On September 20th, 2022, eleven of the twelve Pigford/BFL applicants vying for a coveted Medical Marijuana Treatment Center (“MMTC”) license were notified by the Florida Department of Health, Office of Medical Marijuana Use (“OMMU”), of their application’s denial. However, the majority of those who received denial letters refused to take the OMMU’s decision as final, including Applicant P007-2022, Fred Fisher/Donald Gordon LLC. By October 11th, the OMMU’s department was flooded with petitions requesting formal administrative hearings to appeal the OMMU’s preliminary decision to award the MMTC license to Applicant P004-2022, Terry Donell Gwinn.
The result of the OMMU’s actions are not new to those who have been a part of Florida’s complicated medical marijuana industry since its initial start in 2015. Founder of Cannacore Group and PS Law Group, Paula Savchenko, Esq., has been an integral part of Florida’s medical marijuana industry since its beginnings and has seen first-hand the inconsistencies and undue hardships the OMMU has created with its application processes for those wishing to enter the industry. From utilizing an evaluator agency known for its past issues in both Illinois’ and Florida’s cannabis licensing programs to allowing un-adopted rules control the program’s protocols, Paula understands the complexities that allow the OMMU to continue its vague activities. That is why she is lending her knowledge and experience to help, Fred Fisher and Donald Gordon, LLC, acquire the MMTC license they rightfully deserve.
Fred Fisher is a black farmer that has proudly farmed for over twenty years at his family farm located in Jonesville, Florida—a community founded by enslaved people between Newberry and Gainesville. After serving in multiple tours in Vietnam and being one of only twenty African American servicemen to receive a Bronze “V” star, the decorated Vietnam veteran continued to face racial discrimination when he returned home by not only local law enforcement, but also by the United States Department of Agriculture (“USDA”). As a result of a drought, Fred and his family sought financial assistance from the USDA, yet continued to have all of their written and oral complaints tossed aside by USDA agents over the years. Due to years of systematic racism and the loss of faith in government assistance, Fred combined his family efforts with Donald Gordon, LLC, a Florida Limited Liability Company formed in 2011 to exceed each and every requirement enumerated in Section 381.986(8)(b) of the Florida Statutes.
2022 MMTC Application Process
As a result of the OMMU failing to meet the October 3, 2017, deadline set forth in 2017-232 of the Laws of Florida to grant new MMTC licenses, including the Pigford/BFL license, the law was amended again in 2018 to provide them an even longer timeframe to initiate a new license application period. However, even with three and a half years to develop and implement a fail-proof application process, the OMMU once again created a process set to face numerous lawsuits. Since the Pigford/BFL application period announcement in 2021, there has been several complaints as to the criteria it enlists to be “qualified.”
First and foremost, it requires that the Applicant show proof that he or she has been registered to do business in Florida for the past five consecutive years, even though the majority of Pigford/BFL farmers are in their 80s to 90s. Moreover, the OMMU’s License Application, Instructions, Requirements, and Forms for Pigford/BFL Applicants (hereinafter the “Application Guide”) mandated that the Applicant’s name on Form 1 (“Applicant General Information”) to be the same as the name appearing on the Pigford/BFL documentation. This requirement was one of the main issues in this application period as the Pigford farmers alone could not meet all the requirements under section 381.986(8)(b) of the Florida Statutes. This requirement invalidly presents the notion that a MMTC license is an individual license. Even though the OMMU is well aware that from the application process to post-operations of a MMTC in Florida, a MMTC requires millions of dollars, detailed business plans, and a strong experienced team to successfully operate from seed-to-sale as a vertically-integrated cannabis business. Further, the OMMU required the highest, non-refundable application fee in the country of $146,000.00 for applicants. How is this a remedy to the racially-motivated obstacles black farmers have faced while being vital members in Florida’s agricultural industries?
2022 MMTC Scoring & Evaluation Process
In addition to the outlandish criteria Pigford/BFL applicants faced, the OMMU’s scoring and evaluation process created more problems for this application period. According to the Application Guide, there would be a three (3) phase process in which the applications would be evaluated and scored. Phase 1: the OMMU would review applications for completeness and compliance, and then proceed to send errors and omissions letters. Phase 2: next, the qualified applications who satisfied those requirements would move forward to being scored by third-party evaluators. Phase 3: the OMMU would complete final selection for licensure. The Application Guide likewise recognized the sequence of first determining qualifications and then scoring as set forth in the rules, and re-emphasized that failing to provide the information required would result in disqualification, thereby implying that scoring constitutes an acknowledgment that the applicant satisfied the minimum requirements.
Yet, the OMMU allowed applicants who did not meet the minimum requirements set forth in 381.986(8)(b) of the Florida Statutes to move forward to Phase 2, which resulted in the third-party evaluating company, KPMG, LLP, to receive $22,750 dollars for all twelve applications submitted in this application period. Not only did the scoring and evaluating process developed by the OMMU create additional confusions, but also the use of KPMG, LLP, produced additional concerns as the company has faced several accusations from Illinois and Florida cannabis business applicants. One of Illinois’ biggest issues with contracting with KPMG was their use of unqualified evaluators and lack of adequate training and preparation to understand and handle the application scoring procedures. Due to the KPMG’s inconsistencies of scoring identical exhibits differently, the state of Illinois had to rescore all submitted applications. See Mike Fourcher, State Emails: KPMG’s Subcontractor Hastily Trained Gig Workers to Vet Complex Illinois Dispensary Application, Grown In (Mar. 22, 2021), http://grownin.com/2021/03/22/state-emails-document-illinois-dispensary-applications-reviewed-by-briskly-trained-gig-workers-working-for-subcontractor-to-kpmg/. Further, KPMG’s role in the State of Florida’s 2015 MMTC application process resulted in various lawsuits and issuing of additional MMTC licenses due to the invalid scoring methodologies utilized by the evaluators.
Although the above only scratches the surface of the obstacles the Pigford /BFL applicants faced in this application period, it demonstrates the OMMU’s failure to adequately ensure all Florida patients have safe access to low-THC cannabis and medical marijuana. As the date of filing Fred Fisher and Donald Gordon, LLC’s amended petition, there are there are at least 764,432 registered patients receiving medical marijuana in Florida. Off. of Medical Marijuana Use, Weekly Update Nov. 4, 2022, http://knowthefactsmmj.com/wp- content/uploads/ommu_updates/2022/110422-OMMU-Update.pdf. Moreover, there are only 22 authorized MMTCs in Florida. Of the 22, only 19 have dispensing locations within Florida and only 9 have more than 14 dispensing locations operating in Florida. Due to the patient size in Florida, the OMMU should have issued 23 MMTC licenses to be able to sufficiently provide medical marijuana to all the registered patients in Florida.
With the continuous inconsistencies and undue hardships Florida MMTC applicants face like Fred Fisher and Donald Gordon, LLC, there is a repeating concern as to whether Florida will ever be able to provide the medical marijuana their patients deserve.