As Florida’s 2018 legislative session comes to a close, its time to review legislative changes to Florida’s medical marijuana laws.

First, Florida’s Senate passed HB 6049,  This bill removes the requirement that the Florida medical marijuana license (Florida has a vertical licensing system) reserved for a Black farmer must go to a Black farmer who is a member of the Black Farmers and Agriculturalists Association.

As I explained in my earlier posts (here and here), Columbus Smith, a Black farmer from Panama City, filed a lawsuit challenging the law implementing Amendment Two (medical marijuana) alleging that the law was unconstitutional.

Second, the Florida legislature has withheld funds for the Florida Department of Health (putting the funds in reserve) in an effort to spur the Department of Health to move more quickly on regulations implementing Amendment Two (medical marijuana) which passed in 2016.


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.

As I’ve posted before, Florida’s implementation of Amendment Two (medical marijuana) does not permit patients to smoke medical marijuana.

Not surprisingly, the ban on smoking of medical marijuana triggered litigation.  Now, that case has been set for a bench trial in May 2018.

The lawsuit seeks a declaratory judgment that the smoking ban is contrary to the amendment’s language, which itself does not expressly say medicinal cannabis can be smoked. The suit is against the Department of Health, which regulates medical marijuana.

 


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.

Citrus greening, a disease that has been slowly spreading throughout Florida since 2004, has been putting the squeeze on Florida’s key agricultural crop (the citrus industry in Florida is worth $10.7 billion).  Citrus greening impairs the citrus trees ability to produce fruit and eventually kills the trees.  Many Florida citrus farmers are turning to other crops to replace their orange juice and citrus fruit business including olives, hops (for beer), pomegranates, and even pongamia (a type of legume).

Another crop that has been proposed for the Florida agriculture industry as a replacement for oranges is hemp.  Hemp can be used in the industrial market for fibers, rope, construction, paper, insulation materials and clothing.

Hemp was a key crop in the early years of America providing rope, clothing and sail material among other materials.  Hemp was a favored crop because it grew quickly with little cultivation and, even today, can be found growing wild in many parts of the mid-west.  President Thomas Jefferson invented the hemp brake which was used to separate fibers from the stalk of the hemp plant.  It has also been reported that Thomas Jefferson said this about hemp:

Hemp is of first necessity to the wealth and protection of the country.

In 1937, the cultivation of hemp was made virtually impossible with the passage of the The Marijuana Tax Act.   And, hemp was banned for good in 1957 mostly because it looked too similar to marijuana despite the fact that it produces little to no THC.

With medical marijuana and recreational marijuana being legalized on the state level across the country, hemp has also slowly started to make a come back.

In 2017, the Florida Legislature took the baby step of passing Florida Statute s. 1004.4473 which has created an industrial hemp pilot program in Florida.  The pilot program permits the two Florida land grant universities — University of Florida and Florida A&M University — to develop public-private partnerships to produce hemp, analyze results and report back to the Legislature.


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.

Florida continues to make forward progress on implementation of Amendment Two (medical marijuana) with additional licenses and dispensaries being approved or opened around the state.

License News

Three new licenses are being added in Florida.

Dispensary News

The following municipalities in Florida are moving forward with medical marijuana dispensaries:

Those municipalities going with moratoriums are listed below:

Municipalities trying to work around the all or nothing requirement set forth in Florida’s medical marijuana law are listed below.  Some municipalities are rewriting their zoning ordinances for pharmacies since municipalities must regulate and zone medical marijuana dispensaries as they do for pharmacies.

Other News

  • The Florida Board of Medicine is also working on regulations that will guide discipline for doctors that improperly prescribe medical marijuana.
  • In the education world, school boards are working on creating policies for children to take medical marijuana during school hours if prescribed in that fashion.
  • There is a question whether someone taking lawful medical marijuana can also be sold a firearm (since marijuana is still illegal under Federal law)

 


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.

As a follow up to my post on the City of Boynton Beach having its regulations overturned by Florida state law, other Florida municipalities are debating medical marijuana dispensaries.

Those adopting or extending moratoriums on dispensaries:

  • Marathon City, located in the Keys, has extended its moratorium for another 180 days.
  • Winter Garden, located near Orlando, recently voted in favor of a moratorium.
  • Collier County has also imposed a county-wide moratorium through the end of 2017.
  • Coral Gables, located near Miami, has also voted to impose a ban on dispensaries.
  • City of Sarasota, located south of Tampa, imposed a 60 day moratorium.

Miami Beach is investigating a creative workaround to impose some local control on dispensaries.  Miami Beach is looking into changing the zoning rules for pharmacies within their borders since municipalities are required to regulate dispensaries as they do pharmacies.

Meanwhile, the first dispensary in the City of Jacksonville, Florida recently opened its doors.  Tallahassee, the capital of Florida, also recently had its first dispensary open.

_________

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.

The City of Boynton Beach, Florida wanted to be ready for the implementation of Amendment 2 (medical marijuana) so they set up their own limits on dispensaries that included the following:

  • One dispensary per 67,000 residents;
  • Location was limited to one part of town the community commercial district;
  • No drive-throughs;
  • Limited hours.

Boynton has now learned that the new state law overrides their attempt at local control.  While cities can impose a short moratorium and control minor details regarding dispensaries they cannot impose the location restrictions presently on their books if they permit dispensaries.  Rather medical marijuana dispensaries must be treated as a municipality treats a pharmacy for zoning purposes.  Alternatively, under the state law cities can impose outright bans on medical marijuana dispensaries.

_________

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.

As noted in my prior post, when the Florida Legislature finally passed laws to implement Amendment 2 (medical marijuana) it did not include smoking as a permissible use for medical marijuana.

And, as expected, litigation has been filed to allow medical marijuana to be smoked. The Florida law does permit vaping of medical marijuana.  Florida legislators have defended their position by noting that Amendment 2 did not specifically identify smoking of medical marijuana and instead made clear that smoking medical marijuana was not permitted in public spaces.

_________

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.

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

However, the Florida Legislature has now, via special session, finally passed a medical marijuana bill.

The details are as follows:

  • No sales tax on medical marijuana;
  • No 90-day waiting period for a prescription;
  • The number of licenses for growers will increase by ten (10) within four (4) months (for a total of 17);
  • A limit of 25 retail locations per grower’s license;
  • Smoking is still not permitted.

Governor Rick Scott has said he intends to sign the bill.

Litigation regarding the ban on smoking is expected.  Additionally, ongoing issues related to limited competition may have to be dealt with in future legislative sessions or via litigation.

_________

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.