James Call
The latest challenge to proposed regulations for Florida’s medical marijuana law is in its final stage.
Late Thursday, attorneys for the Department of Health and Baywood Nurseries filed proposed final orders with Judge W. David Watkins.
The two sides repeated the arguments they made during a hearing last month. Baywood went into greater detail in its complaint about the makeup of a negotiated rulemaking committee, the lack of definitions for terms used, the absence of an appeals process for license revocation and inclusion of a non-refundable application fee.
DOH’s filing was emphatic in maintaining that Baywood has no case.
The Compassionate Medical Marijuana Act of 2014 has been caught in a web of workshops, hearings, and lawsuits since Gov. Rick Scott signed it last June. DOH lost one lawsuit challenging proposed regulations, rewrote the rule and then was hit by a second lawsuit in March filed by Baywood, an Apopka nursery.
Baywood’s challenge is rooted in the makeup of a negotiated rulemaking committee DOH assembled to rewrite the rule. Baywood said it was stacked with big-money interests who tilted the regulations in favor of larger nurseries at the expense of family-owned ones, like itself.
Office of Compassionate Use Director Patricia Nelson included an eligible grower from each of the five licensing regions in the state. Baywood took issue with Nelson chairing the committee. “Nelson has no experience in crafting administrative rules relative to cannabis; her only experience is in the area of the forensic laboratory with regard to cannabis,” wrote Baywood attorneys Hilary Keeling and Charles Moure.
Furthermore, they stated, DOH could have included independent experts who were not stakeholders and failed to include financial experts or a certified public accountant. Baywood also took issue with a nonrefundable $60,063 application fee, a provision it argues is easier for bigger nurseries to shoulder than it is for smaller ones. Baywood also included a lack of definitions for terms used in the rule and the department’s interpretation of a certified financial statement requirement included in the law.
DOH’s defended the rule in a 37-page statement that concluded: “Baywood failed to present any competent evidence that proposed rules 64-4.004 and 64-4.005 are an invalid exercise of delegated legislative authority.”
DOH argued it assembled a negotiated rule-making committee “that it believed were well informed in their fields and well equipped to bring perspectives for all of the stakeholder groups.”
In its proposed final order DOH noted Baywood did not specify what definitions it believed should have been included and “at no time during the rule-making process did any interested party express concern as to the meaning of the terms Baywood maintains require definition.”
DOH also stated that there is an administrative review process for a nursery whose license is revoked and that its hands were tied by the Legislature concerning the certified financial statement requirement.
“At the end of the day, Baywood is simply challenging the statutory requirement of certified financials, not the Proposed Rules,” wrote DOH attorneys Eduardo Lombard and W. Robert Vezina.
If Judge Watkins’ rules in Baywood’s favor the rule will be invalidated and DOH will start the rulemaking process for a third time. If the DOH prevails then an application period for the five licenses allowing nurseries to grow low-THC marijuana and dispense medicinal oil prepared from the plants would begin in 20 days.
Watkins has until May 24 to decide the case.
The Department’s motion is here.
You can read Baywood’s motion here.
