TALAHASSEE – An appeals court judge this week chastised Florida health officials for failing to follow through on promises to grant additional medical marijuana licenses as required by state law, saying that potential candidates are “understandably frustrated” and offering a legal playbook to entrepreneurs who have been shut out of the cannabis market for years.
The shot at First District Court of Appeals Judge Ross Bilbrey came as Gov. Ron DeSantis’ administration continues to delay the issuance of new licenses. Florida has 22 medical marijuana operators.
A 2017 law, which created a framework for the state’s medical marijuana industry, required 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 needed to issue at least 22 more licenses to keep pace with the patient population — doubling the number of operators in Florida.
But the DeSantis administration has left the candidacy 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.
On Wednesday, Bilbrey called on the state to drag its feet, as he issued a concurring opinion in an appeal from Louis Del Favero Orchids, Inc., which has long sought a license for what is called a treatment center for medical marijuana.
Bilbrey and two other judges from the Tallahassee-based appeals court on the Health Department’s side upheld a lower court ruling that dismissed the company’s lawsuit.
But Bilbrey — who has repeatedly questioned Health Department lawyers about the delay in accepting new license applications — also took health officials to task in the concurring opinion.
Del Favero “is understandably frustrated with 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,” Bilbrey wrote, referring to a 2016 constitutional amendment that broadly legalized medical marijuana.
Bilbrey noted that the health department issued an emergency rule in September 2017 that outlined the application process for potential medical marijuana operators.
“Nearly five years after the state of emergency was issued, the MMTC license application window remains closed,” said Bilbrey, who was appointed by former Governor Rick Scott.
The judge also pointed to assurances a Department of Health attorney made more than two years ago during oral argument in a lawsuit filed by MedPure, LLC, when Bilbrey was a member of a separate three-judge panel.
The health department’s general counsel told Bilbrey at the time that the agency had suspended the licensing process pending the outcome of a lawsuit filed by Tampa-based Florigrown challenging the law of 2017.
“We want to open that window. We’ve wanted it for three years. And we’re preparing for what happens after the Florigrown decision… We’ll get a license for more medical marijuana treatment centers,” said attorney Louise St. Laurent. panel 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,” Bilbrey wrote Wednesday.
“Potentially aggrieved MMTC licensees are not without recourse if the department refuses to comply with its obligations under the Florida Constitution,” he warned.
The judge suggested that potential candidates consider filing a legal challenge to force health officials to open the application process.
“I respectfully suggest that the department abide by its representations during the MedPure oral argument — either open the application window referenced in the emergency rule or enact a replacement rule allowing MMTC license applications. may be required for a potential licensee to “seek judicial relief to compel the department to comply with constitutional obligations,” the judge wrote, citing the medical marijuana amendment.
With the application process thwarted, Del Favero and other companies have gone to court in recent years as they seek to plant cannabis stakes in Florida. Del Favero has filed a number of legal challenges in so far unsuccessful attempts to obtain a license.
One strategy has involved companies applying for licenses — although health officials have not opened the application window and are not accepting licenses — and launching legal challenges when the Department of Health did not grant the licenses.
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 were among an early group of applicants in 2015 who were granted licenses to sell low-THC cannabis.
The health department in March accepted license applications under the 2017 law for a black farmer. But the state did not grant the license, which Bilbrey cited in a footnote.
The footnote referred to a recent news report about the months-long wait for the black farmer’s license.
“The article claims that the delay in licensing other MMTCs has allowed three MMTCs to control two-thirds of the medical marijuana market in Florida,” Bilbrey wrote.
Bilbrey’s reviews reflect the impatience of investors around the world eager to set up shop in Florida.
As the state has a growing number of medical marijuana patients, a political committee recently launched an initiative, targeting the 2024 ballot, that would legalize recreational marijuana use for adults.
The state’s cannabis market “is strong, and a number of entities are looking to enter the market,” attorney Jim McKee told the News Service of Florida on Thursday.
“As a result, there is considerable interest in additional licenses that will be available for issuance once an application process opens,” said McKee, who represents a number of 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 potential 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 the Democratic gubernatorial primary last month to Charlie Crist, also criticized the DeSantis administration on Thursday for its handling of the medical marijuana program.
Fried, a former medical marijuana lobbyist, called the black farmer’s license delay a “miscarriage of justice” and said the DeSantis administration should also act on additional licenses.
“Shamefully, year after year it has been delayed with excuse after excuse after excuse, creating a less fair and less competitive marketplace,” Fried told reporters.