State moves to dismiss Charlotte’s Web challenge

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The Florida Department of Health is requesting a hearing Tuesday or Wednesday for dismissal of a suit holding up the state’s medical marijuana law.

Baywood Nurseries of Apopka challenged a proposed rule. During a two-day hearing in April it argued the proposed regulations favor deep-pocket investors and would exclude smaller family-owned nurseries from a medicinal marijuana industry.

DOH says because Baywood lacked standing when it filed its petition the Division of Administration Hearing shouldn’t even have accepted the challenge.

“Baywood’s failure to have standing on March 24 is not a mere technicality,” wrote DOH attorneys Eduardo S. Lombard and W. Robert Vezina. “It means the petition is a nullity and the Division does not have jurisdiction over the matter.”

The department’s standing brief is here.

DOH is relying on a 30-year-old ruling in a Florida abortion Medicaid case. The challenger was known as Alice P. and wanted to block a rule prohibiting Medicaid payments for an abortion. The court ruled she lacked standing; was not affected by the rule because she was not pregnant.

Baywood tackled DOH’s argument head on.

“In making the argument the Department disregards the parts of the Alice P. court’s rationale that Alice P.’s chance or intention in becoming pregnant again were speculative.”

However, Baywood attorneys Hilary V. Keeling and Charles Moure said there is no doubt Baywood intends to apply for one of the five Charlotte’s Web licenses and if the rule went into effect it would suffer economic harm.

The Baywood brief is here.

Baywood became eligible to apply for a license 17 days after it went to court to block the rule.  Lawmakers stipulated three requirements for a license to grow low-THC marijuana; a 30-year Florida nursery with a plant inventory of 400,000 plants.

March 24, Baywood possessed a Department of Agriculture certificate for fewer than 200,000 plants. A certificate for 400,000 plants was issued on April 10.

“(Since it did not meet the requirements) its interests do not fall within the zone of interest to be protected or regulated by the proposed rules under challenge,” DOH argues.

Furthermore, Lombard and Vezina tell Judge W. David Watkins if the rule is validated Baywood will not be harmed and “continue to do business as it has for more than 80 years.”

The department says a favorable ruling would save it the cost of preparing a proposed final order and allow implementation of the Charlotte’s Web law.

It requests a hearing on a dismissal motion be held Tuesday or Wednesday.