Lawmakers blast agency over marijuana rules

By Dara Kam
THE NEWS SERVICE OF FLORIDA

A joint legislative oversight committee delivered a public shaming to Florida pot czar Christian Bax on Monday, repeatedly chiding the state health official and others as they sat silently while the panel shredded regulations intended to carry out a constitutional amendment that broadly legalized medical marijuana.

In four separate unanimous votes, the Joint Administrative Procedures Committee objected to a litany of elements included in rules issued by the Office of Medical Marijuana Use, which Bax heads.

The items under scrutiny ranged from identification cards for caregivers of sick patients to a provision banning applicants seeking medical-marijuana licenses from amending their applications. The prohibition conflicts with state law requiring state agencies to give applicants time to correct errors or provide additional information.

Sen. Kevin Rader, a Delray Beach Democrat who is a chairman of the committee, and other lawmakers are angry that Bax and Department of Health lawyers refused to respond to more than a dozen letters from the committee over the past four months identifying concerns with the rules, which went into effect late last year.

Rader also appeared especially incensed by a letter sent to the committee on Friday by Department of Health General Counsel Nichole Geary, the first response from the agency since the committee began demanding answers in October. Geary said changes sought by the oversight committee “will cause further delay of the next application cycle” and will “delay development of the general patient safety regulatory scheme” related to items such as edible marijuana and pesticides.

“Frankly, I find these comments to be disingenuous and insulting to the committee,” Rader said at the outset of Monday’s meeting.

The health department was aware of the committee’s concerns for months, Rader said.

“And then has the audacity to blame the committee and our staff for delaying the process,” the senator continued, condemning the health department for adopting a strategy of blaming delays in the rollout of the regulations “on anything but itself.”

Health officials had blamed delays on a lawsuit challenging a provision of a 2017 law that requires one of 10 new marijuana licenses to go to a black farmer who meets certain conditions. A Tallahassee judge recently blocked that portion of the law from going into effect. Bax’s office also said Hurricane Irma caused other delays in the rollout of the rules.

“At some point I would hope the department would stop looking for a scapegoat and just do its job,” Rader said.

Before each of four votes incorporating a total of 17 objections to items in the rules, Rader asked whether anyone from the health department or the Office of Medical Marijuana Use wanted to respond. Bax, Geary and a handful of other health department officials remained silent.

Bax did make a presentation at the end of the meeting, as he said he had been invited to do. Bax said his office is holding a series of workshops in March to assist in developing rule language on issues such as edibles, dosing and laboratory testing.

Bax, appointed to the post more than two years ago, also said his office is changing the way it is crafting the rules, based on input from the Legislature.

“We have heard you. We respect that position,” Bax, a lawyer, told the committee.

In the four decades since the creation of the joint committee — which oversees whether state agencies have correctly implemented state laws — an agency or department has never ignored requests for information, according to committee coordinator Ken Plante.

Many of the problems identified by Plante and other committee staff were characterized as an unauthorized regulation that “enlarges, modifies or contravenes” the law passed last year aimed at implementing the constitutional amendment approved by voters in 2016.

The agency has 30 days to respond, or 60 days in which to do nothing, after which the committee can publish its objections in the Florida Administrative Register and inform the House speaker and the Senate president, Plante said.

“We do not have the authority to halt a rule from going into effect. We’re really boxed in,” he told the panel Monday afternoon. “This has never happened before. No one has never ignored the committee or not stood up and explained themselves.”

Plante said many of the issues would be simple to address and “could be fixed within a couple of days.”

After the meeting, Bax told reporters his office would respond to the Joint Administrative Procedures Committee within 30 days.

“Our responses to JAPC are a collaborative process between leadership, legal and policy. We think it’s appropriate to give these objections the time and consideration that they’re due. We have 30 days to respond, and we’ll respond in good time,” Bax said.

But Rader was not mollified.

The committee has little, if any, power to penalize the agency.

But lawmakers do hold the purse strings for Bax’s agency. Last week, the House froze $2.1 million in salary and expenses for Bax’s agency, in reaction to the office’s refusal to respond to questions from the Joint Administrative Procedures Committee.

“You can defund them. We appropriate the money. That’s what we do. We don’t create the rules. We appropriate the money and we set the statutes,” Rader told reporters, indicating that there was little the committee could do after the legislative session ends next month. “It doesn’t seem right that after 30 days they can just ignore us and we leave here on March 9.”