A potential Florida medical marijuana grower is getting every opportunity to make its case in court.
Baywood Nurseries of Apopka insists the proposed rule to enact the 2014 Charlotte’s Web law by the Florida Department of Health is unfair to smaller nurseries, blocking them from applying for one of the five licenses available to grow marijuana.
The DOH response: Baywood has no case.
“We shouldn’t be here for a hearing and another delay,” protested DOH lawyer Eduardo Lombard.
Judge W. David Watkins denied Lombard’s motion to dismiss a challenge based on whom DOH selected for a negotiated rule making committee. Lombard had pointed out that a previous court had ruled the committee’s composition was not a challengeable point and therefore Watkins’ denial was “fundamentally unfair.”
“We’ll let the appellate court sort it out,” responded Watkins.
At the same time, during a daylong hearing Thursday, Watkins steadily ruled in Baywood’s favor. A working theory among courtroom observers is that by providing Baywood every opportunity to make its case, Watkins is reducing the likelihood that the battle over the Charlotte’s Web law will move from administrative to appellant court.
The foundation for Baywood’s argument to invalidate the rule is that DOH misinterpreted the statute’s financial requirements. It alleges the misinterpretation stems from a negotiated rule making committee composed of big money interests who tilted the application process against the interests of smaller family-owned nurseries, like Baywood, established in 1927.
“We contend (the process) created a situation not the entire 98 (qualified nurseries) but less than 10 percent or 20 percent can truly apply,” said Baywood attorney Charles Moure.
DOH responded, in a deliberate and painstaking pace, that Baywood lacked standing to sue since, at the time of filing the challenge, the firm was not eligible for one of the licenses to grow marijuana authorized by lawmakers.
For example, in cross examination, DOH attorney Robert Vicenza walked Baywood’s owner Raymond Hogshead through a series of Department of Agriculture certificates, in an attempt to demonstrate Baywood did not meet the statutory eligibility requirements. Baywood received a certificate for a 400,000-plant inventory on April 10, 2015. When they challenged the rule March 24, it had a certificate of fewer than 200,000 plants.
The exchange went like this:
“On the date the petition was filed was the certificate for less than 400,000 plants?” asked Vezina.
“Correct,” Hogshead responded.
“The certificate is short of what is required under statute to be eligible,” Vezina continued.
“Yes,” Hogshead said.
Vezina and Hogshead spent about 30 minutes to get to that point.
Baywood’s challenge rests on four points: rules’ certified financial requirement, estimated regulatory cost, a $5 million performance bond and the composition of the negotiated rulemaking committee, which favored bigger nurseries with deep pockets.
If DOH were to prevail, the rule would be effective 20 days after Watkins’ ruling. If Baywood wins, DOH starts the rule making process again for the third time.
The possibility either side may appeal a Watkins’ ruling concerns many patient advocates. They were expecting cannabis oil to treat children with severe epilepsy and cancer patients to be available Jan. 1. Instead, they spent the past nine months attending rulemaking workshops, hearings and court challenges.
Without a rule, no licenses are awarded, no plants are grown and no oil is available for epileptic children and cancer patients.
“The Florida legislature has the power to fix this. With a simple vote, they can smooth out this process, fixing the issues in the current legislation, thus expediting the ability for these children to receive their medication,” said Ryan Wiggins, spokesperson for Holley Moseley, an advocate for the Charlotte’s Web law.
SPB 7066 is the legislative fix for the Compassionate Medical Cannabis Act of 2014. The measure spent the past week on the Senate Special Order calendar in a “holding pattern,” according to sponsor state Sen. Rob Bradley.
Patient advocates look to increase the allowable amount of THC and the number of products authorized, but that’s more than some senators are willing to go. Bradley says advocates make “compelling arguments” and the discussions are ongoing, but consideration of SPB 7066 was temporarily postponed.
The Senate meets in session Friday morning, shortly after Watkins convenes the second day of hearings to determine how to enact the Charlotte’s Web law.