The Program is ‘Absolutely Broken’ — Now What?

Edited by Tom Hagy

Florida Circuit Judge Karen Gievers just held that the Florida medical marijuana law is unconstitutional. Reporting on the judge’s Trulieve decision for the Florida Politics news service, journalist Jim Rosica called it “a rebuke to lawmakers and the Rick Scott Administration” that was “stunning even for” Judge Gievers. “In the spirit of boxing legend Muhammad Ali, known for his pre-fight rhymes, Gievers opined that in Florida ‘the medical marijuana system was broken. Now, in the Constitution, the people have spoken.'”

Rosica reported that while Gov. Scott is appealing the major marijuana decisions against the state Department of Health, the transition team of Republican Governor-elect Ron DeSantis, including Lt. Gov.-elect  Jeanette Nuñez, has suggested that he will not continue to defend the law in court.

Rosica continued: “Gievers, who retires in April, said her decision striking down the law ‘includ(ed), but (is) not limited to, replacement of the voter-selected registry plan with an arbitrary, inconsistent licensing scheme … throttling access of qualifying patients to … safe use of medical marijuana from (providers that) the Department has a clear, undisputed duty to register.’ In fact, just passing the law was itself unconstitutional, Gievers suggested: ‘Voters made clear in 2016 that the Legislature was to have no role in implementing access to and availability of medical marijuana.’” Read Rosica’s full article.

‘It is incumbent on the Legislature to fix this’

Today I spoke with attorney Jonathan Robbins, who is actively litigating the matter on behalf of Tampa-based Florigrown. Robbins, chair of the cannabis practice at Akerman LLP , pointed to a similar holding in the Florigrown case, commenting that, yes, “yet another judge has found that the statute implementing the amendment is unconstitutional because of the arbitrary cap on the number of dispensaries that would qualify for licensing.”

“This further illustrates,” Robbins told me, “that the Florida medical marijuana program is absolutely broken and needs to be fixed. But rather than the courts repairing it piecemeal, the Legislature needs to get something done. It is incumbent on the Legislature to fix this.”

In the Florigrown case, Leon County Circuit Judge Charles Dodson granted an injunction and ordered DOH to issue licenses. Once DOH appealed that triggered an automatic stay. “We went back to Judge Dodson to lift the stay because people need their meds,” Robbins said. “The judge lifted the stay, but the DOH appealed to the 1st District to reimpose the stay, which the court did.” Briefing is under way.

“Our client wants to operate but is restricted because the statute unconstitutionally creates special classes of companies entitled to licensing. Not only does it arbitrarily cap the number of licenses, it requires that licensees must be fully vertically integrated, meaning companies must cultivate, process and sell medical marijuana. This is inconsistent with what the citizens voted for,” Robbins said. He said this prohibits a company from merely dispensing the product, for example, effectively and unfairly shutting out many businesses.

“The Legislature was charged with providing safe and affordable medical marijuana to patients who need it. All of this was to be in place in 2017. Here we are in 2019 and we still don’t have it,” Robbins said.

While there are 14 companies operating and people can get marijuana, many more potential competitors are blocked from operating.

Clearly, implementation of the law, overwhelmingly approved by Florida voters, has been less than smooth and requires quite a bit more ironing out. The lack of competition hurts businesses and patients alike, critics say. In the meantime there is plenty of confusion for companies ready to provide medical marijuana services in Florida.

Join our webinar on Jan. 25,  when attorneys in the thick of the issue –  Akerman LLP  partners Jonathan S. Robbins  and  Ari H. Gerstin  — will share background, insights and practical guidance.

What we will cover:

  • Background: Federal vs. State Law Conflict
  • History of Medical Marijuana in Florida
  • The 2016 Amendment to the Florida Constitution
  • Implementation of the State Medical Marijuana Program
  • Litigation Over the Constitutionality of the Implementation
  • Practical Considerations When Operating in This Industry
  • Banking and Insurance Issues
  • Ethical Considerations for Attorneys

What you will get:

  • Up-to-the-minute insights from attorneys active in the litigation.
  • Thorough course materials for later reference.
  • Real-time answers to your questions via our moderated chat.
  • The ability to send questions in advance.
  • Continuing legal education credit (CLE)
  • Access for your entire team with a feed into your conference room.
  • No scheduling risk: Suddenly can’t make it? We will send you the recording.

Register by Jan. 18 and save $50.