Peter Schorsch
It’s no secret that the Florida Department of Health could have handled implementing medical marijuana laws in the Sunshine State better, and it’s starting to look like they bungled it bad enough their outside private counsel – not patients in dire need of relief – are reaping the benefits on the backs of taxpayers.
When lawmakers dipped their toe in the water on medical marijuana with the “compassionate care” bill in 2014, DOH held a series of rule-making sessions that brought every long-time nursery owner and their newly retained lobbyist to Tallahassee to listen to proposed rules on the roll out.
Homestead-based Keith St. Germain Nursery and Farms, which according to everything DOH laid out in those sessions, fit the criteria of the bill for a growing license.
Unfortunately for KSG, they were in the same region as Costa Farms, which beat them out by a point, 4 to 3, on the grading scale DOH engineered.
KSG took the loss in stride even though many other snubbed nurseries challenged the department’s process in court. And many of them were successful, costing the state an untold sum in legal fees for the botched implementation of a law that was meant to help sick kids who had been failed by traditional medicine.
Fast forward a couple years and Floridians passed a constitutional amendment legalizing real-deal medical pot, and lawmakers voted during a special session this past summer to grant additional licenses to qualified growers.
But one aspect of the law was abundantly clear: How the DOH should award the new licenses.
From Section 381.986, Florida Statutes, emphasis added:
As soon as practicable, but no later than August 1, 2017, the department shall license any applicant whose application was reviewed, evaluated, and scored by the department and which was denied a dispensing organization license by the department under former s. 381.986, Florida Statutes 2014; which had one or more judicial challenges pending as of January 1, 2017, or had a final ranking within one point of the highest final ranking in its region under former s. 381.986, Florida Statutes 2014; which meets the requirements of this section; and which provides documentation to the department that it has the existing infrastructure and technical and technological ability to begin cultivating marijuana within 30 days after registration as a medical marijuana treatment center.
Those requirements so perfectly describe KSG’s operation, it’d be hard to blame someone who accused them of drafting it. License denied? Check. One point behind the winner? Check. Meets the requirements, has the infrastructure and has the ability to hit the ground running? Check, check, check.
Thinking that the law was the law, St. Germain Nursery in June requested a license to grow, process and distribute medical marijuana. Two months later, DOH slapped them with a denial and more legal fees.
The reason? The original score was 4.4000 for Costa, and 3.2125 for KSG, putting the two operations 1.1875 points apart, and disqualifying KSG from getting the license it is most assuredly qualified to receive.
One can only imagine the thoughts going through the heads of St. Germain’s legal team, who are challenging the ruling, chief among them being whether DOH employees were getting free “samples” from growers when they came up with this process.
That would actually make sense, too, considering the department tried to use the same excuse in a separate case earlier this year. And that case, which it lost, went before Administrative Law Judge John Van Landingham, who also is assigned to the KSG complaint.
DOH’s interpretation doesn’t hold up. The underlying data used to evaluate applications used whole numbers, not decimal points. Use of the decimal points creates a falsity of precision … they are spurious numbers, as noted by Judge Van Landingham in a challenge to DOH’s rankings in a similar case earlier in the year. The judge noted in his recommended order to DOH: “to eliminate the false precision, the spurious digits should be rounded off.” In this case, the difference between the applicants is 1.1875 points, which, when rounded appropriately, is a difference of 1 point.
DOH apparently can’t learn from past mistakes, and is marching down the path to ringing up more legal fees and restricting competition while the governor and state have other pressing healthcare issues to deal with. Not to mention they are skirting the intent of the law Florida voters demanded last year. Millions who showed up to the polls voted decisively that they want medical marijuana available to their friends and neighbors who are suffering from chronic, painful and often debilitating conditions.
How does having only one licensed medical marijuana treatment center in the Southeast, while other regions have two, three or even four, make that happen? From a bird’s eye view it seems like all it does is hurt the people in the most populous region of Florida by stifling competition and failing to ensure there will be enough product for all who need it.
KSG is shovel-ready, and prepared to hire hundreds at a new 28,000-square-foot facility. All DOH has to do is play by the rules and the law.
