With a 5 p.m. Friday deadline looming, Gov. Rick Scott has sought support from legislative leaders before appealing a Tallahassee judge’s order that critics say would create pandemonium in the state’s medical-marijuana industry if allowed to stand.
Responding to Scott’s request, House Speaker Richard Corcoran, incoming Speaker Jose Oliva and other Republican House leaders on Wednesday urged the Governor to seek “immediate review by a higher court” of an order by Leon County Circuit Judge Charles Dodson, who ruled this month that a 2017 medical marijuana law was unconstitutional.
The impending court deadline — and the Scott administration’s failure to file an appeal thus far — has sparked a buzz within the state’s lucrative and highly restricted medical-cannabis industry, where licenses have sold for upwards of $60 million in recent months.
Dodson gave state health officials until Friday to begin registering new medical-marijuana operators after deciding a state law, passed during a special legislative session last year, failed to properly carry out a 2016 constitutional amendment that broadly legalized medical marijuana.
Siding with Tampa-based Florigrown LLC, Dodson rebuked the Governor, the state Department of Health and the Republican-dominated Legislature for what he said was an unconstitutional law aimed at implementing the voter-approved ballot initiative.
Dodson’s harshly worded Oct. 5 order scolded state officials for treating the Constitution “like a recommendation” and gave the Department of Health two weeks to register Florigrown and to begin registering other medical-marijuana operators, or risk being found in contempt.
But, in Wednesday’s letter to Scott urging him to ask for a temporary injunction, House leaders wrote that Dodson’s order is “rife with substantive and procedural errors.”
Dodson’s order requiring health officials to move forward with new licenses “poses a serious risk of hardship to businesses that invest in the court’s temporary licensure scheme,” should his ruling be overturned, the House Republicans argued.
“The order also creates practical impossibilities and substantive dangers” by appearing to initiate “a different model regulatory system for which it has no rules, procedures, or infrastructure,” they wrote.
“Such an unpredictable regulatory environment is ripe for litigation, which will prevent, rather than ensure, access to this medical treatment,” the House Republicans said.
Industry insiders had expected Scott’s administration to appeal Dodson’s order as it has with nearly every other ruling it considered contrary to state policy, but politics may be playing a role in the delay.
Scott, a Republican who is finishing out the final months of his eight years as governor, is in a heated battle to unseat incumbent U.S. Sen. Bill Nelson, a Democrat who’s held his post for nearly two decades.
More than 71 percent of Florida voters approved the medical marijuana amendment in 2016, and polls have demonstrated widespread and bipartisan support for medical marijuana among all demographics throughout the state.
Numerous sources close to key legislators and the Scott administration told The News Service of Florida on Thursday that the Governor’s office requested that the House and Senate formally ask Scott to appeal the judge’s decision in the Florigrown case.
“Some people may call it ‘cover,’ but really what we have is we’re litigating an exceptionally complex and high-profile issue,” lawyer John Lockwood, who represents licensed medical- marijuana operators as well as those seeking entry into the state. “I don’t find it unusual that the administration may be looking to all the different stakeholders to seek feedback on the issue and the importance of the appeal.”
The Scott administration has faced harsh criticism, including from state legislators, for the roll-out of the medical-marijuana industry. Much of the blame has been placed on the Office of Medical Marijuana Use, a division of the health department.
Health officials have been accused of a wide range of lapses, such as protracted delays in licensing marijuana operators and months-long waiting periods for eligible patients to receive ID cards required for access to treatment.
Dodson found fault with parts of the 2017 law that, among other things, capped the number of marijuana licenses; created a “vertical integration” system that requires marijuana operators to grow, and process cannabis and distribute related products; and improperly restricted who could get licenses.
The law ordered health officials to grant licenses to operators who were already up and running in Florida or who were involved in litigation as of Jan. 1, 2017. The law also required a license for a black farmer who meets certain conditions and set aside a preference for applicants with certain ties to the citrus industry.
A spokesman for the health department said Wednesday agency officials are reviewing the judge’s ruling.
When asked whether the Governor has sought support from key lawmakers to boost support for an appeal, Scott spokeswoman Mara Gambineri said the health department “has worked nonstop to implement the law the Legislature wrote.”
“They are taking the appropriate time to review the best path forward,” she said in an email.
Sen. Rob Bradley, a Fleming Island Republican who has been instrumental in medical-marijuana legislation, called Dodson’s ruling “classic judicial overreach.”
“The irony of the trial court’s decision is that, if it were to stand, it would negatively affect the suffering patients that the court purports to protect. Patient access and safety would be undermined if the decision were to stand. For the sake of the welfare of Florida patients, I certainly encourage the DOH to appeal,” Bradley, an attorney, said in a text message.
Dodson’s decision striking down the 2017 law could also negate regulations associated with carrying out the constitutional amendment and result in what some predict would leave the industry in turmoil.
“The trial court’s order requires the issuance of an unlimited number of separate, independent licenses to any entity that either buys, grows, processes, transports, sells or administers medical marijuana. Presumably, one of these license holders could open an unlimited number of locations, anywhere in Florida, and perform any or all of those functions at those locations. If the trial court order stands, it will be the wild, wild West,” Bradley told the News Service.
Medical marijuana lobbyists, lawyers, operators and others spent Tuesday and Wednesday calling and texting each other and Scott’s representatives as the clock wound down toward Friday’s deadline.
But some of the Governor’s harshest critics questioned whether the crisis was genuine.
“This whole thing just frankly seems so silly. The notion that the Governor would treat this lawsuit differently than he has every other one on appeal is just ludicrous,” said Ben Pollara, the campaign manager of the political committee behind the 2016 constitutional amendment.
“It looks like he is just either seeking some political cover for a decision he’s already made, because it’s the same decision he’s made in every other circumstance in the past. Or he’s setting up a shake down of the MMTCs (medical marijuana treatment centers) for his super PAC. Or it’s both,” Pollara told the News Service.