Construction siteAll employers face challenges in navigating issues surrounding legalized marijuana. For construction industry employers, the challenges are particularly difficult given the necessary emphasis on safety.

Last week, my colleague Jeff Polsky, co-chair of Fox’s Labor and Employment Department, recorded a 90-minute webinar for Lorman addressing the issues construction employers face in jurisdictions that have legalized medical or recreational marijuana. Jeff discussed developments in state law, conflicts between state and federal laws, drug testing, maintaining a drug-free workplace, and responding to employees’ requests for accommodation of marijuana-related disabilities. You can purchase the webinar here.

Florida’s medical marijuana regulations and laws have been the subject of repeated litigation ever since Amendment Two was passed by voters in 2016.  A recent Florida Court Opinion has ruled in favor of Plaintiffs seeking to expand Florida’s restrictive vertical license law (which requires the license holder to grow, distribute and sell medical marijuana).

Leon County Circuit Judge Charles Dodson ruled that the cap on the number of “medical marijuana treatment centers, (MMTC)” ran afoul of Amendment Two which had no limitation on MMTCs in the Amendment text.

Judge Dodson ruled that the restrictions set forth in the regulations and laws implementing Amendment Two

Directly undermine the clear intent of the amendment, which by its language seeks to prevent arbitrary restriction on the number of MMTCs authorized to conduct business in the state. The amendment mandates the availability and safe use of medical marijuana by qualifying patients.

Additionally, Judge Dodson found that the vertical license model implemented by Florida is unconstitutional because it requires license holders to cultivate, process, and dispense medical marijuana as opposed to providing licenses to those that just want to engage in one part of the medical marijuana process.  Specifically, Judge Dodson found that the language of Amendment Two utilized an “or” when defining MMTCs and Florida’s legislature used an “and” when writing the law defining MMTCs.

Finally, Judge Dodson ruled that limited number of licenses provided by Florida law improperly restricted who could get licenses.  The law ordered health officials to grant licenses to operators who were already up and running in Florida or who were involved in litigation as of January 1, 2017.  Florida’s medical marijuana law also required that a black farmer receive a license and set aside license preferences for the citrus industry (both of these carve outs have been subject to other litigation as well).  Judge Dodson found these restriction amounted to an impermissible “special law”.

Notwithstanding, the dramatic Court Opinion, Judge Dodson declined the Plaintiffs’ request for a temporary injunction.


Dori K. Stibolt is a West Palm Beach, Florida based partner with Fox Rothschild LLP.  She focuses her practice on litigation and labor and employment issues and has taken a special interest in the cannabis business.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

E-Book Cover: Employment Compliance in the Age of Legalized MarijuanaThough cannabis is illegal under federal law, at least 30 states and the District of Columbia have legalized cannabis for medical use and nine states, as well as D.C., have legalized it for recreational use—a dichotomy that presents a unique and complex challenge for employers. In a new e-book, Fox attorneys Joseph A. McNelis III, Lee Szor, William Bogot and Joshua Horn provide an overview of federal and state marijuana laws, discuss specific aspects of the employment relationship affected by the legalization of marijuana in certain states, and offer practical guidance for employers on how to navigate this new and developing area of the law.

We invite you to download a PDF of the e-book.

Florida’s citrus industry has been ailing and declining for years.  Florida’s recent medical marijuana regulations were designed to help, in part, by providing two medical marijuana licenses for the citrus industry to switch from growing oranges to marijuana.

As I’ve posted before, Florida medical marijuana licensing regulations have been the subject of repeated litigation challenges.  See posts herehere and here.  Now, the most recent challenge involves this citrus preference rule.

Louis Del Favero Orchids (“Orchids”) is challenging the rule.  The orchid company argues that the rule fails to carry out the law, which gives preference for up to two medical marijuana licenses to applicants who own “facilities” that were used to process citrus.

Orchids claims that the rule actually gives preference to applicants who simply own “property” that was once used for citrus-processing which is different than the requirement set forth in the law that preference be given to applicants who own “facilities” that were once used for citrus processing.

Orchids bought Florida property that included a facility once used to process orange juice in an effort to increase their chances to obtain a Florida medical marijuana license.

However, Florida’s Department of Health’s position is that there’s nothing in the law that requires a “facility” to be a structure.


Dori K. Stibolt is a West Palm Beach, Florida based partner with Fox Rothschild LLP.  She focuses her practice on litigation and labor and employment issues and has taken a special interest in the cannabis business.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

After a closely watched one day trial last week, Judge Karen Gievers issued a 22 page Order and Final Judgment.  Judge Gievers found that the legislation which implemented Amendment 2 (medical marijuana) is unconstitutional because it conflicts with the language of the constitutional amendment itself.

Section 381.986, Florida Statutes (2017) unconstitutionally restricts rights that are protected in the [Florida] Constitution, and so the statutory prohibition against the use of smokeable marijuana permitted by [a] qualifying patient is declared invalid and unenforceable.

Qualifying patients have the right to use the form of medical marijuana for [the] treatment of their debilitating medical condition as recommended by their certified physicians, including the use of smokable marijuana in private places.

The Judge largely adopted the arguments put forth by Plaintiffs’ counsel who had argued that the the medical marijuana definition approved by Florida voters in November 2016 included “all types of medical marijuana,” including smokeable forms.  Plaintiffs’ counsel also argued that Amendment 2 implicitly recognized the right to smoke medical marijuana in private since the Amendment indicated there was no right to smoke it in public places.

The State of Florida quickly appealed the Order which will delay, at least temporarily, any right to legally smoke cannabis in Florida.


Dori K. Stibolt is a West Palm Beach, Florida based partner with Fox Rothschild LLP.  She focuses her practice on litigation and labor and employment issues and has taken a special interest in the cannabis business.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Grow Your Own Case

Recently, I posted about a Leon County, Florida Court case in which the Judge found in favor of a medical marijuana patient who sought permission to grow his own medical marijuana because he needed the raw plant for the treatment his state-certified doctor had prescribed to him for his stage 4 lung cancer.  Medical cannabis dispensaries in Florida do not provide raw plant product.  Following that Court Order, Florida’s Department of Health filed an appeal.

The First District Court of Appeal in Florida has temporarily blocked that ruling and reinstated the stay that prevented Joe Redner, the medical marijuana patient, from growing his own medical marijuana.  We will continue to monitor this matter.  Mr. Redner has indicated that he will pursue his case to the Florida Supreme Court.

Smoking Case

As I’ve posted before here and here, the regulations implementing Florida’s Amendment Two (medical marijuana) banned the smoking of medical marijuana.  And, not surprisingly, litigation was immediately filed challenging the smoking ban.

The trial in the case challenging the smoking ban is scheduled to start tomorrow and we will be monitoring it as it progresses.  The trial judge in the smoking case is Leon County Circuit Judge Karen Gievers.  Judge Gievers is the same Judge who ruled in favor of Joe Redner in the grow case noted above.

In Other Florida News

Despite a slow start in implementing medical marijuana and getting licenses issued and regulations written, Florida now has more than 100,000 registered medical marijuana patients.


Dori K. Stibolt is a West Palm Beach, Florida based partner with Fox Rothschild LLP.  She focuses her practice on litigation and labor and employment issues and has taken a special interest in the cannabis business.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Green California Vector IllustrationIn an Alert published Thursday, Fox partner Tracy Gallegos and associate Lynnel Reyes examined new emergency regulations recently proposed by the California Department of Public Health to allow Type 6, 7, or N cannabis licensed manufacturers to register their facility as a “shared-use” facility. The regulations also provide for a new license, the Type S license, which would allow licensees to create infusions, package and label cannabis products and conduct extractions with butter or food grade oils (provided that the extract or concentrate produced may only be used in infused products manufactured by that licensee.) The regulations are expected to be approved by tomorrow, April 13, 2018.

Tracy and Lynnel outline the details of the proposed regulations and the new Type S license, including its benefits, associated concerns and the application process.

To read their full discussion, please visit the Fox Rothschild website.

Florida’s medical marijuana regulations do not presently permit medical marijuana patients to grow their own medical marijuana.  Florida’s Department of Health’s website states the following:

Florida law only allows the licensed dispensing organizations to grow, process and dispense marijuana. The department will refer any business or individual suspected of violating state law to local law enforcement for investigation. It is important to remember marijuana is illegal under federal law.

Joe Redner, of Tampa Florida, challenged this Florida regulation and argued in his lawsuit that he was entitled to grow his own medical marijuana because he needs the raw plant for the treatment his state-certified doctor has prescribed to him for his stage 4 lung cancer.  Medical cannabis dispensaries across the state do not provide raw plant product.

Leon County Circuit Judge Karen Givers recently ruled in Mr. Redner’s favor and found that the

Florida’s Constitution provides Mr. Redner’s right to grow his own medical marijuana so he can follow his physician’s recommendation.  Until and unless the [Florida Department of Health] stops violating its Constitutional duty and adopts the mandated presumptive regulation, the evidence clearly demonstrates that Mr. Redner is entitled to follow the recommendations of his certified physician.

However, this ruling is limited solely to Mr. Redner and no other Florida medical marijuana patients can grow their own medical marijuana pursuant to this ruling.  The Florida Department of Health is likely to appeal the Court’s Order.


Dori K. Stibolt is a West Palm Beach, Florida based partner with Fox Rothschild LLP.  She focuses her practice on litigation and labor and employment issues and has taken a special interest in the cannabis business.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

The New York City skyline with skyscrapers and a rainbowOn May 16, 2018, Fox partner Alexander Leonard and associates Matt Kittay and Zev Singer will present a live webinar on New York’s new medical marijuana law and its impact on employers. Alexei, Matt and Zev will discuss key provisions of the new law and their interplay with federal law; practical implications for employers including drug testing, background checks and privacy concerns; as well as disability discrimination issues and off-duty/off-premises policies. They’ll also explore pertinent hypotheticals surrounding the new law.

This live webinar is designed for human resource professionals, business owners, attorneys, business managers, benefits and payroll professionals, operations managers, presidents, vice presidents, supervisors, managers, controllers and accountants.

We invite you to attend and learn more about the latest developments for medical marijuana in New York. For full details and to register for the webinar, please visit the Lorman Business Center website.