Costa Farms filed a petition Monday challenging the proposed regulations for the Charlotte’s Web law. The Miami grower with offices from North Carolina to China argues the Department of Health exceeded its authority in designing an application process that includes a lottery and widens the pool of applicants beyond what was specified by the legislature.
Plants of Ruskin followed shortly behind Costa and filed a second challenge. In addition to the provisions challenged by Costa, the Ruskin grower argued many of the restrictions placed on dispensing organizations conflict with existing zoning regulations and decisions delegated to local governments and thus are invalid exercises of delegated legislative authority.
Attorneys for Costa Farms noted that the statute lists 7 criteria to be used in awarding the five licenses lawmakers authorized for the cultivation, processing and dispensing a medicinal marijuana product.
“The proposed rule diminishes the importance of the statutory list of selection criteria, treating these as just eligibility requirements; and instead uses an unauthorized random selection to choose among eligible applicants. The proposed rule fails to provide any method to evaluate eligible applicants to determine whether an eligible applicant is superior, or to select the best applicant,” wrote Stephen Turner and David K. Miller, attorneys for Broad and Cassel on behalf of Costa Farms.
The petition also cites DOH’s decisions to restrict qualified nurseries to one application while allowing dispensing “entities” to partner with nurseries and be part of numerous applications. The petition argues this is not only arbitrary and capricious but coupled with a lottery it “magnifies” the problems created by a lottery.
“If adopted these proposed rules operating together would give non-qualified participants the incentive to partner with or support many marginally qualified nursery applicants, diminishing the overall quality of the eligible applicant pool and increasing the likelihood of selecting a minimally qualified applicant in the random selection,” wrote Costa Farms’ attorneys.
DOH Secretary John Armstrong remained defiant in his response to the challenge.
“A rule challenge is regrettable,” Armstrong said in a prepared statement. “The parties behind a challenge should explain why they are delaying the process of providing compassionate care to children with refractory epilepsy and patients with advance cancer. The Department remains committed to getting this product to the market as soon as possible for qualified children and families in Florida.”
The challenge echoes much of the testimony presented at three public hearings DOH held during the rule-making process.
“You want to reward the best not the luckiest,” said Louis Rotundo of the Florida Medical Cannabis Association when he spoke against a lottery at all three public hearings.
The Joint Administrative Procedures Committee had asked the department under what authority it had loosen eligibility requirements to include a non-nursery entity. The department explained the rule is designed to provide “liability protection” to nurseries concerned about a conflict between state and federal regulations.
Numerous lobbyists and growers argued the provision circumvents legislative intent to allow Florida businesses to establish the state’s medicinal marijuana industry by not only allowing carpetbaggers to get an interest in a license but also an advantage in getting a license.
“I will have a real great difficulty if there are five applications that include a Stanley Brothers organization or a Mosely’s organization or seven or eight from GrowHealthy or Alt-Med’s organization because they have a nursery attached but a nursery is limited to only one application even if it owns property in all five regions,” said Martin County nurseryman Anthony Ardizzone.
Monday’s challenge could push back the start date for when doctors are allow to order a cannabis extract to treat patients by 60 days.
“Costa Farms understands and agrees that the low THC cannabis program needs to be implemented in the time frame contemplated by the Florida legislature. We are seeking administrative review of the Department’s rule to preserve our rights but are fully cooperative and hope that we can resolve this matter by negotiating a quick resolution of all outstanding issues with the Department,” said Peter Freyer, Costa Farms vice president.
If not an administrative law judge will be assigned in 10 days, the judge will schedule a hearing in 30 days and render a ruling within 30 days of the hearing.
The Costa Farms’ challenge is the first of what is expected to be several. Petitions concerning the department’s interpretation of distribution infrastructure and zoning authority are also expected.
“They have a mess on their hands,” said Rotundo. “It is sad it has come this.”
Marc Caputo gets to a bottom line number in the Amendment 2 campaigns and calculates it to be 42.
The politics, paradoxes and polling of pot in Florida recounts a series of polls and speculates that if support among Republican voters drops to 42 percent then the proposed medical marijuana initiative is doomed.
But getting Republican opposition into the high 50s is problematic and that’s the paradox Caputo explores.
The piece also includes some of the better sniping by the spokespeople for the pro and anti campaign with remarks about media bias and homophobes. There’s six weeks left in the campaign; who knows what Ben Pollara and Sara Bascom will be saying about Mel Sembler and John Morgan by the time the polls close on Nov. 4.
Anti-medical marijuana advocates at Drug-Free Florida are making major media buys — spending about $1.6 million statewide — on a TV ad campaign starting the first week of October.
The ads will coincide with voters beginning to get absentee ballots in the mail.
Republicans and conservatives are two groups most likely to vote by absentee ballot. They are also the least likely to support Amendment 2, a proposal seeking to legalize medical marijuana, which needs a minimum of 60 percent voter approval for passage.
Republican support may be strong, but not quite over the 60 percent threshold, according to most surveys. Overwhelming Democratic and independent support has the amendment polling at between 61 and 70 percent (closer to 65 percent overall).
Calculations by Miami Herald writer Marc Caputo are that if Republican support drops to around 42 percent, the amendment could fail — even with combined Democratic and independent support staying in the low to mid 70 percent range.
The exact message of Drug-Free Florida ads is unknown, but the ads are likely not going to be bashing medical-marijuana backer John Morgan (why give the Orlando uber-lawyer free advertising and a boost to his credibility as someone to hire if a renegade is needed? Caputo asks).
The ads are “conservative” through and through. Not only will they be running mostly in conservative North Florida (except for the West Palm Beach media market, with a better ROI), but also GRPs — Gross Ratings Points – of 1,000 or higher mean that the average TV viewer will likely see the ad about 10 times.
Ad buy amount
Chart via the Miami Herald
“Our ad buy is all about the commitment we have to the voters – to make sure they understand the real motivation behind this effort and how bad it is for our state. And that will not stop until Election Day,” said Sarah Bascom, spokesperson for Drug-Free.
This particular media buy is unexpected.
Promoting the amendment, Morgan promised early on that he would “do what it takes” to get the amendment passed through the work of his group People United for Medical Marijuana, also known as United for Care.
Months ago, Morgan was prepared to switch Morgan & Morgan TV ad time for spots supporting the amendment. Between Morgan and his firm, the campaign received contributions and loans equaling about $3.8 million of the $5.4 million it has already spent.
Now, that pledge looks doubtful.
Several significant outside forces are coming to the aid of Drug-Free, which – before this ad buy – raised $3.2 million and only spent $545,000.
The group’s biggest benefactor is GOP mega-donor and Las Vegas gambling mogul Sheldon Adelson, who ponied up $2.5 million and is reportedly willing to double that commitment. What’s another $5 million to Adelson?
Still, his motives for his involvement in Florida are surprising, since he’s funding medical-marijuana research in Israel. In addition, Adelson’s home base of Nevada is far more liberal with its own medical-marijuana law, which explicitly allows individuals to grow pot (unlike Florida’s Amendment 2).
Advertising may not determine the winner, Caputo says, but in Florida, it goes a long way.
Even so, United for Care claims it has a natural advantage – support of the people.
“It’s no surprise Drug-Free Florida Committee is making such a large buy so far out from election day. When your basic position runs completely counter to public opinion, millions in misleading advertising is the only strategy available. But no amount of advertising can overwhelm the basic facts,” said United for Care Campaign Manager Ben Pollara. “Floridians know the benefits of medical marijuana are real, and the people of this state are deeply compassionate. We believe the overwhelming majority will vote to make sure patients no longer have to risk incarceration for listening to their doctors and seeking relief from debilitating diseases and medical conditions.”
Florida is about to join 23 other states where medicinal marijuana is legal. The Department of Health has been working on regulations to implement a Charlotte’s Web law since June with a goal of having rules in place for the Jan. 1 start date in the measure lawmakers approved.
The department has published proposed rules and the process is in a 21 day “cooling off” period before the rules can be adopted and submitted to the Department of State. This is the time when a citizen can protest that the department has interpreted the statute wrongly and petition to invalidate the proposed rule.
The clock started ticking Sept. 9 when the department published a revised rule. Any person substantially affected by the proposed rule has until Sept. 30 to challenge it.
Word among the lobbying corps is that it is not satisfied with the revision. At three public hearings, they urged the department to reconsider including a lottery in the application process, not to expand the application pool beyond lawmakers’ specification and to authorize more than one retail location per dispensary.
“I think SB 1030 was very simple in what it said: to license nurseries to do this and give them the avenues to do it to benefit the patient,” said Anthony Ardizzone, a Martin County grower. “I think there are too many (proposed) restrictions on what a nursery can do.”
Citizens can challenge proposed rules by filing a petition with the Division of Administrative Hearings. When a challenge is initiated, the burden is on the agency to prove by a preponderance of evidence that the proposed rule is not an invalid exercise of delegated legislative authority.
Ardizzone declined to discuss whether he would initiate a challenge but he does say his concern is with the department expanding the eligibility pool of applicants and then restricting the number of times a nursery can apply for a license.
The Joint Administrative Procedures Committee has written to the department asking it under what authority it had to change the eligibility criteria lawmakers inserted into the bill.
During last week’s hearing, Jennifer Tschetter, DOH’s general counsel, explained that the department believed if there were certain technological capabilities that someone had or had demonstrated excellence somewhere else that they should be allowed to partner with a qualified grower.
“I don’t know why we would deny them that opportunity if their participation is essential – and that is each nursery’s decision to decide if they want to work with anyone at all,” said Tschetter.
Because it is not in the law, said Louis Rotundo, representing the Florida Medical Cannabis Association.
“It’s not a question of whether it is a good idea or a bad idea,” Rotundo explained outside of the hearing room. “The only applicant identified in the law is a nursery in operation for 30 years and with an inventory of 400,000 plants.”
If anyone were to file a challenge, here’s a time line laid out in Florida statute.
10 – within 10 days of a petition filed with the Division of Administrative Hearings an administrative judge will be assigned to the petition.
30 – The administrative judge will then have 30 days to hold a hearing
30 – The judge will render a decision within 30 days.
If the judge upholds the decision and it is not reversed on appeal, then the rule making process starts over and the department has 60 days to complete its work. If the judge validates the rule and it is not reversed on appeal, the rule would go into effect 20 days after it is submitted to the Department of State.
You can read more about the Florida rule making process here.
The Department of Health gets high marks from those interested in the agency’s work in developing regulations for the Charlotte’s Web law. Gov. Rick Scott signed the measure in mid-June and DOH is charged with having rules in place by Jan. 1.
“They’ve done an awesome job,” said Manny Johnson of the Compassionate Cannabis Community.
“A wonderful job in attempting to expedite this process,” said Ron Watson, who represents a handful of cannabis companies.
“They were given a tough job,” said grower Anthony Ardizzone. “Would I say they made mistakes? Yea, we all make mistakes, but it’s new territory for all of us.”
Lawmakers authorized five licenses to cultivate a low-THC strain of marijuana, extract oil from it and dispense a medicinal product for a specific set of patients. Doctors can start ordering the product Jan. 1. How all of that will unfold in Florida is contained in a proposed packet of rules DOH is waiting to adopt.
Unless there is an administrative challenge – and the murmuring among the lobbying corps is there will be one — the department will file the rules with the Secretary of State Sept. 30. And while lobbyists research how to mount a challenge and voters contemplate a much broader loosening of marijuana regulations with the proposed Amendment 2, the question is whether the DOH is up to the challenge of developing regulations for the proposed constitutional amendment if it were to pass?
“I don’t think they can handle it with the staff they have right now,” said Johnson, who was tracked down at the Colorado Department of Public Health Marijuana Education Conference in Denver.
“They’ve done an awesome job in trying to get this up and running by January but there are major holes in this,” said Johnson. “And (Amendment) 2 lacks the specificity that SB 1030 has, regarding the business plan, number of dispensaries and so on.”
Johnson includes the department remaining silent on where Florida growers will get a starter crop as among the holes in the proposal. He also said physicians at the Colorado conference wonder how doctors can write a prescription for a medicine made by an organization that does not employ a pharmacologist as another hole.
Each stakeholder has different issues with the rules the department wants to adopt.
A challenge can be filed by an affected individual on the grounds the department has exceeded its authority. Growers and lobbyists are focused on the department expanding the applicant pool beyond the criteria lawmakers specified in the law and the restriction of retail locations as grounds for a challenge.
“If the department is unable to strike the balance with the Charlotte’s Web legislation, it is unlikely that absent some additional external pressure it will be able to effectively promulgate the rules for the much broader and more complicated Amendment 2,” said Taylor Patrick Biehl of the Medical Marijuana Business Association.
Robert McKee, an attorney who organized Sanctuary Cannabis earlier this year, has testified at the three public hearings on regulations for the Charlotte’s Web law urging the department to address conflicting federal and state cannabis regulations.
“I am satisfied with the process used by the department. It is difficult work when the law on which their efforts turn is so deficient in necessary concepts and substance,” said McKee. “I believe the department is capable of doing a yeoman job of formulating the rules necessary for the more comprehensive and complete law arising through Amendment 2.”