In 2014, the Compassionate Medical Cannabis Act passed, creating section 381.986, F.S. Under this law the Department of Health (“DOH”) was required to grant 5 nurseries licenses to dispense medical marijuana, 1 for each region in the state.1 The Department then promulgated rules under which a nursery could apply for a DO license, now referred to as an MMTC license.  Together, these laws and rules laid out the medical marijuana licensing scheme. In the 2015 application cycle, the DOH received a total of 28 and scored 26 applications for DO licenses.  Then, in 2016 Amendment 2 passed by 71.3%, which broadened the scope and use of medical marijuana in Florida and granted the DOH rulemaking authority under the Florida Constitution. Several of the applicants from the 2015 application cycle that were denied licenses have fought for and attained licenses thru litigation.

Recently, 7 out of the 8 losing applicants from 2015 filed Petitions in the Division of Administrative Hearings (“DOAH”) claiming that they should now be granted licenses.3 This is the aftermath of the Final Order in Nature’s Way v. DOH determining that the Department’s ranking as opposed to scoring method used in the 2015 application cycle is an invalid exercise of delegated legislative authority.2

During a special session held by the legislature in 2017, section 381.986, F.S., was significantly amended establishing a licensing protocol for 10 new MMTCs by October 3, 2017.  This amendment instructed the DOH to issue licenses to 10 new MMTC applicants that met the following four criteria: (1) Prior application; (2) Litigation or ranking within 1 point of the regional licensee; (3) Compliance with the law; and (4) Documentation of operational capacity within 30 days.

Based on these losing applicants scores from 2015, they did not qualify under the statute for a license because their scores were not within one point of highest scoring applicant in their region nor did they have ongoing litigation at the time the law was passed. After the Final Order in Nature’s Way, these losing applicants believe that because the scoring process was invalidated they fall within one point of the highest scoring applicant in their region. Further, as a backup argument, these losing applicants also have taken the position that because the Department’s scoring process was invalid the Department essentially deprived the applicants their right of knowing if they were within one point or not.

In these cases, the issue has also come up as to how many license spots are available. There is a debate as to whether there are no license spots available to these losing applicants, 2 license spots available which are the citrus preference license spots, and/or an additional 4 license spots available which open up as each 100,000 patients are registered. It is currently up to the Administrative Law Judge (“ALJ”) to determine how many license spots are available as well as whether to consolidate the cases. We will continue to update you as these cases progress.

End Notes:

  1. 986, Fla. Stat.
  2. Nature’s Way Nursery of Miami, Inc., v. Florida Department of Health, Case Nos. 17-005801RE; 18-000720RU; 18-000721.
  3. Dewar ., v. Florida Department of Health, Case No. 18-004463; Spring Oaks Greenhouses, Inc., v. Department of Health, Case No. 18-004471; Tree King-Tree Farm, Inc., v. Florida Department of Health, Case No. 18-004472; Perkins Nursery, Inc., v. Florida Department of Health, Case No. 18-004473; Bill’s Nursery, Inc., v. Florida Department of Health, Case No. 18-004474; Tropiflora, LLC v. Florida Department of Health, Case No. 18-004697; Deleon’s Bromeliads, Inc., v. Florida Department of Health, Case No. 18-004698.
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