Florida health regulators were correct to deny a medical marijuana license to partners and heirs of an 84-year-old man who died before the state made a final decision about awarding the license, an administrative law judge ruled.
Moton Hopkins, an Ocala farmer and rancher, was among a dozen applicants for a medical marijuana license earmarked for a Black farmer who was a 鈥渞ecognized class member鈥� in class-action lawsuits over lending discrimination by the federal government.
Although Department of Health officials gave Hopkins鈥� application the top score of the batch, they rejected the application because he died before the licensing process was complete.
Hopkins鈥� heirs and partners challenged the decision, arguing that the state illegally relied on an 鈥渦npromulgated rule鈥� in denying the license.
But Administrative Law Judge Gary Early on Tuesday upheld the health officials鈥� decision.
鈥淣ot to be overly simplistic, but the only material fact bearing on this case is whether any of the petitioners listed in the style of this proceeding are 鈥榓 recognized class member鈥� of the referenced litigation. They are not. The only recognized class member was Moton Hopkins, individually, and he is deceased. Thus, there is no living applicant to whom the license may be issued,鈥� Early wrote.
A 2017 law that provided an overall framework for the medical marijuana industry required health officials to issue a license to people with ties to the class-action litigation 鈥� known as the 鈥淧igford鈥� litigation.
State health officials began accepting applications for the Black farmer license in March, and in September announced they intended to grant the license to Suwannee County farmer Terry Donnell Gwinn. All of the applicants who lost out are challenging the decision. The losing applicants鈥� challenges have been referred for 鈥渋nformal hearings鈥� within the Department of Health.
In an administrative complaint filed in January, Hopkins鈥� lawyers argued the license should go to the entity --- not the individual --- affiliated with the application. The lawyers asked Early to determine whether health officials 鈥渆rroneously relied on an unadopted rule that 鈥榣icensure qualifications鈥� are 鈥榩ersonal to鈥� Hopkins.鈥�
Thomas Sosnowski, a lawyer who represents the Hopkins applicants, told the News Service of Florida on Wednesday that Early鈥檚 ruling is expected to be appealed to the Tallahassee-based 1st District Court of Appeal.
Sosnowski noted that, during a hearing Friday, an attorney representing the Department of Health likened the Black farmer鈥檚 marijuana license to a plumber鈥檚 license.
鈥淎s we鈥檒l argue on appeal, the department鈥檚 interpretation that the Pigford license is like a plumber鈥檚 license and Judge Early鈥檚 ruling agreeing with the department, that calls into question the entire (Pigford) license provision in the statute, because, as we鈥檒l explain in our appeal papers, that interpretation is unconstitutional,鈥� he said.
A 2016 constitutional amendment authorizing medical marijuana in Florida says that a licensed 鈥渕edical-marijuana treatment center鈥� must be an 鈥渆ntity,鈥� Sosnowski said, pointing to a separate ruling by the 1st District Court of Appeal in a case rejecting a Tampa man鈥檚 attempt to grow his own medical marijuana.
鈥淥ur position is the constitution provides that MMTC (medical marijuana treatment center) licenses need to go to entities. So that interpretation of that statute 鈥� permitting or requiring an MMTC license to go to an individual, a natural person, our position is that鈥檚 not authorized by the Constitution,鈥� Sosnowski said.
Investors and marijuana operators for years have viewed Florida as potentially one of the country鈥檚 premiere landscapes to set up shop.
Legal wrangling over the Black farmer license comes as the state鈥檚 medical marijuana industry, which currently has 22 licensed operators, is poised to double in size.
Under the 2017 law, the Department of Health also is required to grant new licenses as the number of authorized patients increases. With more than 778,000 patients, the state should have issued at least another 22 licenses to keep up with the population of patients.
Health regulators on Feb. 3 announced they will accept applications for the additional licenses in late April. The application window will be the first major opportunity for newcomers to the state鈥檚 cannabis market to vie for licenses --- which have sold for between $30 million and $85 million over the past few years --- since the 2017 legislation passed. An earlier round of licenses was based on a 2014 law that legalized non-euphoric cannabis for a limited number of patients.
Also, a proposed constitutional amendment that would allow recreational use of marijuana has intensified excitement about the licensing process. The proposed amendment, backed by Trulieve, the state鈥檚 largest medical-marijuana operator, could go on the 2024 ballot.
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