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DOH begins Amendment 2 rule-making

More patients might be eligible for medical marijuana under Amendment 2, but a preliminary draft of new rules doesn’t appear to allow for immediate growth in the industry to meet demand.

On Tuesday, the Florida Department of Health released the preliminary text of proposed rule development. The release comes ahead of five public hearings schedule for early next month, giving Floridians a chance to weigh in on the agency’s rules and regulations governing the state’s medical marijuana program.

But the update appears to do little to establish new rules, instead creating a system that could bring new patients into the state’s existing medical pot program.

“Any proposal which seeks to mold the spirit of Amendment 2 into the narrow and flawed law on the books today should be rejected, and a more comprehensive strategy must take priority. The people of Florida overwhelmingly voted for a new direction in medical marijuana, and we must heed the will of the voters,” said Sen. Jeff Brandes, a St. Petersburg Republican. “I will support no bill, nor any rule, that maintains the established state sanctioned cartel system we have today, and I urge my colleagues to join me in proposing a free market solution for Florida.

Under the proposed rule, only patients with one of 10 specific medical conditions, like HIV/AIDs or cancer, are eligible for medical marijuana. The rule does allow for use, as long as the Florida Board of Medicine identifies which debilitating conditions it can be used for.

That’s contrary to the ballot language, which allowed physicians to order medical marijuana for a patient for if they believe “the medical use of marijuana would likely outweigh the potential health risks for a patient.”

“The proposed rule issued today by the Florida Department of Health (DOH) stands in direct contradiction with Article X, Section 29 of the Florida Constitution, the expressed intent of the authors of that section, and the will of the overwhelming majority of voters who approved the amendment,” said Ben Pollara, the campaign manager for the United for Care campaign. “If DOH’s rule is implemented as written, it will be in clear violation of Florida law.”

The proposed rule also requires patients, physicians, medical marijuana treatment centers and caregivers to be registered in state’s online Compassionate Use Registry; and requires medical marijuana treatment centers to follow the same record keeping, security, product testing, and other safety standards currently spelled out in state law and rules.

“I believe the Department is being appropriately cautious and awaiting the Legislature’s direction,” said Taylor Patrick Biehl, a lobbyist at Capitol Alliance Group who represents the Medical Marijuana Business Association of Florida. “The eligible patient population grows significantly under Amendment 2 — potentially tenfold. I’m confident that both the Department and the Legislature recognize the need to create affordable, safe and accessible medicine to the deserving patients.”

The preliminary rule also states all medical marijuana treatment centers, which under new rules would be the same as a dispensing organization, must go through the same “approval and selection process” outlined in existing law. Those organizations are also “subject to the same limitations and operational requirements” currently outlined in state law.

That rule means the seven nurseries currently authorized to grow, process and sell medical marijuana will have the corner on the market. Those nurseries are already growing the low THC cannabis authorized under a 2014 state law.

There is potential for more dispensing organizations to come online in the future, but not until 250,000 qualified patients register with the compassionate use registry.

The ballot initiative gives the Department of Health six months after the amendment goes into effect to write the rules governing medical marijuana. The amendment went into effect Jan. 3.

“The legislature has demonstrated a willingness and desire to implement this amendment in a reasonable manner that respects the plain language of the constitution, and reflects the mandate of the electorate,” said Pollara. “Why DOH would choose to engage in a policymaking exercise which ignores both the law and the role of the legislature in implementing the law is a mystery. Perhaps the actions of DOH shouldn’t surprise, given their history of incompetence in the administration of Florida’s medical marijuana laws.”

A spokeswoman for the health department said in an email to FloridaPolitics.com that the agency “initiated the rulemaking process as directed by Amendment 2.” She went on to say the state agency looks forward to “receiving input from all interested stakeholders through the open and transparent rulemaking process.”

The Legislature has indicated it will tackle Amendment 2 during the 2017 Legislative Session. Majority Leader Ray Rodrigues, an Estero Republican, is expected to carry the medical marijuana bill in the House. And last week, the House Health Quality subcommittee held a two-hour meeting where experts, including Christian Bax with the Office of Compassionate Use, participated in a panel discussion on the implementation.

The workshops are open to the public, and anyone can comment. The meetings will be held:

— 2 p.m. on Feb. 6 at the Duval County Health Department, 900 University Blvd. North in Jacksonville

— 10 a.m. on Feb. 7 at Broward County Health Department, 780 SW 24th Street in Fort Lauderdale

— 9 a.m. on Feb. 8 at the Florida Department of Health, Tampa Branch Laboratory, 3602 Spectrum Blvd.

— 6 p.m. on Feb. 8 at the Orange County Health Department, 6102 Lake Ellenor Drive in Orlando; and

— 4 p.m. on Feb. 9 at the Betty Easley Conference Center, 4075 Esplanade Way, Room 148 in Tallahassee.

Those who can’t attend in person, can offer public comment on the Department of Health website.

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medical marijuana

Treadwell Nursery hires Gunster lobbyists Joanna Lee Clary Bonafanti and J. Larry Williams

Treadwell Nursery appears to be sticking with Gunster, Yoakley & Stewart.

Joanna Lee Clary Bonafanti and J. Larry Williams registered with the state to lobby the Florida Legislature on behalf of the Central Florida nursery on Dec. 13. The nursery, which was one of several applicants seeking a permit to grow and distribute medical marijuana, enlisted the help of two other Gunster team members earlier in 2016.

State records show Derek Bruce and Cameron Yarbrough registered to lobby the Legislature on the nursery’s behalf in August and July respectively. In October 2016, the nursery also enlisted the help of Jeffrey Sharkey and Taylor Patrick Biehl with Capitol Alliance Group.

In April, Treadwell Nursery filed a petition for formal administrative hearings in response to the Department of Health’s decision to approve San Felasco Nurseries as a northeast Florida dispensing organization.

The nursery challenged how the Department of Health responded to a new state law, saying it had no criteria or timing outlined about how and when it would award additional licenses.

Treadwell Nursery, a more than 40-year-old family owned nursery in Central Florida, was one of eight nurseries in the central region to apply to be a dispensing organization. The nursery lost out to Knox Nursery. A second nursery in the region, San Felasco Nursery, won its administrative challenge and was eventually issued a licenses.

The fight over who can grow and distribute medical marijuana will surely heat up in the coming months, as state lawmakers and health department officials begin to craft rules and implement the medical marijuana constitutional amendment, which went into effect on Jan. 3.

The new law allows people with debilitating medical conditions to use higher strength medical marijuana if recommended by a licensed physician. According to the Associated Press, there are nearly 1,500 patients in the state registry and about 340 physicians have registered.

The industry is also expected to experience significant growth in the coming years. A recent report from New Frontier Data and Arcview Market Research showed Florida’s market will grow to $1.6 billion by 2020 at a compound annual growth rate of 140 percent. The report notes that the Sunshine State could make up 14 percent of the medical marijuana market by 2020.

medical marijuana

Ray Rodrigues: House bill won’t include tax on medical marijuana

The Florida House will push to make medical marijuana tax exempt, according the sponsor of the yet-to-be filed bill implementing Amendment 2.

While lawmakers are in the early stages of drafting an implementing bill, House Majority Leader Ray Rodrigues said the House does not plan to include a tax on medical marijuana in its proposal. The Estero Republican will be sponsoring the House bill during the 2017 Legislative Session.

“Obviously our goal is to honor the intent of the constitutional amendment that more than 70 percent of Florida voters approved,” said Rodrigues. “The only thing I can firmly commit to is, I reviewed the Senate testimony that was offered in the Senate Health committee, and Ben Pollara, who led the organization that put the amendment on the ballot, said … it was his hope that Amendment 2 would be treated with the same seriousness as we treat medicine and all other health care decisions.”

“We respect that and, to that end, the one thing I can say about the House bill is we’re going to treat medical marijuana like medicine and we will not contain a tax on medical marijuana,” he continued.

Rodrigues said he is in the early stages of crafting the legislation, but does not currently have legislation in bill drafting. He said he hopes to meet with all of the stakeholders before drafting the legislation. But when it comes to the legislation, Rodrigues said he thinks everything will be on the table.

“I think the key is to come out with a product that honors the constitutional amendment, but also provides the regulations that are necessary to safeguard Florida citizens,” he said.

Rodrigues’ comments came after a two-hour House Health Quality Subcommittee meeting Wednesday, where lawmakers heard from Christian Bax, the director of the state’s Office of Compassionate Use, and other medical marijuana experts.

The constitutional amendment, which received support from 71 percent of Florida voters, allows Floridians with debilitating medical condition, determined by a licensed physician, to use medical marijuana. The amendment went into effect Jan. 3, but state lawmakers and the Florida Department of Health are now tasked with adopting rules and implementing the amendment.

Bax said the Department of Health will begin the rule-making process in the coming days. The agency, he said, plans to hold workshops in five regions throughout the state to create an open dialogue about the needs.

“The Department of Health remains committed to executing the will of Florida voters,” he told the committee.

Colorado official describes wild west of law with marijuana

As Colorado became a medical marijuana state and then a recreational marijuana state the laws of the land became increasingly surreal, at least in the images drawn Friday by that state’s assistant attorney general for marijuana laws for the Tiger Bay Club of Central Florida.

Law enforcement officers losing probable cause triggers for searches. Schools being told they cannot forbid marijuana on campus. Failing businesses unable to file for bankruptcy. Special laws considered to give pot shop robberies extra punishment, like bank robberies. Child endangerment issues clouded by lack of direct harm. Divorces clouded by lack of bank accounts. Organized crime getting harder to track because of all the loose cash floating around. Sheriffs refusing to confiscate marijuana.

New challenges like marijuana buses taking tourists to bud and breakfasts, increased homelessness with a in-migration of homeless, increased emergency room visits because people don’t understand dosages, and new niche insurance companies rising to write policies the big firms cannot touch.

“I am not here to tell you marijuana is good or marijuana is bad,” Colorado Assistant Attorney General Michael Song told the Tiger Bay Club. “I’m here to tell yo marijuana is here.”

In Florida it’s here only at a limited scale, but that’s likely only for a limited time. Florida’s Amendment 2 medical marijuana authorization will go into effect after the Florida Legislature and the Florida Department of Health and other state agencies fill in all the gaps of laws and regulations. There are fewer than 2,000 people currently authorized to obtain marijuana-extracts as medicine, but the same was true in Colorado when its medical marijuana amendment was first passed in 2000. Now there are over 113,000, Song said.

And that doesn’t account for the fact that in 2012 the state made recreational marijuana legal too.

Song cautioned that doctors have to be tightly regulated, with means to punish those abusing the ability to recommend medical marijuana.

“What do you think happens when you go to a doctor and say ‘I have a debilitating back injury?’ Do you think he says, ‘Here’s a referral to go get an MRI?’ No. He says, ‘Do you think marijuana will help?'”

He illustrated the dosage concern by showing a picture of a package of marijuana-medicine cookies, looking like any package of chocolate chip cookies. The fine print explained the dosage: one cookie equals six and a half servings. The fine print also explained a dose could take up to two hours to take effect. Song said problems are arising as people, for example, eat a whole cookie, or worse, several, while they wait for the effects to hit. Then they wind up in emergency rooms stoned way over the edge.

Backers of Florida’s Amendment 2 repeatedly expressed confidence that Colorado was the poster child for what Florida will not, with careful laws and regulations, become. But Song said many of the quirks of law and business emerging in Colorado have done so largely because of the awkward and complex fit between contradictory state and federal laws.

Because marijuana is a Schedule 1 drug at the federal level, illegal in all ways, banks with federal insurance underwriting can’t get involved, so it’s virtually a cash business. Bankruptcies aren’t allowed. Insurance carriers often cannot get involved. Hospitals, colleges and universities that accept federal grants – almost all do – can’t get involved in research, not even to track patients using medical marijuana. Courts are denying search warrants or throwing out probable cause claims based on odors or dog alerts or other indications that could suggest illegal marijuana.

On the other hand, legitimate marijuana businesses are having to pay maximum federal tax rates – up to 60 percent – because they’re not allowed to deduct anything. They can’t declare bankruptcy because that’s a federal law. They have trouble hiring lawyers because lawyers advising marijuana businesses in state courts are being banned from practicing in federal courts. And they’ve become big targets of robberies, because everyone knows they have cash, Song said. One proposed suggestion is to give them extra protection under the law, with mandatory jail terms for marijuana shop robberies, much as there is for bank robberies.

 

DOH issues final order denying Loop’s Nuersery medical marijuana license

The Florida Department of Health has issued a final order rejecting a Northeast Florida nursery’s request for a licenses to grow and distribute medical marijuana, four months after an administrative law judge said the nursery failed to show it should have been approved.

On Thursday, Surgeon General Celeste Philip issued a final order denying Loop’s Nursery & Greenhouses’ application to “become a dispensing organization of low-THC cannabis in the Northeast Region.”

The 36-page order upholds a ruling an October ruling by administrative law Judge R. Bruce McKibben, which said the nursery ““failed to prove by a preponderance of evidence that its application to become a distributing organization in the Northeast Region should have been approved.”

“It was Loop’s duty to show how its application was superior to the other applicants. It was Loop’s duty to present whatever evidence about San Felasco and Chestnut Hill was necessary to make that comparison,” wrote McKibben in his October ruling. “Loop’s failed to do so.”

Loop’s was one of five nurseries that applied to be a dispensing organization for the Northeast region of Florida. After it was passed over, the nursery challenged the decision.

Court documents showed the challenge hinged on it producing a specific strain of low-THC medical marijuana and being better equipped to produce the product. But McKibben disagreed with the premise, at the time saying Loop’s assertion it could comply with cultivation requirements better than the other two nurseries was “purely speculative.”

The Florida Department of Health initially awarded the license for the Northeast region to Chestnut Hill Tree Farm, even though San Felasco received the highest score.

The department denied San Felasco’s application because an employee failed a background check; but that denial was later overturned and San Felasco also received a license.

 

Panel: Amendment 2 firing up big bowl of who-knows-what

Medical marijuana champion John Morgan has said repeatedly recently that the “now-what?” questions regarding Amendment 2 are in the hands of lobbyists, lawyers, and legislators; but on Thursday a lobbyist, a lawyer and a legislator told told the Seminole County Chamber of Commerce they don’t really  know what’s next at this point.

Lobbyist Louis Rotundo who represents the Florida Medical Cannabis Association, lawyer Wade Vose who counsels several cities, and state Rep. Jason Bordeur, all agreed that the Florida Legislature, the Florida Department of Health, cities and counties, and businesses and entrepreneurs wanting to go into the medical marijuana industry, all have a lot of unanswered questions to sort through. And just saying no isn’t going to work in most cases.

In particular Brodeur, the Sanford Republican who has professional background in working with the Food and Drug Administration on drug approvals, outlined a long list of uncertainties from regulating where seeds can come from, to limitations on who can work in the industry, to disposal of unused parts of the plants, to how law enforcement deals with situations involving people with medical marijuana referrals.

All of that, he cautioned, is with a background of federal law that still make medical marijuana a Schedule 1 drug. That means if the federal government decided to enforce the laws, people could go to federal prisons for things authorized by the state legislature and Amendment 2.

“There are 100 decision points that we still need to do,” he said. “The answer is, I don’t know what we’re going to do.”

The same may be true with how local governments might consider regulating local facilities, particularly retail outlets, known as dispensaries in state regulations and as pot shops in opponents’ language. Rotundo cautioned that cities ought not try to zone them into industrial areas only. He drew an image of a woman taking a child to a dispensary in an industrial area – a dark and creepy location. And she’s carrying cash, because marijuana medicines can only be purchased with cash. If she’s robbed or worse, the city is going to look really bad, he cautioned. Another alternative to tough zoning restrictions – which is happening right now – involves marijuana medicine being delivered to homes in unmarked delivery vans and cars, a method he suggested most neighborhoods would found unacceptable if they knew it was happening.

Vose conceded the points, but said cities and counties still must receive, from the legislature, direction and authority to regulate where the shops can go.

“It was a big wake-up call for cities and counties that they need to get in gear to get ready for these organizations, particularly for the retail,” Vose said of Amendment 2’s passage. “That’s where the big focus is for local government. Getting in gear and getting in place appropriate regulations… so they can adequately regulate where these products are going to be sold.”

Rotundo said the growth of the industry remains unpredictable. So far, it’s small, and he expressed doubts about the high estimates some have cited, that it could grow to a billion dollar industry in Florida. As long as it’s small, with seven licensed marijuana medicine producers and a handful of others that may win court challenges to join them,  there won’t be much to regulate.

“You can’t suspend the laws of economics,” he said. “The patient base is very limited right now.”

 

What to know as Amendment 2 goes into effect on Tuesday

Dr. Joseph Dorn has had a unique vantage point when it comes to the burgeoning medical marijuana industry in Florida.

Dorn was the medical director of Surterra Therapeutics, which is one of the six dispensing organizations licensed to grow and distribute medical cannabis in the state. He resigned from that position two months ago and has opened a medical marijuana treatment center as Amendment 2 takes effect on Tuesday.

The constitutional amendment, which was approved by 71 percent of Florida voters, allows higher-strength marijuana to be used for a wider list of medical ailments. However, the true measure of what the amendment means won’t be immediately seen until a new set of rules are adopted and implemented by the Florida Legislature and the Department of Health.

“I think the expectations for most people is it is going to be a free-for-all, and all people have to do is get their cards to receive it,” Dorn said. “I think there is going to be a lot of chaos initially because there is still a lot of work to be done.”

The upcoming year will be important, considering the health and economic factors at play.

A study recently released by Arcview Market Research and New Frontier Data showed that Florida is on track to log more than $1 billion in medical marijuana sales by 2019 and surpass Colorado within four years.

WHAT THE AMENDMENT DOES

It allows the use of medical marijuana for people with debilitating medical conditions as determined by a licensed physician. In 2014, the Florida Legislature approved the use of low-THC and non-smoked cannabis for patients suffering from cancer, epilepsy, chronic seizures and chronic muscle spasms. It was expanded last year to include patients with terminal conditions under the Right to Try Act and allowed them to use higher strains.

Patients suffering from HIV/AIDS, glaucoma, post-traumatic stress disorder, ALS, Crohn’s disease, Parkinson’s disease, multiple sclerosis, or other similar conditions will now be covered.

HOW PATIENTS CAN OBTAIN MARIJUANA

Patients must be under the care of a licensed physician who has completed the required eight-hour course and examination for at least three months. Dorn, who is one of three approved physicians in Tallahassee, said he is nearly booked with appointments for the upcoming week.

According to the Department of Health, 340 physicians are registered. Christian Bax, who runs the Office of Compassionate Use, which is tasked with regulating medical marijuana, said last month he expects for there to be a significant increase in registered physicians during the first quarter of the year.

There are currently 1,495 patients in the state registry but that number will steadily increase.

DISTRIBUTING ORGANIZATIONS

Five of the seven licensed organizations have received authorization to distribute medical marijuana. CHT Medical, which was approved two weeks ago, will begin in-home delivery this month. At least one more additional license will likely be granted after a recent settlement between the Department of Health and two Southwest Florida nurseries.

Once the patient registry reaches 250,000, an additional three licenses will be made available, one of which will be designated for black farmers.

Dispensaries are open in Tallahassee, Clearwater and Tampa but according to the Florida League of Cities, 55 cities statewide have zoning moratoriums in place either banning or restricting dispensaries. Eight additional cities are considering moratoriums.

Most moratoriums are temporary as cities and counties await new regulations from Amendment 2’s passage.

NEXT STEPS

Five more legislative committee weeks are scheduled before the start of the Florida Legislature on March 7. The Florida Senate’s Health Policy committee held a workshop in early December to hear concerns from all parties. The House’s Health Policy committee has not met yet.

The amendment allows the Department of Health and Legislature to come up with the regulatory framework.

Those who opposed the amendment are urging lawmakers to uphold the tenants of the amendment, especially when it comes to putting laws in place to ban pot candy.

Whatever path the Legislature and Department of Health decide to go down, only one thing is certain – the clock is ticking to get it done.

Republished with permission of The Associated Press.

Jim Rosica’s review of top state government stories in 2016

From algebra to Zika, 2016 brought a plethora of material to the Capitol Press Corps. Trying to pick the top state government stories is a subjective pursuit, to say the least, but here are the FloridaPolitics.com picks for the passing year. In (kind of) chronological order:

— Kevin McCarty ousted as state Insurance Commissioner, replaced by David Altmaier

McCarty gave himself the ax in early January, saying he was resigning to pursue “other career opportunities.” The then 56-year-old often took the blame for rising insurance rates in the state, especially when homeowners discovered they would have to pay more in premiums. Gov. Rick Scott had had it in for McCarty for a while; he was among a triumvirate of state officials that Scott forced out the door, including FDLE Commissioner Gerry Bailey and Department of Revenue head Marshall Stranburg. Then Scott and CFO Jeff Atwater deadlocked on McCarty’s replacement. (Under state law, Scott and Atwater first have to agree on one candidate.) Scott backed retired insurance executive Jeffrey Bragg, while Atwater was behind Bill Hager, a state representative and former Iowa Insurance Commissioner. The compromise candidate was David Altmaier, then the Office of Insurance Regulation’s deputy commissioner, who once was a high school algebra teacher. Altmaier was appointed in April.

— Pro-school vouchers rally in Tallahassee; school vouchers ruling

Martin Luther King III, the oldest son of Dr. Martin Luther King Jr., led a march and rally in downtown Tallahassee during the Legislative Session in February, in support of Florida’s Tax Credit Scholarship, attracting several thousand participants and spectators. Capitol Police director Chris Connell even sent an advisory to state workers that “organizers are busing in people from around the state and are planning for approximately 10,000 people to attend the rally.” The timing was apt: It was the day after the federal holiday memorializing his father, the slain civil-rights leader. Then in August, the 1st District Court of Appeal sided with a lower court to throw out the lawsuit filed by the Florida Education Association and others over the state’s largest private school voucher program. They had argued its method of funding private-school educations for more than 90,000 schoolchildren is unconstitutional. The vouchers are funded by companies, which in turn receive tax credits on money they owe to the state.

— Rick Scott’s $250 million in incentives nixed by lawmakers

Scott had proposed a “Florida Enterprise Fund,” $250 million for business incentives. “Everyone knows my priorities,” he said close to the end of session. “All of them are tied to getting more jobs in our state. The tax cut is important … along with the $250 million for (the Fund).” But, as Uncle Junior once said of Richie Aprile, “He couldn’t sell it.” An intransigent House, including current House Speaker Richard Corcoran, derided it as corporate welfare. Relentless criticism from groups like Americans for Prosperity-Florida didn’t help either. In the end, Scott’s business recruitment effort got “zero.” And Scott wound up vetoing $256.1 million from the final 2016-17 budget – eerily close to the $250 million he sought for economic development.

— Legislature punts on new Seminole Compact

The history of failure in dealing with gambling continued in the Legislature in 2016. A deal between the state and Seminole Tribe of Florida on exclusive rights to offer blackjack in Florida expired last year, and Scott negotiated a new “compact” guaranteeing blackjack exclusivity in exchange for $3 billion over seven years. The deal died in March when it couldn’t get to either floor for a vote. It contained provisions that would have allowed the tribe to also offer craps and roulette—that is, more games. And lawmakers tacked on bills that would have expanded gambling offerings for the dog and horse tracks in their districts. Legislative leaders say they support bringing the compact back in 2017. But a federal judge recently sided with the tribe in, saying no matter what the Seminoles can keep dealing cards till 2030 – the end of the original agreement – and don’t have to pay the state a dime. Nonetheless, the tribe is still paying to keep a fragile peace, depositing $19.5 million in state coffers this month.

— Rick Scott signs death penalty overhaul into law, which Supreme Court later invalidates 

In March, Scott signed a measure that overhauled Florida’s death penalty by requiring that at least 10 out of 12 jurors recommend an execution for it to be ordered. Florida previously only required that a majority of jurors recommend a death sentence but the U.S. Supreme Court ruled the state’s sentencing law was unconstitutional. In 2013, Scott also signed “The Timely Justice Act,” which requires governors to sign death warrants within 30 days after a Death Row prisoner exhausts all appeals, among other provisions. This year’s fix was short-lived: By October, the Florida Supreme Court shot the law down, saying death sentences require a unanimous jury. The court added the new law can no longer be applied to pending prosecutions in the state. Still another decision opened the door to death-sentenced inmates getting their sentences reduced to life. And the opinions mean lawmakers will once again, in the words of Justice Harry Blackmun, have to “tinker with the machinery of death” in 2017.

— Supreme Court decisions punch holes in workers’ comp system

The state’s business lobby had a conniption after the Florida Supreme Court ruled on two cases this summer affecting the state’s workers’ comp system. One struck down a law that limited payments to injured workers to only two years. Another struck down a law that capped attorney fees in workers’ compensation cases. Soon, the National Council on Compensation Insurance, which submits rate filings on behalf of insurers, asked state regulators to OK a nearly 20 percent rate hike in workers’ comp premiums. That request was whittled down to 14.5 percent, which took effect Dec. 1. Opponents have criticized the 2003 changes put in place by Gov. Jeb Bush and the Legislature, saying they were draconian and favored employers at the cost of injured employees. Companies said the new system cut costs, which helps businesses grow jobs. And the changes also were intended to reduce lawsuits over benefits. Expect lawmakers to tackle this issue as well in 2017.

— Citrus Department gets smaller budget, staff cuts

The citrus greening epidemic, which is killing the state’s citrus trees, also hit the Department of Citrus this year. Normally, the department’s operations are paid for by a tax paid by growers on each box of citrus. But because the state’s citrus crop is shrinking, so are the department’s finances. The Florida Citrus Commission, which oversees the department, in June approved a $20.7 million spending plan for 2016-17, a 32 percent decrease from the prior budget year. That was after leading growers called for the Department to “be scaled back considerably,” saying they “do not believe current marketing programs are generating an economic return.” One bit of good news came by year’s end: Florida’s orange crop production will hold steady at 72 million boxes for the 2016-17 season, the U.S. Department of Agriculture forecasted.

— State economists say budget is heading into the red

In September, the state’s economists told lawmakers Florida is likely to basically break even next year in terms of its state budget. The Joint Legislative Budget Commission met in the Capitol to hear the latest financial outlook for 2017-18: Income and outgo estimates left Florida with a relatively scant $7.5 million left over out of about $32.2 billion in available revenue. And deficits were forecast for following years. The current year’s budget is roughly $82 billion, which includes federal dollars. (About two-thirds of the yearly budget goes toward health care and education.) By December, the outlook was a bit more sanguine, with nearly $142 million expected to be available. Within context, however, that amounts to a “very minor adjustment,” said Amy Baker, the Legislature’s chief economist.

— Scott tussles with Tallahassee over Hurricane Hermine response

Welcome to Tallahassee, where politics meets weather. Hurricane Hermine, the first to make landfall in Florida since Wilma in 2005, smacked the Panhandle on Sept. 2. Afterward, Democratic Mayor Andrew Gillum of Tallahassee and Republican Gov. Rick Scott had a testy faceoff over the speed of repair to the city’s electric system. Scott said in a press release that the city was declining help from other utilities and the Department of Transportation. He said he was “frustrated” over how long it was taking to get power back on. Gillum shot back that Scott’s “comments and press releases and tweets have been put out, in my opinion, to undermine our cooperative process … We owe it to (the people of Tallahassee) to not be about politics, but to be about getting power to them.” When Hurricane Matthew skimmed Florida’s Atlantic coast the next month, Scott was more solicitous in dealing with Jacksonville Mayor Lenny Curry, a former Republican Party of Florida chair.

— Voters pass medical cannabis amendment

The second time was the charm for a state constitutional amendment guaranteeing Floridians a right to medical cannabis. Florida voters approved the initiative by 71 percent, well over the required 60 percent needed. That was two years after it missed passage by roughly 2 ½ percent. The amendment creates a right for people with debilitating medical conditions, as determined by a licensed Florida physician, to use medical marijuana. It defines a debilitating condition as cancer, epilepsy, glaucoma, HIV/AIDS, and post-traumatic stress disorder, among other disorders. In Florida, the “non-euphoric” version is already approved for children with severe seizures and muscle spasms. The state later passed a law allowing terminally ill patients to use a stronger form of marijuana during their final days. Lawmakers already have begun dealing with how medical marijuana will work in Florida, holding the first of many workshops this month.

— Dozens begin applying for seats on Constitution Revision Commission

The Florida Constitution allows for a “revision commission” to meet every 20 years to “examine the constitution, hold public hearings and … file its proposal, if any, of a revision of this constitution or any part of it.” The next one is scheduled to convene in the 30 days before the beginning of the 2017 Legislative Session in March. The lead-up started in January. That’s when the LeRoy Collins Institute, a nonpartisan policy think tank, released a cartoon featuring an animated Sandy D’Alemberte, the legal legend and former Florida State University president who chaired the commission in 1977-78. Later in the year, scores of constitution-revising aspirants turned in applications to Scott, who gets to pick 15 of the 37 members and will choose its chair. Applications also rolled in to Chief Justice Jorge Labarga, who gets three picks, and Senate President Joe Negron and House Speaker Richard Corcoran, who get nine choices each. The applicant lists read like a Who’s Who of Florida, old and new, including present and former lawmakers, lawyers and law professors, local officials and lobbyists.

— Richard Corcoran rolls out tough new House rules

The new Speaker, calling for a new culture of transparency in the Florida House, issued new rules in November that get tough with the capital’s lobbying corps. One increases the ban on former members lobbying their colleagues from two years to six years. Another prohibits state representatives from flying in aircraft owned, leased, or otherwise paid for by lobbyists. Still another requires lobbyists to file an individual disclosure for every bill, amendment, and individual appropriation they are trying to influence. And he created a new Committee on Public Integrity and Ethics, which will “consider legislation and exercise oversight on matters relating to the conduct and ethics standards of House members, state and local public officials, public employees, lobbyists, and candidates for public office, the regulation of political fundraising and the constitutional prerogatives of the Legislature.” Lobbyists publicly nodded in agreement – and privately expressed displeasure. “What I take major issue with is trashing ALL lobbyists and accusing us of being the reason legislators are out of control,” one said anonymously.

— Pitbull controversy ends with VISIT FLORIDA head’s ouster

In December, Scott called on CEO Will Seccombe to resign, the last casualty of a kerfuffle over a secret contract with Miami rapper Pitbull to promote Florida tourism. Corcoran filed suit for the agency to reveal how much it promised the rapper after it claimed the deal was a “trade secret.” Pitbull had the last laugh, disclosing his contract via Twitter and showing he stands to make up to $1 million. Scott wrote to agency board chair William Talbert, telling him he wanted an overhaul of how it does business, revealing more on how it spends money, including contracts. “The notion that Visit Florida spending would not be transparent to the taxpayers is just ridiculous,” Scott wrote. By that point, Seccombe already had fired two of his top executives, Chief Operating Officer Vangie McCorvey and Chief Marketing Officer Paul Phipps, but it wasn’t enough. Seccombe had been in charge of the agency since 2012.

— Department of Health beats Zika–for now

Florida declared its crisis with local transmission of Zika over for the season in December, ahead of peak tourism months. But health authorities warned that travelers would continue bringing the disease into the state. Starting in late July, state health officials had identified four zones in the Miami area where the virus was spreading through local mosquitoes – the first such transmissions in the continental U.S. – and launched aggressive efforts to control the insects. One by one, the zones were deemed clear of continuing infections, and Scott announced that the last one – a 1.5-square-mile area in touristy South Beach – also was cleared. About 250 people have contracted Zika in Florida, and over 980 more Zika infections in the state have been linked to travel, according to state health officials. Zika causes mild flu-like symptoms for most people, but it can cause severe brain-related birth defects when pregnant women become infected. “Hopefully, by next summer, we’ll have a federal government that has a vaccine,” said Scott.

Peter Schorsch, Michael Moline and The Associated Press contributed to this post (reprinted with permission). 

Joe Negron addresses Okeechobee overflow in broad-ranging briefing

Senate President Joe Negron on Tuesday defended his plan to store runoff from Lake Okeechobee instead of sending it into coastal estuaries where the nutrient-rich water can feed noxious algae blooms.

One of the Stuart Republican’s top priorities for 2017 is to spend $2.4 billion to buy 60,000 acres of land south of the lake to store excess water and ease the effects of discharging polluted runoff.

During a briefing with reporters in his Capitol office, Negron acknowledged that his plan faces opposition from homeowners, developers and agriculture interests. But he added that the solution has been obvious since Jeb Bush was governor.

“There was a general scientific consensus that additional southern storage was necessary as an indispensible component of this project,” Negron said. “It is not a radical idea. It is not a new idea. It simply says, the time has come to stop talking about it and do it.”

The voters in 2014 approved Amendment 1 to the Florida Constitution to mandate use of 33 percent of the state’s take in real estate taxes to buy land when necessary to protect the environment.

“We should stay well within fiscally prudent amounts in terms of our bonding, and I think we will. Secondly, Amendment 1 not only authorizes bonding, it anticipates bonding for purchases of environmentally sensitive land,” Negron told reporters.

“Any argument that we shouldn’t finance land purchases is negated by the voters’ expressed intent in the amendment. When there’s a conflict between someone’s personal preference and what the Constitution says, we should go with the Constitution.”

He acknowledged the problem would also requite conversion of septic tanks into sewage systems but added:

“I don’t hear anyone defending the status quo — which is that when we have a lot of rain and the water level rises to 15.5 feet, the Army Corps of Engineers opens up the floodgates and literally destroys estuaries and lagoons and waterways east and west of the lake.

Negron called for conversion of Medicaid into a block grant program that would allow Florida flexibility to address local conditions.

And he addressed the death penalty, the status of which has been uncertain since the U.S. Supreme Court overturned a death sentence imposed by a judge absent a jury recommendation.

The Legislature, in response, refused to require a unanimous jury vote to put someone to death, although Negron favored that outcome.

“My personal view is that we should adopt a policy requiring a unanimous verdicts, and that was the Senate’s position last year. That actually strengthens the efficacy of a jury verdict on appeal,” he said. “It makes a verdict less susceptible to challenge.”

Meanwhile, he suggested, state leaders should monitor the way courts treat these cases.

“It’s important that there’s an orderly system of justice in place for families of victims and for individuals that are charged with these kinds of serious crimes.”

On fracking, Negron expects the Senate to consider the topic again next year.

Last year, he opposed legislation that would have regulated fracking and authorized research into what it would mean in a state that relies on the shallow Floridan Aquifer for drinking water. The bill died in the Senate Appropriations Committee.

“I wasn’t comfortable that the bill being offered had the necessary protections for the environment, the water supply,” Negron said.

Additionally, it “appeared to be taking away the right of local governments to also be involved in this issue.”

Regarding cities and counties that have imposed local bans, he said it’s “not a wise thing to have 67 sets of rules on a particular issue. But, as a general proposition, I think we should be cautious in pre-empting the abilities of local governments.”

Negron signaled sympathy for local governments seeking to regulate the spread of pot dispensaries through zoning. The voters this year approved a new constitutional right to access medical marijuana.

As with fracking, “I think, generally speaking, when it comes to zoning, when it comes to land use and growth management and these kinds of things, we should stay in our lane and let local governments make decisions that they think are best for their communities,” he said.

“I do think the state has a responsibility to make sure that people’s rights under the Constitution — the right to participate in lawful commercial activities — aren’t completely taken away. But in areas of discretion, I would generally err on the side of local government.”

Ben Pollara: Expansion of medical marijuana business is necessary and prudent

At last week’s Senate Health Policy Committee workshop on medical marijuana, much of the conversation centered on the question of whether the passage of Amendment 2 necessitated an expansion of the number of licenses to cultivate and sell medical marijuana in Florida.

I participated in the workshop at the invitation of Chair Dana Young, and addressed this issue in my opening remarks, arguing that voters approved medical marijuana by a historic, 71 percent margin with the knowledge and expectation that passage of the amendment would mean just such an expansion of the marketplace.

Adjudication of voter intent is tricky business, but consider the context in which this amendment was approved.

Florida passed a limited medical marijuana law in 2014, and expanded it slightly in 2016. That law authorized five marijuana growers across the state (a court later granted a sixth).

Voters were not only aware of the existence of this limited market, but were repeatedly told by the opposition campaign — in 30-second TV ads, direct mail, online ads, emails, OpEd pieces, and news conferences — that a vote for Amendment 2 would mean, “a pot shop on every corner,” or, “more pot shops than Walgreens and CVS’s combined,” among other similarly dire predictions by the opposition.

Voters approved Amendment 2 with the clear expectation that it would result in an expansion of the medical marijuana industry in Florida. But even putting aside the notion of voter intent, the legislature should significantly expand the medical marijuana business in Florida for a variety of reasons practical and philosophical.

The primary reason to do so is at the core of the amendment just approved: to serve the estimated half million or more patients in the state through a competitive free market. The expansion also serves to exert regulatory oversight on the industry and obviate diversion to the black market, and because good public policy and government procurement practices dictate transparency and fairness.

During the workshop, the CEO of Trulieve (one of the five companies licensed under current statute) said they could presently serve over 70,000 medical marijuana patients and, with planned expansion of their operations, nearly 10 times that number. This assertion went unchallenged despite there being only roughly 1,000 total patients under the current law. Are we to believe that the company is currently sitting on 70 times more inventory than the entire consumer base statewide?

Also unchallenged was the consumer data Trulieve cited to offer those numbers.

They based their assertions on a daily dosage per patient of 20 milligrams of cannabis oil and extrapolated from there. This makes Trulieve’s claims more difficult to verify, since marijuana is a plant, not an oil, and we don’t know how much of that plant must be grown to achieve the numbers claimed. Colorado’s Department of Revenue, for example, measures consumption based on the weight of dried plant matter; others on a mean number of plants, harvested and growing, per patient.

So, while we can’t easily determine the veracity of Trulieve’s capacity claims, we are also not living in a vacuum.

We know Florida is large and diverse and that on its face, having six companies serve any sort of statewide market is bad for consumers from a perspective of access, quality, choice, and cost. The only industry that operates in such an oligopolistic manner is power companies, which as utilities must do so, and thus are subject to oversight by the PSC on rate increases, and all aspects of their operations.

If these six businesses can operate in the absence of competition, who ensures patients aren’t being gouged? Will the legislature authorize the Office of Compassionate Use to set prices, establish production quotas and quality controls? Does anyone want or believe that medical marijuana should be administered in Florida in a such a way?

There are no right answers to these questions.

And though the logic behind such a small number of growers may have been an abundance of caution in introducing a legal marijuana market to our state, we must consider the unintended potentiality that the result will be a significant expansion of the already large black market for marijuana. This may seem initially counterintuitive, until you consider the following:

First, the sheer size of these operations (particularly one of the capacity described by Trulieve) makes a diversion of marijuana to the black market easier and more likely.

A pound of marijuana finding its way into the hands of drug dealers is far simpler and less risky if an operation is harvesting hundreds, or thousands, of pounds at a time, versus one harvesting tens of pounds.

The smaller the haystack, the more likely you are to find the needle gone astray.

Second, let us assume that the above scenario doesn’t come to pass, and every ounce of marijuana grown by these six companies is accounted for from seed to sale. Patients are guaranteed to face the burdens of an uncompetitive market: high prices, a dearth of choices, and for some, lack of physical access to retail. If one or all those results come to pass, consumers will flock to the black market.

The economic imperatives of supply and demand clearly dictate this unwanted consequence.

Other states have experienced this predictable phenomenon, with black markets surging as nascent markets grow to accommodate new consumer demands; and then shrink as markets expand and legal products’ pricing falls in closer line with a black market not subject to regulatory compliance and oversight.

Colorado’s legalization of marijuana for medical and adult use, for example, has been shown to have dramatically decreased the seizure of marijuana imported by El Chapo‘s Sinaloa cartel, as well as other Mexican cartel trafficking.

Finally, there is a philosophical argument to be made for the administration of good public policy and fair procurement practices.

While technically a “licensing” by the state, these six companies were granted authorization to grow and sell marijuana through a competitive process that, for all intents and purposes, was conducted like a government procurement.

House Speaker Richard Corcoran regularly inveighs against the government participating in the business of “picking winners and losers,” but that would be the precise result of the maintenance of the current system.

The five licenses awarded (and the sixth won through litigation, with a seventh and possibly more seemingly likely by courts) were done so by an application and selection process designed to choose well-qualified, capitalized and experienced applicants to serve a law, and a market, of an entirely different, and much smaller, size and scope than that anticipated under Amendment 2.

An apt analogy is if a company bid on and won a contract to supply a county government with widgets, and then the State of Florida decided to “piggyback” that county contract to allow the company to sell them much larger state government those same widgets.

Government contracts should be awarded transparently and based on the needs of the procuring agency, not merely expedience and fealty to a previous process that bears little resemblance to the present realities of the agency.

I am glad this discussion has begun already in Young’s Health Policy Committee, and I look forward to making these points to the legislature, the Department of Health, and the people of Florida.

The implementation of a medical marijuana law is a balancing act — and a delicate one.

Serving the intended beneficiaries of the law — sick and suffering patients — is paramount, but must also be weighed against the establishment of an industry and market with which to serve them. There must be a robust system of laws and regulations that take both into account, as well as considerations of public safety, local control, and competitive, free market principles.

There are hundreds, if not thousands, of decision points that must be determined in crafting the medical marijuana system authorized under Amendment 2. Most of them are not binary, but the decision to leave as is, or to expand the marketplace.

If six companies, authorized under a three-year-old statute, are to be the sole suppliers of the statewide market for medical marijuana in Florida, we will all suffer the consequences.

Supply will not be able to meet demand, patients will face a choice of high prices versus buying untested, unregulated product from street dealers, and our government will have violated some of the most basic tenets of transparent procurement in the sunshine — and the will of the people will have been thwarted in the process.

___

Ben Pollara is the executive director of Florida for Care. He managed the 2014 and 2016 campaigns for Amendment 2 and was one of the primary authors of both amendments.

Pollara honestly has no earthly idea whether John Morgan will run for governor, so please stop asking.

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