Florida Department of Health

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.

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.

Pursuant to the law passed earlier this year which implemented Amendment Two (medical marijuana), Florida was required to issue additional licenses for medical marijuana treatment centers (the entities that grow, distribute and sell medical marijuana) to bring the number of licenses up to ten by October 3, 2017.

Florida has missed this deadline due to Hurricane Irma (which caused extensive damage and power outages in South Florida and the Keys) and because of litigation filed recently which alleged that the law was unconstitutional as to the license reserved for a black farmer.

_______________

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

A lawsuit was recently filed which challenges the constitutionality of part of the Florida law implementing Amendment Two (medical marijuana).  A key part of the law was expanding the number of growing licenses that would be awarded to farmers/operators in the lucrative medical marijuana business.

The law implementing Amendment Two called for an overall increase of 10 licenses by October 3, 2017.  But, the law also provided that one (1) of those licenses go to a black farmer who had been a party to settled lawsuits about discrimination by the federal government against black farmers.  The law also said that the black farmer who receives the medical marijuana license would have to be a member of the Black Farmers and Agriculturalists Association-Florida Chapter.

Columbus Smith, a black farmer from Panama City, Florida filed the lawsuit.  Mr. Smith alleges that the law is so narrowly drawn that only a couple of black farmers could qualify for the license.  The lawsuit contends that the carve-out license is what is known as an unconstitutional “special law.”

The lawsuit said Mr. Smith meets the qualification of being part of the litigation (known as “Pigford I” and “Pigford II”) about discrimination against black farmers.

But, Mr. Smith has not been allowed to join the black farmers association, precluding him from receiving a license.  According to the lawsuit, the association is not accepting new members.

There is no rational basis for limiting the opportunity of black farmers to obtain a medical marijuana license to only the few members of that class of black farmers who are also member of a specific private association.

Mr. Smith’s lawsuit seeks an injunction against the Florida Department of Health’s issuing a license related to the black farmer.

_______________

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

See my posts here, herehere, and here regarding the Florida Legislature’s efforts to pass laws to implement Amendment 2 (medical marijuana passed by Florida’s voters in November 2016) which failed in the last legislative session.

Now, Florida’s legislatures head back to Tallahassee for a special session from June 7th to June 9th. Unfortunately, but also no surprise, medical marijuana is not on Gov. Rick Scott’s list of issues for the special session.

However, many members of the legislature appear to be committed, if there is time, to working on medical marijuana during the special session.  Meanwhile, cannabis patients are frustrated by the failure of the Florida legislature to pass comprehensive medical marijuana laws to address the lack of licenses and lack of retail locations.

_________

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

See my posts here, herehere, and here regarding the Florida Legislature’s efforts to pass laws to implement Amendment 2 (medical marijuana passed by Florida’s voters in November 2016) which failed in the last legislative session.

51190933 - tallahassee, florida, usa at the old and new capitol building.

While we wait to see if the Florida Legislature will call a special session to get regulations passed to implement Amendment 2, now comes news that a Florida Administrative Judge has ruled in favor of two growers who who had previously sought licenses under the low-THC medical marijuana regulatory scheme.  Those licenses have, obviously, gotten very valuable now that Amendment 2 has passed, since those are the growers who will be able to participate under Amendment 2 until litigation or further legislation permits additional licenses.

__________

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

See my posts here, here, and here regarding the Florida Legislature’s efforts to pass laws to implement Amendment 2 (medical marijuana passed by Florida’s voters in November 2016).

Unless a special session is called, the Florida Legislature closes out this session with no agreement on medical marijuana.  Issues related to the number of grower licenses and how those licenses would be linked to storefronts created an insurmountable disagreement.

Supposedly and ironically, the pro-cannabis powers were instrumental in the demise of medical marijuana in the legislature.  The issue of  how many storefronts the current license holders (7 at present) could operate has been a large part of the debate.  The Senate wanted to cap the number of retail locations for each license holder so that these 7 license holders could not consolidate too much market power.

With the failure by the Florida Legislature, that means Florida’s Department of Health, under Governor Rick Scott, will now be responsible for creating regulations for Amendment 2.  That does not bode well for the cannabis industry or patients, since Gov. Scott is anti-medical marijuana.

24982680 - state supreme court building in tallahassee, florida.

Also expected, fierce litigation from patients, physicians and businesses now that the legislature has failed.

__________

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