Photo via News Service of Florida
Accusing Florida health officials of a “colossal blunder” that created a “dumpster fire,” an administrative law judge recommended that the state grant a highly sought-after medical marijuana license to a South Florida nursery.
Judge John Van Laningham’s recommended order scalded the state Office of Medical Marijuana Use for using a flawed system to decide which applicants should receive the coveted licenses.
Friday’s lengthy order in favor of Nature’s Way Nursery of Miami, Inc. accompanied a separate order in which Van Laningham scrapped an emergency rule crafted by the Florida Department of Health following the passage of a 2017 law aimed at implementing a constitutional amendment that broadly legalized medical marijuana.
Van Laningham’s decisions echoed and expanded on his previous fault-finding about an application-scoring process and are the latest in what has evolved into a power struggle between health officials and the administrative law judge over medical marijuana.
Last year, lawyers representing the health department made a rare —- and futile —- attempt at trying to get Van Laningham removed from a separate marijuana case.
Van Laningham’s 116-page decision Friday about Nature’s Way was rooted in the 2017 law and the health department’s original process to grant five licenses after the Legislature legalized non-euphoric medical marijuana in 2014.
Under the new law, approved during a special legislative session last summer, health officials were required to issue licenses to applicants who had legal challenges pending as of January 2017 or who had scored within one point of the highest-ranked applicants in five regions.
Health officials said Nature’s Way was ineligible for a license because its aggregate score of 2.8833 was not within one point of the 4.4 received by Costa Farms, which was granted a license for the Southeast region in 2015.
But as he did previously, Van Laningham found that health officials’ ranking of the applicants —- the method used to determine which ones would get licenses —- was not the same as scoring the applications.
“To repeat a point that cannot be stated enough, it is impossible to determine a quantifiable ‘point’ difference between the rankings of Best and, e.g., Fourth Best,” he wrote in the lengthy opinion that included pages of mathematical analysis and charts.
Department of Health spokesman Devin Galetta said in an email Monday that agency officials were reviewing Van Laningham’s decisions.
Florida’s medical-marijuana licensing process has been mired in controversy and litigation since its inception in 2014, and the competition over new licenses has intensified since the broad legalization of medical marijuana in what is estimated to be a multibillion-dollar industry as the number of eligible patients continues to rapidly escalate.
Van Laningham’s recommended order in Nature’s Way favor, however, does not force health officials to issue a new license. Under administrative law, the recommended order goes back to the department for action.
But in his twin orders Friday, the judge repeatedly admonished health officials for the ranking system adopted to select the original licensees.
“The department’s unfortunate decision to code the reviewers’ qualitative judgments regarding positions in rank orders with symbols that look like quantitative judgments regarding amounts of quality led inexorably to extremely misleading results,” Van Laningham wrote. “If this deception had been intentional (and, to be clear, there is no evidence it was), we could fairly call it fraud.”
Even “without bad intent,” the judge wrote, the decision to code positions in ranked series with scores expressed as points “was a colossal blunder that turned the scoring process into a dumpster fire.”
After the reviewers ranked each of the applications, the department then developed a formula to assign “aggregate scores” to the applicants, a system Van Laningham decided was deeply flawed.
When calculating the aggregate scores, “the department purported to turn the water of Evaluation Data into the wine of finely tuned aggregate scores,” which provided the basis for health officials’ decisions about which applicants received licenses, Van Laningham mocked.
The department is arguing “in true ‘heads I win, tails you lose’ fashion” that the aggregate scores were final action taken by the agency and so could not be challenged, he wrote.
“This position cannot prevail. The Master Spreadsheet and Score Card are not modern-day Tablets of Stone upon which the inerrant Law was inscribed by the hand of the Almighty Bureaucrat,” Van Laningham scolded.
The Nature’s Way orders are the latest in Van Laningham’s numerous rulings against the health agency.
After a failed attempt at removing Van Laningham from a challenge filed by Keith St. Germain Nursery Farms, the Office of Medical Marijuana Use agreed to grant the Homestead-based grower a license in November.
Two years ago, Van Laningham decided the health department had wrongly issued a license to Alpha Foliage, which operates as “Surterra,” in a ruling that affected two other nurseries —- 3 Boys Farm and Plants of Ruskin —- which filed the challenge.
Health officials did not grant licenses to the two nurseries until after the 2017 law, which required licenses for applicants that were in litigation, went into effect. So far, the state has issued 13 licenses to 26 of the original applicants.
The health agency’s licensure of Nature’s Way could shrink the number of available licenses, because six of the 10 licenses authorized under the 2017 law have already been doled out. One of the new licenses not yet issued must go to a black farmer who meets certain requirements.
The law also required an additional four licenses after 100,000 patients registered for the medical marijuana treatment, a threshold that was recently surpassed, meaning that at least seven new licenses are up for grabs.
But —- nearly 18 months after the medical-marijuana constitutional amendment went into effect —- the agency has yet to begin accepting applications for the new licenses, a process that could be even further delayed after another rule challenge was filed this month.
A Tampa-based orchid grower is challenging a rule proposed by state health officials, arguing the proposal fails to properly carry out a component of the 2017 law that gives preference for up to two highly sought-after medical marijuana licenses to applicants who own facilities that were used to process citrus.