Questions Raised About Proposed Pot Rule

THE CAPITAL, TALLAHASSEE, February 27, 2015…… A lawyer for the Legislature is questioning the Department of Health's proposed medical-marijuana rule, slated for a public vetting on Monday.

The top lawyer for the Joint Administrative Procedures Committee raised concerns this week about a variety of issues, including a scoring system proposal to decide "dispensing organizations" that will grow, process and distribute the non-euphoric marijuana legalized last year.

The proposal under scrutiny is the department's second stab at creating a framework for types of cannabis that are low in euphoria-inducing tetrahydrocannabinol, or THC, and high in cannabadiol, or CBD, authorized by the Legislature and Gov. Rick Scott last year for patients who suffer from severe spasms or cancer. An administrative law judge tossed the department's first attempt at a rule, finding fault with a proposed lottery to choose five nurseries across the state to kick off Florida's pot industry.

The latest plan, issued after a rare "negotiated rule" workshop last month, replaces the lottery with a scoring system. The weighted scorecard would rate applicants based on cultivation (30 percent), processing (30 percent), dispensing (15 percent), financials (20 percent) and medical director (5 percent).

But, in a 14-page letter Thursday to the health department's Office of Compassionate Use Director Patricia Nelson, the legislative committee's chief attorney, Marjorie Holladay, suggested that the proposed scoring system is too vague.

"It does not appear that part III of the application contains any ascertainable minimum thresholds or standards to demonstrate each item," Holladay wrote.

Under the law, five nurseries that have been in business for 30 years or longer and cultivate at least 400,000 plants would be eligible to apply for licenses in five regions.

But Holladay's letter also requested an explanation of the department's decision to allow "dispensing organizations" to grow the product in one place, process it in another and distribute it in other locations, the same issue that prompted a request for a hearing Monday on the proposed rule.

The Joint Administrative Procedures Committee plays a key role in overseeing state regulations and frequently requests more information when new rules are proposed. Two months before Administrative Law Judge W. David Watkins struck down the original proposal in November, Holladay sent health officials a similar inquiry.

In Thursday's letter, she also asked why health officials are asking applicants to provide information about their relationships with independent laboratories because nothing in the proposed rule requires testing, an expensive process that could raise the cost imposed by the rule, another issue brought up by Holladay.

Florida law requires legislative approval of rules if regulatory costs for all the businesses that participate in the program exceed $200,000 in one year, or $1 million over five years. At last month's negotiating session, the 12-member panel, hand-picked by health officials, went to great lengths to eliminate costs directly associated with the rule, instead embedding them into the application.

The committee estimated that 15 nurseries would apply for the licenses, bringing the cumulative cost of the rule to just under $1 million.

But the proposal does not address how much the biannual renewal fee would be, Holladay noted.

"Depending on the amount of this fee, the statutory threshold for legislative ratification could be triggered, especially because there will be three renewal fees to be paid by the five dispensing organizations seeking renewal within five years after implementation of the rule," Holladay wrote.

Health officials had wanted to avoid legislative approval in order to get the product to eligible patients sooner. The law had required the department to have selected the five dispensing organizations by Jan. 1 of this year, but the legal challenge created a delay.

Senate Regulated Industries Chairman Rob Bradley, whose panel is expected to take up other medical-medical marijuana legislation this session and who was instrumental in passage of the low-THC measure last year, said he wants the issue resolved.

"If it's required, it needs to be done," Bradley, R-Fleming Island, said.

© 2015 The News Service of Florida. All rights reserved. Posting or forwarding this material without permission is prohibited.


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