Florida Office of Medical Marijuana Use

Florida Governor Ron De Santis signed SB182 into law yesterday.  SB182 redefines medical use of marijuana to include possession, use or administration of marijuana in the form of smoking.

The new law also triggered the dismissal of an appellate court action regarding the constitutionality of Florida’s medical marijuana law which previously banned the smoking of medical marijuana.

Notwithstanding the new law legalizing smokable medical marijuana it will take time for dispensaries to start selling it, since the Florida Department of Health will have to institute regulations and procedures for the new product.  If the past is predictive of the present, it could take a year for new regulations to be issued by the Florida Department of Health.  The new law also legalized the purchase and possession of smoking paraphernalia.

Medical marijuana patients will still need a prescription from a doctor and a Florida medical marijuana patient i.d. card to purchase smokable medical marijuana.  Additionally, nothing in the new law permits or authorizes smoking medical marijuana in public, in an enclosed work area, or on public transportation.  Further, the owners of private property can ban smokable medical marijuana on their property.

Children will also be able to use smokable medical marijuana if they suffer from a terminal illness and they have received two opinions from two doctors that they should utilize smokable 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.

Despite the fact that oral arguments were just held in the appellate case involving the State of Florida’s appeal of a court decision legalizing smoking medical marijuana, new Florida Governor has announced and hinted at big changes to Florida’s regulatory and legal structure for medical marijuana.

First, Gov. De Santis recently stated that he wants Florida’s legislature to strip the ban on smoking from the medical marijuana law, but if that doesn’t happen he will drop the State’s appeal of a lower court ruling which permitted smoking medical marijuana.  If the State of Florida abandons the appeal that would effectively legalize smoking in Florida.

Second, and more importantly for those in the industry, Gov. De Santis heavily criticized the current licensing structure in Florida which is limited to 14 vertical licenses which require seed to sale for those companies that own a license.  Gov. De Santis called the current license structure a cartel.

They created a cartel essentially, I don’t know that the amendment necessarily prohibits that, but that is not good policy.

A change in licensing structure would open up competition and reduce prices for consumers and permit smaller companies to get involved in the industry.  On the other hand, a change in licensing structure would negatively impact the value of the current licenses.

 

 


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.

Despite the rumor that Florida’s new governor (Ron De Santis) will be friendlier to medical marijuana than Rick Scott, oral arguments were held earlier this week and the attorneys representing the State of Florida vigorously argued to uphold the current smoking ban.  Leon County Circuit Judge Karen Gievers had previously agreed with the plaintiffs and struck down the smoking ban, but her decision had been stayed after the State of Florida appealed.

During oral argument, the appellate panel of judges raised the question of whether the Florida legislature has the political power to veto what the people have passed.

The Florida Department of Health attorneys argued that the immunity set forth in Florida’s Amendment Two was for medical use only.  Since smoking causes cardiovascular and respiratory health problems, the Florida legislature was well within its rights to limit delivery methods that would negatively impact health.

Regarding the section set forth in Amendment Two which provides for restriction on where medical marijuana patients can smoke marijuana, which restricts smoking in public, the DOH attorneys argued that section did not create a conflict because the section was set forth in the limitation section.

Attorneys for People United for Medical Marijuana (“People United”) and Catherine Jordan argued that since the definition of medical marijuana included smokable medical marijuana, the legislature could not restrict that method of delivery in its regulation without creating a constitutional conflict.

Additionally, attorneys for People United argued that the language permitting the Florida legislature to regulate for safety meant that issues like pesticides and the like could be regulated, but that safety regulations could not conflict with the constitutional amendment language which did not restrict delivery methods.

Counsel for People United made an emotional argument regarding patient Cathy Jordan who has suffered from ALS since 1986 and was given 3-5 years to live back in 1986.  Ms. Jordan claims that smoking medical marijuana has kept her alive.

Cathy Jordan is not trying to have a good time, she is trying to live.

A video of the oral arguments can be viewed here.


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 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.

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.

Following up on my post from earlier this week, the Florida Senate Health committee unanimously passed SB 1134 which would strip out the requirement that black farmers who want to obtain a coveted medical marijuana license be a member of the Florida Chapter of the Black Farmers and Agriculturalists Association (which has closed its membership).

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.

Recently, a Leon County, Florida Judge sided with Smith and granted a temporary injunction in the case, which signals that Smith’s case has a strong likelihood of prevailing in court.


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.

Last week, Leon County, Florida Circuit Judge Charles Dodson granted a temporary injunction sought by Columbus Smith regarding a portion of the Florida law passed last year to implement Amendment Two (medical marijuana).  I posted before about Smith’s lawsuit.

The law implementing Amendment Two called for an overall increase of 10 licenses for Medical Marijuana Treatment Center (Florida has a vertical integrated license structure which means licensed Medical Marijuana Treatment Centers grow, distribute and sell medical marijuana) 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 (known as Pigford I and Pigford II) regarding 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.  Mr. Smith had been a member of Pigford I and Pigford II, but the Black Farmers and Agriculturalists Association had closed their membership and would not issue a membership to Mr, Smith.

The Florida Constitution bars “special” laws that relate to a “grant of privilege to a private corporation.”  Mr. Smith’s lawsuit alleged the medical marijuana law violated that part of the Constitution.

In issuing the temporary injunction, Judge Dodson ruled that Mr. Smith has a substantial likelihood of success of proving that the law is unconstitutional.

Plaintiff will likely suffer irreparable harm if this court does not enjoin the department from issuing the black farmer license because the law only applies to members of the association and plaintiff … will not be able to apply or qualify for such a license, because he is not a member of the association.

Judge Dodson’s Court Order also asked both sides to come up with a plan to resolve the issue by June, 2018.

Senate budget chief Rob Bradley, a Fleming Island Republican, said the Legislature will likely strip out the part of the law requiring membership in the association for an applicant to be eligible for the black-farmer license.


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, here and here, Florida has struggled with its roll out of Amendment Two (medical marijuana) with delays in issuing licenses, processing patient i.d. cards, etc.

Now comes news that Tetra Health Company, a California based company which quickly opened several medical marijuana clinics in Florida, is now, just a few months later, closing up most of their Florida locations.  Tetra is not affiliated with a state licensed Medical Marijuana Treatment Center (Florida has a vertical integrated license structure which means licensed Medical Marijuana Treatment Centers grow, distribute and sell medical marijuana) but instead has a business model that provides medical marijuana certification doctors that guide patients through the Florida state registration process.  Once the patients receive their i.d. cards from the State of Florida they can go to any medical marijuana dispensary.

Tetra’s Tampa, Florida location will remain open.


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.