If Charlotte's Web is going to be ready to go Jan. 1, the administrative judge in what now has become three lawsuits against the Florida Department of Health should consider employing a tactic judges use in commercial cases to de-clutter the court system:
Order mediation.
Get all parties into a room, bring in legislators to share their concerns, plaintiffs with their experts and defendants with theirs.
It's an alternative that would save many months of judicial slog. And frankly, that's one of my main concerns -- the length of time lawsuits can take and the inevitable delay in getting patients the treatment promised under the Compassionate Medical Cannabis Act of 2014.
That's why I was so relieved to connect with Richard Blau, a Tampa attorney and proponent of mediation in these three cases. Blauheads GrayRobinsons statewide Regulated Products Practice Group. It's a division the law firm launched in July to advise businesses in regulated industries, including Floridas new medical marijuana industry.
Let's say these cases start and stop with the administrative judge -- no mediation:
Blau explained, "It's going to take a judge quite a while to get the other side of the story from the agency, and take testimony and collect facts from the record to analyze and hopefully decide the case.
"He'll have to wrestle with the jurisprudential issues and he'll be working with the knowledge the agency (health department) has no history of regulating this product. That's all a very complicated approach and I think we would be looking at a very long timeline," he said.
"The far better approach is toto bring all stakeholders together with professionals running the mediation, giving everybody something, without giving everybody everything. That's the spirit of compromise."
Alternative dispute resolution -- mediation -- has been a staple in the Florida court system to resolve disputes for more than 30 years, starting with the creation of the first citizen dispute settlement center in Dade County in 1975. But it's certainly not common in lawsuits against government entities.
"I'm sure this administrative judge, if he sets his mind to it, can find a way to order mediation," he said.
With it, making the Jan. 1 effective date is still possible.
Like Blau, I'm an optimist. I want to believe all parties are acting in good faith in these lawsuits against the Health Department. I want to believe their motive is really to help get the best product to sick patients, not deliver a fatal blow to the Compassionate Medical Cannabis Act.
And I share industry concerns about a lottery to decide who grows the cannabis plant for medical use and who doesn't among 21 eligible nuseries. It seems to me the agency was only concerned that if it used a qualitative approach to do the choosing -- as it should -- it would invite disgruntled nurseries' lawsuits. Now look -- the Health Department is being sued by disgruntled nurseries, and it came sooner rather than later.
Blau sympathizes with the nurseries' negative view of a lottery. "If we want the most qualified and capable dispensaries, should we be leaving that to chance?" he asks. "We could end up with a grab bag full of operators -- this is a counterproductive approach to the quality the law was meant to provide."
"I know a lot of judges," he says, "who believe these things should be assessed by professionals ... that 'we are not supposed to be here to make laws, we are here to make sure the laws made by legislators are properly applied.'"
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But, in spite of my general optimism, there's a side of me that's always conspiracy theorizing. That side of me is saying there just might be -- could be -- a party or parties among the stakeholders who really want this new law struck down dead. There is nothing like litigation to create status quo gridlock, and anuncooperative spirit could delayindefinitely Charlotte's Web or any light medical marijuana strain allowed in the law.
Said Blau, "If all parties genuinely want to get this product to patients quickly, they will want to mediate and realize the court isn't the place to resolve their issues."
Yeah, if.
Perhaps others will encourage the judge to order mediation, too -- to tell all stakeholders to go into a room and don't come out until they've found a compromise. We're nearly into October. For patients waiting anxiously and hopefully, precious time is wasting.
(In the interest of full disclosure, Blau told me he has clients who want to be part of the new Florida medical marijuana industry, but none are the litigants in these three lawsuits -- comprising two plant nurseries and a marijuana trade association.)
Reach Nancy Smith at nsmith@sunshinestatenews.com or at 228-282-2423. Twitter: @NancyLBSmith
