Jim Rosica, Author at Florida Politics

Jim Rosica

Jim Rosica covers state government from Tallahassee for Florida Politics. He previously was the Tampa Tribune’s statehouse reporter. Before that, he covered three legislative sessions in Florida for The Associated Press. Jim graduated from law school in 2009 after spending nearly a decade covering courts for the Tallahassee Democrat, including reporting on the 2000 presidential recount. He can be reached at jim@floridapolitics.com.

Target, Walmart file rule challenge for ‘whiskey and Wheaties’

Target and Walmart are heading to court to get an administrative law judge to give them what Gov. Rick Scott wouldn’t: The ability to sell whiskey and Wheaties in the same store. 

The big-box retailers late Monday filed an administrative challenge against the state’s Division of Alcoholic Beverages And Tobacco (ABT).

At issue: The state’s obscure, 24-year-old “Restaurant Rule,” which restricts eateries and other businesses that have ‘consumption on premises’ liquor licenses from selling anything other than items “customarily sold in a restaurant.” The plaintiffs say the rule is “not supported by logic or necessary facts.”

For over eight decades, Florida law — enacted after Prohibition — has required retailers to sell hard liquor in a separate store, though beer and wine can be sold in grocery aisles.

The current end game is that retailers selling ready-to-eat food, such as Costco, would be able to use consumption on premises licenses normally granted to restaurants to avoid the prohibition on selling booze in the same space as other goods.

(Costco isn’t involved in the current case, but has also been fighting the battle. One of its Florida stores was denied a consumption on premises license earlier this year.)

Bills have been filed since 2014 to remove the wall of separation between hard liquor and other items. Last year, legislation barely passed both chambers only to get vetoed by Scott, who said it’d be a job killer for small businesses, many of whom would likely be overwhelmed by big-box stores’ superior selling power.

Attorneys for the GrayRobinson law firm, which has represented Costco in Florida, filed the petition challenging the Restaurant Rule on behalf of Target and Walmart, each of which “operate(s) numerous locations in the state of Florida that are licensed as restaurants.”

“In effect, the Rule forecloses (them) from obtaining a consumption on premises license,” the petition says.

ABT’s rule defines items “customarily sold in a restaurant” as only “ready to eat appetizer items, ready to eat salad items, ready to eat entrée items, ready to eat vegetable items, ready to eat fruit items (and) hot or cold beverages.” State law, however, is silent.

In any case, the state “has granted hundreds, if not thousands, of applications for consumption on premises licenses for entities that sell items beyond those identified in the Rule,” the petition says.

“Applications that have been approved include ones for golf country clubs, hotels, casinos, movie theatres, retail stores, sports complexes, bowling alleys, and senior living complexes, among others, all of which, in addition to ready to eat foods and beverages and lottery tickets, sell merchandise like golf clubs, clothing, toiletries, jewelry, fashion accessories, movie tickets, cosmetic products and other items similar to those sold by petitioners.”

Also joining the challenge is the TopGolf “golf entertainment” chain, which has five locations in Florida.

State regulators have “also recently informed TopGolf that its Florida locations, which are licensed for consumption on premises, are prohibited from selling items other than those identified in the Rule, despite the fact that TopGolf has been selling such items since opening each location in Florida,” the petition says.

ABT “was fully aware of such sales at the time it issued the licenses to TopGolf. Yet, the Division has now decided to selectively enforce the Rule against TopGolf and other similar restaurant retailers.”

The case has not yet been assigned to a judge at the Division of Administrative Hearings.

An attorney representing Publix, ABC Fine Wine & Spirits, and the Florida Independent Spirits Association, all of which oppose tearing down the wall, warned regulators at a rule-making workshop earlier this year. 

“The purpose of rule-making is to interpret statutes, not to get around laws that a party does not like,” said William Hall of the Jones Walker firm. “The (state) should reject this attempt to use rule-making to usurp the legislative process.”

Medical regulators propose penalties for not checking drug database

Doctors and physician assistants could start facing fines and license revocations for not checking a state prescription drug database before they write a script.

The state’s Board of Medicine last week also announced a related rule “to change penalties for prescribing medicinal drugs or controlled substances (that) demonstrates a lack of reasonable skill or safety to patients.”

Florida recently passed a new law addressed at attacking the ongoing opioid crisis by thwarting “doctor shopping,” or patients seeking prescriptions for addictive drugs from multiple physicians.

And a National Bureau of Economic Research (NBER) working paper out this month noted that prescription drug monitoring programs that require their use “have been found to be effective in reducing opioid misuse and other related health outcomes.”

The state’s proposed rule says “failure to consult the Prescription Drug Monitoring System” could result in punishment “from a letter of concern to a reprimand and an administrative fine of $1,000 to $2,500” for a licensed physician.

For continued offenses, they face “from a reprimand to revocation (of their licenses) and an administrative fine of $2,500 to $10,000,” it says.

And those who demonstrate “a lack of reasonable skill or safety to patients” in prescribing medicine, according to the board’s determination, could face up to a $10,000 administrative fine and revocation of their licenses, another proposed rule says.

In Florida, physician assistants can prescribe certain drugs if they’ve been delegated that responsibility by a supervising physician.

For them, failure to check the Prescription Drug Monitoring System would be a $100 fine for a first offense, $150 for a second, and $200 for a third-time citation, the proposal says.

A new law limits opioid prescriptions for acute pain to a three-day supply, and, when deemed medically necessary, a seven-day supply. Certain patients, such as those suffering cancer and other forms of chronic pain or those in hospice, are not affected by the new prescription limits.

If a doctor or physician assistant asks for a hearing on the proposed regulations in the next three weeks, one will be set, the board said.

State officials last week said more than 92,000 health-care providers had registered to use the database, which tracks patients who are prescribed controlled substances. The August total is more than double the number of providers who were registered to use the system the previous year.

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Tallahassee correspondent Danny McAuliffe contributed to this post. Background provided by The News Service of Florida, republished with permission.

State asks court to reverse medical marijuana ‘home grow’ ruling

Saying a lower-court judge “misconstrued the plain language of Florida’s Medical Marijuana Amendment,” the state is asking an appellate court to reverse her ruling allowing Tampa strip club mogul Joe Redner to grow and make juice of his own medical marijuana.

Outside counsel for the Department of Health filed an initial brief Thursday in its appeal at the 1st District Court of Appeal. The agency regulates the drug through its Office of Medical Marijuana Use.

Circuit Judge Karen Gievers in April decided that Redner — a 77-year-old lung cancer survivor — has the right to ‘home grow’ under 2016’s constitutional amendment on medical marijuana. His doctor says juiced marijuana is the best way to keep his cancer in remission.

Luke Lirot, Redner’s attorney, has said the state erroneously argues that the amendment doesn’t mean what it says: That qualified marijuana patients can grow their own.

But the state’s brief says the amendment “defines ‘medical use’ as ‘the acquisition, possession, use, delivery, transfer, or administration of an amount of marijuana not in conflict with Department rules, or of related supplies by a qualifying patient or caregiver for use by the caregiver’s designated qualifying patient for the treatment of a debilitating medical condition.’

“The definition of ‘medical use’ does not include the right to cultivate (or grow) marijuana, even for personal use.”

Rather, only licensed providers known as ‘medical marijuana treatment centers’ (MMTCs) are “authorized to cultivate marijuana, (and therefore) any medical use of marijuana that is not cultivated by an MMTC would not be ‘in compliance’ with the amendment,” the brief says.

Redner, the owner of the Mons Venus nightclub, is a vegan. Gievers’ order limits him to no more than eight ounces or raw marijuana daily, based on his doctors’ recommendations. It applies only to Redner and allows him to “possess, grow and use marijuana” only for juicing.

A Health Department spokesman previously said the agency “fully expects Judge Gievers’ ruling to be reversed on appeal.” It’s represented by Jason GonzalezRachel Nordby and Amber Stoner of the Shutts & Bowen law firm’s Tallahassee office. 

Nordby recently joined the firm after being a deputy solicitor general for Attorney General Pam Bondi. She was on the team of state lawyers that lost a case, organized by Orlando attorney John Morgan, against the state’s ban on smoking medical marijuana. That decision also is under appeal.

Regulators renew emergency rule on race-dog drug testing

Gambling regulators on Tuesday again said they were “renewing” an emergency rule that allows them to continue testing racing greyhounds for drugs, including cocaine.

The Department of Business and Professional Regulation, which regulates gambling through its Division of Pari-Mutuel Wagering, posted a “notice of renewal” in Tuesday’s Florida Administrative Register.

The emergency rule on “Procedures for Collecting Samples from Racing Greyhounds” was adopted late last December. In Florida, live dog racing is still conducted at 11 tracks.

An administrative law judge struck down the testing program, saying it was invalid. Tuesday’s notice said a rule challenge was still pending in the Division of Administrative Hearings.

The docket shows that case is “awaiting (an) order” from Administrative Law Judge E. Gary Early.

Another judge, Lawrence P. Stevenson, had barred the state from relying on a 2010 testing manual because it wasn’t properly adopted, though as one of the division’s lawyers said, “There aren’t that many ways to do urine collection.”

The emergency rule includes using “evidence tape” to seal samples and storing them in “lockable freezers” until they’re sent off for testing.

A cocaine-in-dogs controversy came to light in Jacksonville in the summer of 2017. That in part spurred a constitutional amendment for the 2018 ballot to ban betting on greyhound racing in the state.

Attorney Jeff Kottkamp, who represents the Florida Greyhound Association, has previously said it has “a zero-tolerance policy for anyone that would give a racing greyhound any illegal substance.” The organization advocates for the state’s race-dog owners and breeders.

The Protect Dogs-Yes on 13, which advocates for passage of Amendment 13, called the renewal “good news” but called out “a continuing problem.”

“Greyhound breeders have thrown the entire regulatory scheme into chaos by repeatedly challenging the state drug testing program in court,” the campaign said in a statement. “This is is an intentional strategy to prevent greyhound trainers from being held responsible for greyhound cocaine positives.

“The regulatory structure is broken, and it’s time for voters to act by voting Yes on 13.”

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Senior Editor Jim Rosica contributed to this post. Main photo: Van Abernethy.

Personnel note: Christy Daly Brodeur joins Ballard Partners

Christy Daly Brodeur, formerly Secretary of Florida’s Department of Juvenile Justice under Gov. Rick Scott, has joined the Ballard Partners influence firm in Tallahassee.

The move was first reported in Tuesday’s SUNBURN.

“Christy’s successful track record of partnering with key stakeholder groups to achieve favorable outcomes for all parties is a tremendous asset for our firm, our clients and our team,” said Brian Ballard, president of Ballard Partners, in a news release.

“Above all, Christy is a passionate and dedicated advocate for the causes in which she believes, making her the perfect person to partner with our clients and help them accomplish important policy goals at the Capitol.”

Brodeur has two decades of experience working with the Florida Legislature and the Executive Branch on public policy for children and families, the release said.

She joins Ballard Partners after spending more than 11 years at Juvenile Justice, most recently as Secretary.

“I am proud and humbled to be joining Florida’s most prestigious lobbying firm,” she said in a statement.

“The team at Ballard Partners has created a dynamic and powerful firm that is extremely successful in achieving the goals expressed by clients both at the state and national level,” Brodeur added. “My life’s work has focused on improving the lives of Florida’s families and I look forward to bringing my passion and expertise to Ballard Partners.”

In addition to leading the Department of Juvenile Justice, Brodeur also held key advocacy and governmental affairs positions with the Florida Network of Youth and Family Services as well as Capital City Youth Services.

She’s a member of Leadership Tallahassee Class 24, holds a degree from Florida State University, and sits on the board of directors for Inspire of Central Florida, a nonprofit organization serving adults with developmental disabilities.

Ballard Partners, a Florida-based lobbying firm, has offices in Washington, D.C., Tallahassee, Jacksonville, West Palm Beach, Miami, Ft. Lauderdale, Orlando and Tampa.

Down it goes: Florida bar exam pass rate plummets again

The number of first-time Florida bar exam takers who pass has slipped 4 percent from last year, to 67.2 percent from 71.3 percent, according to the state’s Board of Bar Examiners.

Results for the July 24-25 examination were released Monday. Overall, 3,249 people sat for the bar exam, of which 2,228 were taking it for the first time.

The latest pass rate has actually lost ground from two years ago, going a whole percent lower than the 68.2 percent from July 2016, records show.

Florida International University College of Law again retained the No. 1 spot in terms of highest pass rate, with 88.1 percent, bumping up from 87.8 percent last July.

Nova Southeastern University College of Law saw the biggest decrease year-over-year, dropping a little more than 27 percentage points, to 42.9 percent from 70.2 percent.

“We are deeply disappointed with the results of the July bar exam, particularly since the admissions predictors, grade predictors, and information from the bar preparation companies suggested that we would see modest improvement in the July test scores,” said Jon M. Garon, dean of the Shepard Broad College of Law at Nova Southeastern University.

“Our faculty and staff will work with our students and alumni to make all adjustments needed to return to appropriate bar passage numbers.”

Like many state bar exams, Florida’s is given twice a year, in late February and late July.

More law students traditionally take the exam in the summer, immediately after graduation and bar review. A smaller number, including those who fail the summer exam, take the bar in the winter.

Passage rates have been trending down nationwide in recent years. Law schools have lowered admission standards to fill seats as the number of overall applicants has declined.

Here are the July 2018 passage rates broken down by individual Florida law schools, with last July’s results in parentheses:

Florida International University College of Law — 88.1 percent (87.8 percent)

Florida State University College of Law — 84.8 percent (83.9 percent)

University of Miami School of Law — 83.2 percent (84.2 percent)

University of Florida College of Law — 70.9 percent (77 percent)

St. Thomas University College of Law — 70.2 percent (63.6 percent)

Stetson University College of Law — 67.2 percent (76.8 percent)

Florida Coastal School of Law — 62.5 percent (47.7 percent)

Ave Maria School of Law — 58.5 percent (51.3 percent)

Florida A&M University College of Law — 50.6 percent (51.3 percent)

Barry University School of Law — 45.5 percent (58.9 percent)

Nova Southeastern University College of Law — 42.9 percent (70.2 percent) 

Of test takers who went to law school outside Florida, 63.8 percent passed this July and lawyers from other states who also want to be licensed in Florida passed by 68.1 percent.

Statistics for previous exams are here.

Judge dismisses horse group’s challenge of Calder gambling permit

A Tallahassee administrative law judge has booted a Florida horsemen’s group challenge of a South Florida track’s gambling permit.

The reason: “Jurisdiction over the issuance of the summer jai alai permit being” contested is in appellate court, not the Division of Administrative Hearings, Judge E. Gary Early wrote

“Thus, there is nothing for (the Florida Horsemen’s Benevolent and Protective Association) to attack.”

The case was against the Department of Business and Professional Regulation’s Division of Pari-Mutuel Wagering, which regulates gambling, and regarded Calder Casino‘s summer jai alai permit. The pari-mutuel previously went by the name Calder Race Course.

Early previously noted that the association’s “injury is based entirely on the issuance of the permit, and its effect on (the association) and the racing industry as a whole.”

The greyhound and horse industries have been at odds with racetrack operators, who continue trying to get rid of live racing but hold on to lucrative games like slots and poker.

Calder, which offers a limited race schedule, wants to ditch horse racing entirely to switch to jai alai games.

Another administrative law judge already has allowed Calder to keep its lucrative slot-machine license. The Miami Gardens track also offers electronic table games.

Tracks in Florida are generally required to continue running live dog or horse races to have slots and card games that usually make facilities more money.

Pari-mutuels, particularly in Broward and Miami-Dade counties, covet summer jai alai permits because at a minimum they allow a facility to open a card room and offer simulcast betting.

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Background provided by The News Service of Florida, republished with permission.

Main photo: Calder Casino — CC BY-SA 4.0.

Marijuana smoking ban case smolders in appellate court

The state constitution “creates a procedural right to seek treatment with smokable marijuana,” according to a new filing in an appeal by patients seeking to light up medicinal cannabis.

Attorney Jon Mills filed a 48-page answer brief late Thursday, in response to the state’s 57-page brief last month arguing that the smoking of medical marijuana should remain outlawed.

The 1st District Court of Appeal case followed a May ruling by Tallahassee Circuit Judge Karen Gievers, who said the smoking ban violates the 2016 constitutional amendment, passed by 71 percent of voters, that broadly legalized medical marijuana.

The next year, lawmakers passed and Gov. Rick Scott signed into law a measure to carry out the constitutional mandate and included a smoking ban.

Prominent Orlando entrepreneur and lawyer John Morgan, who bankrolled the amendment, organized a lawsuit last year challenging the ban. Attorney General Pam Bondi’s office, behind the appeal, filed an initial brief in an attempt to overturn Gievers’ ruling.

In part, Gievers had agreed with Mills that the amendment “recognizes there is no right to smoke in public places, thereby implicitly recognizing the appropriateness of using smokable medical marijuana in private places.”

In his brief, Mills said the constitution’s marijuana provision “permits physicians to certify treatment using medical marijuana— including in a form for smoking—to qualifying patients. That is all (it) does. Nothing less. Nothing more.

“However, (the state law) explicitly prohibits the smoking of medical marijuana as a treatment. It is clearly an enactment contrary to (the amendment).”

The state contends the amendment “does not create a ‘right to smoke’ medical marijuana,” and Mills agreed it “does not in itself create an individual right for anyone to smoke.”

But, he added, the “constitutional framework authorizes treatment with medical marijuana when a physician determines such treatment to be medically appropriate for a specific patient with a debilitating medical condition.”

As of Friday, the court had not ordered oral argument in the case.

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Background provided by The News Service of Florida, republished with permission.

Rays tickets could lead to disbarment of former Bradenton judge

The Florida Bar now is seeking to disbar a former judge who accepted baseball tickets from a law firm representing a woman whose personal injury case he was presiding over.

Circuit Judge John F. Lakin, elected in 2012, quit the bench in March 2016. He served on the 12th Judicial Circuit, which serves DeSoto, Manatee and Sarasota counties. He’s also a former legal analyst for Court TV and MSNBC and a past “Florida Super Lawyer.”

Lakin’s resignation ended a judicial conduct inquiry, but The Bar – which regulates the state’s roughly 105,000 licensed attorneys – filed its own discipline case against him last year.

Lakin

A referee has since recommended a 90-day suspension, followed by one year of probation, but The Bar called that “too lenient.” In a Friday filing, it said he should be stripped of his license to practice law.

Lakin “committed serious misconduct, which undermined the integrity of the judicial system,” its initial brief said. The “recommended sanction … does not reflect the seriousness of the misconduct. The appropriate sanction … is disbarment.”

In a filing in the judicial conduct case, Lakin admitted what he did, but apologized and said he “had no wrongful intent.”

After a trial in the personal injury case, “the jury returned a defense verdict,” finding Walmart not responsible for the plaintiff’s injuries, the Bar’s brief explains.

“The next day, (Lakin’s) judicial assistant received a call from plaintiff’s counsel (Kallins, Little, Delgado), offering the use of the firm’s season tickets for that evening’s Tampa Bay Rays game,” it adds.

Lakin “instructed his judicial assistant to call and accept the offer. (He) received five tickets to the game; he used two and discarded the remainder.”

A previous filing by the state’s Judicial Qualifications Commission (JQC) told Lakin that “despite the fact that the case was not yet final, and you expected that there would be post-trial motions requiring your (action), you failed to advise Walmart’s counsel of your contact with the plaintiff’s law firm.”

He later asked for and got more baseball tickets from the firm, that report added. Afterward, Lakin set aside the jury’s verdict and granted a new trial. “Your extraordinary action allowed the plaintiff a second opportunity to seek damages from Walmart,” the JQC said.

In all, he asked for and got five tickets to four separate Major League Baseball games, “all while the case was pending, and without ever disclosing this fact to the counsel for Walmart,” the JQC said. “The tickets you received were excellent seats, located seven to eight rows back, between home plate and first base.”

Records show Lakin is represented by Tallahassee attorney Jack Weiss, of counsel with Rumberger Kirk & Caldwell. A written request for comment is pending.

Jokes about porn, sex toys spur lawsuit on FSU medical school

Jokes by a medical school professor about porn, sex toys and the Zika virus has led to a lawsuit against Florida State University, according to a complaint filed in Leon County this week.

Christina R. Goswick-Childers, formerly an academic program specialist at the school’s College of Medicine in Tallahassee, filed sexual harassment and retaliation claims after she reported incidents and was let go last February, her suit says. 

But the university denied any discrimination or retaliation against her, countering with a 60-page dossier.

It says the U.S. Equal Employment Opportunity Commission investigated her case and was “unable” to find any “violations” of federal discrimination law. It also says she was terminated for “multiple egregious performance issues” and notes that the professor she complained about — Dr. Gregg Stanwood — was never her direct supervisor.

Goswick-Childers said her troubles began in February 2016, when Stanwood — a developmental neuropharmacologist and behavioral neuroscientist — joked in front of two other co-workers he couldn’t give Goswick-Childers his credit card information because “she may use the card to purchase porn or online sex toys and his wife may find out,” according to the complaint. 

After she reported the remark about two months later, “the (work) environment became hostile and extremely stressful” as Goswick-Childers “believed she would face retaliation.”

She said she did the following January, after a guest speaker “made reference to sex toys in (a) presentation (on the) Zika virus,” the suit said. Stanwood told her in front of four others that “he had made a bucket list item of being able to introduce a speaker that incorporated sex toys and science.”

Goswick-Childers reported the second incident later that month, throwing in a separate complaint that the College of Medicine “refused to consider black students,” including those from Florida A&M University

A day later, she found a Post-It note on her office door saying “Hey Hoe,” the suit says. Goswick-Childers was later demoted, stripped of various responsibilities and ultimately fired, she says. She now seeks a judgment for “general and compensatory damages and economic loss.”

In a statement, FSU General Counsel Carolyn Egan told Florida Politics “an independent external investigation found no evidence of wrongdoing. We have every reason to believe the court will reach the same conclusion.”

A report Egan provided says Goswick-Childers was faulted for “inaccurate and inappropriate record keeping” and issues with her “general professionalism,” mentioning strife with co-workers. 

It also says, however, that College of Medicine officials had confronted Stanwood “to address (his) behavior” and “set expectations going forward.” He “acknowledged his wrongdoing and offered an apology.”

The report further says Goswick-Childers had first reported Stanwood anonymously, outing herself to a department chair after he found her “crying and hiding under her desk.” She later declined the university’s attempt to engage in “any complaint resolution process,” the report says.  

Goswick-Childers is represented by Tallahassee employment-law attorney Marie Mattox, who specializes in representing plaintiffs in discrimination and retaliation cases against the state. The case was assigned to Circuit Judge James Shelfer.

Here’s the lawsuit as filed:

And the university’s response:

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