record on appeal...record on appeal state of florida department of health medpure, llc. dca case...

RECORD ON APPEAL

STATE OF FLORIDA

DEPARTMENT OF HEALTH

MEDPURE, LLC. DCA CASE NO.: 1D19-2736

DOH CASE NO.: 2019-0118

Appellant,

vs.

STATE OF FLORIDA,

DEPARTMENT OF HEALTH,

OFFICE OF MEDICAL MARIJUANA USE,

Appellee,

____________________________________/

001

Filing # 96437919 E-Filed 09/27/2019 04:17:42 PM

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MEDPURE, LLC.

INDEX

DATED DESCRIPTION PAGE

May 24, 2019 Petition for Formal Administrative Proceedings 004 (filed) (Acknowledged and Received)

May 29, 2019 Petition for Formal Administrative Proceedings 006 (filed)

June 28, 2019 Petitioner MedPure, LLC’s to Petition for Writ of 013 (filed) Mandamus

June 28, 2019 Petitioner MedPure, LLC’s to Appendix Petition for 022 (filed) Writ of Mandamus

June 28, 2019 Final Order Dismissing Petition W/ Exhibits A-C 045 (filed) Exhibit A- Petition for Formal Administrative

Proceedings 051 Exhibit B- Letter dated October 19, 2018 058 Exhibit C- Denial Letter 061

July 8, 2019 Notice of Appearance and Designation of Email 062 (filed)

July 26, 2019 Petitioner’s Notice of Voluntary Dismissal 065 (filed)

002

MEDPURE, LLC.

PROGRESS DOCKET

May 24, 2019 Petition for Formal Administrative Proceedings (Acknowledged and Received)

May 29, 2019 Petition for Formal Administrative Proceedings June 28, 2019 Petitioner MedPure, LLC’s Appendix to Petition for

Writ of Mandamus June 28, 2019 Petitioner MedPure, LLC’s to Petition for Writ of

Mandamus June 28, 2019 Final Order Dismissing Petition W/ Exhibits A-C

Exhibit A- Petition for Formal Administrative Proceedings

Exhibit B- Letter dated October 19, 2018 Exhibit C- Denial Letter

July 8, 2019 Notice of Appearance and Designation of Email July 26, 2019 Petitioner’s Notice of Voluntary Dismissal

003

STATE OF FLORIDADEPARTMENT OF HEALTH

OFFICE OF MEDICAL MARIJUANA USE

MEDPURE, LLC

Petitioner,

VS. File No.:

STATE OF FLORIDA,DEPARTMENT OF HEALTH,OFFICE OF MEDICALMARIJUANA USE

Respondent.

/

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--

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tUI9f];y 2 JiM!!: 29

PETITION FOR FORMAL ADMINISTRATIVE PROCEEDINGS

Pursuant to sections 120.569, 120.57(1), 120.60(1), Florida Statutes, and Florida

Administrative Code Rule 28-106.20 I, MedPure, LLC ("MedPure"), files this Petition for

Formal Administrative Proceedings ("Petition') to challenge the untimely decision of

Respondent, State of Florida, Department of Health, Office of Medical Marijuana Use (the

"Agency") to reject MedPure's registration application to operate a Medical Marijuana

Treatment Center ("MMTC")'. 1 In support of its Petition, MedPure states as follows:

1. Rule 28-106.201(2)(a). The name and address of each agency affected and

each agency's file or identification number, if known. The agency affected by this Petition is

the State of Florida, Department of Health, Office of Medical Marijuana Use, whose address is

4052 Bald Cypress Way, Bin M-01, Tallahassee, Florida 32399. The agency's file or

identification number, if any, is not known.

Pursuant to section 120.60(1), Florida Statutes, this Petition shall also serve as MedPure's written notice of itsintent to rely upon the default license provision of section 120.60(1).

1

004

7

..

.

.,,

Office of Medical Marijuana Usedo Ms. Shannon RevelsAgency ClerkOffice of the General CounselFlorida Department of Health2585 Merchants Row Boulevard, Suite 110Tallahassee, FL 32399

RECEIPT AND ACKNOWLEDGMENT(MedPure, LLC)

ACKNOWLEDGED AND RECEIVED:

This formally acknowledges receipt by the Office of Medical Marijuana Use, Florida Departmentof Health do Ms. Shannon Revels, Agency Clerk, the ORIGINAL of the following items:

1. Petition for Formal Administrative Proceedings

AGENCY CLERKOFFICE OF THE GENERAL COUNSELFLORIDA DEPARTMENT OF HEALTH2585 Merchants Row Blvd, Suite 110TsseeL32399

Title:

Date: Ill fc2/ 2019Time: f/, 3 T PM

2

005



MEDPURE, LLC

Petitioner,

vs.

STATE OF FLORIDA,DEPARTMENT OF HEALTH,OFFICE OF MEDICALMARIJUANA USA

Respondent./

FILE No.:

-

LTH2Gi;y29 P11 2:30



Administrative Code Rule 28-106.201, MedPure, LLC ("MedPure, LLC"), files this Petition for.

Formal Administrative Proceedings ("Petition") to challenge the untimely decision ofRespondent,

State ofFlorida, Department ofHealth, Office ofMedical Marijuana Use (the "Agency") to reject

MedPure's registration application to operate a Medical Marijuana Treatment Center ("MMTC").'

In support of its Petition, MedPure states as follows:

1. Rule 28-106.201(2)(a). The name and address of each agency affected and each

agency's file or identification number, if known. The agency affected by this Petition is the

State ofFlorida, Department ofHealth, Office ofMedical Marijuana Use, whose address is 4052

Bald Cypress Way, Bin M-01, Tallahassee, Florida 32399. The agency's file or identification

number, if any, is not known.

Pursuant to section 120.60(1), Florida Statutes, this Petition shall also serve as Green Point'swritten notice of its intent to rely upon the default license provision of section 120.60(1).

006

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2. Rule 28-106.201(2)(b). The name, address, and telephone number of the

petitioner's representative, if any, which shall be the address for service purposes during the

course of the proceeding; and an explanation of how the petitioner's substantial interests will

be affected by the agency determination. MedPure's representatives in this case are its legal

counsel, Craig S. Barnett, Esq. and Avi Benayoun, Esq., and the law firm of Greenberg Traurig,

P.A., 401 East Las Olas Boulevard, Suite 2000, Fort Lauderdale, Florida 33301, telephone:

954.765.0500; fax: 954.765.1477. Messrs. Barnett and Benayoun shall be MedPure's contact

persons for the purpose of service and other matters during the course of this proceeding.

MedPure's substantial interests have been affected by the Agency's untimely decision to

reject its MMTC registration application. The Agency has taken the position that it is "not

accepting applications for Medical Marijuana Treatment Center registration." Such decision

entitles MedPure to an administrative hearing under section 120.57, Florida Statutes. See e.g.,

Gen. Dev. Utilities, Inc. v. Fla. Dep't ofEnvtl. Regulation, 417 So. 2d 1068 (Fla. 1st DCA 1982)

(holding that agency improperly dismissed petition because "the Department has taken a position,

reduced it to writing, and disseminated it to the affected party. . .

This improper decision deprives MedPure of a license to operate as a MMTC in the state

of Florida, to which it is entitled by default based on the Agency's failure to request additional

information from MedPure within thirty (30) days of receipt of MedPure's MMTC registration

application and subsequent failure to approve or deny MedPure' s application within ninety (90)

days of receipt of same.

3. Rule 28-106.201(2)(c). A statement of when and how the petitioner received

notice of the agency decision. On or about March 27, 2019, MedPure received the Agency's

letter dated March 26, 2019, where the Agency rejected MedPure's MMTC registration

007

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application, stating that the Agency "is not accepting applications for Medical Marijuana

Treatment Center registrations." A copy of the Agency's March 26, 2019 letter is attached as

Exhibit "A." This petition is timely filed.

4. Rule 28-106.201(2)(d). A statement of all disputed issues of material fact. If

there are none, the petition must so indicate. MedPure requests formal administrative

proceedings pursuant to sections 120.569, 120.57(1) and 120.60(1), Florida Statutes, to contest the

Agency's untimely rejection of its MMTC registration application. Material facts that are in

dispute include the following:

Whether the Agency was legally required to accept and consider MMTC registration

applications during the time period when MedPure's MMTC registration was pending before the

Agency.

Whether the Agency can unilaterally decide that it is not accepting applications for MMTC

registrations.

Whether the Agency's decision to reject MedPure's complete MMTC registration

application was lawful.

Whether MedPure is entitled to a default license to operate as a MMTC in the state of

Florida.

Whether MedPure is entitled to a license to operate as a MMTC in the state of Florida

under Article X, Section 29 of the Florida Constitution ("Medical Marijuana Amendment").

5. Rule 28-106.201(2)(e). A concise statement of the ultimate facts alleged,

including the specific facts the petitioner contends warrant reversal or modification of the

agency's proposed action. On October 5, 2018, in the case styled Florigrown, LLC, et al. v.

Florida Department ofHealth, Office ofMedical Mar/uana Use, et al., Case No. 2017 CA 2549,

008

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pending in the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida, the

Court entered an Order Granting Motion for Temporary Injunction ("Order") where it ruled that

the statutory scheme through which the Agency previously issued MMTC licenses (i.e., section

38 1.986, Florida Statutes) was unconstitutional. That order directed the Agency to, among other

things, commence registering MMTC's in accordance with the plain language of the Medical

Marijuana Amendment.

Subsequent to the Court's Order, on October 19, 2018, MedPure submitted its MMTC

registration application. While the Court's Order was in effect, MedPure's MMTC registration

application was pending before the Agency.

The Agency never requested any additional information from MedPure with regard to its

MMTC registration application. On March 27, 2019, more than ninety (90) days after MedPure

submitted its MMTC registration application, MedPure received the Agency's letter dated March

26, 2019, wherein the Agency rejected MedPure's MMTC registration application, stating that the

Agency "is not accepting applications for Medical Marijuana Treatment Center registrations."

6. Rule 28-106.201(2)(f). A statement of the specific rules or statutes the

petitioner contends require reversal or modification of the agency's proposed action,

including an explanation of how the alleged facts relate to the specific rules or statutes. The

Administrative Procedure Act (Fla. Stat. § 120.50 et seq.) defines "license" as "a franchise, permit,

certification, registration, charter, or similar form of authorization required by law... ." Fla.

Stat. § 120.52 (10) (emphasis added). Similarly, "licensing" means "the agency process respecting

the issuance [or] denial. . . of a license." Fla. Stat. § 120.52 (11). Based on the plain language of

these statutes, the MMTC registration application process implicates licensing, which is governed

by section 120.60, Florida Statutes. Indeed, the Division of Administrative Hearings has

009

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recognized that the Agency's obligations under section 120.60 apply with full force and effect in

the context of medical marijuana licensing. See Plants ofRuskin, Inc. v. Department ofHealth,

Case Nos. 17-0116, 17-0117, 2017 Fla. Div. Adm. Hear. LEXIS 338 (May 23, 2017).

Under section 120.60(1), the Agency had thirty (30) days from receipt of MedPure's

MMTC registration application to notify MedPure of any apparent errors or omissions in its

application and request any additional information. The agency never made any such request.

Pursuant to section 120.60(1), because no additional information was requested within 30 days,

the Agency had 90 days from receipt of MedPure's MMTC registration application to approve or

deny such application. See e.g., Tuten v. State ofFla., Dep't ofEnvtl. Prot., 819 So. 2d 187, 188

(Fla. 4th DCA 2002). The Agency also failed to comply with this statutory obligation.

MedPure is entitled to a default license under section 120.60(1) because the Agency

allowed more than thirty (30) days to elapse without requesting any additional information from

MedPure, and also allowed more than ninety (90) days to elapse without approving or denying

MedPure's MMTC registration application.

7. Rule 28-106.201(2)(g). A statement of the relief sought by the petitioner,

stating precisely the action petitioner wishes the agency to take with respect to the agency's

proposed action. MedPure seeks prompt issuance of a license to operate as a MMTC in the state

ofFlorida, by default under section 120.60(1), Florida Statutes, or otherwise.

8. MedPure reserves the right to amend this Petition.

WHEREFORE, MedPure requests that:

(a) This matter be referred to the Division of Administrative Hearings for the

assignment of an administrative law judge to conduct formal administrative proceedings;

010

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(b) Recommended and Final Orders be entered concluding that (i) the State of

Florida, Department of Health, Office of Medical Marijuana Use was required to timely approve

or deny MedPure's application for registration as a Medical Marijuana Treatment Center in

accordance with section 120.60(1), Florida Statutes, but failed to do so; and (ii) MedPure is entitled

to a default license under section 120.60(1) to operate as a Medical Marijuana Treatment Center

in the state of Florida;

(c) Such other relief be granted to MedPure as may be appropriate in the

circumstances.

Respectfully submitted this 28th day of May, 2019.

GREENBERG TRAURIG, P.A.401 East Las Olas BoulevardSuite 2000Fort Lauderdale, Florida 33301Phone: 954.765.0500Fax: 954.765.1477

/s/ Craig S. BarnettCRAIG S. BARNETTFlorida Bar No. 035548Primary Email: barneftc(2gtlaw.comSecondary Email: [email protected]

FLService(gtlaw.comAVI BENAYOUNFlorida Bar No. 0151696Primary Email: [email protected] Email: [email protected]

011

CERTIFICATE OF FILING

I HEREBY CERTIFY that this original has been hand delivered to State of Florida,

Department of Health, Office of Medical Marijuana Use, 4052 Bald Cypress Way, Bin M-01,

Tallahassee, Florida 32399, and Agency Clerk, Office of General Counsel, Florida Department of

Health, 2585 Merchants Row Boulevard, Suite 110, Tallahassee, Florida 32399, with a copy

delivered by email to Courtney Coppola, Director, Florida Office of Medical Marijuana Use,

[email protected], this 28th day of June, 2019.

/s/ Craig S. BarnettCRAIG S. BARNETT

012

IN THE FIRST DISTRICT COURT OF APPEALSTATE OF FLORIDA

CASENO

MEDPURE, LLC, a Florida limited liability company,

Petitioner,

V.

STATE OF FLORIDA, DEPARTMENT OF HEALTH,OFFICE OF MEDICAL MARIJUANA USE,

Respondent.

PETITIONER MEDPURE, LLC'SPETITION FOR WRIT OF MANDAMUS

Barry RichardFlorida Bar No. 105599

Lorence J. BielbyFlorida Bar No. 393517

Greenberg Traurig, P.A.101 E College AveTallahassee, FL 32301richardbgtlaw.cornbielbyIgtlaw.corn

Avi BenayounFlorida Bar No. 0151696

Greenberg Traurig, P.A.401 East Las Olas BoulevardSuite 2000Fort Lauderdale, Florida 33301benayounagtlaw. cornyearginagtIaw. cornflservicegtlaw.corn

Brigid F. Cech SarnoleFlorida Bar No. 730440

Greenberg Traurig, P.A.333 S.E. 2nd AvenueSuite 4400Miarni, Florida 33131cechsarno1ebgtlaw. cornmi arniappellateservicegtlaw.corn

Counselfor Petitioner MedPure, LLC

013

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PETITION FOR WRIT OF MANDAMUS

Petitioner, MedPure, LLC (MedPure), petitions this Court for a writ of

mandamus, directing Respondent, State of Florida, Department of Health, Office of

Medical Marijuana Use (OMIVIIJ), forthwith to conduct a hearing to address the

merits of the pending Petition for Formal Administrative Proceedings (the Petition)

by MedPure, filed on May 29, 2019. The Petition challenges the OMM[J's untimely

decision to reject MedPure's registration application for licensure to operate a

Medical Marijuana Treatment Center (MMTC). MedPure seeks the writ of

mandamus to obtain a final disposition of the Petition without continuing

unreasonable delay.

JURISDICTION

This Court has jurisdiction to issue writs of mandamus under Article V,

Section 4(b)(3) of the Florida Constitution. Mandamus is the proper remedy to

enforce an established legal right by compelling an official to perform a ministerial

duty required by law. "To be entitled to mandamus relief, the petitioner must have

a clear legal right to the requested relief, the respondent must have an indisputable

legal duty to perform the requested action, and the petitioner must have no other

adequate remedy available." Pleus v. Crist, 14 So. 3d 941, 945 (Fla. 2009).

Specifically, here, mandamus is the proper remedy to compel an administrative

hearing pursuant to Chapter 120, Florida Statutes. Community Health charities of

014

Florida v. State, Dept. ofManagement Servs., 961 So. 2d 372 (Fla. 1st DCA 2007)

(mandamus granted where state agency had a clear duty to comply with the

provisions of Section 120.569, Florida Statutes).

NATURE OF RELIEF SOUGHT

MedPure seeks a writ ofmandamus to compel the OMMIJ to conduct formal

administrative proceedings with respect to MedPure's challenge of the agency's

untimely rejection of MedPure's registration application for licensure as a MMTC.

STATEMENT OF FACTS

MedPure submitted its registration application for licensure as a MMTC to

OMMU on October 19, 2018, pursuant to Article X, Section 29(b)(5) of the Florida

Constitution and applicable Florida law. (A:3-5). MedPure's registration

application was submitted after the trial court in Florigrown, LLC, et al. v. Florida

Dept. ofHealth, Case No. 2017 CA 2549 (the Florigrown Lawsuit), on October 5,

2018, issued an Order Granting Motion for Temporary Injunction dated October 5,

2018 (Temporary Injunction), in which OMMIJ was ordered "by 5:00 PM, Friday,

October 19, 2018, to commence registering MMTCs in accordance with the plain

language of the Medical Marijuana Amendment [Article X, Section 29, of the

Florida Constitution]." (A:10 (emphasis in original)).

Section 120.60(1), Florida Statutes, provides that "[u]pon receipt of a license

application, an agency shall examine the application and, within 30 days after such

015

receipt, notify the applicant of any apparent errors or omissions" and that "[am

application for a license must be approved or denied within 90 days after receipt of

a completed application." Any application for a license which is not approved or

denied within the 90 days is considered approved. Id.

Notwithstanding the fixed deadlines, MedPure was never advised that its

application was incomplete and did not receive any response from OMIMIJ to its

application for licensure until its receipt of a letter dated March 26, 2019, from

OMMTJ, 158 days after MedPure submitted its application. (A:12). OMIIVIIU did not

grant MedPure's application for licensure, advising that it was "not accepting

applications for Medical Marijuana Treatment Center registration." (A: 12). No

basis or explanation was given.

Thereafter, MedPure filed its Petition for Formal Administrative Proceedings

with the OMIMIJ on May 29, 2019, challenging the agency's untimely decision to

reject MedPure's registration application to operate a MMTC. (A: 16-22). MedPure

has not received any response from OMIVIIU to its Petition; no hearing has been

granted, nor has it been licensed as a MMTC.

To date, OMMU has not taken any action with respect to MedPure's Petition.

MedPure has not received notice from OMIVIU providing time, place and nature of

the hearing, or such other information as OMMU may be required to provide under

Florida law.

-I

016

(¯) .

)

SUMMARY OF ARGUMENT

MedPure is entitled to writ of mandamus to compel OMMU to act on its

petition for formal administrative proceedings. Under Section 120.569, Florida

Statutes (201 8), in all proceedings in which the "substantial interests of a party are

determined by an agency," such party is to be afforded an opportunity for a hearing.

Moreover, Section 120.569(2)(a) requires that "[a] request for a hearing shall be

granted or denied within 15 days after receipt." Here, by virtue of the untimely

rejection of its application for licensure, MedPure's substantial interests -

specifically, its right to licensure as an MMTC under Florida law - have been

determined by OMM1J's actions or, more appropriately, its failure to act.

Notwithstanding that MedPure's substantial interests are at issue, OMM1IJ has failed

to act on MedPure's request for a hearing as required by Section 120.569(2)(a). This

Court should issue a writ of mandamus to compel OMMU to act on MedPure's

hearing request.

ARGUMENT

Section 120.569, which is part of Florida's Administrative Procedure Act

(APA) and applies to "all proceedings in which the substantial interests of a party

are determined by an agency," requires OMIIVITJ, as an administrative agency, to

provide a hearing to MedPure. Here, MedPure's substantial interests were

determined by OMMU, which is part of the Department ofHealth and is tasked with

5

017

the responsibility for issuing licenses to applicants seeking registration as MMTCs

under Section 381.986(8), Florida Statutes (2018). OMlVftJ's obligation was

confirmed further by the then-pending Temporary Injunction in the Florigrown

Lawsuit, directing the agency to commence registering MMTCs. (A:6-11).

OIVIIIVRJ did not perform its obligations in accordance with Florida law.

Pursuant to applicable law and the Temporary Injunction, MedPure applied for

license as an MMTC. OMMIJ did not advise that the application was incomplete

within 30 days, nor did it approve or deny the application within 90 days.

§120.60(1), Fla. Stat. Nearly a month after it was supposed to act on MedPure's

application for licensure, OMIMTJ belatedly advised that the application was rejected.

(A:12). OMMU's denial was untimely as a matter of law.

On May 29, 2019, MedPure filed its petition for formal administrative hearing

with respect to OMMTJ's untimely rejection of its application. Section 120.59(2)(a)

requires OMMTJ to act on MedPure's request for hearing within 15 days of its

request, but as of the date of this petition, OMMU has taken no action. Mandamus

is an appropriate remedy where an agency has failed to provide an administrative

hearing in accordance with the APA. See community Health Charities, 961 So. 2d

at 372; Teacher 's Educators Association, Inc. v, Duval County School District, 763

So. 2d 1265 (Fla. 1st DCA 2000) (granting mandamus petition where agency failed

to grant formal administrative hearing following its refusal to grant applicant a

6

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license to provide training to school district employees); see also Perry v. Dept. of

Children and Families, 220 So. 3d 546, 549-50 (Fla. 3d DCA 2017) ("pursuant to

the APA, when actions undertaken by a Florida administrative agency affect one's

'substantial interests,' the affected person is entitled to an administrative hearing")

MedPure is twice prejudiced by OMJVftJ's delay. First, it has been prejudiced

by OMMU's failure to act within 90 days on its application for MMTC license.

Second, after OMM[J acted belatedly to reject its application, MedPure now is being

prejudiced by OMMIJ's refusal to grant a formal hearing on its entitlement to license

by default. Accordingly, MedPure is entitled to issuance of mandamus directing

OMMU to act on MedPure's request for a formal administrative hearing within 15

days.

Because it is entitled to a writ of mandamus directing OMIMIU to act on its

petition, MedPure further is entitled to an award of attorneys' fees. Salam v. Bd. of

Prof Engineers, 946 So. 2d 48, 49 (Fla. 1st DCA 2006), is directly on point:

The agency's action in failing to rule on his petition for formal hearingwithin 15 days as required by section 120.569(2)(a) constituted a grossabuse justifying an award of attorney's fees to petitioner pursuant tosection 120.595(5). In the administrative process, it is fundamental thatan aggrieved person receive a formal administrative hearing uponrequest. Here, that request was timely made and the agency randomlyput it on hold; by so doing, the agency exercised its discretion arbitrarilyand capriciously in violation of fundamental requirements. . . . Acitizen's rights under the Florida Statutes must be taken seriously bythe State's agencies and handled expeditiously.

7

019

CONCLUSION

Based on the foregoing, MedPure respectfully requests the Court for

mandamus relief, to command OMIVIU to act on MedPure's request for a formal

administrative hearing within 15 days.



Greenberg Traurig, P.A.101 E College AveTallahassee, FL 32301Telephone: 850.222.6891Facsimile: 850.681.0207richardbgtlaw.cornbielbylgtlaw. corn

Brigid F. Cech SamoleFlorida Bar No. 730440

Greenberg Traurig, P.A.333 S.E. 2nd AvenueSuite 4400Miami, Florida 33131Telephone: 305.579.0500Facsimile: 305.579.0717cechsamolebgtlaw. cornmiamiappe1lateservicegt1aw.com

Respectfully submitted,


Greenberg Traurig, P.A.401 East Las Olas BoulevardSuite 2000Fort Lauderdale, Florida 33301Telephone: 954.765.0550Facsimile: 954.765.1477benayounagt1aw. cornyearginagtlaw.cornflservicegtlaw. corn


By: Is! Avi BenayounAvi Benayoun

020

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been

furnished by hand delivery to State of Florida, Department of Health, Office of

Medical Marijuana Use, 4052 Bald Cypress Way, Bin M-01, Tallahassee, Florida

32399, and Agency Clerk, Office of General Counsel, Florida Department ofHealth,

2585 Merchants Row Boulevard, Suite 110, Tallahassee, Florida 32399, with a copy

delivered by email to Courtney Coppola, Director, Florida Office of Medical

Marijuana Use, Courtney.Coppolaflhealth.gov, this 27th day of June 2019.

By: /5/ Avi BenayounAvi Benayoun

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that the foregoing document is in compliance with the

font requirements of Florida Rule of Appellate Procedure 9.100(1). This document

is submitted in Times New Roman 14-point font.

By: /s/ Avi BenayounAvi Benayoun

021

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CASE No

( _\

MedPure, LLC, a Florida limited liability company,

Petitioner,

V.

STATE OF FLORIDA, DEPARTMENT OF HEALTH,OFFICE OF MEDICAL MARIJUANA USE,

Respondent.

PETITIONER MEDPURE, LLC'SAPPENDIX TO PETITION FOR WRIT OF MANDAMUS


Greenberg Traurig, P.A.333 S.E. 2nd AvenueSuite 4400Miami, Florida 33131Telephone: 305.579.0500


Greenberg Traurig, P.A.401 East Las Olas BoulevardSuite 2000Fort Lauderdale, Florida 33301Telephone: 954.765.0500



Greenberg Traurig, P.A.101 ECollege AveTallahassee, FL 32301Telephone: 850.222.6891

Counselfor Petitioner MedPure, LLCACTIVE 44111684v1

022

INDEX

DATE DOCUMENT PAGE

October 19, 2018 MedPure registration application 3

October 5, 2018Order Granting Motion for TemporaryInjunction 6

March26, 2019Letter from the Office of Medical MarijuanaUse

___________

12

May 29, 2019Petition for Formal AdministrativeProceedings 16

Certificate of Service 23

ACTIVE 44111684v1

023

Timothy F. SlanfleldGovernment Relations ProfessionalDirect Dial: 850 681 4226

101 North Monxoe Street, Suite 1090Tallahassee. Florida 32301T 8506810411F 850 681 6036www.bipc.com

October 19, 2018 :.0.

-1

Courtney Coppola, Director __

Office of Medical Marijuana Use Via Hand DeliveryFlorida Department of Health and email to2585 Merchants Row Boulevard [email protected], FL 32399

....

Re: Registration as a Medical Marijuana Treatment Center by MedPure, LLC

Dear Ms. Coppola:

This letter constitutes MedPure, LLC's (herein "Registrant") registration to operate aMedical Marijuana Treatment Center (herein "MMTC") in accordance with the ruling inFlorigrown LLC v. DOH Case No 2017-CA-002549. Pursuant to Article X Section 29(b)(5) ofthe Constitution of the State of Florida ratified by voters on November 7, 2016, referred to asMneudrnent2 (herein the "Amendrnnt"), this registration entitles the Registrant.. to acquire,cultivate, possess, process, transfer, transport, sell, distribute, dispense, or administer marijuana,products containing marijuana, related supplies, or educational materials to qualifying patients ortheir caregivers.

The Registrant is a Florida Corporation existing for, inter alia, the purpose of operating aMMTC within the State of Florida to make available and accessible medical marijuana for safeuse by qualifying patients.

All owners, managers, officers, board members, and employees or agents of theRegistrant will meet the requirements mandated by the Department of Health (herein"Department") for a level-2 background screening pursuant to Section 435.04, F.S., or any otherbackground screening requirement at the office of FDLE or any other designated approvedvendor for fingerprinting. To date, all individuals associated with the Registrant have beenfingerprinted and passed a level-2 background screening.

In order to satisfy any requirements regarding financial solvency and capabilities, theRegistrant will provide any requested materials from a certified public accountant. TheRegistrant will satisfy the fee requirements for registration and provide the required bond forregistration, as it has been pre-qualified for bond issuance.

3 024

Courtney Coppola, DirectorOffice of Medical Marijuana UseOctober 19, 2018Page 2

The purpose of registration is to ensure the availability and safe use of medical marijuana byqualifymg patients Under Section 29 (d)(1)(c) of the Amendment, it is the duty of theDepartment to promulgate regulations to ensure proper security, record keeping, testing,labeling, inspection and safety. The Registrant shall meet these requirements as follows:

1. The Registrant will meet all requirements for security, inventory, and control including,but not limited to, video surveillance, alarms, and physical barriers to control access.More specifically, the Registrant employs a security director who has prepared detailedsecurity protocols and procured security equipment.

2. The Registrant will meet all record keeping requirements for inventory control, trackingand chain Of custody, and will implement auditable software for seed to sale tracking asrequired. The Registrant has entered into an agreement for seed to sale tracking support

with a leading seed to sale tracking company in the industry.

3. The Registrant will comply with testing requirements including, but not limited to,

internal testing and maintaining batch samples for auditing by independent third parties.The Registrant has entered into a letter of intent with a Florida lab to provide third party

testing.

4. The Registrant will maintain records necessary to meet any labeling requirements such asa list of ingredients, cannabinoid content to include THC and CBD, and safety warnings.

5. The Registrant will make its facilities, processes, and records available for inspection bythe Department at any and all reasonable times.

The Registrant considers the safety of its products and processes to be a paramount

concern. Consequently, the Registrant will satisfy or exceed any safety requirementincluding but not limited to: a. requirements for cultivating cannabis methodology; b.requirements for dealing with medical marijuana as an invasive plant in the State ofFlorida; c. requirements for the best agricultural arid handling practices; d. requirementsfor professional personnel on staff licensed by the State as necessary to ensure that theRegistrant is operating in accordance with the regulations of the Department.

7. The Registrant has engaged a Florida licensed physician to serve as Medical Director ofthe MJ4TC to ensure the proper operation of facilities and patient safety.

8. The Registrant has satisfied all local zoning and planning requirements of eachjurisdiction in which it will operate facilities, and enjoys the support of the City of VeroBeach, Florida which is aware of the Registrant's intentions.

r1025

I


Thus, as previously stated, this letter constitutes MedPure, LLC's registration for theoperation of an MMTC and the acknowledgement and agreement by MedPure, LLC to complywith the An endrnent and any duly adopted regulations of the Department.

Thank you for your consideration in this matter. If yon have any questions, please do nothesitate to contact me.

Sincerely,

BUCHANAN INGERSOLL & ROONEY PC

Tinmoiiiv l:s iunficld. lsti.

5 026

Filing #78928793 B-Filed 10/05/2018 11:30:5 1 AM

FLORIGROWN, LLC, a Florida,liability company and VOICEofFREEDOM, INC., d!b/aFlorigrown,

Plaintiffs,.

vs.

FLORIDA DEPARTMENT OFHEALTH, OFFICE OF MEDICALMARITh.AUSE, et al.,

Defendants.

IN THE CIRCUIT COURT OF THESECOND JUDICIAL CIRCUIT, INAND FOR LEON COUNTY,FLORIDA.

CASE NO 2017 CA 2549CIVIL DIVISION

/

ORDER GRANTING MOTION FOR TEMPORARY INJUNCTION

A hearing was held in this case on October 3, 2018. All parties were

represented by counsel at the hearing. Plaintiffs are Fiorigrown, LLC, and Voice of

Freedom, Inc., doing business as Florigrown, and will be referred to in this order as

"Florigrown." Defendants are Florida Department of Health, Office of Medical

Marijuana Use,. Courtney Coppola (Director of the Office), Celeste Philip, M.D.

(State Surgeon General and Secretary of the Department of Health), and The State

of Florida.

027

The October 3 hearing was a case management conference scheduled by

order of August 2, 2018. That August 2 order arose out of an evidentiary hearing

July 16 and 19, 2018 on Florigrown's motion for temporary injunction. The

August 2 order found Florigrown established a substantial likelihood of success on

the merits and. lack of an adequate remedy at law. However, at that time the court

did not find irreparable harm absent the issuance of an injunction, nor that a

temporary injunction at that time was in the public interest. Thus, at that time the

motion for temporary injunction was denied, without prejudice.

The motion for temporary injunction was denied without prejudice because.

the court was concerned about the findings at that time of no irreparable harm and

that granting a temporary injunction was not in the public interest. The August 2

order stated the passing ofmore time may alter those findings. It has.

At the time of the August 2 order, the court was hopeful the Department of

Health would take action to cure the serious Constitutional problems specified in

the order. However, counsel for the Department of Health essentially conceded in

the October 3, 2018 hearing that for the purpose of this case there have been no

significant changes in the Department's regulations or their action on the

application of Florigrown. In other words, the court order was ignored by

Defendants.

7 028

U

The Department is in an unfamiliar situation. The Medical Marijuana

Amendment is unusual for a Constitutional provision because it places very

specific duties on a State agency, the Department of Health (not the Legislature), to

ensure the availability and safe use of medical marijuana by qualifying patients.

The Amendment was passed in November 2016.

In June 2017 the Florida Legislature revised Section 381.98:6, Florida

Statutes, in an attempt to provide guidance to the Department with regard to the

Department's duties under the Amendment. That legislative guidance, though was

in several ways significantly inconsistent with the Constitution, as pointed out in

the August 2 order. Thus, we have the Department with specific duties placed on it

by the Constitution, and the Legislature telling them incorrectly what to do, by

statute. Nevertheless, the Constitution has very specific details in it. And the

Constitution is the law of the land. The Constitution prevails over the statute.

As stated in the hearing of October 3, 2018, the court now finds irreparable

harm if this temporary injunction is not issued, and that issuing the injunction will

serve the public interest. The public interest was clearly stated with the passage of

the Constitution's Medical Marijuana Amendment by over 70% of Florida voters.

The Amendment makes it clear the Department of Health must do the matters

3

029

)

required in it to ensure the availability and safe use of medical marijuana by

qualifring.patients. The Department has failed to do so.

Section 381.986 is an unconstitutional attempt to implement the Medical

Marijuana Amendment, as stated in the order of August 2. That order was igiored.

The court is concerned the Constitution is being treated as just a recommendation.

It cannot be. The Constitution is the law of the land - the supreme law of our

government, which we must all live by. The Medical Marijuana Amendment of the

Constitution is specific. Much of that specificity is being ignored.

The. Preamble to the Constitution of the State of Florida states as follows:

We, the people of the State of Florida, being grateful to Almighty God forour constitutional liberty, in order to secure its benefits, perfect ourgovernment, insure domestic tianquility, maintain public ordei, andguarantee equal civil and political rights to all, do ordain and establish thisconstitution.

Article 1 Section 1 of our Constitution states "all political power is inherent

in the people." By vote of the people, the Medical Marijuana Amendment is in our

Constitution. It is the law of our State. That is what the people voted for. It must be

followed.

The Department of Health is part of the Executive branch of our

government. Chapter 20, Florida Statutes, establishes the organizational structure

of our State. Section 20.02 (1), Florida Statutes, states as follows:4

030

The State Constitution contemplates the separation of powers withinstate government among the legislative, executive, and judicialbranches of government The legislative branch has the broad purposeof determining policies and programs and reviewing programperformance. The executive branch has the purpose of executing theprograms and policies adopted by the Legislature and of makingpolicy recommendations to the Legislature. The judicial branch hasthe purpose of detenmning the constitutional propriety of the policiesand programs and of adjudicating any conflicts arising from theinterpretation or application of the laws.

In this case the Executive branch, through the Department of HeaIth and the

Legislative branch, through passage of the unconstitutional portion cf Section

381.986, Florida Statutes, are violating the Constitution of the State of Florida.

Accordingly, a temporary injunction is entered (1) immediately enjoining.

the Department of Health from registering or licensing any MMTCs pursuant to

the unconstitutional legislative scheme set forth in Section 381.986, Florida

Statutes, (2) requiring the Department by 5:00 PM Friday, October 19, 2018 to

commence registering MMTCs in accordance with the plain language of the

Medical Marijuana Amendment, and (3) requiring the Department to register

Florigrown as an IV1MTC by 5:00 PM Friday, October 19, 2018, unless the

Department can clearly demonstrate to this court that such registration

would result in unsafe use of medical marijuana by qualifying patients.

10031

Case No. 2Q17 CA 2549

It. is emphasized. to the Department and all Defendants that this is a court

order. Willful violation of the court order may result in sanctions, which could

include a finding of contempt of coi.irt.

DONE AND ORDERED in Chambers, Tallahassee, Leon County, Florida,

this_____

day of J -t-- ,2018.

- --

Cl I )ODSON

(IRi't.1I .JUD(iI

Copies furnished to all counsel via E-Portal:

6

11032

March 26, 2019

Timothy F. Stanfield, Esq.Buchanan Ingersoll & Rooney101 North Monroe Street, Suite 1090Tallahassee, FL 32301Timothy. [email protected]

Re: Request for Registration - MedPure, LLC

Dear Mr. Stanfield,

On October 19, 2018, the Office of Medical Marijuana Use received your request for registration as aMedical Marijuana Treatment Center under Article X, Section 29 of the Florida Constitution. At this time,the Office of Medical Marijuana Use is not accepting applications for Medical Marijuana TreatmentCenter registration.

The Office of Medical Marijuana Use will publish in the Florida Administrative Register the date uponwhich it will begin accepting applications You may submit an application for registration at that time

Marijuana Use

Florida Department of HealthOffice of Medical Marijuana Use4052 Bald Cypmss Way, Bin M-01 iaDahassee, FL 32399PHONE: 8501245-4657FlorldaHealth.gov

! 5 Accredited Health DepartmentPublic Health Accreditation Board

12033

)

Timothy F. StanflèldGovernment Relations ProfessionalDirect Dial: 850 6814226npthy st niiçld lspç corn

101 North Monroe Street, Suite 1090Tallahassee, Florida 32301T 8506810411F 850 681 6036www.bipc.com

I',.)

October 19, 2018cD

'- C)

-

Courtney Coppola, Director __

Office of Medical Marijuana Use Via Hand DeliveryFlorida Department of Health and email to2585 Merchants Row Boulevard [email protected], FL 32399

...


Dear Ms. Coppola:

This letter constitutes MedPure, LLC's (herein "Registrant") registration to operate aMedical Marijuana Treatment Center (herein "MMTC") in accordance with the ruling inFlorigrown LLC v. DOH Case No 2017-CA-002549. Pursuant to Article X Section 29(b)(5) ofthe Constitution of the State of Florida ratified by voters on November 7, 2016, referred to asAmendment 2 (herem the 'Amendment') this registration entitles the Registrant to acquirecultivate, possess, process, transfer, transport, sell, distribute, dispense, or administer marijuana,products containing marijuana, related supplies, or educational materials to qualifying patients ortheir caregivers.


All owners, managers, officers, board members, and employees or agents of theRegistrant will meet the requirements mandated by the Department of Health (herein"Department") for a IeveI-2 background screening pursuant to Section 435.04, F.S., or any otherbackground screening requirement at the office of FDLE or any other designated approvedvendor for fingerprinting. To date, all individuals associated with the Registrant have beenfingerprinted arid passed a level-2 background screening.


1)

034


The purpose of registration is to ensure the availability and safe use of medical marijuana byqualifymg pat tents Under Section 29 (d)(1)(c) of the Amendment, it is the duty of theDepartment to promulgate regulations to ensure proper security, record keeping, testing,labeling, inspection and safety. The Registrant shall meet these requirements as follows:


2. The Registrant will meet all record keeping requirements for inventory control, trackingand chain of custody, and will implement auditable software for seed to sale tracking asrequired. The Registrant has entered into an agreement for seed to sale tracking supportwith a leading seed to sale tracking company in the industry.

3. The Registrant will comply with testing requirements including, but not limited to,internal testing and maintaining batch samples for auditing by independent third parties.The Registrant has entered into a letter of intent with a Florida lab to provide third partytesting.



6. The Registrant considers the safety of its products and processes to be a paramountconcern. Consequently, the Registrant will satisfy or exceed any safety requirementincluding but not limited to: a. requirements for cultivating cannabis methodology; b.requirements for dealing with medical marijuana as an invasive plant in the State ofFlorida; c. requirements for the best agricultural and handling practices; d. requirementsfor professional personnel on staff licensed by the State as necessary to ensure that theRegistrant is operating in accordance with the regulations of the Department.

7. The Registrant has engaged a Florida licensed physician to serve as Medical Director ofthe MJMTC to ensure the proper operation of facilities and patient safety.

The Registrant has satisfied all local zoning and planning requirements of eachjurisdiction in which it will operate facilities, and enjoys the support of the City of VeroBeach, Florida which is aware of the Registrant's intentions.

14 035


Thus, as previously stated, this letter constitutes MedPure, LLC's registration for theoperation of an MMTC and the acknowledgement and agreement by MedPure, LLC to complywith the Amendment and any duly adopted regulations of the Department

Thank you for your consideration in this matter. If you have any questions, please do nothesitate to contact me.

Sincerely,

BUCI-EANAN INGERSOLL & ROONEY PC

'--- .---Tiiiuniiy j: Sian.[Ield. Esq.

i 036

(.



MEDPURE, LLC

Petitioner,

vs. FILE No.:


Respondent.

4

-

Llff9



Administrative Code Rule 28-106.201, MedPure, LLC ("MedPure, LLC"), files this Petition for


State ofFlorida, Department ofHealth, Office of Medical Marijuana Use (the "Agency") to reject

MedPure's registration application to operate a Medical Marijuana Treatment Center ("MMTC").'


1. Rle28._IO.62O12)(a). The name and adcfress oiac.li ancy.affctedánd eaeh

agency's file or identification number1if know.. The agency affected by this Petition is the

State of Florida, Department of Health, Office of Medical Marijuana Use, whose address is 4052



Pursuant to section 120.60(1), Florida Statutes, this Petition shall also serve as Green Point'swritten notice of its intent to rely upon the default license provision of section 120.60(1).

16 037

U

2 Rule 28406 20ji2Xb) The name. address, and telephone number of the

petitmnerts representative, if any s Inch shall be the address for service purposes duringtl

courseoftheproeeethn and an exphnatrnn ofhow the petitioners substantial interests will

be affectedbvtheagencydeterminatIon. MedPure's representatives in this case are its legal

counsel, Craig S. Barnett, Esq. and Avi Benayoun, Esq., and the law firm of Greenberg Traurig,

P.A., 401 East Las Olas Boulevard, Suite 2000, Fort Lauderdale, Florida 33301, telephone:

954.765.0500; fax: 954.765.1477. Messrs. Barnett and Benayoun shall be MedPure's contact






Gen. Dev. Utilities, Inc. v. Fla. Dep'I ofEnvtl. Regulation, 417 So. 2d 1068 (Fla. 1St DCA 1982)


reduced it to writing, and disseminated it to the affected party ....").




application and subsequent failure to approve or deny MedPure's application within ninety (90)


3. Rule 28-i062tfl2)(c. Astatement of when and how the petitIoner received

notice of the agçncv decIsion. On or about March 27, 2019, MedPure received the Agency's


17038




4. IuIc 28-l0(.2li). .\ s1i1'nieni til all dispnrcd iSU of uiikrial iicl. If

there arc none, the petition must so indicate. MedPure requests formal administrative






Agency.


registrations.


application was lawful.

Whether MedPure is entitled to a default ilcense to operate as a MMTC in the state of

Florida.


under Article X, Section 29 of the Florida Constitution ("Medical Marijuana Amendment").

5. Rule 28-iO6.2O12)(e). A concise staternnt of the ultimate facts alleged,

including the specilic facts the petitioner contends warrant reveisaL or modification of the

tency's prOpOsed action. On October 5, 2018, in the case styled Florigrown, LLC, et al. v.

Florida Department ofHealth, OfjIce ofMedical Mar(juana Use, et al., Case No. 2017 CA 2549,

039


Court entered an Order Granting Motion for Temporary injunction ("Order") where it ruled that


381.986, Florida Statutes) was unconstitutional. That order directed thc Agency to, among other











6 Rule 28406 201(2)(f) A statement of the specific rules or statutes the

petitioner contends require rev.rsa1 or modific stion of the agencvs proposed action,

includinganexplanatiou of how the aileed facts relateto the specific rules Or statutes. The

Administrative Procedure Act (Fla. Stat. § 120.50 el seq.) defines "license" as "a franchise, permit,

certification, registration, charter, or similar form of authorization required by Jaw ...." Fla.

Stat. § 120.52 (10) (emphasis added). Similarly, "licensing" means "the agency process respecting

the issuance [or] denial . . . ofa license." Fla. Stat. § 120.52 (11). Based on the plain language of


by section 120.60, Florida Statutes. indeed, the Division of Administrative Hearings has

19 040

)


the context of medical marijuana licensing. See Plants ofRuskin, Inc. v. Department ofI-Iealth,

Case Nos. 17-0116, 17-0117, 2017 Fla. Div. Adm. Hear. LEXIS 338 (May 23, 2017).






deny such application. See e.g., Tulen v. State ofF/a., Dep't ofEnvtl. Prot., 819 So. 2d 187, 188






7 Rule 28-106 201(2)(g) A statem&.nt of the relief soujtht by the petthonu

stating precisely the action petitioner wfshes tht. agency to take with respect to the agencvs


of Florida, by default under section 120.60(1), Florida Statutes, or otherwise.





20041

)






in the state of Florida;


circumstances.


GREENBERG TRAURIG, P.A.401 East Las Olas BoulevardSuite 2000Fort Lauderdale, Florida 33301Phone: 954.765.0500Fax: 954.765.1477

/s/ Craig S. BarneitCRAIG S. BARNETfFlorida Bar No. 035548Primary Email: barneUegtaw.comSecondary Email: Qtaagtj,con1

FLService(tiaw cornAVI BENAYOUNFlorida Bar No. 0151696Primary Email: henavounagt1aw.comSecondary Email: yeargjntlaw.com

21042

CERTIFICATE OF FILING


Department of Health, Office of Medical Marijuana Use, 4052 Bald Cypress Way, Bin M-0I,

Tallahassee, Florida 32399, and Agency Clerk, Office of General Counsel, Florida Department of



[email protected], this 28th day of June, 2019.

/Z..Craig Barnet.t ...

CRAIG S. BARNETT

22043



furnished by hand delivery to State of Florida, Department of Health, Office of


32399, and Agency Clerk, Office of General Counsel, Florida Department of

Health, 2585 Merchants Row Boulevard, Suite 110, Tallahassee, Florida 32399,

with a copy delivered by email to Courtney Coppola, Director, Florida Office of

Medical Marijuana Use, Courtney.Coppolaflhealth.gov, this 27th day of June

2019.


23

044


MEL)PURE, LLC,

Petitioner,

V.

DEPARTMENT OF HEALTH,

Respondent.

DOH CASE NO. 2019-0118

FINAL ORDER DISMISSING PETITION

This matter was presented to the Department pursuant to the Petitioner's

"Petition for Formal Administrative Proceedings" (Petition) pursuant to sections

120.569 and 120.57, Florida Statutes. The Petitioner has filed the Petition in response to

a Department letter dated March 26, 2019, wherein the Department denied the

Petitioner's Medical Marijuana Treatment Center(MMTC) registration request(letter)

filed on October 19, 2018.

Findings of Fact

1. The Petition is attached hereto as exhibit A for ease of reference in reading

the reasons for this dismissal in this Order below.

2. The Petitioner is a Florida for-profit Limited Liability Company.

3. The Respondent is an executive branch agency in Florida with statutory

and constitutional duties to implement Florida's Medical Marijuana Program.

4. Through the Compassionate Medical Cannabis Act of 2014, (Act) the

Florida Legislature legalized the licensed cultivation, processing and dispensing of low

THC cannabis for qualified patients who suffer from certain debilitating illnesses and

conditions. See, ch. 2014-157 Laws of Fla. The Act, codified as amended at section

045

\Z

381.986 Florida Statutes (2014), directed the Department to authorize five "dispensing

organizations"("DO's"), one in each of five regions: Northwest, Northeast, Central,

Southeast, and Southwest Florida. §381.986 () (b) Fla. Stat. (2014).

5. The Act authorized the Department to adopt rules to implement the Act.

§381.986 () (d) Fla. Stat. (2014). The Department formally adopted rules implementing

the application, selection and regulatory processes for DO's. Fla. Admin. Code Ch. 64-4.

The rules included an application form to be completed pursuant to the instructions in

the rule text and in the application form DH 8006-OCU-2/2015, Fla. Admin. Code R.

64-4.002. The rules provided that the applicant whose application received the highest

aggregate score in a given region would be selected as that region's DO. Fla. Admin.

Code R. 64-4.002 (5) (b) (New 6-17-15).

6. In November 2016 the Florida Medical Marijuana Legalization Initiative

(Amendment) was passed by Florida voters. It became effective in January 2017 and is

codified at Article X. section 29. of the Florida Constitution.

7. By its terms the Amendment provides: "nothing in this section shall limit

the legislature from enacting laws consistent with this section." Art. X, § 29(d), Fla.

Const.

8. The Amendment imposed several duties on the Department and provided

statutory standing for persons to "seek judicial relief to compel compliance with the

Department's constitutional duties." Art. X, § 29(d)(3), Fla. Const.

9. During a special session convened in June 2017 the Florida Legislature

enacted Senate Bill No. 8-A, which was described as "an act relating to the medical use

of marijuana." The Act was codified at section 381.986 Florida Statutes (2017)

(implementing statute).

2

046

U

10. On October 5, 2018 the Circuit Court for the Second Judicial Circuit, in the

case styled Florigrown, LLC, et al., v. Florida Department of Health. Office of Medical

Marijuana Use, et al., Case No. 2017 CA 2549, entered an Order granting a Temporary

Injunction and ruling that the implementing statute was unconstitutional. The Order

granting the Temporary Injunction also directed the Department to commence

registering MMTC's in accordance with the plain language of the Amendment. That

Order and the injunction are now on appeal.1

11. Subsequent to the entry of the Order granting the Temporary Injunction

the Petitioner submitted a letter to the Department. The letter was dated October 19,

2018 and was submitted for licensure under the Amendment. A copy of the October 19,

2018 letter is attached as exhibit B.

12. On March 26, 2019 the Department issued a denial letter to the Petitioner

concerning Petitioner's MMTC registration letter. The denial letter is attached to this

Order as exhibit C. The denial letter advised the Petitioner that the Agency was not

accepting MMTC Applications at that time but would publish a Notice in the FAR

indicating when the Department would begin accepting MMTC applications. The denial

letter further advised the Petitioner it could submit an MMTC application at the time

provided in the FAR notification.

Conclusions of Law

13. In the first paragraph of the Petition filed on May 29, 2019, the Petitioner

indicates it is challenging the Department's alleged untimely denial of Petitioner's

MMTC registration request (letter) filed on October 19, 2018, although the October 19,

'As of the date of this order the temporary injunction has been stayed.

047

2018 letter invoked the authority of the Florida Constitution as the basis for seeking the

MMTC registration. The October 19, 2018 request did not operate as an application

under Chapter 120. Therefore, sections 120.60 and 120.52 Florida Statutes do not apply

to Petitioner's October 19, 2018 letter.

14. The licensing procedure for MMTC's that is found in Section 381.986 (8)

Florida Statutes is a need driven procedure with competing entities vying for a finite

number of licenses. Assuming the default licensure provision of section 120.60 Florida

Statutes, would otherwise be applicable here, the default licensure provision is

inconsistent with the Department's duties to fill available MMTC slots based on a

statutory need formula. Default licensure cannot be applied here. See, Gulf Coast

Nursing Ctr. v. Dept. of Health and Rehab. Servs., 483 So.2d 700,704 (Fla. 1st DCA

1985) (discussing Florida courts' recognition of the Ashbacker doctrine) See, Ashbacker

Radio Corp. v. F.C.C., 66 Sct.148, 326 L. Ed. io8(U.S. 1945). See also, Biomedical

Applications of Clearwater, Inc. v. Dept. of Health and Rehab. Serv., 370 So. 2d 19, 23

(Fla. 2nd DCA 1979).

15. The appropriate means of compelling compliance with duties set forth in

Article X. section 29. (d) of the Florida Constitution is through judicial review. This

cannot be accomplished through administrative agency action. Art. X, § 29(d), Fla.

Const., Biltmore Const. Co. v. Fl. Dept. Gen. Serv. 363 So. 2d 851, 854 (Fla. 1st DCA

1978).

For the foregoing reasons, the Petition filed by MedPure, LLC on May 29, 2019 is

hereby dismissed with prejudice.

DONE and ORDERED in the Department of Health offices in Tallahassee, Leon

County, Florida, this day of _ 7 , 2019.

048

,1j/ -z7frMichele TallentDeputy Secretary for OperationsFlorida Department of Health

Copies Furnished:

PetitionerCraig S. Barnett, EsquireAvi Benayoun, Esq.Greenberg Traurig P.A.401 East Las Olas BoulevardFort Lauderdale, Florida 33301

RespondentMichael WilliamsChief Legal CounselOffice of the General CounselFlorida Department of Health4052 Bald Cypress Way, Bin A-02Tallahassee, Florida 32399-1703850 245 [email protected]


I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been

sent by regular U.S. mail to Attorneys for Petitioner and by hand delivery and/or by

inter-office mail to Attorney for Respondent this !i day of 3L_ 2019.

Young,(Agency ClerkFlorida Department of Health

049

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY ADVERSELY AFFECTED BY THIS FINAL ORDER ISENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68,FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THEFLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGSMUST BE INITIATED BY FILING A NOTICE OF APPEAL WITH THE CLERKOF THE DEPARTMENT OF HEALTH AND A COPY OF THE NOTICE OFAPPEAL, ACCOMPANIED BY THE FILING FEE, WITH THE DISTRICTCOURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTYRESIDES OR THE FIRST DISTRICT COURT OF APPEAL. THE NOTICE OFAPPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF THE FILING OFTHIS FINAL ORDER.

6

050

2i9 29 PM 2: 30STATE OF FLORIDADEPARTMENT OF HEALTH


MEDPURE, LLC

Petitioner,

vs.


Respondent.I

FILE No.:

EXHIBIT

A



Administrative Code Rule 28-106.201, MedPure, LLC ("MedPure, LLC"), files this Petition for


State ofFlorida, Department ofHealth, Office of Medical Marijuana Use (the "Agency") to reject

MedPure's registration application to operate a Medical Marijuana Treatment Center ("MMTC").


1. Rule 28-106.201 (2(a. The name and address ofeach agency affected and each

agency's file or identification number, if known. The agency affected by this Petition is the

State ofFlorida, Department of Health, Office of Medical Marijuana Use, whose address is 4052



Pursuant to section 120.60(1), Florida Statutes, this Petition shall also serve as Green Point'swritten notice of its intent to rely upon the default license provision of section 1.20.60(1).

051

2. Rule 28-106.201(2)(b). The name, address, and telephone number of the

petitioner's representative, if any, which shall be the address for service purposes during the

course of the proceeding; and an explanation of how the petitionerts substantial interests will

be affected by the agency determination. MedPure's representatives in this case are its legal

counsel, Craig S. Bamett, Esq. and Avi Benayoun, Esq., and the law firm of Greenberg Traurig,

PA., 401 East Las Olas Boulevard, Suite 2000, Fort Lauderdale, Florida 33301, telephone:

954.765.0500; fax: 954.765.1477. Messrs. Bamett and Benayoun shall be MedPure's contact






Gen. Dev. Utilities, Inc. v. Fia. Dep t ofEnvil. Regulation, 417 So. 2d 1068 (Fla. 1st DCA 1982)


reduced it to writing, and disseminated it to the affected party. ..




application and subsequent failure to approve or deny MedPure's application within ninety (90)


3. Rule 28-106.201(2)(c). A statement of when and how the petitioner received

notice of the agency decision. On or about March 27, 2019, MedPure received the Agency's


052




4. Rule 28 -1O6.2O1(2(d). A statement of all disputed issues of material fact. If

there are none, the petition must so indicate. MedPure requests formal administrative






Agency.


registrations.


application was lawfW.

Whether MedPure is entitled to a default license to operate as a MMTC in the state of

Florida.


under Article X, Section 29 ofthe Florida Constitution ("Medical Marijuana Amendment").

5. Rule 28-1O6.2O1(2(e. A concise statement of the ultimate facts alleged,

including the specific facts the petitioner contends warrant reversal or modification of the

agency's proposed action. On October 5, 2018, in the case styled Florigrown, LLC, ci al. v.

Florida Department ofHealth, Office ofMedical Marj/uana Use, ci a!., Case No. 2017 CA 2549,

053


Court entered an Order Granting Motion for Temporary Injunction ("Order") where it ruled that


381.986, Florida Statutes) was unconstitutional. That order directed the Agency to, among other











6. Rule 28-106.201(2)(f). A statement of the specific rules or statutes the

petitioner contends require reversal or modification of the a2ency's proposed action,

including an explanation of how the alleged facts relate to the specific rules or statutes. The

Administrative Procedure Act (Fla. Stat. § 120.50 et seq.) defines "license" as "a franchise, permit,

certification, registration, charter, or similar form of authorization required by law . .. .' Fla.

Stat. § 120.52(10) (emphasis added). Similarly, "licensing" means "the agency process respecting

the issuance [or] denial.. . ofa license." Fla. Stat. § 120.52 (Ii). Based on the plain language of


by section 120.60, Florida Statutes. Indeed, the Division of Administrative Hearings has

054


the context of medical marijuana licensing. See Plants ofRuskin, Inc. v. Department ofHealth,

Case Nos. 17-0116, 17-0117, 2017 Fla. Div. Adm. Hear. LEXiS338 (May 23, 2017).






deny such application. See e.g., Tuten v. State ofF/a., Dep't ofEnvtl. Prot., 819 So. 2d 187, 188






7. Rule 28-106.201(2)(g). A statement of the relief sought by the petitioner,

stating precisely the action petitioner wishes the agency to take with respect to the agency's


ofFlorida, by default under section 120.60(1), Florida Statutes, or otherwise.





055

U






in the state ofFlorida;


circumstances.


GREENBERG TRAU1UG, P.A.401 East Las Olas BoulevardSuite 2000Fort Lauderdale, Florida 33301Phone: 954.765.0500Fax: 954.765.1477

/s/ Craig S. BarnettCRAIG S. BARNETFFlorida Bar No. 035548Primary Email: [email protected] Email: scottla@,gtlaw.com

FLService@,gtlaw.comAVI BENAYOUNFlorida Bar No. 0151696Primary Email: benayounacgtlaw.comSecondary Email: [email protected]

056

CERTIFICATI OF FILING


Department of Health, Office of Medical Marijuana Use, 4052 Bald Cypress Way, Bin M-01,

Tallahassee, Florida 32399, and Agency Clerk, Office ofGeneral Counsel, Florida Department of



Courtney.Coppolaflhealth.gov, this 28th day of June, 2019.

/s/ Craig S. BarneltCRAIG S. BARNETT

057

BuchananIngersoll Allooney ic

Timothy F. StanfièldGovernment Relations ProfessionalDizect Dial: 850 681 [email protected]

EXHIBIT

101 North Monroe Street, Suite 1090Tallahassee, Florida 32301T 850681 0411F 850681 6036www.bipc.com

October 19, 2018

. c.-

Courtney Coppola, Director -

Office of Medical Marijuana Use Via Hand Delivery -.

Florida Department of Health and email to2585 Merchants Row Boulevard Courtney.Coppola®FLHealth.goTallahassee, FL 32399 -

C.fl


Dear Ms. Coppola:

This letter constitutes MedPure, LLC's (herein "Registrant") registration to operate aMedical Marijuana Treatment Center (herein "MMTC") in accordance with the ruling inFlorigrown LLC v. DOff Case No 2017-CA-002549. Pursuant to Article X Section 29(b)(5) ofthe Constitution of the State of FlOrida ratified by voters on November 7, 2016, referred to asAmendment 2 (herein the "Amendment"), this registration entitles the Registrant to acquire,cultivate, possess, process, transfer, transport, sell, distribute, dispense, or administer marijuana,products containing marijuana, related supplies, or educational materials to qualifying patients ortheir caregivers.


All owners, managers, officers, board members, and employees or agents of theRegistrant will meet the requirements mandated by the Department of Health (herein"Department") for a level-2 background screening pursuant to Section 435.04, F.S., or any otherbackground screening requirement at the office of FDLE or any other designated approvedvendor for fingerprinting. To date, all individuals associated with the Registrant have beenfingerprinted and passed a level-2 background screening.


058


The purpose of registration is to ensure the availability and safe use of medical marijuana byqualifying patients. Under Section 29 (d)(1)(c) of the Amendment, it is the duty of theDepartment to promulgate regulations to ensure proper security, record keeping, testing,labeling, inspection and safety. The Registrant shall meet these requirements as follows:


2. The Registrant will meet all record keeping requirements for inventory control, trackingand chain of custody, and will implement auditable software for seed to sale tracking asrequired. The Registrant has entered into an agreement for seed to sale tracking supportwith a leading seed to sale tracking company in the industry.

The Registrant will comply with testing requirements including, but not limited to,

internal testing and maintaining batch samples for auditing by independent third parties.The Registrant has entered into a letter of intent with a Florida lab to provide third partytesting.



6. The Registrant considers the safety of its products and processes to be a paramountconcern. Consequently, the Registrant will satisfy or exceed any safety requirementincluding but not limited to: a. requirements for cultivating cannabis methodology; b.requirements for dealing with medical marijuana as an invasive plant in the State ofFlorida; c. requirements for the best agricultural and handling practices; d. requirementsfor professional personnel on staff licensed by the State as necessary to ensure that theRegistrant is operating in accordance with the regulations of the Department.

7. The Registrant has engaged a Florida licensed physician to serve as Medical Director ofthe MMTC to ensurethe proper operation of facilities and patient safety.

8. The Registrant has satisfied all local zoning and planning requirements of eachjurisdiction in which it will operate facilities, and enjoys the support of the City of VeroBeach, Florida which is aware of the Registrant's intentions.

059


Thus, as previously stated, this letter constitutes MedPure, LLC's registration for theoperation of an MMTC and the acknowledgement and agreement by MeciPure, LLC to complywith the Amendment and any duly adopted regulations of the Department.

Thank you for your consideration in this matter. If you have any questions, please do nothesitate to contact me.

Sincerely,

BUCHANAN INGERSOLL & ROONEY PC

Timothy F. Stanfleld, Esq.

060

Mission:To protect, promote & improve the health

Ron fleSantis

of all people in Florida through ntmtGovernor

state county & community effortsHEAUFH

Vision: To be the Healthiest State in the Naton

March 26, 2019

Timothy F. Stanfleld, Esq.Buchanan Ingersoll & Rooney101 North Monroe Street, Suite 1090Tallahassee, FL 32301Timothy.Stanfieldbipc.com

EXHIBIT

C -

Re: Request for Registration - MedPure, LLC

Dear Mr. Stanfleld,

On October 19, 2018, the Office of Medical Marijuana Use received your request for registration as aMedical Marijuana Treatment Center under Article X, Section 29 of the Florida Constitution. At this time,the Office of Medical Marijuana Use is not accepting applications for Medical Marijuana TreatmentCenter registration.

The Office of Medical Marijuana Use will publish in the Florida Administrative Register the date uponwhich it will begin accepting applications. You may submit an application for registration at that time.

F

ical Marijuana Use57

Florida Department of Health ______

Office of Medical Marijuana Use Accredited Health Department4052 Bald Cypress Way, Bin M-01 Tallahassee, FL 32399 ; Public Health Accreditation BoardPHONE: 850/245-4657FloridaHealth.gov

061

e -


MEDPURE, LLC, a Florida limitedliability company,

Petitioner,

V.

STATE OF FLORIDA,DEPARTMENT OF HEALTH,OFFICE OF MEDICALMARIJUANA USE,

Case No. 1D19-2337

Respondent./

NOTICE OF APPEARANCE ANDDESIGNATION OF E-MAIL ADDRESSES

/.- 7

Li

Notice is given that Brigid F. Cech Samole; Avi Benayoun; Barry Richard;

Lorence J. Bielby and the law firm of Greenberg Traurig, P.A., enter their

appearance as counsel for Petitioner, MedPure, LLC ("Petitioner"), in this

proceeding and request that they be furnished a copy of all pleadings, orders, and

other papers, which are filed or served in this case.

Petitioner, pursuant to Florida Rule ofJudicial Administration 2.516(b)(1)(A),

hereby designates the following e-mail addresses for the purpose of receiving

pleadings, orders, and otherpapers filed or served in this matter:

062

Primary: cechsamolebgtlaw.combenayouna@gtlaw.comrichardbgtlaw.combielby1gtlaw.com

Secondary: [email protected]@gtlaw.com



Greenberg Traurig, P.A.101 B College AveTallahassee, FL 32301Telephone: 850.222.6891Facsimile: [email protected]

Brigid F. Cech SarnoleFlorida Bar No. 730440

Greenberg Traurig, P.A.333 S.E. 2nd AvenueSuite 4400Miami, Florida 33131Telephone: 305.579.0500Facsimile: [email protected]



Greenberg Traurig, P.A.401 East Las Olas BoulevardSuite 2000Fort Lauderdale, Florida 33301Telephone: 954.765.0550Facsimile: 954.765.1477benayounagt1aw.comyeargina@gtlaw.comflservicegtlaw.com

By: /5/ Avi BenayounAvi Benayoun


2

063

&



furnished by regular U.S. mail to State of Florida, Department of Health, Office of





Marijuana Use, Courtney.Coppolaflhealth.gov, and to Sarah Young Hodges,

Counsel for Florida Department of Health, Sarah.Hodges2flhealth.gov, this 3rd

day of July 2019.


3

064

IN THE FIRST DISTRICT COURT OF APPEAI?U9 JUL . 35STATE OF FLORIDA Gj

MEDPURE, LLC, a Florida limitedliability company,

Petitioner,

V.

STATE OF FLORIDA, Case No. 1D19-2337DEPARTMENT OF HEALTH,OFFICE OF MEDICALMARIJUANA USE,

Respondent./

PETITIONER'S NOTICE OF VOLUNTARY DISMISSAL

Petitioner, MedPure, LLC ("Petitioner), pursuant to Florida Rule ofAppellate

Procedure 9.3 50(b), files this notice ofvoluntary dismissal of the petition for writ of

mandamus in this cause.1

1 On June 28, 2019, the Department of Health issued a final order dismissingPetitioner's May 29, 2019 Petition for Formal Administrative Proceedings.Petitioner is filing this notice of voluntary dismissal solely because the Departmentof Health issued the Final Order.

065




Greenberg Traurig, P.A.101 E College AveTallahassee, FL 32301Telephone: 850.222.6891Facsimile: 850.681.0207richardbgtlaw.combielby1gtlaw.com


Greenberg Traurig, P.A.333 S.E. 2nd AvenueSuite 4400Miami, Florida 33131Telephone: 305.579.0500Facsimile: 305.579.0717cechsamolebgtlaw [email protected]


Greenberg Traurig, P.A.401 East Las Olas BoulevardSuite 2000Fort Lauderdale, Florida 33301Telephone: 954.765.0550Facsimile: 954.765.1477benayouna@gtlaw . [email protected]@gtlaw.corn



066



furnished by regular U.S. mail to State of Florida, Department of Health, Office of





Marijuana Use, Courtney.Coppolaflhealth.gov, and to Sarah Young Hodges,

Counsel for Florida Department of Health, Sarah.Hodges2flhealth.gov, this 19th

day of July 2019.

By: /s/ Avi BenayounAvi Benayoun

3

067

record on appeal...record on appeal state of florida department of health medpure, llc. dca case...

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