Louis Del Favero Orchids v. Fla. Dep't of Health

Louis Del Favero Orchids v. Fla. Dep't of Health

Opinion

 [*232]  Per Curiam.

Appellant seeks review of a trial court order granting Appellees' motion to dismiss Appellant's complaint. In its complaint, Appellant demanded Appellees, the Florida Department of Health (Department), issue them a Medical Marijuana Treatment Center (MMTC) license under the default licensure mechanism in section 120.60(1), Florida Statutes (2019). Section 120.60(1) is a general statute that applies to all state agencies. It states "[a]n application for a license must be approved or denied within 90 days after receipt of a completed application" or the application is "considered approved." Id. The trial court denied relief because it found section 120.60(1) inapplicable to MMTC licenses as described in section 381.986. Because the trial court was right, we affirm.¹

 [**2] This Court considered the same issue presented here in MedPure, LLC v. Dep't of Health, 295 So. 3d 318 (Fla. 1st DCA 2020). The MedPure appellants sought an MMTC license under section 120.60(1)'s default licensure provision. This Court denied relief for several reasons:

1) the Department's rule [ ] put parties on notice that applications were not being accepted at that time; 2) the letters were not filed on an application form prepared by the Department; 3) the bare bones filing did not demonstrate compliance with the minimum licensure requirements; and 4) allowing the appellants to file for licenses during an undesignated period for filing would contravene the competitive structure for licensing contemplated in section 381.968, Florida Statutes (2019).

Id. at 322. Here, Appellant filed its application on an application form prepared by the Department and has invested significant resources into preparing and documenting its compliance with section 381.986's licensure requirements. But the two other problems, lack of an open application window and contravention of the competitive structure, remain and serve as independent bases for denying Appellant relief.

The Department's emergency rule has not been successfully challenged and carries the force of law. As we stated in MedPure, "[t]he Emergency Rule specifically provides that the Department would publish notice to the public of when it would begin accepting applications, along with the deadline to submit applications for registration as an MMTC." Id. An application is not complete if it does not comply with all relevant regulations and procedures. And as we held in MedPure, section 120.68(1)'s default licensure [**3]  provision does not apply to licenses based on need and of a limited number because doing so "would automatically exclude other  [*233]  applicants from consideration." Id. at 323.

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