In the latest twist in a nearly two-year struggle to offer limited types of medical-marijuana in Florida, three nurseries filed a lawsuit Tuesday seeking to at least temporarily block competitors from starting to produce the cannabis.
The lawsuit, filed in Leon County circuit court, stems from a November decision by the Florida Department of Health to award highly prized licenses to five "dispensing organizations" in different regions of the state. The dispensing organizations would grow, process and distribute non-euphoric types of marijuana approved by the Legislature and Gov. Rick Scott in 2014.
But the selection of the dispensing organizations drew a series of legal challenges in the state Division of Administrative Hearings. Amid the pending challenges, the Department of Health and the chosen dispensing organizations told lawmakers last month they planned to move forward with starting production.
The lawsuit filed Tuesday by San Felasco Nurseries Inc., 3 Boys Farm Company and McCrory's Sunny Hill Nursery, LLC, seeks an injunction to prevent the process from moving forward until the administrative challenges are resolved. Along with the Department of Health, the lawsuit names as defendants Chestnut Hill Tree Farm, LLC, which was awarded a license in the Northeast part of the state; Alpha Foliage, Inc., which was awarded a license in Southwest Florida; and Knox Nursery, LLC, which was awarded a license in Central Florida.
The plaintiffs contend that Chestnut Hill, Alpha Foliage and Knox Nursery should not be able to operate as dispensing organizations while the administrative challenges remain unresolved. Also the lawsuit seeks an injunction to prevent the department from moving forward with the process.
"To allow the prospective awardees to proceed with the cultivation and dispensing of a controlled substance prior to the resolution of the pending administrative challenges would defeat the intent and purpose of the APA (the Administrative Procedures Act, which governs administrative challenges) and potentially deny plaintiffs their administrative and due process rights,'' the lawsuit said. "Moreover, organizations whose qualifications have not been finally determined, and whose representations on applications have in some instances been challenged, will be allowed to begin growing and dispensing a controlled substance, even though subsequent proceedings may lead to a determination they do not meet qualifications and they are not eligible for or entitled to serving as dispensing organizations."
Lawmakers approved the limited types of marijuana in 2014 after high-profile lobbying by parents of children with severe forms of epilepsy. The approved substances, which are low in euphoria-causing THC, are different than other types of marijuana that get users high.
Lawmakers in recent months have grown increasingly frustrated with delays in getting the substances to patients who qualify. The process was delayed by other legal challenges before the licenses were awarded.
The lawsuit filed Tuesday came less than a week after Chestnut Hill filed a lawsuit in Leon County circuit court asking a judge to allow the process to move forward during the administrative challenges. In a prepared statement issued when the lawsuit was filed, Chestnut Hill attorney John Lockwood said it was seeking a declaration that would "eliminate the doubt and uncertainty that has been created by the losing applicants."
"Chestnut Hill has done their due diligence and has aptly won the approval to cultivate and dispense medical marijuana in Northeast Florida," Lockwood said. "There is no precedent or legal reason to stop this process from moving forward, and Chestnut Hill is more than ready and able to deliver this medicine in a timely manner and in accordance with the award."
In a news release Tuesday, Jim McKee, an attorney for San Felasco Nurseries, said the new lawsuit would not prevent patients from getting the low-THC marijuana because Costa Farms, which was selected for a license in the Southeast region, does not face any pending challenges.
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