Since the enactment of section 381.986(8)(a)2.b., Florida Statutes, there have been numerous issues surrounding its verbiage and the ability to carry out such provision in line with the Florida Legislature’s intent. Such issues and concerns were further validated through the Florida Department of Health, Office of Medical Marijuana Use’s (“OMMU” or “Department”) handling of the Pigford/BFL license application round as set forth in Emergency Rules 64ER21-16 and 64ER19, Florida Administrative Code (“F.A.C.”). As Cannacore Group’s Founder and CEO, Paula A. Savchenko, began unraveling FTG Development, Inc., d/b/a Earkus L. Battle’s (“FTG”) case, she, along with the other denied applicants’ representatives, identified numerous issues applicants faced in the Pigford/BFL licensing round. From the OMMU’s definition and application as to who qualifies as a “recognized class member” to the narrow confinement of what documents were permitted to be provided to the OMMU to ensure compliance with statutory and regulatory rules, this licensing round lost its primary intention which was to ensure the promotion of diversity in Florida’s medical marijuana industry through remedying the harm black farmers’ faced by the discriminatory acts of the United States Department of Agriculture (“USDA”) and its agents.
Overview of the Pigford/BFL Provision
Pursuant to Article X, Section 29 of the Florida Constitution, the Florida Legislature amended section 381.986, in 2016, to allow licensed Medical Marijuana Treatment Centers (“MMTC”) to cultivate, process, and dispense medical marijuana. In accordance with the 2016 amendments made pursuant to Article X, Section 29 of the Florida Constitution, the Florida Legislature included a specific provision to permit one (1) MMTC license (the “Pigford/BFL license”) to be awarded to an applicant that was a recognized class member of Pigford v. Glickman, 185 F.R.D. 82 (D.D.C. 1999), or In Re Black Farmers Litig., 856 F. Supp. 2d 1 (D.D.C. 2011). Under the original statutory provision, such class members were also required to be a member of the Black Farmers and Agriculturalists Association (“Association”). However, this requirement was an impossible task as interested class members attempted to join the Association but were not able to due to them reaching maximum membership. As such, Columbus Smith sued the Department asserting that they created an improper special law by creating a limited/impermissible classification of a Pigford/BFL class member. Due to this lawsuit, the Florida Legislature amended the statutory language to ensure all interested applicants, who were recognized class members of Pigford/BFL, were provided a pathway to apply for a lucrative MMTC license by removing the requirement of the Association membership.
As a result of the Department’s delay in mandating section 381.986, Florida Statutes, and Article X, Section 29 of the Florida Constitution relative to the award of the Pigford/BFL license, it was not until 2021 when the Department enacted Emergency Rule 64ER21-16, F.A.C., establishing a competitive, comparative review application process. The “Medical Marijuana Treatment Center License Application Instructions, Requirements, and Forms for Pigford/BFL Applicants,” and Form DH8036-OMMU-10/2021, “Medical Marijuana Treatment Center Evaluator Instructions Manual for Pigford/BFL Batching Cycle,” were incorporated by reference in Emergency Rule 64ER21-16, F.A.C., and govern the review, evaluation, and award of the Pigford/BFL MMTC License. Pursuant to Emergency Rule 64ER21-19, F.A.C., applications were to be accepted starting on March 21, 2022, and closed on March 25, 2022.
Unfortunately, after the OMMU notified their intent to award the Pigford/BFL license in September 2022, most, if not all, denied applicants brought forth to the Florida Legislature’s attention the numerous issues surrounding this application period, including the OMMU’s process not complying with the Florida Legislature’s intent of such amendments. As a result of each applicant facing a variety of issues, the Florida Legislature passed House Bill 387 to ensure the Legislature’s original intent in allowing those most harmed by racial discrimination in the agricultural industry be afforded the opportunity to enter Florida’s medical marijuana industry. Pursuant to the Legislature’s second attempt to right this provision’s wrongs, Pigford/BFL applicants will be granted an MMTC license if they either received a notice from the Department of its intent to deny or approve of the application and the application has no deficiencies; received a final determination from the Department in an administrative challenge that the applicant met all requirements of licensure, even if the applicant died during the challenge process; OR had deficiencies noted in their Errors and Omissions Letter, but cure such deficiencies within the ninety (90)-day time frame. Not only will this expand the licenses permitted under the original statutory provision, but also allow the initial winner, Terry Donell Gwinn, to begin his operations immediately rather than wait until all legal challenges are decided upon. At the present time, only Terry Donell Gwinn and Shedrick McGriff have been awarded a MMTC license from the Pigford/BFL batching cycle.
FTG Development, Inc., d/b/a Earkus L. Battle’s Case
FTG Development, Inc. d/b/a Earkus L. Battle (“FTG”) is comprised of multi-generational farmers who demonstrate their expertise through their commitment to their customers, employees, and their product. FTG’s President and majority owner, John Allen, has strong ties to Lee County, where he and FTG’s Vice President, William Reese, SII, grew up and followed down their families’ paths into the agricultural industry. After the Florida Legislature’s 2016 amendments to section 381.986, Florida Statutes, John Allen began assembling a seasoned team, including his cousin, Earkus L. Battle, Sr., a recognized class member of In Re Black Farmers Litig., 856 F. Supp. 2d 1 (D.D.C. 2011), to ensure his family’s spot in Florida’s medical marijuana industry. From facing the same hurdle Columbus Smith endured with attempting to become a member of the Association to waiting years as litigation ensued and amendments were made, FTG and John Allen continued to wait for the OMMU to announce its release of the Pigford/BFL batching cycle.
As years passed, Mr. Battle, Sr.’s health waned. Concerned with the OMMU’s continuous delays, FTG, Mr. Allen, and Mr. Battle, Sr., entered into a Bill of Sale/Partnership Agreement on January 19, 2019, whereas Mr. Battle, Sr.’s entity, Earkus L. Battle, LLC, received 660 shares of common stock equal to 10% of FTG in consideration of the assignment of his class member rights (a Black Farmer Settlement Claimant # 386070). Further, Mr. Battle, Sr., FTG, and Mr. Allen, executed a Bill of Transfer and Notice of Assignment on January 19, 2019, whereas FTG and Mr. Allen became legally authorized as the natural class member #368070 per the Black Farmer Settlement Decree. Such steps aligned with the federal Settlement Agreement of In Re Black Farmers Litig., 856 F. Supp. 2d 1 (D.D.C. 2011), which includes the definition of “class” as “individually and collectively, to the Class Representatives, the Class, and each Member of the Class as well as their heirs, administrators, personal representatives, successors, and/or assigns.” Settlement Agreement at 9, In Re Black Farmers Litig., 856 F. Supp. 2d 1 (D.D.C. 2011) (No. 08-mc-0511). Sadly, by 2020, Mr. Battle, Sr., passed leaving his cousin, Mr. Allen, and widow, Shirley Battle.
Upon the OMMU finally announcing its intention to hold the application round for the Pigford/BFL license, Mr. Allen contacted the Black Farmer’s Claim Administrator in accordance with the OMMU’s guidelines to acquire the requisite documentation, as well as approval of the transfer of class member rights. Under the guidance and instruction of the Black Farmer’s Claim Administrator, Mr. Allen provided the death certificate of Mr. Battle, Sr., and an authorization form signed and notarized by Mr. Battle, Sr.’s next of kin, his widow, for review and approval of the transfer of rights. On March 25, 2022, FTG hand delivered to the Department a complete application, along with the required $146,000 application fee. Further, on April 22, 2022, FTG received an Errors and Omissions letter (“Letter”), which requested information, including the Pigford/BFL documentation. In accordance with the OMMU’s request, FTG provided all the requested information, including further documentation regarding the Pigford/BFL class membership. By September 2022, FTG was informed that the OMMU intended to deny their application for licensure – disqualifying them for not being a “recognized class member.”
From the narrow confinement of what documents are permitted to prove the statutory and regulatory requirements to the Department’s definition of who qualifies as a “recognized class member” – which FTG is currently in the process of challenging this action as an invalid unpromulgated rule in violation of section 120.54(1)(a), Florida Statutes, FTG and Mr. Allen have continued to bring to the forefront the numerous inconsistencies throughout the Department’s process. The Florida Legislature’s intent with section 381.986(8)(a)2.b., Florida Statutes, was to ensure a broad applicant pool of those who suffered at the hands of the USDA and its agents as a result of their racially discriminatory actions. With such improper limitations set forth by the Department, such intent was lost, and has resulted in a slew of lawsuits. FTG and Mr. Allen, along with their representation, will continue to fight their case through the First District Court of Appeal of Florida, as well as through the Division of Administrative Hearings.
If you are interested in discussing the Pigford/BFL licensing round, contact Paula Savchenko, Esq., at paula@cannacoregrp.com.