Tuesday, September 19, 2017

South Florida nursery challenges denial of marijuana license

Posted By on Tue, Sep 19, 2017 at 10:01 AM

click to enlarge PHOTO VIA SHUTTERSTOCK
  • Photo via Shutterstock
A Homestead-based nursery is challenging a decision by state health officials to deny the grower a medical marijuana license.

The Florida Department of Health last month rejected a request by Keith St. Germain Nursery Farms, which sought a license under a law approved this year. The new law, passed during a June special legislative session, ordered health officials to issue licenses to applicants who lost out to competitors during a first round of medical marijuana licensing in 2015.

Under the law, health officials were required to issue licenses to applicants who had challenges pending as of January or who scored within one point of the highest-ranked applicants in five regions. St. Germain came in second in the Southeast region, scoring 1.1875 points below Costa Farms, which received a license.

Health officials said St. Germain is ineligible for a license because the difference between the scores was greater than one point. But in a petition filed Friday in the state Division of Administrative Hearings, St. Germain's lawyer argued that the department erroneously calculated the scores by not rounding to the nearest whole number, which would have made the nursery eligible for a license. The department's evaluators used whole numbers to score different categories within the original applications, D. Kent Safriet, a Tallahassee lawyer representing St. Germain, wrote.

“Because the underlying data was only precise to a whole number, resulting calculations can similarly only be precise to the nearest whole number; numbers to the right of the decimal point are properly characterized as spurious,” Safriet argued.

Safriet is relying in part on a decision by Administrative Law Judge John Van Laningham in an unrelated challenge to a license issued in the Southwest region. In his evaluation of the applications in that challenge, Van Laningham wrote that “numbers to the right of the decimal point are spurious digits introduced by calculations carried out to a greater precision than the original data … which were awarded in whole numbers.”

Van Laningham is also the judge in the St. Germain challenge.

Health officials have until Oct. 3 to issue five additional medical marijuana licenses. Lawmakers expanded the number of licenses in response to a constitutional amendment approved by Florida voters last fall that legalized medical marijuana for patients with debilitating medical conditions.

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