A Florida appellate court is allowing an aspiring cannabis cultivator to proceed with its lawsuit against the Florida Department of Health, with two South Florida attorneys at the helm.

The First District Court of Appeal denied the health department's writ of prohibition seeking to halt legal action by Edward Miller & Son Inc., a nursery based in Martin County. The court instead sided with the company, which also serves Palm Beach County.

Edward Miller & Son filed suit against the department in April 2016 after its application for a medical marijuana license was denied in 2015.

Boca Raton lawyer David Kotler represents Miller, alongside Fort Lauderdale appellate attorney Dan Bushell. According to Bushell, the plaintiff is anxious to have its day in court, and hopes the litigation helps it secure a long-awaited medical marijuana license.

“We're pleased that we now get to move forward with the trial. We wanted to go forward with it in October” 2018, Bushell said, referencing the case's original trial date. “Miller & Son is looking forward to its timely day in court.”

Eduardo Lombard, the Tallahassee attorney representing the Florida Department of Health, did not respond to requests for comment by deadline.

Although state regulators claim they denied the company's application because it arrived 27 minutes after the application deadline, the complaint alleges the bid was doomed from the start. Citing Rule 64-4.002, which outlines the stipulations for obtaining a medical marijuana license, the plaintiff contends the Florida Department of Health selectively enforced its own procedures.

Read the complaint: 

“While the department employed a hyper-technical and strict interpretation of Rule 64-4.002's deadlines in disallowing Miller's application from the review process, the department has disregarded more serious violations of Rule 64-4.002's deadlines,” the complaint said.

Following a public records request, Miller discovered other entities had been granted medical marijuana licenses despite failing to meet other requirements stated in the rule.

“Despite disallowing Miller's application from the scoring process due to missing a deadline by mere minutes, the department permitted other applicants to submit required documentation weeks after the deadline,” the suit said. The plaintiff attributed this skirting of the rules to pre-existing relationships between dispensaries and state officials.

Prior to appealing to the First DCA, the department filed two motions for summary judgments, both of which Leon Circuit Judge Karen Gievers denied.

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