Appeals court panel rejects Tampa firm's arguments on getting a state medical marijuana license

A federal appeals court has dealt a setback to long-running efforts by a Tampa firm to get a state medical-marijuana license.

A three-judge panel of the 11th U.S. Circuit Court of Appeal rejected arguments last week by Louis Del Favero Orchids Inc., that its due-process rights were violated by the Florida Department of Health, which oversees the state’s limited number of potentially lucrative licenses.

Louis Del Favero has sought a license under part of a 2017 law that granted a preference to applicants that own citrus-processing facilities. That law was an outgrowth of a 2016 constitutional amendment that broadly legalized medical marijuana in the state.

The firm paid $775,000 to buy a citrus-processing facility to try to help position it to receive a license, according to a legal brief.

But it filed a federal lawsuit after the Department of Health did not review an application for a license to operate what is known as a medical marijuana treatment center, or MMTC. Such centers grow, process and dispense medical marijuana.

“Specifically, the complaint alleged that Del Favero had a property interest under state law in MMTC licensure or — at minimum — having its MMTC license application reviewed by the department,” the brief said.

U.S. District Judge Robert Hinkle in November 2019 rejected the lawsuit, pointing to a federal law that makes marijuana illegal. Hinkle wrote that the law eliminates due-process protection for Louis Del Favero under the U.S. Constitution’s 14th Amendment.

“In other circumstances, this would constitute a property interest protected by the Fourteenth Amendment. Such a right can be denied only through procedures that provide due process,” Hinkle wrote. “But federal law makes it a crime to manufacture, distribute, or possess marijuana. Any interest an individual has in marijuana is not a property interest protected by the Fourteenth Amendment. Similarly, any interest in a license to manufacture, distribute, or possess marijuana is not a property interest protected by the Fourteenth Amendment.”

Louis Del Favero took the case to the appeals court, but the panel Wednesday did not focus on the issue of marijuana being illegal under federal law. Instead, the panel’s decision centered on the firm’s allegations about being denied review of its application.

“Despite initial appearances, this isn’t a case about medical marijuana,” said the 16-page decision, written by Judge Robin Rosenbaum and joined by Judges Charles Wilson and Ed Carnes. “Nor is this a case about the allegedly wrongful denial of a license to dispense medical marijuana. This also isn’t a case about a state agency that has allegedly ignored a state constitutional directive to license medical marijuana dispensaries, either. Instead, this is a case about whether there’s a federal constitutional ‘property right’ to process. There isn’t. To be sure, a federal constitutional right to process to protect constitutional rights to life, liberty, and property exists. But process itself is not a property right — that would be circular.”

Louis Del Favero has also filed other cases in state court and the Florida Division of Administrative Hearings as it has pursued the license. The Tallahassee-based 1st District Court of Appeal heard arguments June 7 in one of the cases.

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