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Governor Appeals Florida Judge's Ruling that Medical Marijuana Law is ‘Unconstitutional’

by Kevin Hanlon October 24, 2018

On Friday, October 19, the office of Florida Governor Rick Scott filed a notice to appeal a Tallahassee judge’s ruling that found a 2017 medical marijuana law unconstitutional. 

The Medical Marijuana Amendment was approved on November 8, 2016, by Florida voters, with 71.32% voting in favor of its passing, and subsequently added to the Florida State Constitution. In June 2017, the Florida Legislature enacted Senate Bill No. 8-A (§381.986, Florida Statutes), entitled “An act relating to medical marijuana.” The Bill was the Legislature’s attempt to provide guidance to the Department of Health with regard to the Department’s duties under the 2016 Amendment. Circuit Judge Charles W. Dodson found that the Bill was inconsistent with the Amendment in several ways, and that many aspects of the of the Bill “directly undermine the intent of the Amendment.”shutterstock_257502241

First, the Bill limits the variety of individual medical marijuana treatment centers (MMTCs) provided for in the Amendment by both misinterpreting the constitution’s definition of the term and directly stating the number of licenses that may be distributed in the state. 

The Amendment defines an MMTC as, “[A]n entity that acquires, cultivates, possesses, processes…transfers, transports, sells, distributes, dispenses, or [emphasis added] administers marijuana…” (Art. X, §29(b)(5), Fla. Const.). Whereas Senate Bill No. 8-A states that MMTC licenses are to only be granted to entities that hold, “an active, unrestricted license to cultivate, process, transport, and dispense low-THC cannabis, medical cannabis, and [emphasis added] cannabis delivery devices…”

Judge Dodson wrote in his August 2nd order, “Through its use of “and” rather than “or,” Section 391.986 materially alters, restricts, and contradicts the definition of a MMTC in the Amendment.” The constitution’s definition of MMTCs opens the doors for at least 10 separate categories of business within the marijuana industry, whereas the Senate Bill only allows for vertically integrated business to win licenses.

Additionally, the Bill only allows the state to issue fourteen marijuana business licenses in total. The Amendment, on the other hand, provides for no such limitation, and in contrast, mandates the availability and safe use of medical marijuana by qualifying patients. Dodson explained in his order, “Such limits directly undermine the clear intent of the Amendment, which by its language seeks to prevent arbitrary restrictions on the number of MMTCs authorized to conduct business in the State.” Dodson went on to explain that the Constitution is a limitation on the power of the Legislature, and as such, the Legislature may not enact a statute that limits a right granted under the constitution. In following this reasoning, Dodson concluded that the statute must fall when a statute conflicts with the constitution. 

But if Dodson’s order is allowed to stand, it may throw Florida’s medical marijuana industry and it’s nearly 200,000 patients into chaos, according to Ben Pollara, chairman of a political committee behind the 2016 constitutional rule. He added, “[the appeal] doesn’t change the fact that the governor is going to have to address Dodson’s valid concerns and clean up the mess that the Scott administration has made of Florida’s medical marijuana system.”

The outcome of the case is still very unclear, but it seems to be fair to say that either way, the State will have to open its doors for more marijuana business if they aim to honor their new Amendment. 

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