Litigation and Legislation

For those who may not know, even though Florida’s legislature adopted a low-THC medical marijuana statute in 2014, 71.8 percent of Florida voters adopted a constitutional amendment to legalize all medical marijuana (MMJ) in 2016. See, Florida Constitution, Article X, Section 29. Based on the resistance to implementation of the MMJ amendment by Florida’s executive and legislative branches of government, the statutes adopted by the Florida legislature, and the policies and rules adopted by the Florida Department of Health have been the subject of litigation from almost the instant they were enacted or adopted. Currently there are no fewer than five major state appellate decisions pending on the statutes and rules adopted to regulate MMJ; lower state circuit courts have determined the adopted statutes and rules to be unconstitutional in at least two of the more widely publicized cases.

In Florida Department of Health (DOH) v. People United for Medical Marijuana (PUMM), (1st DCA Case #18-2206), the issue is whether a smokeable form of MMJ was authorized by Sec. X, Art. 29. The lower court found that no prohibition on smokeable forms of MMJ was contained in the amendment and that the statute prohibiting the sale or distribution of smokeable forms of MMJ was unconstitutional. Also challenged was the statutory language requiring vertical integration (meaning those issued provider licenses were required to control the product from seed to retail sale) and the statutory limit on the number of licenses that could be granted by DOH. That case is on appeal before Florida’s First District Court of Appeal and oral argument was held on January 8, 2019. Jon Mills, former Speaker of the Florida House of Representatives and President of the University of Florida Law School made the argument against the government on behalf of PUMM.

In Florida Department of Health (DOH) v. Florigrown, et al.,(1st DCA Case #18- 4471), the lower circuit court issued a temporary injunction on October 5, 2018 that invalidated, as being unconstitutional, all statutes and rules adopted by the legislature and DOH to implement the MMJ Amendment. Most importantly, the court issued a mandatory injunction prohibiting the DOH from registering or licensing medical marijuana treatment centers (MMTC) under the current unconstitutional statute and rules, requiring the DOH to begin issuing licenses in accordance with the constitutional amendment by October 19, 2018, and ordered the DOH to register the plaintiff, Florigrown, LLC, as an MMTC by 10/19/18.

Here are the other current pending appeals for MMJ or MMTC related issues in the First District Court of Appeal in Florida:

  • Joe Redner v. DOH, 1st DCA Case #18-1505 (whether MMJ amendment permits home cultivation; lower court ruled in favor of allowing home cultivation where state statute and rules did not provide timely access to MMJ). The oral argument in this case is set for 9:00 a.m. on February 12, 2019;
  • DOH v. Edward Miller & Son, 1st DCA case #18-4110 (challenge to improperly denied license for MMTC—license denied due to scoring system and/or cap on providers, both of which have been deemed unconstitutional by the lower courts). The initial brief has not yet been filed in this case;
  • DOH v. Nature’s Way, 1st DCA Case #18-2929 (challenge to MMTC Emergency Rule and Scoring under 2015 Low-THC MMJ statute methodology). The appeal was dismissed when Nature’s Way reached agreement with DOH and was granted a license. Nature’s Way just sold their holdings on January 4, 2019 for $68 million to Acreage Holdings, Inc., a cannabis corporation listed on the Canadian Stock Exchange; and
  • Florida House of Representatives v. Florigrown, et al, 1st DCA Case #18-4994 (FLA HOR is appealing the November 29, 2018 denial of motion to intervene in Florigrown, et al v. DOH)—Notice of Appeal filed on November 29, 2018—no briefs filed as yet.

(See the pending appeals for MMJ or MMTC related issues mentioned above on the Florida First District Court of Appeal’s website).

The above cases and others that have interpreted Florida’s statute and regulatory scheme to be unconstitutional were appealed by the Governor of Florida at that time, Rick Scott (former Governor Scott was elected as Florida’s newest US Senator in November 2018). Since the filing of these various appeals, Florida elected a new governor, Ron DeSantis, who was sworn in on January 8, 2019.

As part of his new platform, Governor DeSantis decided to hit the ground running with some clear signals to Florida’s legislature and executive agencies regarding the implementation of the MMJ Amendment. DeSantis has stated publicly that he does not have a position on whether MMJ should be smokeable and will dismiss the state’s appeal in the PUMM case if the statute is not amended by the legislature during the upcoming March/April 2019 legislative session (Florida’s legislature only meets two months per year to hammer out a budget of $77 billion). Governor DeSantis has also signaled that some of the other positions the state had taken regarding vertical integration and caps on the number of providers would also be dropped, but has not stated so publicly.

However, despite the incomplete statements of policy from the new governor, on January 17, 2019, a state Senate Bill 372 (SB 372) to authorize smoking marijuana for medicinal use was introduced prior to the beginning of the legislative session on March 5, 2019. On January 22, 2019, House Bill 461(HB 461) and its senate companion Senate Bill 154 (SB 154) were introduced to undo the restrictive legislation requiring vertical integration and limiting the licensing of MMTC’s by creating a medical marijuana retail facility (MMRF). It still remains to be seen whether the new legislation will cure the problems created by the existing statutes and rules.

Applicants for Department of Agriculture Director of Cannabis

Florida’s new Secretary of the Department of Agriculture and Consumer Services, Nikki Fried, created, the position of Director of Cannabis upon her inauguration to “oversee all of the different parts of the medical marijuana program that the Department oversees currently.” Items overseen by the Department currently include processing requirements of marijuana for edible consumption. There are currently 11 applicants for the Director of Cannabis position:

  • Holly Bell, of Nashville, a freelance cannabis and hemp business development consultant.
  • Josephine Cannella-Krehl, of St. George Island, a social worker specializing in hospice care and medical marijuana advocate in the state.
  • W. Steven Edmonds Jr., of Oviedo, a managing member of National Hemp LLC, which focuses on “education, research and import of products made from hemp.” He also managed Libertarian candidate Bill Wohlsifer’s 2014 campaign for Florida Attorney General.
  • Ryan Fingerhut, of Palm Springs, California; a Florida State law school graduate and California lawyer who consults for that state’s cannabis providers.
  • Barry Robert Gainsburg, of Plantation, a lawyer who specializes in “guidance on all cannabis industry legal issues,” including edible products and dispensaries.
  • Daniel Parker, of Tallahassee, a program coordinator for the Florida Fish and Wildlife Conservation Commission.
  • Cole Peacock, of Fort Myers, who describes himself as “a change agent for corporations,” advising on branding, growth and “social responsibility” strategies.
  • David Phillips, of Tampa, a real estate agent and former Hooters restaurant manager.
  • Joseph Rosado, of DeLand, medical director of Coastal Wellness Center in Ormond Beach. He oversees “medical cannabis recommendations” there.
  • Daniel Sparks, of Oakland Park, director of government affairs for BioTrackTHC, a cannabis tracking and compliance software company based in Fort Lauderdale.
  • Eric Stevens, of Miami Beach, a cannabis policy researcher and managing director of Florida for Care, the nonprofit founded in 2014 “to advocate for the implementation of a strong, well-regulated, medical marijuana system under Amendment 2.”

Secretary Fried is also moving swiftly to implement hemp rules stating that new leadership “also means a full movement forward to instituting hemp here in our state and moving forward on a rulemaking process in accordance with the Farm Bill that was passed and signed in 2018.”