FLORIDA’S CANNABIS LAW - Lawsuits Generated by Amendment 2
For this article, the focus is on the major lawsuits that have been filed challenging various aspects of the legislation that implemented Amendment 2, the “Medical Marijuana Amendment.”
Part of the statute implementing Amendment 2 states, “As soon as practicable, but no later than October 3, 2017, the department shall license one applicant that is a recognized class member of Pigford v. Glickman, 185 F.R.D. 82 (D.D.C. 1999), and In Re: Black Farmers Litig., 856 F. Supp. 2d 1 (D.D.C. 2011) and is a member of the Black Farmers and Agriculturalists Association – Florida Chapter. [1] (Emphasis added).
On September 22, 2017, a complaint was filed in the Second Judicial Circuit in and for Leon County, in the matter of Columbus Smith v. Florida Department of Health, Case No. 2017-CA-1972. Columbus Smith is a black farmer who is a recognized class member of the aforementioned cases but who is not a member of the Black Farmers and Agriculturalists Association – Florida Chapter (BFAA).[2] This is significant because per the Florida Statutes, the Department of Health (Department) is mandated to license one applicant who meets both of these criteria. Mr. Smith alleges that he and other African-American farmers are impermissibly excluded from participating in attempting to obtain a medical marijuana treatment center (“MMTC”) license under this particular language. Mr. Smith seeks to have the section: 1) deemed an impermissible special law as it grants a privilege to a private corporation – the BFAA; 2) deemed unconstitutional because it creates an impermissible classification of applicants/licensees, is an improperly enacted special law and is an unlawful exercise of the state’s police powers (by serving a private versus a public interest); and 3) that the department be enjoined from issuing a license under this particular section. On December 28, Leon County Circuit Judge Charles Dodson granted a temporary injunction in the case.
Similar to the Smith case, in Tropiflora, LLC v. Florida Department of Health, Office of Compassionate Use, Case No. 2017-CA-2249, Tropiflora sued the department under the premise that a portion of the statute is an impermissible law, creates an impermissible classification, is an unlawful exercise of the state’s police power, and ultimately requests that the department be enjoined from issuing licenses under this particular section. This particular section states, “For up to two of the licenses issued…, the department shall give preference to applicants that demonstrate in their applications that they own one or more facilities that are, or were, used for the canning, concentrating, or otherwise processing of citrus fruit or citrus molasses and will use or convey the facility or facilities for the processing of marijuana.” The department has denied all allegations and the matter has not been scheduled for hearing.
The filing of these two lawsuits appears to have created a chilling effect on the department as it has refused to move the licensing process forward for fear that if portions of the statute are found unconstitutional, then the entire law may be struck down, and any new licensees would have entered the process in vain. Admittedly the department is in a precarious situation balancing the statutory mandate and a possible ruling that could strike portions or more unlikely, the entire statute.
Another suit, Bill’s Nursery, Inc. and Michael Bowen v. Florida Department of Health, et al., Case No. 2017-CA-2411, alleges that in failing to license additional MMTCs by October 3, 2017, as mandated by the Legislature, the department is in violation of Florida Law and should be made to proceed with the licensing of the additional MMTCs.[3] This matter has not yet been scheduled for hearing.
Finally, in People United for Medical Marijuana, Inc. v. State of Florida, Department of Health, et al., Case No. 2017-CA-1394, the department is being sued for prohibiting the use of medical marijuana in a form for smoking. The department has since filed a motion to dismiss the action, which is scheduled to be heard on January 25, 2018, in Leon County.
Colin M. Roopnarine is a partner on Berger Singerman’s Government and Regulatory Team who focuses his practice on administrative law. Roopnarine can be reached at croopnarine@bergersingerman.com www.bergersingerman.com
[1] Both cases involved lawsuits that asserted the U. S. Department of Agriculture had routinely discriminated against African-American farmers on the basis of race, and in violation of the United States Constitution. The matter was subsequently settled for approximately $1.2 billion.
[2] The BFAA denied membership to Mr. Smith because it is no longer accepting new members.
[3] Michael Bowen is an individual who relies on medical marijuana to prevent and treat epileptic seizures.