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Judge rebukes Florida health officials over marijuana licenses

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An appeals court judge this week criticized Florida health officials for not following through on their promises to grant additional medical marijuana licenses as required by state law, saying potential applicants were “understandably frustrated” and providing legal evidence for entrepreneurs who have been excluded from the cannabis market for years.

Court of Appeals Judge Ross Bilberry’s first shot came across the arc as Governor Ron DeSantis’ administration continues to delay issuing new licenses. Florida has 22 medical marijuana operators.

A 2017 law, which established a framework for the state’s medical marijuana industry, required the Department of Health to grant new licenses while increasing the number of authorized patients. With more than 700,000 patients, the state should have issued at least 22 more 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 the Florida Supreme Court’s decision to uphold the law was finalized last year.

Bilberry on Wednesday called on the state to slow down, issuing an agreeing opinion in a plea filed by Louis Del Favero Orchids, Inc. , which has long sought a license for a medical marijuana treatment center.

Bilberry and two other Tallahassee Court of Appeals judges, along with the Health Department, upheld a lower court ruling that dismissed the company’s lawsuit.

But Bilberry — who has repeatedly questioned Health Department lawyers about delays in accepting new license applications — also took health officials to account in the favorable opinion.

Pilberry, referring to the 2016 constitutional amendment that legalized medical marijuana in general, wrote that Del Faveiro is “frustrated by the Department of Health’s continued failure to open the application window and issue medical marijuana treatment center licenses as required by the Florida Constitution.”

Bilberry noted that the Department of Health issued an emergency rule in September 2017 that outlined the application process for potential medical marijuana operators.

“Nearly five years after the emergency law was passed, the MMTC license application window remains closed,” said Bilberry, who was appointed by former Governor Rick Scott.

The judge also referred to the assertions made by a Department of Health attorney over two years ago during oral arguments in a lawsuit brought by MedPure, LLC, when Bilbrey was a member of a separate three-judge panel.

The Department of Health’s general counsel told Bilberry at the time that the agency had suspended the licensing process pending the outcome of a lawsuit brought by Tampa-based Florigrown challenging the 2017 law.

“We want to open that window. We’ve wanted it for three years. We’re preparing for what happens after Floregrown’s decision… We’ll have more licensed medical marijuana treatment centers,” said attorney Louise St. Laurent. billboard on March 23, 2020.

But the Florida Supreme Court ruled against Florigrown and upheld the medical marijuana law more than a year ago and “the MMTC license application window remains closed,” Pilberry wrote on Wednesday.

He warned that “potential MMTC licensees affected are not without remedies if the department refuses to comply with its duties under the Florida Constitution.”

The judge suggested that potential applicants should consider filing a legal challenge to compel health officials to open the application process.

“I respectfully suggest that the administration comply with its representations in the oral MedPure discussion — either by opening the application window indicated in the emergency rule or issuing an alternative rule allowing MMTC license applications. Otherwise, it may be necessary for the potential licensee,” the judge wrote, citing the medical marijuana amendment. to seek injunctive relief to enforce compliance with the constituency’s constitutional duties.”

With the filing process frustrated, Del Favero and other companies have taken to court in recent years as they seek to grow quotas of cannabis in Florida. Del Favero has filed a number of legal challenges in so far unsuccessful attempts to obtain a license.

One strategy involved companies that applied for licenses — even though health officials did not open the application window and did not accept the licenses — and initiate legal challenges when the health department did not grant the licenses.

Lawmakers in 2014 passed a measure that allowed a relatively limited number of patients to receive low THC cannabis products. Medical marijuana companies doing business in Florida were part of an initial group of applicants in 2015 who were granted licenses to sell low THC cannabis.

In March, the Ministry of Health accepted applications for a license designated in the 2017 law for a black farmer. But the state did not grant the license, which Bilberry mentioned in a footnote.

The footnote referred to a recent news story about waiting months for a black farm license.

“The article asserts that delays in issuing licenses to other MMTC companies have allowed three MMTC companies to control two-thirds of the Florida medical marijuana market,” Bilberry wrote.

Bilberry’s criticism reflects the impatience of investors from around the world keen to set up shop in Florida.

Along with the state, which has a growing number of medical marijuana patients, a political committee recently launched an initiative, aiming for a 2024 vote, that would legalize recreational marijuana use for adults.

Attorney Jim McKee told the News Service of Florida Thursday that the state’s cannabis market is “strong, and there are a number of entities looking to enter the market.”

“As a result, there is a great deal of interest in additional licenses that will be available for issuance once the application process is open,” said Mackey, who represents a number of medical marijuana operators and applicants. “The Office of Medical Marijuana Use (OMMU) continues to work on the application form to be used in this process, but there is growing frustration among potential applicants that the application process has not yet begun. Judge Bilberry’s statements are an acknowledgment of that fact.”

Agriculture Commissioner Nikki Fried, who lost her gubernatorial primary last month to Charlie Crist, also criticized the DeSantis administration for its handling of the medical marijuana program.

Fried, a former medical marijuana lobbyist, called the delay in licensing the black grower a “miscarriage of justice” and said the DeSantis administration should work on additional licenses as well.

“It’s a shame, year after year, that it’s been put off excuse after excuse after excuse, creating a less fair and less competitive market,” Freed told reporters.

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