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2021 Florida Statutes (Including 2021B Session)

Title XXIX PUBLIC HEALTH
Chapter 381 PUBLIC HEALTH: GENERAL PROVISIONS Entire Chapter
SECTION 988
Medical marijuana testing laboratories; marijuana tests conducted by a certified laboratory.
F.S. 381.988
1381.988 Medical marijuana testing laboratories; marijuana tests conducted by a certified laboratory.—
(1) A person or entity seeking to be a certified marijuana testing laboratory must:
(a) Not be owned or controlled by a medical marijuana treatment center.
(b) Submit a completed application accompanied by an application fee, as established by department rule.
(c) Submit proof of an accreditation or a certification approved by the department issued by an accreditation or a certification organization approved by the department. The department shall adopt by rule a list of approved laboratory accreditations or certifications and accreditation or certification organizations.
(d) Require all owners and managers to submit to and pass a level 2 background screening pursuant to s. 435.04 and shall deny certification if the person or entity has been found guilty of, or has entered a plea of guilty or nolo contendere to, regardless of adjudication, any offense listed in chapter 837, chapter 895, or chapter 896 or similar law of another jurisdiction.
1. Such owners and managers must submit a full set of fingerprints to the department or to a vendor, entity, or agency authorized by s. 943.053(13). The department, vendor, entity, or agency shall forward the fingerprints to the Department of Law Enforcement for state processing, and the Department of Law Enforcement shall forward the fingerprints to the Federal Bureau of Investigation for national processing.
2. Fees for state and federal fingerprint processing and retention shall be borne by such owners or managers. The state cost for fingerprint processing shall be as provided in s. 943.053(3)(e) for records provided to persons or entities other than those specified as exceptions therein.
3. Fingerprints submitted to the Department of Law Enforcement pursuant to this paragraph shall be retained by the Department of Law Enforcement as provided in s. 943.05(2)(g) and (h) and, when the Department of Law Enforcement begins participation in the program, enrolled in the Federal Bureau of Investigation’s national retained print arrest notification program. Any arrest record identified shall be reported to the department.
(e) Demonstrate to the department the capability of meeting the standards for certification required by this subsection, and the testing requirements of s. 381.986 and this section and rules adopted thereunder.
(2) The department shall adopt rules pursuant to ss. 120.536(1) and 120.54 establishing a procedure for initial certification and biennial renewal, including initial application and biennial renewal fees sufficient to cover the costs of administering this certification program. The department shall renew the certification biennially if the laboratory meets the requirements of this section and pays the biennial renewal fee.
(3) The department shall adopt rules pursuant to ss. 120.536(1) and 120.54 establishing the standards for certification of marijuana testing laboratories under this section. The Department of Agriculture and Consumer Services and the Department of Environmental Protection shall assist the department in developing the rule, which must include, but is not limited to:
(a) Security standards.
(b) Minimum standards for personnel.
(c) Sample collection method and process standards.
(d) Proficiency testing for tetrahydrocannabinol potency, concentration of cannabidiol, and contaminants unsafe for human consumption, as determined by department rule.
(e) Reporting content, format, and frequency.
(f) Audits and onsite inspections.
(g) Quality assurance.
(h) Equipment and methodology.
(i) Chain of custody.
(j) Any other standard the department deems necessary to ensure the health and safety of the public.
(4) A marijuana testing laboratory may acquire marijuana only from a medical marijuana treatment center. A marijuana testing laboratory is prohibited from selling, distributing, or transferring marijuana received from a marijuana treatment center, except that a marijuana testing laboratory may transfer a sample to another marijuana testing laboratory in this state.
(5) A marijuana testing laboratory must properly dispose of all samples it receives, unless transferred to another marijuana testing laboratory, after all necessary tests have been conducted and any required period of storage has elapsed, as established by department rule.
(6) A marijuana testing laboratory shall use the computer software tracking system selected by the department under s. 381.986.
(7) The following acts constitute grounds for which disciplinary action specified in subsection (8) may be taken against a certified marijuana testing laboratory:
(a) Permitting unauthorized persons to perform technical procedures or issue reports.
(b) Demonstrating incompetence or making consistent errors in the performance of testing or erroneous reporting.
(c) Performing a test and rendering a report thereon to a person or entity not authorized by law to receive such services.
(d) Failing to file any report required under this section or s. 381.986 or the rules adopted thereunder.
(e) Reporting a test result if the test was not performed.
(f) Failing to correct deficiencies within the time required by the department.
(g) Violating or aiding and abetting in the violation of any provision of s. 381.986 or this section or any rules adopted thereunder.
(8) The department may refuse to issue or renew, or may suspend or revoke, the certification of a marijuana testing laboratory that is found to be in violation of this section or any rules adopted hereunder. The department may impose fines for violations of this section or rules adopted thereunder, based on a schedule adopted in rule. In determining the administrative action to be imposed for a violation, the department must consider the following factors:
(a) The severity of the violation, including the probability of death or serious harm to the health or safety of any person that may result or has resulted; the severity or potential harm; and the extent to which s. 381.986 or this section was violated.
(b) The actions taken by the marijuana testing laboratory to correct the violation or to remedy the complaint.
(c) Any previous violation by the marijuana testing laboratory.
(d) The financial benefit to the marijuana testing laboratory of committing or continuing the violation.
(9) The department may adopt rules pursuant to ss. 120.536(1) and 120.54 to implement this section.
(10) Fees collected by the department under this section shall be deposited in the Grants and Donations Trust Fund within the Department of Health.
2(11) Rules adopted under subsection (9) before July 1, 2022, are not subject to ss. 120.54(3)(b) and 120.541. This subsection expires July 1, 2022.
History.—ss. 1, 6, ch. 2017-232; s. 30, ch. 2018-10; s. 40, ch. 2019-116; s. 32, ch. 2020-114; s. 14, ch. 2021-37.
1Note.—

A. Section 1, ch. 2017-232, provides that “[i]t is the intent of the Legislature to implement s. 29, Article X of the State Constitution by creating a unified regulatory structure. If s. 29, Article X of the State Constitution is amended or a constitutional amendment related to cannabis or marijuana is adopted, this act shall expire 6 months after the effective date of such amendment.” If such amendment or adoption takes place, s. 381.988, as created by s. 6, ch. 2017-232, is repealed.

B. Section 14(1), ch. 2017-232, as amended by s. 15, ch. 2021-37, “in order to implement Specific Appropriations 460 through 462, 466, 467, 469A, and 474 of the 2021-2022 General Appropriations Act,” provides that:

“(1) EMERGENCY RULEMAKING.—

“(a) The Department of Health and the applicable boards shall adopt emergency rules pursuant to s. 120.54(4), Florida Statutes, and this section necessary to implement ss. 381.986 and 381.988, Florida Statutes. If an emergency rule adopted under this section is held to be unconstitutional or an invalid exercise of delegated legislative authority, and becomes void, the department or the applicable boards may adopt an emergency rule pursuant to this section to replace the rule that has become void. If the emergency rule adopted to replace the void emergency rule is also held to be unconstitutional or an invalid exercise of delegated legislative authority and becomes void, the department and the applicable boards must follow the nonemergency rulemaking procedures of the Administrative Procedures Act to replace the rule that has become void.

“(b) For emergency rules adopted under this section, the department and the applicable boards need not make the findings required by s. 120.54(4)(a), Florida Statutes. Emergency rules adopted under this section are exempt from ss. 120.54(3)(b) and 120.541, Florida Statutes. The department and the applicable boards shall meet the procedural requirements in s. 120.54(4)(a), Florida Statutes, if the department or the applicable boards have, before July 1, 2019, held any public workshops or hearings on the subject matter of the emergency rules adopted under this subsection. Challenges to emergency rules adopted under this subsection are subject to the time schedules provided in s. 120.56(5), Florida Statutes.

“(c) Emergency rules adopted under this section are exempt from s. 120.54(4)(c), Florida Statutes, and shall remain in effect until replaced by rules adopted under the nonemergency rulemaking procedures of the Administrative Procedures Act. Rules adopted under the nonemergency rulemaking procedures of the Administrative Procedures Act to replace emergency rules adopted under this section are exempt from ss. 120.54(3)(b) and 120.541, Florida Statutes. By July 1, 2022, the department and the applicable boards shall initiate nonemergency rulemaking pursuant to the Administrative Procedures Act to replace all emergency rules adopted under this section by publishing a notice of rule development in the Florida Administrative Register. Except as provided in paragraph (a), after July 1, 2022, the department and applicable boards may not adopt rules pursuant to the emergency rulemaking procedures provided in this section.”

C. Section 16, ch. 2021-37, provides that “[t]he amendments to s. 14(1) of chapter 2017-232, Laws of Florida, made by this act expire July 1, 2022, and the text of that subsection shall revert to that in existence on June 30, 2019, except that any amendments to such text enacted other than by this act shall be preserved and continue to operate to the extent that such amendments are not dependent upon the portions of text which expire pursuant to this section.” Effective July 1, 2022, s. 14(1), ch. 2017-232, as amended by s. 16, ch. 2021-37, will read:

“(1) EMERGENCY RULEMAKING.—

“(a) The Department of Health and the applicable boards shall adopt emergency rules pursuant to s. 120.54(4), Florida Statutes, and this section necessary to implement ss. 381.986 and 381.988, Florida Statutes. If an emergency rule adopted under this section is held to be unconstitutional or an invalid exercise of delegated legislative authority, and becomes void, the department or the applicable boards may adopt an emergency rule pursuant to this section to replace the rule that has become void. If the emergency rule adopted to replace the void emergency rule is also held to be unconstitutional or an invalid exercise of delegated legislative authority and becomes void, the department and the applicable boards must follow the nonemergency rulemaking procedures of the Administrative Procedures Act to replace the rule that has become void.

“(b) For emergency rules adopted under this section, the department and the applicable boards need not make the findings required by s. 120.54(4)(a), Florida Statutes. Emergency rules adopted under this section are exempt from ss. 120.54(3)(b) and 120.541, Florida Statutes. The department and the applicable boards shall meet the procedural requirements in s. 120.54(a), Florida Statutes, if the department or the applicable boards have, before [June 23, 2017], held any public workshops or hearings on the subject matter of the emergency rules adopted under this subsection. Challenges to emergency rules adopted under this subsection are subject to the time schedules provided in s. 120.56(5), Florida Statutes.

“(c) Emergency rules adopted under this section are exempt from s. 120.54(4)(c), Florida Statutes, and shall remain in effect until replaced by rules adopted under the nonemergency rulemaking procedures of the Administrative Procedures Act. By January 1, 2018, the department and the applicable boards shall initiate nonemergency rulemaking pursuant to the Administrative Procedures Act to replace all emergency rules adopted under this section by publishing a notice of rule development in the Florida Administrative Register. Except as provided in paragraph (a), after January 1, 2018, the department and applicable boards may not adopt rules pursuant to the emergency rulemaking procedures provided in this section.”

2Note.——Section 14, ch. 2021-37, amended subsection (11) “[i]n order to implement Specific Appropriations 460 through 462, 466, 467, 469A, and 474 of the 2021-2022 General Appropriations Act.”