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Another challenge to Charlotte’s Web rule — this time from mother of child with inoperable brain tumor

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The mother of a 4-year-old afflicted with an inoperable brain tumor has challenged the proposed rule for the Compassionate Medical Cannabis Act of 2014. Moriah Barnhart’s Jacksonville attorney filed the paperwork Wednesday with the Division of Administration Hearings.

Ian Christensen attacked, among other things, the makeup of a negotiated rulemaking panel DOH had assembled in an attempt to reach consensus on a regulatory structure for a medicinal marijuana industry.

The document reveals he intends to argue before an administrative law judge that the rule is an invalidated exercise of delegated legislative authority because of a flawed selection process for licenses, a lack of minimum standards to evaluate license applicants and failure to state regulatory costs and their impact on patients.

The negotiated rule-making session came after a judge threw out the first proposal in part because it lacked measurable criteria for evaluating applicants. DOH had defended the original proposal saying any such criteria would be challenged as arbitrary and capricious.

Christensen not only used those magical bureaucratic words to describe what is proposed but also threw in “overly complicated” and “no reasonable justification” for DOH’s selection process to award five licenses to grow marijuana and dispense a medicinal oil.

Here’s an example of the tone and a reasonable summary of the argument Christensen will make on Barnhardt’s behalf.

“The DOH has already failed to meet the deadline set by the Legislature to have these rules implemented, and now the proposed rule diminishes the importance of the statutory list of selection criteria; places unnecessary burdens on dispensing organizations that have no rational basis for their justification; fails to include any rules or stipulations for the use of pesticides or contaminants; fails to provide any assurances to patients for reasonable statewide access; and uses an unauthorized arbitrary selection committee to choose among eligible applicants based on a complex and overly burdensome scoring system.

Overall, the proposed rule fails to provide any objective methods to determine whether an eligible applicant is superior at growing low-THC cannabis or filling out a lengthy application. This “red-tape” ensures only the most politically connected, not the best qualified applicant, are approved.”

The petition is here.

It had appeared that the scoring method DOH devised was in line with Judge David Watkins’ order invalidating the first proposed rule.

The case is now in administrative court. It will be up to a judge either to dismiss or grant a hearing based on Christensen’s argument.

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