It’s been 6 years since the last application process was released and implemented by the Department of Health. In 2017, when the Amendment 2 implementation bill was written, we were promised 4 new licenses and another four for every 100K patients entered into the registry.
We hit the 200K mark in 2018. Then came 300K, 400k, 500K and we are rapidly approaching the 600K mark. Plus, there are three special licenses that were promised to be awarded in the 2017 implementation bill. Two are for companies with “Citrus Preference”, meaning that their land sits on a former citrus grove or a citrus processing plant, and one minority license, by awarding it to the members of the Pigford class action suit against the USDA for improper blocking of farm loans in the 1980’s and 1990’s. So, we are now 15 licenses short, with four more on the way as soon as we hit 600K patients for a possible total of 19, which would almost double the current 22.
Lawsuits gum up the process
Multiple lawsuits were filed to complain about the scoring for the application process. Then, even though they applied for a low-THC (CBD only) license, the legislature entered a clause that gave licenses to applications that were within one point in the scoring process.
By the time that the Administrative Law Judge and the governor were finished giving out the rest of he licenses to losing applications, there were 22 given out(four of which belonged to the 200K benchmark), and a few lawsuits left behind.
So what’s happening now?
Now, we come to the situation today. Many of the licenses given out to losing applications. Those golden ticket holders, along with some of the active licenses that were struggling were sold to Multi-state Operators (MSOs) that came to Florida with few of the original requirements in the statue to be part of the closed market. Some started producing and others are still waiting to start, possibly for the Adult-use market to be legalized in Florida.
But that time is not coming anytime soon, since all three branches of Florida Government have gone out of their way to block every attempt to create an Adult-use program. The legislature has blocked every bill that was geared to starting Adult Use. The judiciary blocked the ballot initiatives at the State Supreme Court level form appearing during the 2022 election. And our governor has publicly stated that Florida will never have Adult Use while he is in office, and his influence pervades the other branch’s actions.
Why weren’t more licenses awarded?
The Department of Health’s (DOH) Office of Medical Marijuana Use (OMMU) was responsible for writing and implementing the application process, but they claimed that they were blocked by the Florigrown lawsuit, which claimed that the implementation bill was unconstitutional in it’s vertical mandate and lack of path to register applicants for MMTC by mandating a competitive process. Florigrown won its case in the Circuit Court and Court of appeals and a temporary injunction was placed on new licenses being awarded, despite the DOH appealing both lower court decisions.
But the State Supreme court ruled against Florigrown, using mental gymnastics in their Opinion that would make Olga Korbut dizzy. Then the DOH announced that they would finally start the process of setting up the application protocol.
Here’s the problem…
But here was the catch – they would create it to award the Pigford class license first, then use it as a template for the next 18.
It was not the first time that they tried to award that license, which was meant to be a place holder for a Social Equity program. But giving out only one minority license, creating only one minority multi-million-dollar business is not social equity. It is tokenism, since it restricts the program to just one winner.
The license had been held up since 2017, in part because of a lawsuit from another Pigford class member. The first iteration of the law also had the restriction that the license must also go only to a member of the Florida chapter of the Florida Black Farmers and Agriculturist Association, a group whose membership had been capped at 200 members.
The lawsuit that originally blocked the Pigford license came from Columbus Smith, a Pigford class member that had been denied membership to the BFAA. His claim was that the law unduly restricted the pool of applicants to a highly circumscribed group, giving a special privilege to a small, closed group and creating a Special law, which is prohibited by the Florida Constitution.
But while that case was still awaiting completion in the lower courts a year later, Sen. Daryl Rouson lead an effort to file and pass a bill during the 2018 session to remove the BFAA restriction. When the bill passed, Mr. Smith had already won his case, but voluntarily dropped his lawsuit and began his wait, along with all the rest who were anxious for the application process to begin.
But Mr. Smith’s case was not the only challenge to the exclusive license. Donivan Craig Tingle, a lawyer, entrepreneur and farmer of Lumbee-Choctaw lineage, was a member of another class action lawsuit remarkably like the Pigford Case.
Plaintiffs filed the Keepseagle v. Vilsac class action suit in 1999, alleging that since 1981, the USDA systematically denied Native American farmers and ranchers nationwide the same opportunities as white farmers to obtain low-interest rate loans and loan servicing, causing them hundreds of millions of dollars in economic losses, which was the same basis as the Pigford case was to African American farmers. The settlement for Keepseagle came to $680M and completed the payout in 2018.
Mr. Tingle was the youngest member of that class. Most of the members in Florida had stopped farming due to economic reasons or just became too old to continue, but he was still farming, and met the five-year in business in Florida requirement. As a lawyer, he recognized that the exclusion of the Keepseagle class when Native Americans won a nearly identical discrimination case as the black farmers who were included was unconstitutional.
Mr. Tingle speaks out for Black and Native American farmers.
“There is no rational basis for granting an opportunity for black farmers to obtain a medical marijuana license while denying to Native American farmers the same opportunity,” Tingle wrote in his complaint.
When Florigrown won their injunction in 2019, the 1st Circuit court judge gave Tingle a stay of case and granted him a leave to amend his complaint when he was ready to return the case to court.
“I have no beef with the Black farmers,” Tingle told me in a recent interview. “I believe that we are equally deserving to receive a license and enter this industry in Florida.”
What will he do now?
If he decides to continue his challenge, the slow-moving legal process in Florida could block the OMMU from proceeding with the application process for the foreseeable future, unless the legislature takes up the case next session and amends the law to include the Keepseagle class. The DOH has already noted that they expect other challenges to be filed.
So the sequence of license awards that the DOH has proposed could be the excuse for the closed market in Florida to stay that way, despite the growth of the registry. That would maintain the valuation of the current licenses, making them attractive to Multi-state operators to purchase them and the current license holders to exit with a hefty profit.
It makes one wonder if that was the plan in the first place.