Client Alert: Mary Jane’s Endless Dance: Florida Issues Notice of Rule Changes for MMTCs¹

Although Florida voters passed a constitutional amend­ment to expand Florida citizens’ right to medical mari­juana treatment in 2016, the state has yet to settle on a regulatory scheme for medical marijuana treatment cen­ters (“MMTCs”). Since the constitutional amendment was passed, the state has faced numerous legal challenges to its laws and instituted various rule versions, including enacting emergency rules in December of 2019. In keep­ing with this general trend of flux, on April 13, 2020, the Florida Department of Health (“DOH”) issued notices of rule changes for MMTC rules related to inspection pro­cedures, background screening, and disciplinary actions.

The first notice of change applies to Rule 64-4.202, which governs MMTC inspection procedures. The proposed changes clarify that MMTC inspections will assess the MMTC’s compliance with section 381.986, Florida Stat­utes, DOH’s rules, and any provider-specific representa­tions in the MMTC’s application(s) on file with DOH, includ­ing any department-approved amendments or variances. The MMTC must allow DOH access to all areas and op­erations including, without limitation, areas where mari­juana, records, or equipment is located, or where MMTC business is conducted. During an inspection, the MMTC must make its records accessible to DOH. However, the MMTC has 24 hours after the conclusion of the inspection to provide additional records to DOH at OMMULicenseOperation@flhealth.gov. If the inspection finds a violation, the MMTC has seven (7) calendar days within receipt of notice of a violation to provide a written corrective action plan meeting all program requirements, via email to DOH at OMMULicenseOperation@flhealth.gov.

The other notices of change apply to Rule 64-4.208 and Rule 64-4.210, which govern background screening re­quirements and disciplinary actions, respectively. Un­der the proposed changes to Rule 64-4.208, MMTCs must request and obtain written notice from DOH that an individual has successfully passed a required back­ground screening before allowing any such individu­al to serve as an employee, owner, or manager of the MMTC. Any employee, owner, or manager whose finger­prints were submitted prior to August 22, 2018 must be rescreened in accordance with Rule 64-4.208’s require­ments within 90 days of the effective date of the rule, and must successfully pass the required background screening to continue serving as an employee, own­er, or manager of the MMTC. For their part, the chang­es to Rule 64-4.210, clarify that the intent of DOH’s dis­ciplinary guidelines is to establish broad and consistent disciplinary principles for MMTCs. The proposed changes specify that for violations of an ongoing and continuous nature, each day the violation continues constitutes its own distinct violation. If the MMTC’s license is suspend­ed, the proposed change eliminates the prohibition on the MMTC continuing its cultivation of medical marijuana during its suspension. However, the MMTC may not re­sume normal operations after a license suspension until the MMTC receives written notice from DOH authorizing the MMTC to do so.

In light of these proposed changes, members of the in­dustry should review their personnel background checks, recordkeeping policies and procedures, and consult with their compliance officer or lawyers for a compliance review.

^{1 Medical marijuana remains illegal under federal law even in states, such as Florida, that permit medical use of the drug under certain circumstances. This article is pub­lished for general information purposes only. It does not constitute legal advice and does not necessarily reflect the opinions of the firm or any of its lawyers or clients. The information contained herein may or may not be correct, complete, or current at the time of reading. The content is not to be used or relied upon as a substitute for legal advice or opinions. No reader should act or refrain from acting on the basis of the content of this article without seeking appropriate legal advice. This article does not create or constitute a lawyer-client relationship between the authors, Shumaker, Loop & Kendrick, LLP, and the reader.}

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