A Black farmer's death spurs a dispute over the 'Pigford' marijuana license
State health officials deemed the application submitted by Moton Hopkins and Hatchett Creek Farms, of which he owned 51 percent, to be the cream of the crop, but after he died decided to award the license to someone else.
Moton Hopkins went from being one of the state’s most-successful Black farmers to working odd jobs to support his family, after a devastating drought and discrimination by the federal government wiped out the Florida native’s livelihood.
But the “cowboy legend” --- a moniker bestowed on the entrepreneur who traveled the country selling his family farm’s fruit and veggies --- and his allies jumped on an opportunity to try to cash in on what has the potential to be one of Florida’s most lucrative crops: marijuana.
Hopkins was among a dozen farmers and their teams who sought a medical marijuana license, likely worth tens of millions of dollars, designated in Florida law for a Black farmer who participated in class-action lawsuits over lending discrimination by the federal government.
State health officials deemed the application submitted by Hopkins and Hatchett Creek Farms, of which he owned 51 percent, to be the cream of the crop.
But Department of Health officials in September announced they intended to grant the license for what is known as a “medical marijuana treatment center,” or MMTC, to someone else, because the 84-year-old Hopkins died before the state’s decision about the license was finalized.
“Any interest Mr. Hopkins had in the MMTC application ceased upon Mr. Hopkins’ death, as the licensure qualifications are personal to Mr. Hopkins and do not flow to third parties,” health officials wrote on Sept. 20.
Hopkins’ heirs and Hatchett Creek, however, argue that nothing in state rules requires that the applicant be alive when the license is ultimately awarded.
"Our application got the highest score. That’s undisputed,” Thomas Sosnowski, an attorney with the Boies Schiller Flexner firm who represents the Hopkins family and Hatchett Creek, told The News Service of Florida. “That means the department determined that Hatchett Creek Farms was the business that was in the best position among all the applicants to best serve the citizens of Florida and the health and safety goals required for a medical marijuana treatment center. That's important."
The Hopkins team also said participation in the class-action lawsuits against the federal government was a “gating requirement” for applicants to make it to the next phases of evaluation and that a license can’t be “personal” to a medical marijuana operator.
Hopkins’ 51 percent majority interest in Hatchett Creek passed to his heirs --- Hopkins’ widow, Algene, and son, Moton Hopkins Jr. --- after he died, the petition said.
The elder Hopkins was a “fixture” in the Ocala community, where he and his wife ran the city’s first Black-owned restaurant for more than five decades, members of his team told the News Service.
The application process for the Black farmer license is the first time the state has accepted applications from prospective medical marijuana operators since an initial round of licensing more than six years ago.
And competition to gain a foothold in Florida, where existing licenses have fetched upwards of $50 million, is fierce.
The state’s cannabis program has exploded since voters approved a constitutional amendment broadly authorizing medical marijuana in 2016. Florida has more than 750,000 patients, 22 licensed operators and hundreds of dispensaries from Pensacola to Key West.
A 2017 law that provided an overall framework for the industry required health officials to issue a license to people with ties to the class-action litigation — known as the “Pigford” litigation.
State health officials began accepting applications for the Black farmer license in March, and in September announced they intended to grant the license to Suwannee County farmer Terry Donnell Gwinn. All of the applicants who lost out are challenging the decision.
Hopkins’ lawyers argue the license should go to the entity --- not the individual --- affiliated with the application. In a petition, they seek a hearing to determine whether health officials “erroneously relied on an unadopted rule that ‘licensure qualifications’ are ‘personal to’ Hopkins.”
“The department’s statement in its denial letter that ‘licensure qualifications’ are ‘personal to’ a Pigford/BFL class member is an unadopted rule that was created ad hoc by the department and used for the first time in its denial letter,” the petition said. “Once the application is submitted, the ‘applicant’ conflates to include the entity for scoring and licensing purposes, as the applicant must satisfy certain licensing requirements that only an entity can satisfy, including the ability to ‘operate a food establishment,’ among others.”
The lawyers also argued that “it is irrelevant” whether Hopkins “lives long enough to see the results of his submission, as it is his entity that is the 'applicant' for purposes of licensure. Thus, once submitted, his entity and its members have a substantial interest in the application and its prospective MMTC license.”
The petition also blamed the Department of Health for dragging its feet on the Black farmer license. In 2018, state lawmakers called for the license to be issued “as soon as practicable.”
Health officials announced in December 2021 that they would accept applications for the license. The application window opened in March.
“This is relevant here, because if the department had complied with its statutory mandate, Moton Hopkins would not have died while his application was pending,” Hopkins’ lawyers wrote.
Hopkins’ legal team also argued that the denial of Hopkins’ application “is fundamentally inconsistent” with the Pigford settlement, which “recognized that the heirs of an identified and qualified farmer” are intended beneficiaries of the litigation.
“Denial of the application simply because Mr. Hopkins did not die soon enough or did not live long enough but rather died during an interim period after his application was successfully submitted yet before the license award was announced is illogical and contrary to the purpose and goals of the federal legislation,” the lawyers wrote.
But Jim McKee, an attorney who represents Gwinn, said Florida law and the rules for the application “clearly require the license resulting from the Pigford process to be awarded to a Pigford class member.”
The law “does not permit the license to instead be awarded to a trust or any other person or entity that is not a Pigford class member,” he told the News Service.
McKee also noted that Hopkins’ application was disqualified because a manager included in the application failed to pass a background screening as required by law.
“The application process worked as intended, and resulted in the highest-scored qualified applicant being selected for an award,” McKee said. “Mr. Gwinn looks forward to the pending challenges being resolved so he can move forward with the licensure process.”