Judge tosses Charlotte’s Web rules, DOH must rewrite regulations

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The Florida Department of Health will have to rewrite regulations for Charlotte’s Web. Administrative Judge W. David Watkins Friday tossed out the proposed rules for implementing the state’s medicinal marijuana law as an invalid exercise of delegated legislative authority.

“Here’s the divorce papers for the lottery,” said Ron Watson of the Florida Medical Cannabis Association.

Watson had urged the Department to divorce a lottery from the licensing process, testifying that sometimes it is in the best interest of children for a couple to divorce.

“It looks like a slam dunk for those of us oppose to a lottery,” said Watson. “I look forward to working with DOH as we move to clarify the changes the judge ruled on.”

Doctors may order a cannabis oil to treat seizure patients starting Jan. 1, 2015. However none of the five licenses authorized by the Compassionate Medical Cannabis Act have been awarded.

The proposed rules for the law were challenged on the grounds that DOH did not have the authority to insert a lottery in the process and expanded the pool of eligible applicants beyond what lawmakers had specified.  The proposed rule is here.  DOH laid out its reasoning for it here.

Watkins acknowledged that the DOH’s interpretation of the law was due great deference but on the question of a lottery to select a medicinal provider he sided with Costa Farms, Plants of Ruskin and the Florida Medical Cannabis Association.

“Because arbitrary selection of dispensing organizations as provided by proposed rule 64-4.002(4) (a) is not supported by logic, reason or facts the proposed rule itself is arbitrary and invalid,” Watkins wrote in the final order stated.

Watkins also found the rule invalid for inserting a “qualification based on application feasibility and sufficiency determined by the Department” as an authorized modification of the statute.

FMCA had argued by allowing investors to partner with different nurseries and “game the system” in a lottery process would result in “diminishing the overall quality of the applicant pool and increasing the likelihood of selecting a minimally qualified applicant in the random selection.

“Florida Medical Cannabis Association applauds the court’s ruling ordering the Department of Health to go back to the drawing board to fix specific elements of its proposed rule,” said Patrick Slevin.

“At the end of the day, this ruling by the court ensures the future accessibility, affordability and accountability of low-THC medical marijuana for over a million Floridians suffering from severe medical conditions,” said Slevin, pledging to work with DOH to establish a medical infrastructure for producing and dispensing medicinal marijuana.

It is unclear when Charlotte’s Web oil will be available in Florida.

DOH must rewrite the rules and tackle licensing problems it had hope to avoid by using a random selection process rather than a qualitative scoring one.

“Unfortunately five months of rule making have gone up in smoke,” said Taylor Patrick Biehl of the Medical Marijuana Business Association of Florida.

DOH must now file a 21-day notice of a rule change. The draft would then be submitted to the Joint Administrative Procedural Committee to be finalized within 20 days.

If there are no challenges to the rewrite then there would be a 15-day application period before licenses could be awarded.  Once DOH awards a license then a d nursery could begin cultivating marijuana and prepare to process the plant into oil, providing a medicinal product to patients.