Administrative Judge W. David Watkins on Friday rejected the Department of Health's proposed rules for implementing Florida's new medical marijuana law, specifically objecting to "the chance-based scenario" of a lottery.
Watkins sided with rules' challengers Costa Farms, Plants of Ruskin and the Florida Medical Cannabis Association.
He labeled the rules "an invalid exercise of delegated legislative authority." The Compassionate Medical Cannabis Act of 2014 didn't call for a lottery to select a medicinal provider; DOH rulemakers took it upon themselves to do that, the judge ruled.
The ruling, which hadn't been expected until next week, will mean a delay for frustrated patients -- though how long is uncertain.
On Jan. 1 doctors can order cannabis oil to treat seizure or cancer patients, but without growers/distributors, the order will be virtually meaningless.
The DOH must now go back to the drawing board and draft new rules to include a qualitative licensing process rather than the random selection process they preferred. The department has 21 days to do that, and theJoint Administrative Procedural Committee has another 20 days after that to finalize it.
Watkins made a point of noting that "there are approximately 75 nurseries that possess a valid certificate of registration for the cultivation of more than 400,000 plants, are operated by a nurseryman as defined in section 581.011, and have been operated as a registered nursery in Florida for at least 30 continuous years. These 75 nurseries," the judge said, "represent the potential pool of applicants seeking to become one of the five dispensing organizations authorized under the act."
In his order, Watkins said this of the growers:"In my heart, I felt bad for some of these guys because, you know, this is not -- growing at these levels is not easy. It requires on average three hours of paperwork a day. Its just agonizing, the paperwork. The audits, we have 13 books that are this thick of books that are forensically gone through by the food safety people, as well as refrigeration and harvest groups and things of this nature.
"So when I saw all this happening, I knew that the lotterybecame strictly a chance-based scenario and it wasnt merit-based or experience-based. And to me, I had to object to it."
The ruling came as no surprise to Rep. Katie Edwards, D-Plantation, chief co-sponsor of the bill in the House. "Why they persisted with the lottery when there was so much public input against it is beyond me," shetold Sunshine State News Friday.
"Rep. (Matt) Gaetz and I offered the Department of Health our assistance in the rulemaking process, but they weren't interested ... The fact is, they could have worked with us while the bill was being drafted and going through the committee process. ... All that time wasted."
Gaetz, R-Fort Walton Beach was the prime sponsor of the bill in the House.
Some believe the Department of Health has been deliberately obstructive. In April, John Armstrong, Florida surgeon general and head of DOH, spoke against the bill at a House Judiciary Committee meeting."We must be wary of unintended consequences and remember that first we must do no harm," Armstrong said. He told the committee the better approach would be to allow for research and testing of the marijuana extract under the federal system.
Ray Efram, Polk County parent of a daughter with intractable epilepsy, admitted he's growing bitter. "I won't say I think they've been trying to kill (the act, nicknamed Charlotte's Web). But they certainly have tried to pull a Pontius Pilate," Efram told SSN Friday evening. "The state of Florida officially doesn't want anything to do with medical marijuana, I think that's pretty clear."
Charlotte's Web is a strain of marijuana low in THC (tetrahydrocannabinol) and high in CBD (cannabidiol). It was first cultivated in Colorado with much success for patients with seizures and severe and persistent muscle spasms. It isnamed after 8-year-old Charlotte Figi, whose story led her to being described as "the girl who is changing medical marijuana laws across America." Her parents and physicians say she experienced a reduction of her epileptic seizures brought on by Dravet syndrome after her first dose of medical marijuana at age 5.
Peter Freyre, vice president of rules challenger Costa Farms, issued a statement celebrating Watkins' ruling."We feel today?'s resolution is the right decision for the state?'s sick and suffering patients who will be helped by the use of low-THC cannabis," Freyre said. "Their medication should be produced by the best and most qualified applicants, not the luckiest. We look forward to working with DOH to craft a rule based on quality and we hope to get to work as soon as possible."
Rep. Edwards said Friday what she fears is, "the growers will be labeled the bad guys" for creating the lawsuit/delay, when the delay was actually the work of DOH -- told over and over that its rules were overreaching and unacceptable.
"Actually," said Edwards, "DOH overstepped their boundaries on a lot of issues" and "some accountability needs to happen with this department. ... If we do legislation this coming session to fix some of the issues we didn't anticipate with the bill, DOH needs to be working with us -- really, really with us this time -- at a much better pace that they were in 2014."
After DOH takes its 21 days to complete the new rules draft, and after it's finalized 20 days later, a 15-day application period follows before licenses can be awarded. At that point the licensed nurseries can begin cultivating the product, processing it into an oil form and offering it to patients with a doctor's order.
... If there are no challenges to the rewrite.
Reach Nancy Smith at email@example.com or at 228-282-2423. Twitter @NancyLBSmith