Judge sides with state on pot license

Family of deceased Black farmer denied

TALLAHASSEE — 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 “recognized class member” in class-action lawsuits over lending discrimination by the federal government.

Although Department of Health officials gave Hopkins’ application the top score of the batch, they rejected the application because he died before the licensing process was complete.

Hopkins’ heirs and partners challenged the decision, arguing that the state illegally relied on an “unpromulgated rule” in denying the license.

But Administrative Law Judge Gary Early on Tuesday upheld the health officials’ decision.

“Not 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 ‘a recognized class member’ 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,” 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 — known as the “Pigford” 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’ challenges have been referred for “informal hearings” within the Department of Health.

In an administrative complaint filed in January, Hopkins’ 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 “erroneously relied on an unadopted rule that ‘licensure qualifications’ are ‘personal to’ Hopkins.”

Thomas Sosnowski, a lawyer who represents the Hopkins applicants, told The News Service of Florida on Wednesday that Early’s 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’s medical-marijuana license to a plumber’s license.

“As we’ll argue on appeal, the department’s interpretation that the Pigford license is like a plumber’s license and Judge Early’s ruling agreeing with the department, that calls into question the entire (Pigford) license provision in the statute, because, as we’ll explain in our appeal papers, that interpretation is unconstitutional,” he said.

A 2016 constitutional amendment authorizing medical marijuana in Florida says that a licensed “medical-marijuana treatment center” must be an “entity,” Sosnowski said, pointing to a separate ruling by the 1st District Court of Appeal in a case rejecting a Tampa man’s attempt to grow his own medical marijuana.

“Our position is the Constitution provides that MMTC (medical-marijuana treatment center) licenses need to go to entities. So that interpretation of that statute … permitting or requiring an MMTC license to go to an individual, a natural person, our position is that’s not authorized by the Constitution,” Sosnowski said.

Investors and marijuana operators for years have viewed Florida as potentially one of the country’s premiere landscapes to set up shop.

Legal wrangling over the Black farmer license comes as the state’s medical-marijuana i ndustry, 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’s 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’s largest medical-marijuana operator, could go on the 2024 ballot.