The battle over the state’s Charlotte’s Web may come down to a snapshot in time.
The question before administrative law Judge W. David Watkins is at what point did Baywood Nurseries become an affected party entitled to sue and block the state from implementing the Compassionate Medical Marijuana Act of 2014.
Or, in the words of a Department of Health attorney, when did Baywood become pregnant?
“Baywood was not pregnant on March 24,” DOH attorney Eduardo Lombard told Watkins.
Lombard wants Watkins to dismiss the suit because Baywood was not eligible to apply for a Charlotte’s Web license when it filed a challenge to a rule authorizing the planting of marijuana and regulating how medicinal cannabis oil is sold.
Lombard is relying on a 1979 Medicaid ruling by the 1st District Court of Appeal to end the suit before Watkins can rule on its merit.
In a case involving a Susan A and Alice P’s attempt to overturn a state rule denying Medicaid payments for an abortion, the two were found to lack standing because they were not pregnant and therefore not affected by the rule.
“There is no distinction between Susan A not being pregnant and Baywood not being in possession of a valid certificate,” said Lombard. “Baywood was not pregnant on March 24 (when it filed).”
Thursday and Friday Lombard had pleaded with Watkins to dismiss the case because at the time of its filing, Baywood did not meet the statutory requirement of having an inventory of 400,000 plants.
Watkins established that the facts of the motion were not in dispute and then reserved ruling on it. He then told Lombard the petitioners deserved an opportunity to respond to questions about an “ability to meet the threshold” for eligibility and gave both parties a week to file briefs.
If DOH prevails on the motion then the case is closed and the rule will become effective in 20 days.
If Baywood prevails, then Monday, April 27, is an important date. That’s when the transcript of the two-day hearing will be filed, giving Watkins 30 days to decide the Baywood challenge.
Baywood is arguing that the rule making process was hijacked by deep pockets who tilted licensing against smaller nurseries and that the rules are incomplete and confusing.
Office of Compassionate Use director Patricia Nelson spent four and half hours Friday on the witness stand defending and explaining the rule she wrote to award the five licenses lawmakers authorized and to regulate an industry providing cannabis oil for epileptic children and cancer patients.
Baywood attorney Charles Moure discussed the minutia of the law and proposed regulations when he called Nelson to the stand. One of Baywood’s points is that some of the financial requirements in the rule are not in the law approved by the Legislature.
Here’s Moure cross-examination concerning a certified financial statement requirement.
“Does the act specifically say a certified financial are required for the preceding 12 months from a nurseryman submitting an application?” asked Moure.
“Certified financials are required for an application,” said Nelson.
“Does it use the word preceding 12 months?” interjected Moure.
“I don’t remember,” said Nelson
“Can you recall what word it does use?” asked Moure
“Certified financial,” said Nelson
Moure and Nelson sparred most of the morning over the definition of words and their context in the Charlotte’s Web law.
The transcript of their exchanges will be available Monday. And Watkins’ decision whether the proposed rule is valid will be due 30 days later. Then again, next Friday, when the briefs on DOH’s motion are due, Watkins could side with the department and dismiss the case.
“Today I think the Department of Health made great strides in getting the challenges off the deck and I’m hopeful there won’t be a need for a trial but if there is I’m confident that the Department of Health will win and then we’ll start picking applicants for licenses,” said state Rep. Matt Gaetz.
Gaetz appeared less confident about getting a legislative fix approved this session and bypassing the court to implement the Charlotte’s Web law.
When asked about the possibility, he paused for a few beats and then said.
“I don’t know. We have a week left.”
