Florida health department challenged on pot licenses

TALLAHASSEE, Fla. – Heeding a authorized blueprint laid out by an appellate decide, a Tampa-based orchid grower has filed a lawsuit accusing the Florida Department of Health of violating the state Constitution by delaying the issuance of almost two-dozen medical marijuana licenses.

The lawsuit, filed Monday in Leon County circuit courtroom, is the newest try by Louis Del Favero Orchids, Inc. to enter the state’s medical-marijuana market. The firm’s different administrative and authorized challenges over the previous 4 years have fizzled.

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Del Favero’s new lawsuit follows a September ruling by the first District Court of Appeal that sided with the Department of Health and upheld a decrease courtroom’s dismissal of a case filed by the corporate.

But the appeals-court resolution included a concurring opinion by Judge Ross Bilbrey that known as out state health officers for foot-dragging on issuing extra licenses and reneging on guarantees to open the license-application course of after the Florida Supreme Court dominated in a key case.

Voters in 2016 handed a constitutional modification that broadly legalized medical marijuana within the state. A ensuing 2017 legislation created a framework for the trade and required the Department of Health to grant new licenses because the variety of licensed sufferers will increase.

With greater than 700,000 sufferers now licensed for medical marijuana, the state ought to have issued a minimum of one other 22 licenses to maintain up — doubling the variety of present operators. The present operators had been a part of an preliminary group of candidates after the Legislature in 2014 handed a measure that allowed a comparatively restricted variety of sufferers to obtain low-THC hashish merchandise.

In his concurring opinion, Bilbrey mentioned the health department issued an emergency rule in September 2017 that detailed the applying course of for potential operators of what are known as “medical marijuana treatment centers,” or MMTCs.

“Almost five years after the emergency rule was issued, the MMTC license application window remains closed,” Bilbrey, who was appointed by former Gov. Rick Scott, mentioned.

Bilbrey’s concurring opinion additionally pointed to assurances {that a} Department of Health lawyer made greater than two years in the past throughout arguments in a lawsuit filed by MedPure, LLC.

The health department’s basic counsel informed Bilbrey throughout the MedPure case that the company had put the licensing course of on maintain whereas awaiting the end result of a lawsuit, filed by Tampa-based Florigrown, that challenged the 2017 legislation. But a Florida Supreme Court resolution upholding the legislation was finalized greater than a yr in the past.

“Aggrieved potential MMTC licensees are not without a remedy if the department refused to comply with its duties under the Florida Constitution,” Bilbrey warned within the September concurring opinion.

The decide additionally steered that potential candidates ought to think about submitting a authorized problem to power health officers to open the applying course of.

“I respectfully suggest that the department comply with its representations at the MedPure oral argument — either open the application window referenced in the emergency rule or promulgate a superseding rule allowing for MMTC license applications. Otherwise, it may be necessary for a potential licensee to ‘seek judicial relief to compel compliance with the department’s constitutional duties,’” the decide wrote, quoting from the medical-marijuana modification.

The Del Favero lawsuit filed Monday relied closely on Bilbrey’s opinion.

“Following the issuance of the (appeals) court’s decision, the department has still not opened an MMTC application window,” Seann Frazier, an lawyer who represents Del Favero, wrote within the 13-page grievance.

Frazier argued that the health department “had a constitutional duty to begin registering and licensing MMTCs by 2017,” underneath the modification.

And underneath the 2017 legislation, health officers additionally “had a statutory duty to open an application process and license additional MMTCs no later than 2018,” the lawsuit mentioned.

“To date, the department has never opened any application process for registering and licensing MMTCs” pursuant to the state legislation, Frazier wrote.

The lawsuit seeks “an order compelling the department to comply with its constitutional and statutory duties by amending its rules and regulations to allow for MMTC applications to be submitted, to review competing applications within the time required by law, and to issue additional MMTC licenses to the best qualified applicants pursuant to the Florida Constitution and law.”

The 2017 legislation additionally required health officers to provide particular choice for as much as two licenses to candidates that “own one or more facilities that are, or were, used for the canning, concentrating, or otherwise processing of citrus fruit or citrus molasses and will use or convert the facility or facilities for the processing of marijuana.”

After the legislation handed, Del Favero spent $770,000 to buy property in Pinellas County that met the necessities for the citrus choice.

Amid pent-up demand for Florida’s software course of to open, health officers this yr moved ahead with the method to grant a license earmarked within the 2017 legislation for a Black farmer who participated in federal litigation referred to as the “Pigford” instances.

Top aides to DeSantis informed The News Service of Florida in June 2021 that the administration would put the Black farmer license on the head of the road for the long-awaited batch of medical-marijuana licenses.

At the time, the aides mentioned the applying course of for the Black farmer license could be launched “within weeks to months” and set the stage for the remaining licenses.

The health department accepted a dozen functions for the Black farmer license in March and on Sept. 21 introduced its intent to grant the license to Suwannee County farmer Terry Donnell Gwinn.

Applicants who misplaced out on that license are difficult the choice.

Meanwhile, some medical-marijuana trade insiders are speculating about whether or not the Del Favero lawsuit may assist spur the DeSantis administration to hurry up the roll-out of the applying course of for different licenses. The health department has been anticipated to kick off the method earlier than the top of the yr.

“I look forward to the DOH (Department of Health) mooting out this lawsuit by moving forward with this process by the end of the year. I think that’s the simplest and easiest way for them to win the suit,” lawyer Daniel Russell informed the News Service. “I hope this litigation does not slow down the process, ultimately.”

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