo r further action. On remand, DOH's successor, the CRC, reviewed the a pplication process, changed no scores awarded to any applicant, and iss ued new final agency decisions again rejecting appellants' applications. In re Cannabis Regul. Commission's Disqualification of Bloom Meds. of

PA, Nos. A- 0569

- 21 (App. Div. M ay 4, 2023 ), 5 we affirm ed the CRC's decisions denying permits to all appellants because the agency's procedures on reman d complied with our mandate, concluding it provided sufficient explanat ions and analysis.

5 In re Cannabis Regul. Commission's Disqualification of Bloom Meds. of

PA involved the eight back- to -back appeals from the Panga ea remand including appellants Bloom Medicinals of PA, LLC ; Pangaea Health and Wellness, LLC ; Harvest of New Jersey, LLC; Liberty Plant Sciences, LLC ; GGB New Jersey, LLC ; and Altus New Jersey, LLC challeng ing the rejection of their applications to operate ATCs by DOH pursuant to the July 2018 RFA for a second time. Although citing an unpublished decision is generally forbidden , we do so here to provide a full understanding of the issues prese nted pursuant to Rule 1:36 -3 that permits citation to the extent required by res judicata, collateral estopp el , the single controversy doctrine or any other simila r principle of law.7 A- 0783

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Following the 2018 RFA, DOH implemented additional reforms to the MCP, including reducing fees for qualified patients and amending its regulations. 6 The Act was amended effective July 2, 2019, 7 and now provides the CRC may issue separate permits for entities to operate as medical cannabis cultivators, manufacturers, or dispensers. N.J.S.A . 24:6I-7(a)(1); N.J.A.C. 8:64- 7.1(e). There are three types of permits, but VI permits now consist of a set of one cultivation, one manufacturing, and one dispens ary permit. The new N.J.S.A. 24:6I-7.2(c), (d), and (e) set forth detai led lists of criteria the CRC now must use in evaluating applications for each type o f permit. On July 1, 2019, DOH issued a third RFA seeking app licants for the new types of permits that would soon be available: fiv e cultivation endorsements, fifteen dispensary endorsements, and four VI endors ements. This included one VI, two cultivation, and five dispensary endorsements eac h for the northern and central regions of the state, and one VI, one culti vation, and five dispensary endorsements for the southern region. Applicants c ould only apply for one

6 See 50 N.J.R. 1398(a); 51 N.J.R. 732(a) (effective May 20, 2019).

7 See L. 2019, c. 153. Because the RFA was issued one day prior to the amendments' effective date, it is governed by the p rior iteration of the Act.8 A- 0783

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cultivation endorsement and submit one application per region. However, applicants could not apply for both VI and individu al endorsements and would not be awarded more than one permit (except if awar ded the set of three associated with a VI permit). The deadline for submission of VI applications was August 22, 2019. DOH conducted a "Pre-Application Webinar" on August 2, 2019. DOH also answered questions submitted by prospective applicants in a "Frequently Asked Questions" document. DOH received 196 applications for all the types of endorsements, including forty-nine VI applications. The RFA described the application. Part A, titled "Mandatory Information," included the applicant entity's organ izational documents; evidence of good standing with the Department of th e Treasury; information about principal officers, directors, owners, and bo ard members; verification of the approval of the municipality where the ATC woul d be located; evidence of ownership or lease of the proposed site; and eviden ce of compliance with local laws. Part B consisted of the "Scored Criteria" upon whic h applicants would be judged. These criteria asked applicants to describ e their proposed operations, experience, security and quality control plans, fin ancing, and other aspects of9 A- 0783

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running an ATC. Applicants were directed to file a PDF or printed document of not more than 100 pages for each endorsement they s ought for Part B. VI applicants needed to submit three Part B documents, one for each part of the VI permit set. Once received, DOH would "review [all applications] for completeness and truthfulness" to determine "whether an applican t passes or fails a particular requirement in the mandatory section." This comple teness review reduced the number of VI applications to thirty-seven, with twe lve in the central region including AP's. If an application was found comple te, its Part B would then be "reviewed and scored by a selection committee" comp rised of nine employees from DOH, the Department of the Treasury, the Depar tment of Environmental Protection, and the Department of Labor. The nine selection committee members had diverse expertise that was pertinent to the review process. Each member was subject to the provisions of the Uniform Ethics Code and were screened for real and perceived conflicts of intere st. In September 2019, the selection committee members attended training explaining the history, development, and the then-curr ent state of the MCP, and discussing how they were to review applications. Th ey were also provided with detailed instructions for scoring each criterion an d measure. The instructions10 A- 0783

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told reviewers what to consider when evaluating app lications and when it was appropriate to give a score of zero, the maximum po ssible points, or any score in between. To complete scoring of applicants' Part B submissi ons, the CRC divided the selection committee members into three teams of three based on their expertise and assigned each team to review a specif ic group of criteria and measures for which that expertise was relevant. Fo r VI applications, each team was responsible for a maximum of 300 points, repres enting 100 points for each of the three permit endorsements making up a VI per mit. Thus, the maximum total score for VI applications was 900 points.
Team one had experience in "quality assurance, public healt h, emergency preparedness, pharmaceutical assistance, fiscal manage ment, public affairs, and the management of environmental resources." This t eam reviewed Criteria 1 through 5, which concerned applicants' "ability to meet the overall health needs of qualified patients and safety of the public"; "h istory of compliance with regulations and policies governing government-regul ated marijuana programs"; "ability and experience . . . in ensuring an adequa te supply of marijuana"; "community support and participation"; and "ability to provide appropriate research data." Team two had experience with "regulation of the cultivation ,11 A- 0783

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manufacturing and dispensing of medicinal cannabis. " These members reviewed Criterion 6, which dealt with applicants " experience in cultivating, manufacturing, or dispensing marijuana in complianc e with governmentregulated marijuana programs." For Teams one and two , an average was taken of the three reviewers' scores to create an applica nt's total score for the team's portion of the application. Team three reviewed Criterion 7, which comprised f our measures , including labor compliance, business development and min ority-owned (MBE), woman-owned (WBE), and veteran-owned (VOB) business certifications, and workforce development. Scores for these measures w ere added together to create the total score for Team three for each appl ication. Then, the scores for the three teams were added together, generating the final composite score. Once all the committee members completed their rev iew, their scores were compiled into a "master spreadsheet." The entry of the reviewers' individual measure scores was "checked at least twice and vali dated against each scorer's scoresheet[s]" to ensure against mistakes. CRC sta ff then conducted a quality control review and audit. For its statistical audit, CRC staff "conducted a thorough statistical analysis of each reviewer's scores, each team's com posite scores, and the final12 A- 0783

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composite scores," "analyzed the distribution aroun d the mean of the three teams' scores," and "searched for any outliers in t he final total scores." Only two measure scores were found to be statistical out liers, and these were "confirmed as validly and properly assigned" after staff asked the committee members who issued the scores to revisit the applic ations and explain their reasoning. The analysis revealed, although there w as "some variation between scorers on the same teams, . . . each scorer was co nsistent with the distribution of their scores across the whole pool of applicatio ns." In other words, while one reviewer on a team may have awarded lower scores th an the others, these scores were consistently lower, rather than showing great internal differences between the best and worst. On October 15, 2021, the Executive Director of the CRC sent a Recommendation Memorandum (RM) to the Board of Comm issioners of the CRC stating the selection committee's recommendatio ns for the cultivation and VI portions of the 2019 RFA. The RM discussed the importance of revisiting the level of patient need for medicinal cannabis, s ince the RFA had been issued

ove r two years previously and the number of qualified patients had risen significantly. It noted, despite increased enrollm ent, there was only "a little more than half" of the cultivation canopy required to meet market needs and13 A- 0783

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provide patients with "access to diverse products a t affordable prices." The RM also discussed the effects of the legalization of r ecreational cannabis on the MCP. It recommended the CRC award ten cultivation permits instead of the five contemplated by the RFA as written. It did no t advise raising the number of VI permit awards beyond four. The top applicant for a VI permit in the central re gion, respondent Altus New Jersey, LLC (Altus), was recommended to move fo rward with permitting after receiving a total score of 785. The highe st -scoring candidates in the northern and southern regions were also chosen. Th e RM stated the fourth VI permit should be awarded in the central region beca use that area had the greatest patient need. It explained the mathematical calcul ations used to arrive at this conclusion. On October 15, 2021, the CRC adopted a resolution approving the recommended VI applications to move forward with pe rmitting.
II

. On appeal, our capacity to review agency actions is "limited." P ub. Serv. Elec. & Gas Co. v. N.J. Dep't of Env't Prot., 101 N .J. 95, 103 (1985). An agency's "final quasi-judicial decision" should be affirmed unless there is a "'clear showing' that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Circus Liquors, Inc. v. Governing Body of14 A- 0783

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Middletown Twp., 199 N.J. 1, 9 (2009) (quoting In r e Herrmann, 192 N.J. 19,
27 -28 (2007)). The courts' "strong inclination" is t o "defer to agency action that is consistent with the legislative grant of power." Lower Main St. Assocs. v. N.J. Hous. & Mortg. Fin. Agency, 114 N.J. 226, 236 (1989). With specific regard to the administration of the M CP, in Institute for Health Research , No. A- 000069

- 11 (App. Div. Aug

. 22, 2013) (slip op. at 8) ,

we noted the Legislature granted DOH "considerable di scretion to act in furtherance of the goals of the Act." Therefore, t he presumption was "enhanced" that DOH's administration of the 2011 RFA process w as reasonable. Institute for Health Research, slip op. at 7. In Nat. Med . Inc. v. N.J. Dep' t. of Health & Senior Servs., we said DOH had discretion to decide "whether the iss uance of a permit to a particular applicant would be consisten t with the purposes of the Act" and to determine "the kind and amount of infor mation necessary to process permit applications." 428 N.J. Super. 259, 263 (App. Div. 2012).
AP Earning 733.33 points, AP came in fifth place in th e central region, after Altus, Holistic with 776.67 points, CHM Consulting LLC with 746.67 points, and Mission New Jersey with 738 points. On October 1 5, 2021, the CRC issued

a FAD informing AP its application was denied.15 A- 0783

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AP submitted a grievance to the CRC, asking why the agency increased the number of cultivation permits but not the numbe r of VI permits, what "authorization and/or process was used to make [tha t] decision, " and whether and when applicants' scorecards would be made avail able. The CRC responded to AP by referring to the RM and to the agency's we bsite, where reviewers' scorecards for every application were made public. In addition, the CRC issued a memorandum containing "General Responses to Debrief Questions" submitted by applic ants. This memorandum explained the selection committee was divided into teams to take advantage of members' differing expertise and "so that no one se lection committee reviewer had control over an application's overall score." Because reviewers worked independently and did not discuss their scores, the re was some variation among scores given to applicants by different reviewers o n the same measures. The memorandum discussed the quality control review and audit CRC staff performed to ensure that any such variance "was the result of an intentional, reasonable review of an application and not the res ult of a misunderstanding of the scoring instructions, or an inconsistent approa ch by a reviewer." Disagreement among reviewers on the relative merits on a response "[did] not mean the scores are inherently wrong or improperly delivered."16 A- 0783

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The memorandum also provided responses to specific issues raised by applicants. Graphs showed that all three Team one reviewers awarded scores along a "normal" curve, demonstrating that they "sc ored in a statistically consistent manner." The memorandum addressed questions concerning Revie wer 3's scores on Criterion 7 Measure 3, which asked applicants to pr ovide copies of any MBE, WBE, or VOB certifications they had been issued by the Department of the Treasury, Division of Revenue. Applicants that cou ld provide such certification(s) would receive the full thirty poin ts allotted for this measure. However, an applicant could receive partial credit by providing evidence that it would otherwise meet the MBE, WBE, or VOB certifica tion requirements "once generating revenue." Reviewer 3 "was instructed to use their expertise to determine appropriate partial credit, based on the strength of the evidence provided in the application and their knowledge of the statutes and rules governing the . . . certification process." The "G eneral Response" memorandum explained an applicant was given less credit if it, for example: stated it possessed or would apply for certifications from entitie s other than the Division of Revenue; submitted information in Part B that wa s contradictory to its ownership information in Part A or inconsistent with certification requirements;17 A- 0783

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submitted certifications for a related entity and n ot the applicant; presented a certification as its own that was actually register ed to a different enti ty ; stated that it did not meet certification requirements but would otherwise attempt to promote inclusion and diversity going forward; or d id not submit sufficient information to determine whether it could qualify f or a certification in the future. The memo randum further explained Reviewer 3's scores compli ed with the scoring instructions and were "consistent across ap plicants" and "reflective of the reviewer utilizing their unique expertise to ev aluate the information submitted by applicants." This appeal followed.
AP argues the CRC acted arbitrarily, capriciously, an d unreasonably in denying its application to operate a VI ATC. It co ntends the agency's decision is not entitled to deference, asserting that member s of Team one and Team two did not have sufficient relevant expertise to score all the measures they were assigned. Such arguments harken to our opinion in Pangaea, regarding the 2018 RFA but are not persuasive here. There, for the earlier RFA, DOH assembled a five-member selection committee including members f rom three agencies. Pangaea, 465 N.J. Super. at 373 -74. However, despite the members' differing expertise, all were assigned to score all the crite ria. I bid. This meant that, for18 A- 0783

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example, "the Agriculture member was called upon to assess applicants' financial capacities, while the Treasury member was required to appraise applicants' horticultural capabilities." Id. at 374. As a result, and also because there was no way to know which of the committee mem bers had which backgrounds, the court found it was "unclear" what level of deference to apply to the RFA scores. Ibid. On remand, the CRC assembled a Quality Control Comm ittee (QCC) to consider all the applications submitted for the 201 8 RFA and the scores the evaluation committee awarded "to determine whether each score an applicant received was 'reasonably justified' and whether the evaluation committee complied with the RFA's scoring guidelines." In re Cannabis Regul. Comm'n's Disqualification of Bloom Meds. of PA, No. A- 0569 -21 (App. Div. May 4, 2023) (slip op. at 18 ). The QCC provided possible explanations for scor es of zero given on several of the contested measures. I d. at 16 -21. The QCC also performed a statistical analysis of each reviewer's scores and found that there was internal consistency therein. Id. at 21 . Ultimately, the CRC adopted the QCC's recommendation that none of the applicants' s cores be changed. Id. at 22. The appellants again appealed the rejection of their applications. Ibid.19 A- 0783

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In Bloom , we said the prior panel in Pangaea had not ordered the agency to alter scores "wherever there was a high relative error" and had instead "only asked that the scores be explained." Id. at 41 . It said that "[t]he major question on remand was whether the scores could be harmonize d with the review instructions and [the] appellants' responses, not w hether each reviewer's score distribution fit the parameters of a particular sta tistical model." Id. at 43. Indeed, the court explicitly rejected the appellant s' argument that a certain evaluation committee member's scores should be remo ved as "outliers" because they were consistently lower than those awarded by other members, finding that "this would have resulted in an uneven competitive playing field." Id. at 41

. We concluded that, ultimately, the CRC's new FADs r ejecting the appellants' applications were based on "sufficient credible evidence in the record, including adequately detailed explanations" for the scores. Id. at 43. Here, compared to Pangaea, there is both more evide nce in the record concerning the committee members' knowledge and mor e assurance that this knowledge was properly applied. This time, the CRC provided detailed information about the expertise of each member of t he selection committee. The agency divided up the work of scoring based on that expertise, ensuring each criterion was evaluated only by those with relevant knowledge and experience.20 A- 0783

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Contrary to AP's assertions, the record indicates T eam one 's members were all suited to review applicants' ability to meet the ne eds of the MCP, history of compliance with government regulations, ability to provide research data, and participation in the community, because each member had experience in areas such as quality assurance, pharmaceuticals, finance , and public affairs. Team

two 's members all had expertise with regulating medici nal cannabis and evaluated the criterion asking applicants about the ir experience in cultivating, manufacturing, and/or dispensing cannabis in compli ance with regulated programs. Team three's work was split up even more specifi cally than the other

teams. AP argues the CRC tolerated too much relative erro r among scores given by different review committee members. Relative er ror is a statistical concept that, here, measures the difference between scores given on the same measure by different reviewers. A low relative error would mean that all reviewers gave the same or very similar scores, while 100% relativ e error would mean that one reviewer gave a perfect score and another gave a ze ro. Pangaea, 465 N.J. Super.

at 364. Here, AP complains Reviewer 2 gave lower sco res than the other two members of Team one . AP avers that it performed its own "[m]athematical analysis" of this difference, which showed "an uppe r-bound relative error of21 A- 0783

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17.4% for [itself], and a lower-bound relative erro r of 18.3% for Altus." AP claims this means its score "could have been as hig h as 860.93" while Altus's score "could have been as low as 641.35," and argue s "one can have no confidence whatsoever" in the scores actually given

. 8 AP contends the CRC failed to adequately explain the allege d anomaly of Reviewer 2's scores and instead presented a "prebut tal" to any eventual arguments about the unreliability of the results. AP argu es the CRC "failed to meaningfully address" the Pangaea court's concerns when developing its review process, thereby denying AP due process. It assert s the outcome of the RFA was "determined by the vagaries of the differences between the reviewers, and not by the solid concurrence of well trained and mo nitored individuals," and that therefore it "cannot reasonably be assumed" the "AT C applicants that were actually best qualified" were selected. AP relies heavily on Pangaea, 465 N.J. Super. at 3 64-71, asserting the scoring process for the 2019 RFA had the same probl ems criticized in that case and that the CRC's justifications for the results h ere have "previously been rejected by this very court." We disagree.

8 Neither AP's brief nor its appendices explains how it calculated these values.22 A- 0783

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The record here is far different from that in Pang aea. First, there are no anomalous zeroes to be found on the score sheets, a nd no instances where some reviewers gave zeroes while others gave high or per fect scores, thus creating a question whether one or the other group misundersto od the measure or the scoring instructions. Second, the level of alleged relative error AP complains of is not similar to that in Pangaea; the differenc es among the scores given by reviewers on the same teams are not as wide. Unlik e the appellants in Pangaea , AP does not raise an issue with its scores on any p articular measures other than Criterion 7 Measure 3, discussed below. There are no specific instances of high relative error. Third, and perhaps most importantly, the CRC did mu ch more here than check the selection committee's mathematics and the accuracy of the data entry in its score spreadsheets. CRC staff "search[ed] f or odd or outlying scores that could unfairly skew the results," i d. at 380

- 81 ; questioned the reviewers that gave the only two scores flagged as potential outli ers about their reasoning; checked the scores given against the RFA and scorin g instructions to ensure reviewers complied with both; and performed a stati stical analysis. Thus, the agency took multiple actions to improve its scoring process for the 2019 RFA compared to the lacking procedures this court criti cized in Pangaea, and the23 A- 0783

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scores given in this case appear more defensible on their face than the seemingly inexplicable zeroes in the prior instance. We conc lude the CRC provided sufficient explanations for the scores given in its RM and subsequent memo in response to applicant questions and grievances in t he spirit of Pangaea's guidance, and that, therefore, confidence in its pe rmittee selections is proper. AP argues Criterion 7 Measure 3 was weighted too h eavily when calculating VI permit applicants' scores. The meas ure was worth a maximum of thirty points for cultivation and dispensary applic ants, but because VI applicants were expected to submit three Part B sections, it w as worth up to ninety for them. AP states that, if scores for this measure w ere not tripled and the maximum possible score for VI applicants was 840 in stead of 900, it would have ranked third in the central region and still would not have been chosen for a permit. AP argues removing Criterion 7 Measure 3 f rom the scoring entirely would result in it moving up to second place and th e measure created a "structural bias" against new entities that could n ot yet provide the financial information necessary to qualify for a WBE, MBE, or VOB certification.
We reject the argument Criterion 7 Measure 3 was given undue wei ght. Based on our review, the weighting of Criterion 7 M easure 3 was not arbitrary, capricious, or unreasonable.24 A- 0783

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To qualify for a certification from the Division of Revenue, a business must be "at least fifty- one percent owned, operated, and controlled by persons who are Black, Hispanic, Asian American, American I ndian, or Alaskan [N]ative" for MBE status or by "persons who are wom en" for WBE status. N.J.A.C. 17:46-1.3(b)-(c). 9 For either type of certification, a business must al so be "independently owned, operated, and controlled" and be able to "demonstrate the ability to be considered a 'going concern,' as in the business has sufficient resources needed to continue operating indefinitely by normal industry standards." N.J.A.C. 17:46-1.3(d). "[O]wnership a nd control by minorities or women shall be real, substantial, and continuing, d emonstrating authority over the affairs of the business, and shall go beyond th e pro forma ownership of the business as reflected in its ownership documents." Ibid. In the scoring instructions for Criterion 7 Measure 3, Reviewer 3 was told to give the full thirty points only to applicants t hat provided one or more of the relevant certifications. The instructions further stated:

If the applicant fails to supply a certification be cause th ey are a brand new entity with no revenue, but supplies evidence they may meet the criteria once generating revenue, the scorer can [give] partial c redit (up to [twenty five] p[oin]ts) based on the strengt h of the evidence provided. A score of [zero] shou ld be only

9 AP makes no claim that veterans are involved in its ownership or operation.25 A- 0783

- 21 given to applicants with no certification and that submitted no evidence supporting their ability to qualify in the future, or their involvement of mino rities, women or veterans in their leadership. In lieu of a certification, scorers should consult Part A, Quest ion 20 when assessing this measure. Individuals not li sted on Part A, Question 20 should not be considered in the evaluation of this measure. Part A Question 20 asked applicants to provide the names, birthdates, addresses, positions, a nd pay/compensation of all their owners, principals , partners, investors, members, board members, directors, trust ees, and officers. In its response to Criterion 7 Measure 3, AP stated i t is "[seventy] percent owned by women and racial minorities," its board of directors is "[eighty] percent women," three of its "key vendors" are MBE and WBEs, and it had submitted an application to the Division of Revenue for WBE status on August 21, 2019, the day before RFA applications were due. AP said it was "committed to maintaining a meaningfully above-average percent age of its Board, Owners, Senior Management, Employees and Vendors as ethnic and culturally diverse," and it would "continue to work in good faith to hir e and recruit the most talented and diverse team available." AP stated it would provide a copy of a WBE certificati on once it acquired one. Instead, it included the first page of its ap plication to the Division of Revenue. There is nothing visible in the redacted application indicating26 A- 0783

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definitively which of the twelve indi viduals named are women and/or minorities or, importantly, what percentage of the business ea ch owns. The two chosen applicants both submitted copies of their WBE certifications and thus received full credit on Cri terion 7 Measure 3. The other two applicants who scored higher than AP in the cen tral region, also submitted WBE or MBE certifications and received full marks. AP received fifteen points for each of the permit endorsements, bringing its score on t his measure to fortyfive. AP's score on this measure was based on sufficient evidence in the record. While AP may be "[seventy] percent owned by women a nd minorities," it is unclear as to whether it is at least fifty-one perc ent owned by women or fiftyone percent owned by minorities. A business that i s thirty-five percent owned by women and thirty-five percent owned by different people who are minorities could make the same claim as AP but be unqualified for WBE or MBE status. The fact that AP's board of directors is eighty per cent women also is not relevant, since that number would be based on the number of p eople on the board, not percentage of ownership. Finally, AP sought a WBE certification, but that did not guarantee it would receive one. AP offered evi dence it had a number of women in leadership positions within its organizati on but did not submit27 A- 0783

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unambiguous proof that it would qualify for a WBE ce rtification once it became a "going concern" as required by N.J.A.C. 17:46-1.3 (d). None of AP 's arguments would appreciably affect the outcome. AP's remaining arguments lack sufficient merit to w arrant further discussion in a written opinion. R. 2:11 -3(e)(1)(E). Holistic Holistic challenges CRC 's denial of a dispensary permit endorsement to operate an ATC. After a review of Holistic's appli cation, the CRC awarded it a total score of 200.67, meaning it did not obtain a sufficiently high score to be assigned a permit in the North region. Holistic argues the CRC's decision was arbitrary, capricious, and unreasonable, as well as unsupported by the evidence on record. Holistic asserts similar, previously discussed arguments tha t their score, in addition to the entire scoring process, i s problematic due to the high relative error and discrepancy between reviewers' s cores, and that the quality control process did not correct the scoring issues. Holistic argues the entire scoring process had high levels of relative error and thus made the CRC's scoring arbitrary. We have addressed and rejected this general argument above.28 A- 0783

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Holist ic's specific argument that its score from Team one led to an unacceptable high rate of relative error, like AP 's , misinterprets the purpose of the remand in Pangaea. As we stated above, the man date in Pangaea was to
pr ovide explanations, not to erase relative error or mak e the process conform its application scores to any particular statistical mo del. The issue was whether the CRC's explanations for the scores was accurate. St ill, not every piece of evidence need be expounded upon or summarized; rath er, the explanation generally only requires that one be able to determi ne from the document what facts or factors led to the conclusion. See Applic ation of Howard Sav. Inst., 32
N.J. 29, 53 (1960)

. In Holistic's case, the CRC did not provide specif ic discussions of the scores, beyond the score sheets in the appendix. This is different from Pangaea , where the DOH only provided the applicants with scores without any "why and wherefo re" to support its selections. Pangaea , 465 N.J. Super. at 375. In its December 7, 2021 memorandum to all applicants, the CRC thoroughly ex plained its scoring and quality control process es . The explanation of said quality control process and scoring analysis outlined in the memo are sufficien t to determine what factors led to the CRC's scores.29 A- 0783

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Unlike in Pangaea, nothing in Holistic's scores demonstrates multiple, unexplained zeroes within the scoresheet. There ar e also no instances where a reviewer gave a zero where another gave a perfect s core. Instead, Holistic received consistent scores by each reviewer as a wh ole. Thus, Holistic' s scores were neither anomalous nor arbitrary because the CR C provided sufficient explanations for the scores with its memo and the s coring was consistent. Like AP, Holistic argues the score under Criterion 7 measure 3 is arbitrary and not supported by the record because it scored z ero when it has women in senior positions. Holistic argues it expressly identified a female in a senior leadership position and her qualifications were suf ficient to satisfy the criteria under the involvement of women in its leadership se ction. We disagree. The Legislature established procedures to certify t hat a business is woman owned. N.J.S.A. 34:1B-227. Such business is one t hat is:

(1) [a] sole proprietorship owned and controlled by a woman; or (2) [a] partnership or joint venture owne d and controlled by women in which at least [fifty- one percent] of the ownership is held by women and the management and daily business operations of which a re controlled by one or more women who own it; or (3) [a] corporation or other entity whose management and daily business operations are controlled by one or m ore women who own it . . . . [N.J.S.A. 52:27H-21.18(i).]30 A- 0783

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Holistic acknowledged it did not meet the criteria to be a c ertified womenowned business, but it had plans to obtain such cer tification, asserting that a woman was appointed as Vice-President, another woma n was added to the company's Medical Advisory Board, and a third woman was a strategic advisor who was positioned to obtain equity in the endeavor. The statute instructs ownership or control by "wome n shall be real, substantial, and continuing, demonstrating authorit y over the affairs of the business, and shall go beyond the pro forma ownersh ip of the business as reflected in its ownership documents." N.J.A.C. 17 :46-1.3(d). None of the three women listed by Holistic control the company over f ifty-one percent

. T he women also do not manage the daily operations based on the explanation provided by Holistic, nor does the explanation prov ided identify how these individuals have authority over the business beyond their experience in the field. Holistic also argues the CRC's quality control process was not sufficient to correct scoring anomalies and the threshold the CRC set for selecting anomalous scores was such that it would make it unl ikely that any score be considered an anomaly. Holistic argues the QCC process does not detect outliers and the review of applications that received zeroes was not fit for the purpose because it disregarded scoring instructions and tre ated Holistic more harshly.31 A- 0783

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We are satisfied the December 7 memorandum explains what the quality control review would entail, which included a stati stical analysis of the scores to find and review any outliers. Green Leaf Green Leaf also argues it received arbitrary and ca pricious scores and the FAD it received suffers from the same scoring issue s that raised concern in Pangaea

. In particular, Green Leaf asserts error in the sco res it received on several measures

— Measures 4-1 and 5-1

. We reject these arguments. Measure 4-1 asked for evidence of ties to the local community, specifically requiring applicants to provide "a lis t of all owners, officers, board members, and principals that have resided in New Je rsey for at least [two] years, and supply proof of their residency." The scoring instructions provided the following guidance: "Assess [] ties to the local c ommunity through the history of the residence of the owners, officers, board mem bers and principals of the proposed business." The highest possible score wou ld theoretically go to a business made up of i ndividuals who have all lived in New Jersey for two years and submitted documentation to prove residency. Scorers were directed to Part A, Question 20, to cr oss-reference the list of people provided with the full list of owners, board members, and principals of32 A- 0783

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the entity. Scorers were instructed to only take i nto account individuals listed on Part A, Question 20. Green Leaf's response to M easure 4- 1 showed four of its owners, board members, or principals are reside nts of New Jersey. Green Leaf's response to Part A, Question 20, identified a total of twelve owners, principals, and board members. Only four of the twelve own ers, principals, and board members were demonstrated to be New Jersey re sidents. Green Leaf received a composite score of 14.66/20 for this mea sure

— a reflection of its partial responsiveness to the question posed. Measure 5-1 asked for evidence of past research con tributions "in the form of cited original and published work" that sought t o expand "clinical and scientific research related to medical cannabis or the debilitating medical conditions that can be treated with medical cannabi s." Research contributions for this measure are defined as original work (i.e ., produced by an individual associated with the applicant) that is published an d for which a citation is provided. Under the instructions provided, the hig hest possible scores were to be given to applicants wh o demonstrated a track record in getting research on medical cannabis published in academic, peer -reviewed journals. Green Leaf's response indicates that it retained Dr s. Paul Lyons, Vincent Njar, and Maneesh Sharma as Advisory Board members, and Susanne Dietz33 A- 0783

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Goldberg as its Chief Science Officer, and de ta il s their research on cannabi s, the human genome, design and lab protocols, cancer, pai n management and opioids. However, Green Leaf did not provide evidence of its own past research contributions and did not provide records of the Ad visory Board doctors' publi cations in academic, peer-reviewed journals on medi cal cannabis. Thus, Green Leaf received a composite score of 7.66/10 fo r this measure

— a reasonable reflection of its overall responsiveness to much of the question, coupled with its failure to provide proof of past re search contributions and track record of publication in medical cannabis journals. Green Leaf next argues that Reviewer 2's lower over all scores "reflect [] the subjectivity of the scoring method." We reject this argument, having concluded there is nothing inherently arbitrary or capri cious about Reviewer 2' s scores. The statistical analysis undertaken by CRC staff confirmed the overall scores, scores delivered by specific reviewers, and scores from each team were consistent and distributed in accordance with a nor mal and expected statistical curve. Reviewer 2's scores were found to be evenly distributed and statistically consistent, and thus applied fairly among all appli cants. We also reject as baseless Green Leaf's argument that Reviewer 2's scores give the appearance of impropriety or possible conf lict of interest.34 A- 0783

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Any remaining arguments raised by appellants are wi thout sufficient merit to warrant discussion in a written opinion. R. 2:11 -3(e)(1)(E). Affirmed.