TAMPA, Fla. (WFLA) — In the latest legal battle over Florida’s budding medical marijuana industry, a higher court judge has affirmed the state’s position in dismissing a complaint from a prospective medical marijuana grower, but took the state to task for delays in granting new licenses.

1st District Court of Appeals Judge Ross Bilbrey criticized leaders at the Florida Department of Health and the state government, more generally, over its “ongoing failure” to open application windows for Medical Marijuana Treatment Center operators to seek license to sell.

While he concurred with the main 1st Circuit opinion, Judge Bilbrey agreed that the appellant, in this case Louis Del Favero Orchids, Inc., was “understandably frustrated” with FDOH’s lack of application access. The MMTC licenses are required to operate, writing in his concurrent opinion that multiple potential MMTC licensees had been “frustrated by the delay,” citing an article on a Black Farmer in Lakeland that had been unable to get a license despite six years of legalized medical marijuana.

There are currently 22 licensed and approved MMTCs in Florida, according to the Florida Office of Medical Marijuana Use. In addition, there are a reported 475 distributors in the state, according to OMMU. Medical marijuana has been legal in Florida since 2017. The FDOH issued an emergency rule to close application windows in September 2017, leading to the current application for license situation.

In a previous case, also regarding licensing for MMTC operation, the FDOH said it had delayed applications for licensure to due to separate litigation over Florida’s legalization law. FDOH, according to the court, told the Florida Supreme Court that it was preparing to open applications after the other case, Florida Department of Health v. Florigrown, LLC, was decided.

While the Florigrown was closed more than a year ago, according to Bilbrey’s court opinion, the state had still not opened the applications for license to operate MMTCs in the state.

Bilbrey continued, saying that while the court was correct to decline the request by Louis Del Favero Orchids to open applications by court order, or through default licensure, he told FDOH that it should comply with the expectations it set in past cases, saying that by not opening applications, the Department might face additional court battles while it “refuses to comply with its duties under the Florida Constitution.”

To that point, Bilbrey wrote that he would “respectfully suggest that the Department comply with its representations at the MedPure oral argument — either open the application window referenced in the emergency rule or promulgate a superseding rule allowing for MMTC license applications.

Otherwise, it may be necessary for a potential licensee to ‘seek judicial relief to compel compliance with the Department’s constitutional duties.’”

The MedPure case Bilbrey referred to was an additional case where a prospective MMTC was denied license by the state, and later the Florida Court, due to lack of application windows. As it stands, most of Florida’s medical marijuana industry is under the power of three MMTCs, controlling two-thirds of the overall state market, according to Bilbrey.

New regulations for medical marijuana prescriptions were announced by the FDOH at the end of August, separate from the application process rules. Other efforts to simply legalize recreational marijuana or decriminalize possession of it via ballot measure have so far been unsuccessful.