Legislative Panel Questions Proposed Pot Rule

By: Dara Kam News Service of Florida | Posted: September 4, 2014 3:55 AM

A legislative panel that plays a key role in overseeing state agencies has joined the chorus of critics seeking changes to a proposed soup-to-nuts rule setting up Florida's new medical-marijuana industry.

A 19-page letter from the Joint Administrative Procedures Committee to the Department of Health's general counsel questions nearly every aspect of the proposed rule, beginning with who would be allowed to apply for one of five licenses to grow, manufacture and distribute a type of cannabis approved during this year's legislative session.

The rule, proposed by health officials last month and slated for a third and final public vetting Friday, expanded eligible applicants to include businesses in which qualified nurseries have just 25 percent ownership, meaning the nurseries would not be required to have controlling shares of the entities.

But that definition is at odds with the law overwhelmingly approved this spring by the Legislature and supported by Gov. Rick Scott, according to Marjorie Holladay, chief attorney for the legislative committee.

Under the law, an applicant "must possess a valid certificate of registration" from the Department of Agriculture and Consumer Services to cultivate more than 400,000 plants, be operated by a nurseryman as defined by state law and "have been operated as a registered nursery in this state for at least 30 continuous years," Holladay wrote Friday to Department of Health General Counsel Jennifer Tschetter.

"Thus, it appears that the applicant must be a nursery that meets the criteria of this statute, not an entity with at least a 25% ownership by a nursery meeting the statutory criteria," Holladay wrote, asking Tschetter to "explain the department's statutory authority to authorize" -- a phrase used repeatedly in the letter -- the requirement.

The Legislature legalized strains of marijuana low in euphoria-inducing tetrahydrocannabinol, or THC, and high in cannabadiol, or CBD, and gave the newly-created "Office of Compassionate Use" within the Department of Health until Jan. 1 to come up with a regulatory framework for the substance. Supporters of the low-THC, high-CBD strains of cannabis believe the substance can eliminate or dramatically reduce life-threatening seizures in children with severe forms of epilepsy. Under the new law, patients with other spasm-causing diseases or cancer would also be eligible for the strains of marijuana if their doctors order it, and if their doctors say they have exhausted all other treatments.

The letter from the legislative committee also repeatedly asks the department to elaborate on how it will evaluate requirements laid out in the rule, such as documentation related to technical and technological ability.

The department also needs to explain other requirements, including why site plans need to be drawn to scale, why all employees must undergo background screenings and why all workers must be 21 years of age or older.

And the Department of Health must also come up with a reason the proposed rule would require applicants to provide photographs of public access -- including driveways and parking -- to the dispensary locations prior to getting a thumbs-up from the state to go into business.

"… It appears the department may be making construction of the facility, or at least the driveway and parking and public access, a precondition of application, which appears to be contrary to its authority," Holladay wrote.

Other questions posed by the committee's lawyer address health regulators' proposed requirement that the cannabis be organically grown and deal with "transportation plans" that would allow "dispensing organizations" to deliver their product statewide but would limit their licenses to a particular region.

The Department of Health left open the possibility that the rule could change, but that likely would not occur until after Friday's hearing.

"The department will evaluate the committee's comments, other written comments received, and testimony provided at the hearing on Friday to make decisions about whether a notice of change is appropriate for the proposed rules,'' department spokesman Nathan Dunn said in an email Wednesday. "The department will respond to JAPC's (the committee's) comments by way of a notice of change or written correspondence after that evaluation and decision-making process is complete."

The letter comes after intensive discussions between Rep. James Grant, a Tampa Republican who is vice chairman of the legislative committee, and health department staff.

"I asked staff to make sure we get this right," Grant said.

Echoing objections expressed by many nursery owners and out-of-state operators seeking to do business in Florida, Grant initially objected to the health department's proposal to use a lottery method to select the "winner" of the five licenses. Health officials have refused to back down from that process, saying it is intended to minimize potentially drawn-out litigation over the granting of the licenses with the goal of getting the product into the hands of ailing children as quickly as possible. The letter from the committee does not challenge the lottery process.

"We're going to get sued one way or the other. We need to do our job right to mitigate our potential liability," Grant, a lawyer, said.

Grant also said the state isn't doing enough to measure the efficacy of the low-THC cannabis, which has not received approval from the Food and Drug Administration but instead has gained popularity through anecdotes shared by parents of children, some of whom suffered hundreds of seizures daily until starting on a trial-and-error regimen.

Florida's new law "may have created the first state-sanctioned clinical trials" of the low-THC cannabis, said Grant, one of the House bill's co-sponsors.

If so, Grant said, "we should be creating data sets" for the brand-new substance soon to be unleashed into "the health care eco-system." The state, the producers of the cannabis or somebody else should be coding information about the combinations of THC and CBD -- and how well the strains perform, Grant said.

Such "structured data" could provide a framework for health regulators if voters approve a proposed constitutional amendment in November authorizing "traditional" medical marijuana, which Grant called "the elephant in the room" no one wants to talk about but which goaded lawmakers into signing off on the low-THC legislation this spring.

"My fear is just to say we'll let the doctor or the nursery certify that it's low THC and that's all we need. They could write that on the back of a napkin," he said.


Tags: News, Politics

Comments (5)

Todd Baker
9:59AM SEP 4TH 2014
This is nuts. I've been through Lake Wales. Lake Wales could use some great job opportunities. Who are these people that want to keep medicine out of the hand of sick people? Certainly not very Christian.
9:01AM SEP 4TH 2014
Hopefully this gets worked out with Charlotte's Web so Amendment 2 is smooth sailing!

Charlotte's Web is not enough - VOTE YES on #2!

Looking to work in the Florida Medical Cannabis Industry? www,hempstaff.com
7:09AM SEP 4TH 2014
I continue to be dismayed how quickly conservative lawmakers forget their conservative values whenever the subject does not fit their definitions. They scream small goverment, then pass the most restrictive medical marijuana law in the US. They scream free market, yet want to create monopolies. They have screamed keep goverment out of my healthcare, then fight Amendment 2. To me, it seems that Tally lawmakers are hypocrits, interested only in the status quo. And.. not a single patient has yet been helped.
3:12PM SEP 6TH 2014
The "conservative" lawmakers in Florida are like politicians everywhere-key identifier being "politician". One of the requisites for the position ( I refuse to call such a "job") is to be a hypocrite capable of lying with sincerity.Party affiliation plays no part; however,the Republicans,currently the majority in the Fl. Legislature, exemplify these traits of the professional politician.
( I once had an economics prof who posed this question/statement: " What is the first job of any politician? Answer: To get elected. 2nd question: What is his/her next job? Answer: To get re-elected".)
The Repubs in Tallahassee who presently oppose the legalization of MMj are doing so simply because if/when this bill passes, many of our illustrious legislators will lose not only income from their vested interests, but also possibly their jobs-depending on how their individual constituencies vote.The Fl. pols are well aware that more than 80% of the public favors decriminalizing marijuana and allowing those in need access to more than just the Charlotte's Web strain of MMJ.
As I posted in another column, the powers-that-be in Tallahassee have not only begun the process of regulation, they most likely have every facet nailed down to THEIR satisfaction. All this before the vote has taken place and most certainly not available for public view.Transparency ? Not in Florida.
When the legislators realized the extent of the public approval for legalization, THAT is when they threw together the Charlotte's Web bill-an example of hypocrisy that is astounding in its very brazenness given that mere days prior, they had expressed the view that none would support such legalization in any case.I saved emails from both Daddy and Baby Gaetz , Jeff Miller,and Steve Southerland (and others) stating their total opposition no matter the circumstances.Hypocrisy? You bet !
If they can't find a legal avenue to remove the bill from the ballot, they'll do exactly as they are now-attempting to regulate the prescribing and use of MMJ so stringently that the vote itself will be moot. They're doing their damnedest to make certain that the government's hands control all avenues -from growth to delivery. In so doing, I wonder how many who need this will actually be able to have access if/when Amendment 2 passes.
Small government? Ha. Government out of the private lives/decisions of the citizenry? Ha. Free market? Never HAS been a such a creature. Honesty, politics and politicians? The terms are mutually exclusive.
Recall the story a couple of years ago when "Joe the Plumber" was promoting his and Palin's ideological"brand" ? i've not forgotten one of the more hilarious comments made by someone at one of the rallies-" Keep government out of MY life, but don't DARE mess with MY Social Security!".That, sadly, is indicative of the mindset of far too many.
Profit-driven opposition to Amendment 2 is swelling by the day;if those who wish to see this bill pass don't vote, it will fail. The adage holds true-words are cheap-but actions are worth more than gold.
Hold your Representatives accountable.Vote YES on Amendment 2.
6:43PM SEP 6TH 2014
Well said. Yes on 2. For The Patients!

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