State Ordered To Pay Legal Fees In Pot Dispute

Dec 6, 2019

An administrative law judge Thursday ordered the Florida Department of Health to pay $50,000 in attorney fees to a company that successfully challenged a rule related to medical-marijuana licenses. 

Judge Garnett Chisenhall ruled the department should pay the attorney fees, along with $3,828 in costs, to Louis Del Favero Orchids, Inc.

The decision came more than a year after another administrative law judge, R. Bruce McKibbon, said the department did not property carry out a 2017 state law that gave preference to the citrus industry for as many as two medical-marijuana marijuana licenses.

McKibben backed Louis Del Favero Orchids, which bought a citrus-processing facility in Safety Harbor with plans to convert it to a marijuana-processing facility if awarded a pot license.

The 2017 law directed the department to give preference for up to two licenses to applicants that “own one or more facilities that are, or were, used for the canning, concentrating, or otherwise processing of citrus fruit or citrus molasses and will use or convert the facility or facilities for the processing of marijuana.”

The department proposed a detailed rule for carrying out the law but drew a challenge from Louis Del Favero Orchids.

The company, argued, in part, that the proposed rule improperly referred to “property” that had been used for processing citrus. The department’s use of the word “property” instead of “facilities” would expand the citrus preference to “a broader group of applicants than the statute permits,” attorneys for the orchid grower argued. McKibben agreed with the grower’s arguments, finding that the department’s proposed rule was an “invalid exercise of delegated legislative authority.”

That led to Thursday’s ruling in which Chisenhall ordered the department to pay the legal fees.

“In sum, the department has failed to demonstrate that it acted reasonably by substituting the word ‘property’ for ‘facility’ when it issued the proposed rule,” Chisenhall wrote. “In other words, none of the justifications set forth by the department for altering the verbiage of (the part of state law) are sufficiently substantial to foreclose an award of attorneys’ fees to Del Favero.”