An administrative law judge on Monday struck down a proposed state regulation carving out a ‘citrus preference’ for medical marijuana provider licenses, calling it “invalid.”
The decision may be moot, however, because a circuit judge last week declared the section of state law creating the preference to be unconstitutional. (That story is here.)
Louis Del Favero Orchids of Tampa challenged the proposed Department of Health rule, based on the law passed last year implementing a voter-approved constitutional amendment that broadly legalized medical marijuana.
The orchid grower argued the proposal fails to properly carry out the law, which includes giving preference for up to two medical marijuana licenses to applicants who own facilities that had been used to process citrus. It had bought a site in Pinellas County for “approximately $775,000” to qualify.
At issue was the difference between a “facility” and a “property.”
“The Legislature clearly intended to give a preference to applicants who ‘own … facilities that are, or were, used for canning, concentrating, or otherwise processing of citrus … and will use or convert the … facilities for the processing of medical marijuana,’ ” Judge R. Bruce McKibben wrote in his final order.
“The Legislature failed, however, to provide guidance by way of definitions,” he added.
“While the Legislature chose the words ‘facility or facilities’ in the Preference Statute, the Department complicated the issue by using the word ‘property’ for the most part, but also using the words ‘facility’ and ‘facilities’ at times,” McKibben wrote.
“Favero contends that a property is much broader in scope than a facility, and the Department therefore exceeded its delegated legislative authority.”
In sum: “The Department interprets the statutory language concerning ‘facility or facilities’ to include ‘property.’ It is impossible to reconcile that interpretation, especially in light of the fact the Legislature contemplated conversion of the facilities. The Department’s interpretation is hereby rejected as being outside the range of permissible interpretations.”
McKibben also found that a “packinghouse” would not qualify for the preference because “processing” means “doing something more with the raw product.”
That shuts out Mecca Farms, which filed as an intervenor in the case, because it “owns a packinghouse only, not a processing facility as that term seems to be used by the Legislature.”
McKibben’s order can be appealed to the 1st District Court of Appeal.
Background for this post provided by The News Service of Florida, republished with permission.