Louis Del Favero Orchids, Inc. v. Florida Department of Health, Office of Medical Marijuana Use, Courtney Coppola, in her official capacity as Director of the Office of Medical Marijuana Use, and Joseph A. Ladapo, etc.

Citation: Not availableDocket: 21-2378

Court: District Court of Appeal of Florida; September 7, 2022; Florida; State Appellate Court

Original Court Document: View Document

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The First District Court of Appeal of Florida affirmed the trial court's order dismissing Louis Del Favero Orchids, Inc.'s complaint against the Florida Department of Health and its officials. The appellant sought a Medical Marijuana Treatment Center (MMTC) license under the default licensure mechanism of section 120.60(1), Florida Statutes, which mandates that applications be approved or denied within 90 days or are considered approved. The trial court ruled that this section does not apply to MMTC licenses under section 381.986, a decision upheld by this court. 

In a precedent case, MedPure, LLC v. Department of Health, the court identified several reasons for denying relief, including that the Department had issued a rule indicating that applications were not being accepted at that time, and that the submissions did not meet minimum licensure requirements. Although the appellant utilized the correct application form and invested resources in compliance, issues regarding the open application window and adherence to the competitive licensing structure persisted as grounds for denial. The Department's emergency rule, not challenged successfully, specifies when applications would be accepted and outlines that a complete application must comply with all regulations. The court reiterated that the default licensure provision does not apply to limited need licenses, as it would exclude other applicants from consideration. 

The decision was affirmed, with Judge Bilbrey concurring and expressing frustration over the Department's delay in opening the application window, noting the constitutional requirement for issuing MMTC licenses. The emergency rule was initially issued on September 19, 2017.

The MMTC license application window has remained closed for nearly five years since the issuance of an emergency rule. During oral arguments in the MedPure case in March 2020, the Department's counsel indicated that the application window's delay was due to pending issues in the Florida Supreme Court case Florida Department of Health v. Florigrown, LLC. Although the Supreme Court resolved the Florigrown case over a year ago, the application window is still not open. The court declined the Appellant's request for immediate licensure, emphasizing that granting such a request would disrupt the established competitive process. However, the Department acknowledged that potential licensees have recourse if it fails to fulfill its obligations under the Florida Constitution. The court suggests that the Department should either reopen the application window or create a new rule for MMTC license applications. If these actions are not taken, potential licensees may need to seek judicial intervention to ensure compliance with constitutional duties. Counsel for the Appellant and Appellees are identified as representing their respective parties in this matter.