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Tallahassee – An appeals court judge this week criticized Florida health officials for not following through on promises to license more medical marijuana, leaving potential applicants “frustrated” and offering a legal playbook for shuttered operators. Cannabis market for years.
First District Court of Appeal Judge Ross Bibrey’s crossbow comes as Gov. Ron DeSantis’ administration continues to delay issuing new licenses. Florida has 22 medical-marijuana operators.
A 2017 law that created a framework for the state’s medical marijuana industry requires the Department of Health to issue new licenses as the number of licensed patients increases. With more than 700,000 patients, the state would have to issue at least another 22 licenses to keep up with the number of patients — doubling the number of operators in Florida.
But the DeSantis administration has left the application process in limbo since the governor took office in 2019.
DeSantis’ office blamed the delay on litigation over the 2017 law, but a Florida Supreme Court decision upholding the law was finalized last year.
Bilbrey on Wednesday called the state’s foot-dragging, which he said was at Louis Del Favero Orchids, Inc.
Bilbrey and two other judges on the Tallahassee-based appeals court sided with the health department in upholding a lower court ruling that dismissed the company’s lawsuit.
But Bilbrey, who has repeatedly blamed health department attorneys for the delay in accepting new permit applications, decided to get health officials to do the same.
Del Favero is “disappointed that the Department of Health has not been able to open the application window and license medical marijuana treatment centers as required by the Florida Constitution,” Bilbrey wrote in a 2016 constitutional amendment that broadly legalized medical marijuana.
Bilbrey said the Department of Health issued an emergency directive in September 2017 that sets out the application process for medical-marijuana operators.
“The MMTC permit application window remains closed nearly five years after the emergency ordinance was enacted,” said Bilbrey, who was appointed by former Gov. Rick Scott.
The judge also pointed to the assertions made by the Department of Health’s attorney during oral arguments two years ago when Bilbrey was a member of a separate three-judge panel in a lawsuit filed by MedPure, LLC.
The health department’s general counsel told Bilbrey at the time that the agency had delayed the licensing process pending the outcome of a lawsuit filed by Tampa-based FloriGraun challenging the 2017 law.
“We want to open that window. We’ve been looking for three years. And we’re preparing for what will happen after the Florida decision … we’ll get more medical-marijuana treatment centers licensed,” said attorney Louise St. Laurent B. Panel on March 23, 2020.
But the Florida Supreme Court ruled against Florida and upheld the medical-marijuana law a year ago, “and the window for MMTC’s license application is closed,” Bilbrey wrote on Wednesday.
“Aggrieved MMTC licensees are not without recourse if the department refuses to follow through on its duties under the Florida Constitution,” he warned.
The judge pointed out that potential applicants should file a legal case to compel health professionals to open the application process.
“I respectfully suggest that the Department comply with MedPure’s submissions at oral argument—either open the filing window specified in the emergency rule or promulgate a substitute rule allowing for MMTC license applications. Otherwise, it may be necessary for the licensee to exercise jurisdiction to enforce compliance with the Department’s constitutional obligations.” For relief, the judge wrote, citing the medical-marijuana amendment.
Del Favero and other businesses seeking to plant cannabis trees in Florida have been in court in recent years after the application process stalled. Del Favero has so far mounted several unsuccessful legal challenges to the license.
One strategy involves companies applying for permits — even though health authorities have not opened the application window and receiving permits — and mounting legal challenges without the Department of Health issuing the permit.
In 2014, lawmakers passed a measure that allowed a relatively limited number of patients to receive low-THC cannabis products. Medical Marijuana Companies Doing Business in Florida They were part of the first group of applicants to be licensed to sell low-THC cannabis in 2015.
In March 2017, the Department of Health accepted applications for a license issued for the Black Farmer Act. But the state did not grant the permit, Bilbrey mentioned in a footnote.
The footnote mentions the recent news of the months-long black farm leave.
“The article confirms that delays in licensing other MMTCs have allowed three MMTCs to control two-thirds of Florida’s medical marijuana market,” Bilbrey wrote.
Bilbrey’s criticisms reflect the impatience of investors around the world to set up shop in Florida.
With the state having a growing number of medical marijuana patients, a political committee recently launched an initiative aimed at a 2024 ballot measure that would legalize the recreational use of marijuana for adults.
The state’s cannabis market is “strong, and there are a number of entities that want to enter the market,” attorney Jim McKee told The Florida News Service on Thursday.
“As a result, there is a strong demand for additional permits to be released once the application process opens,” said McKee, who represents several medical-marijuana operators and applicants. “The OMMU (Office of Medical Marijuana Use) continues to work on the application form to be used for the process, but applicants are increasingly frustrated that the application process has not yet begun. Judge Bilbrey’s statements are an acknowledgment of that fact.”
Agriculture Commissioner Nikki Fried, who lost last month’s primary to Democratic governor Charlie Crist, on Thursday criticized the DeSantis administration’s handling of the medical-marijuana program.
Freed, a former medical-marijuana lobbyist, called the black farmer permit delay “an injustice” and said the DeSantis administration should issue more permits.
“Shamefully, year after year, excuse after excuse has been delayed, creating a less fair and competitive marketplace,” Freed told reporters.
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