OE744 - Po Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jul 10 9:44 AM-19CV005550 IN THE COMMON PLEAS COURT OF FRANKLIN COUNTY OHIO GENERAL CIVIL DIVISION HARVEST OF OHIO, LL Plaintiff, ) ) ) ) ) vs. ) ) Case No. STATE OF OHIO ) BOARD OF PHARMACY, ) In care of Steven Schierholt, ) Executive Director ) 77 South High Street ) 17" Floor ) Columbus, Ohio 43215 ) ) ) ) Judge Civil Case Category: H Defendant. MO’ AINING ORDER PORARY RES’ Plaintiff Harvest of Ohio, LLC (“Harvest”) moves this Court, pursuant to Rule 65 of the Ohio Rules of Civil Procedure and ORC §2727.02, for a Temporary Restraining Order for the reasons set forth in detail in accompanying Memorandum in Support and in the Verified Complaint for Temporary Restraining Order and Preliminary and Permanent Injunction being filed simultaneously with this Motion. Respectfully submitted, s/ Helen Mac Murray Helen Mac Murray (0038782) Lisa A. Messner (0074034) Benjamin Sigall (0085489) Walter Charles Blackham (0097882) MAC MURRAY & SHUSTER, LLP 6525 West Campus Oval, Suite 210 New Albany, Ohio 43054Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jul 10 9:44 AM-19CV005550 0E744 - P99 T: 614.939.9955 F: 614.939.9954 Imessner@mslawgroup.com hmacmurray@mslawgroup.com bsigall@mslawgroup.com cblackham@mslawgroup.com Counsel for Plaintiff Harvest of Ohio, LLC MEMORANDUM IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER TROD! IC On June 7, 2019, the Board of Pharmacy (“Board”) issued three separate Notices of Opportunity for Hearing, Proposal to Take Disciplinary Action against Medical Marijuana Dispensary Provisional License related to Harvest’s Dispensary License Applications Nos. 350- 890, 350-923 and 350-934 (the “Notices”), The Notices contain the same substance, except that each one pertains to the license number associated with a distinct dispensary location. The Notices allege malfeasance by Harvest under both a factual “Allegations” section, as well as a “Potential Violations of Law” section. The Notices also cite extensively and substantively to Harvest's Operating Agreement, which is confidential and details highly proprietary information, On July 1, 2019, the Board, through Senior Legal Counsel, informed Harvest that these Notices would be publicly released on July 11, 2019, in response to a public records request made pursuant to ORC §149.43, unless otherwise prohibited by a Court of competent jurisdiction. Ohio law clearly mandates the confidentiality of the information in the Notices and expressly excludes such information from the scope of the public records law. Harvest will be irreparably harmed if this Court does not grant a temporary restraining order and injunctive relief prohibiting its illegal disclosure.Franklin County Ohio Clerk of Courts of the Common Pleas- 2019 Jul 10 9:44 AM-19CV005550 0E744 - QL Th. LAW AND ARGUMENT Ohio courts balance four issues when evaluating a party’ right to a preliminary injunction: (1) That the moving party has a likelihood of suecess on the merits (2) That there is an immediate and certain threat of irreparable harm absent, such relief (that there is no adequate remedy at law for the moving party should the relief not be afforded); (3) That the injury suffered by the parties enjoined, if any, will not outweigh the potential injury suffered by the moving party absent the relief, and (4) That the public interest will be served by maintaining the status quo between the parties. Gould v. Chesapeake & Ohio Ry. Co., 10 Ohio N.P.(ns,) 129, 130-31, 21 Ohio Dec. 733, 735 (Franklin Cty. CP. 1910); see also Procter & Gamble Co. v. Stoneham, 140 Ohio App.3d 260, 267 747 NE2d 268 (2000) TGR Enterprises, Ine. v. Kozhev, 167 Ohio App.3d 29, 32, 833 N.E.2d 739 (2006). Here, these factors weigh in favor of granting relief to Harvest. (1) Plaintiff will likely succeed on the merits because Ohio law prohibits the Board from producing the Notices ORC §4729.23 operates to make the Notices confidential and not public records. The Board’s own authorizing statute prohibits the release of the Notices, ORC §4729,23(A) states Except as provided in division (B) of this section, information received by the state board of pharmacy pursuant to an investigation is confidential, is not a public record, and is not subject to discovery in any civil action. The Board investigated Harvest’s Economically Disadvantaged Group (“EDGE”) status. The Board received the Operating Agreement cited in the Notices in connection with that investigation, Therefore, ORC $4729.23 requires the Board to protect the confidential information contained in the Notices because itis definitionally not a public record.