State, judge spar in med­i­cal mar­i­juana case

Health of­fi­cials want him re­moved, cit­ing ju­di­cial bias.

The Palm Beach Post - - IN YOUR COMMUNITY - By Dara Kam

TALLAHASSEE — Ac­cus­ing him of be­ing bi­ased, Florida health of­fi­cials want Ad­min­is­tra­tive Law Judge John Van Lan­ing­ham re­moved from a case in­volv­ing a med­i­cal mar­i­juana li­cense.

The highly un­usual re­quest came two days be­fore a hear­ing was sup­posed to be­gin in a chal­lenge filed last month against the state De­part­ment of Health by Homestead-based Keith St. Ger­main Nurs­ery Farms.

In an af­fi­davit filed Tues­day, state Of­fice of Med­i­cal Mar­i­juana Use Ex­ec­u­tive Direc­tor Chris­tian Bax ac­cused Van Lan­ing­ham of hav­ing “pre­judged the is­sues in this mat­ter” and at­tempt­ing to help St. Ger­main.

“Based on all of the facts set forth above, I have firmly con­cluded that the de­part­ment can­not re­ceive fair con­sid­er­a­tion of the is­sues and will not re­ceive a fair fi­nal hear­ing in this mat­ter if ALJ Van Lan­ing­ham re­mains as­signed as the ad­min­is­tra­tive judge,” Bax said.

The tug-of-war be­tween the judge and health of­fi­cials es­ca­lated, with the judge chid­ing the state, lawyers for Bax re­fus­ing to back down and the nurs­ery ac­cus­ing the de­part­ment of judge-shop­ping.

On Thurs­day, Van Lan­ing­ham re­fused to take him­self off the case, rul­ing that health of­fi­cials waited too long to make their re­quest.

The health agency had to ask for the dis­qual­i­fi­ca­tion no later than 10 days af­ter the judge’s first in­volve­ment in the lit­i­ga­tion, which would have been Sept. 25, Van Lan­ing­ham wrote.

“It did not. A party is not per­mit­ted to take a wai­t­and-see ap­proach, par­tic­i­pat­ing in lit­i­ga­tion for weeks while hold­ing grounds to dis­qual­ify the judge in its back pocket,” Van Lan­ing­ham wrote in the nine-page or­der deny­ing the De­part­ment of Health’s mo­tion for dis­qual­i­fi­ca­tion.

Van Lan­ing­ham said he would hold a tele­phone hear­ing “as soon as prac­ti­ca­ble” on other mo­tions pend­ing in the case.

Part of Bax’s com­plaints about Van Lan­ing­ham cen­tered on a sep­a­rate mar­i­juana-re­lated chal­lenge in which the judge ruled against the health de­part­ment. In that case, Van Lan­ing­ham scalded agency of­fi­cials for fail­ing to fol­low their own rules when scor­ing ap­pli­ca­tions for the highly cov­eted mar­i­juana li­censes.

The de­part­ment’s “ar­bi­trary scor­ing method fa­tally un­der­mines its pre­lim­i­nary rank­ings, which would not sur­vive even the most def­er­en­tial stan­dards of re­view,” Van Lan­ing­ham wrote in a 2016 rec­om­mended or­der in the case in­volv­ing the nurs­eries Plants of Ruskin and 3 Boys Farm.

Van Lan­ing­ham ul­ti­mately de­cided that the agency should grant li­censes to the two nurs­eries, but Bax’s of­fice re­jected his find­ings. Plants of Ruskin and 3 Boys Farm ul­ti­mately got li­censes be­cause of a change passed by the Leg­is­la­ture.

In the af­fi­davit cited in the mo­tion to dis­qual­ify Van Lan­ing­ham, Bax said the judge had no busi­ness eval­u­at­ing what method was used to score ap­pli­ca­tions be­cause that is­sue wasn’t part of the chal­lenges.

Bax ac­cused Van Lan­ing­ham of mak­ing “gra­tu­itous, deroga­tory com­ments about the de­part­ment in­sin­u­at­ing that the pro­posed rec­om­mended or­der filed by the de­part­ment was de­signed to be de­cep­tive and hide the de­part­ment’s true po­si­tions from him, as the pre­sid­ing of­fi­cer.”

Set­ting off a flurry of fil­ings, Bax’s lawyers on Tues­day asked the direc­tor of the Di­vi­sion of Ad­min­is­tra­tive Hear­ings, Robert Co­hen, to dis­qual­ify Van Lan­ing­ham and re­as­sign the case.

The same day, Van Lan­ing­ham can­celed the hear­ing, which was sched­uled to start Thurs­day, say­ing he had to de­cide on the agency’s re­quest.

Lawyers for the health agency im­me­di­ately filed an an­gry ob­jec­tion to Van Lan­ing­ham’s can­cel­la­tion of the hear­ing and again de­manded that the direc­tor of the di­vi­sion re­as­sign the case. Florida law re­quires that a hear­ing be held by Mon­day, lawyers for the state ar­gued.

But in a sting­ing re­buke, Van Lan­ing­ham wrote that an ad­min­is­tra­tive pro­ce­dures law “pro­vides no such ve­hi­cle” for the chief judge to con­sider the agency’s ob­jec­tion and that Van Lan­ing­ham him­self would de­cide whether he should be dis­qual­i­fied.

“To sum­ma­rize, and re­peat for em­pha­sis, each case pend­ing be­fore DOAH has one, and only one, pre­sid­ing judge at a time,” he wrote in a no­tice to the par­ties. “The un­der­signed is the pre­sid­ing judge in this mat­ter, notwith­stand­ing the mo­tion to dis­qual­ify, and will re­main the pre­sid­ing judge in this mat­ter un­less a suc­ces­sor judge is as­signed in the or­di­nary course of the pro­ceed­ing pur­suant to reg­u­lar, legally au­tho­rized pro­ce­dures, which do not in­clude the fil­ing of ap­peals (by any name or in any form) with the chief judge (or any other judge) of DOAH who is not the pre­sid­ing judge.”

The health agency is also em­broiled in a ju­ris­dic­tional dis­pute with Van Lan­ing­ham re­gard­ing the chal­lenge. Lawyers for the state agency main­tain the case should be han­dled in­ter­nally, rather than through the ad­min­is­tra­tive hear­ing process.

The health de­part­ment has tried four times to get Van Lan­ing­ham to dis­miss the case. He re­jected each ef­fort.

Lawyers for St. Ger­main ac­cused health of­fi­cials of try­ing to “judge-shop,” ar­gu­ing that Van Lan­ing­ham’s prior rul­ings against the agency can’t be a rea­son to dis­qual­ify the judge.

Health of­fi­cials re­cently adopted a rule that re­quires ap­pli­ca­tions for med­i­cal-mar­i­juana li­censes to be scored “quan­ti­ta­tively, rather than rank­ing them,” St. Ger­main’s lawyer, D. Kent Safriet, ar­gued.

“This begs the ques­tion that if the ALJ’s anal­y­sis was so off the mark, why did the de­part­ment fol­low the anal­y­sis in adopt­ing the new rule? It ap­pears the de­part­ment sim­ply can­not ad­mit it made a mis­take. In­stead, the de­part­ment takes aim at the ALJ,” Safriet wrote in a mo­tion filed Wed­nes­day.

St. Ger­main filed the chal­lenge last month af­ter Bax’s of­fice de­nied the grower a li­cense in Au­gust, fol­low­ing the pas­sage of a new law passed dur­ing a June spe­cial ses­sion. Un­der the law, health of­fi­cials were re­quired to is­sue li­censes to ap­pli­cants who had le­gal chal­lenges pend­ing as of Jan­uary.

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.