Lawyers for the Florida Department of Health have given a Jacksonville nursery until Monday to take action on an attempt to keep secret a list of investors affiliated with a bid to become one of a handful of medical marijuana operations in the state.
The move came after wrangling between lawyers for the state and Loop's Nursery and Greenhouses during a hearing before Administrative Law Judge R. Bruce McKibben, who on Wednesday sided with the nursery's request to keep the names of investors in an affiliated business out of the public record.
The fight involves a list of five names scratched out Wednesday by the nursery's owner, David Loop, on a sheet of paper from a yellow legal pad.
A day after telling lawyers in the case that he preferred to "err on the side of confidentiality," McKibben on Thursday re-iterated his decision that the investors' names were off-limits to the public.
"We protect everyone just as a matter of course because it's just, you know, it's a nice thing to do," the judge said.
Loop's lawyer, Jon Moyle, said the names of the investors should be kept secret because they were not direct owners of the nursery, which is seeking a license in the Northeast region of the state to grow, process and dispense medical marijuana.
Moyle pointed out that McKibben had already entered a protective order making certain information in the case unavailable to the public.
But lawyers for the state argued that McKibben's stance conflicted with a May ruling by Tallahassee judge in a separate case. Leon County Circuit Judge Charles Dodson ruled that the names of investors affiliated with an applicant seeking a medical-marijuana license in the Central Florida region were not a "trade secret" subject to exemptions from the state's broad open-records laws.
Eduardo Lombard, a private lawyer representing the Department of Health, told McKibben that Dodson's order in the other case meant the state was obligated to provide the list of names related to the Loop's hearing.
Reporters from The News Service of Florida and Politico, present in the courtroom when the issue arose on Wednesday, immediately requested copies of the names. Lombard told McKibben that, as far as the state was concerned, the document was a public record subject to disclosure.
"You can't just hide things. This is a public forum," Lombard said. "If there's an exemption, (Loop's) can claim it and keep things out, but otherwise this isn't supposed to be a secretive process, and there's no statutory basis to exclude these names of an entity that Moyle does not represent.”
Since the hearing began on Wednesday, McKibben ordered lawyers to refer to the investors by their initials and on at least three occasions cleared the courtroom at Moyle's request during testimony involving such matters as security and finances.
Department of Health officials on Thursday put Moyle on notice that they would release the list if he did not take further legal action by Monday. Moyle would have to seek an order from a circuit judge to block the records from being released.
"The department has determined that this list, although designated as confidential by the parties, is not a trade secret," Department of Health senior attorney Amanda Bush wrote. "As you are aware, an administrative order cannot create an exemption or exclusion to the Florida Public Records Act. The department anticipates releasing this list unless Loop's takes appropriate action to oppose the disclosure by the close of business on Monday, July 11."
Moyle said Friday he would review the letter over the weekend.
Loop's is challenging the Department of Health's decision last year to grant a license for the Northeast region to Chestnut Hill Tree Farm. A 2014 law authorized health officials to give licenses to one applicant in each of five regions of the state to grow, process and distribute non-euphoric marijuana products. Lawmakers earlier this year expanded the law to allow the dispensing organizations to also grow full-strength medical marijuana, which will be available to patients who are terminally ill.
The 2014 law authorized marijuana products that are low in euphoria-inducing tetrahydrocannabinol, or THC, and high in cannabadiol, or CBD, for patients with chronic muscle spasms or cancer. Pensacola parents Holley and Peyton Moseley, who are affiliated with Loop's, were instrumental in the passage of the law. The Moseley's daughter, RayAnn, suffers from a severe form of epilepsy, and some evidence shows that low-THC, high-CBD treatment can alleviate or eliminate life-threatening seizures caused by the disease.
The dispute over the public records stems from a list of investors linked to a business —- Ray of Hope 4 Florida Inc. —- that has ties to Loop's. The state Division of Corporations website lists Ray of Hope's managers as Peyton Moseley and Robert Loehr, a Pensacola attorney whose address is listed as the same as his law firm. Loehr works for the prominent Pensacola-based Levin Papantonio firm, headed by Fred Levin, a trial lawyer and major Democratic fundraiser for whom the University of Florida law school is named.
Ray of Hope 4 Florida has the license to sell Charlotte's Web, a brand whose name has become virtually synonymous with low-THC, high-CBD products. The Charlotte's Web trademark is owned by Colorado-based CWB Holdings, Inc., headed by Joel Stanley.
Lombard insisted that it was important to identify the names of the people on the list of investors because Florida requires owners and managers of marijuana dispensing organizations to undergo what is known as a "level 2" background screening.
"If you don't pass Level 2 —- we have a whole case on this —- you're supposed to be out," Lombard said.
San Felasco Nurseries received the highest score in the Northeast region, but health officials determined that the nursery was ineligible for a license because of a decade-old drug crime involving the nursery's director of research and development. An administrative law judge in February decided that agency wrongly rejected San Felasco's application. Health officials awarded a license to San Felasco earlier this year.