The topic of marijuana has been a hot debate in recent years and also a front seat driver for political campaigns on both the federal and state level. As the race for Florida Governor is now in full fledge, it will be interesting to watch the positions of each candidate unravel on the topics of both medical and recreational marijuana within the state’s borders. The election for Florida’s next Governor will be held on November 6, 2018, alongside other important elections. Current Governor, Rick Scott, is not a fan favorite in the medical marijuana community, although he once was.
To give a brief background, Governor Rick Scott signed a very limited bill in early 2014 called the Compassionate Medical Cannabis Act of 2014. Then, the people of Florida approved a constitutional amendment in 2016, allowing the use of medical marijuana more broadly. There have been several speedbumps along the road since the legalization of medical marijuana in Florida, spanning from the licensing of Medical Marijuana Treatment Centers (“MMTCs”) to the legislature unconstitutionally banning smokable medical marijuana.
In a 2017 special session, the Florida legislature specifically exempted medical marijuana from sales and use tax. If the sunshine state follows suit, once cannabis is legal recreationally, the state will most likely choose to reap the benefits of additional tax revenue. The next Governor will play a large role in developing the future of Florida’s cannabis industry. It is important to understand most candidates take a hard line stance on either supporting or completely disapproving cannabis, leaving little to no room for meeting in the middle.
In the same 2017 special session, the Florida legislature took it upon itself to ban the sale and use of medical marijuana in the smokable form across the board. The laws passed by the legislature state that the product can only be sold and used in a form for vaping and in food including oils, sprays, and tinctures. The bottom line is, this is not what the people voted for. The original language that the people voted on clearly laid out that private use of smoking products was not banned.
Logically, came lawsuits from unhappy patients and advocates as many have taken the position that the administration of medical marijuana in the smokable form is most effective. The main issue here is if the Constitution allows something then the legislature cannot pass laws that are inconsistent with the Constitution. The legislatures reasoning for outlawing cannabis in smokable form is to protect the public from the adverse effects of it, as it has broad authority to regulate the health, safety, and welfare of the public.
Leon County Circuit Court Judge Karen Gievers recently ruled that the state law prohibiting smokable medical marijuana is unconstitutional. Only ten minutes after the Judge’s decision, the Department of Health (“DOH”) appealed the case to the First District Court of Appeals (“DCA”). The DOH’s appeal caused an automatic stay. However, the Plaintiffs, Florida for Care joined with John Morgan and two patients, filed an appeal of the stay.
On June 6, 2018, Judge Gievers ruled that the stay should be lifted because delaying her ruling any further would create irreparable harm to patients. Further, the Judge pointed out that the stay being lifted returns the law to its previous form the way voters intended it to operate at the time it was voted on. On June 11, 2018 medical marijuana would be smokable in Florida, giving the DOH a few days to finalize rules on the issue.
This came as very positive news for both patients as well as nurseries that cultivate and dispense medical marijuana. However, the DOH then also appealed the Judge’s decision to lift the stay in the First District Court of Appeals. From there, the DCA gave the Plaintiffs 3 days to respond. The Plaintiffs then responded by filing a “Suggestion that the Judgment be Certified as Requiring Immediate Resolution by the Florida Supreme Court.” This gave the DCA the power to send the case straight to the states Supreme Court. The rules of appellate procedure allow the DCA to certify circuit court orders as requiring immediate resolution by the state Supreme Court when the issues “are of great public importance or have a great effect on the proper administration of justice throughout the state.”
On June 26, 2018, the 1st DCA issued a one sentence order rejecting the request to send the case to the state’s Supreme Court. However, the Plaintiffs have indicated they will continue to fight for the right to access smokable medical marijuana in the state. As both sides feel strongly about the issue, regardless of the decision in the First DCA, the losing party will most likely appeal the decision to the state’s Supreme Court.
It will be interesting to follow how the DOH and the legislature handle the effects of these rulings. As the legalization of medical marijuana is fairly new to Florida it has been a trial and error process. The DOH is gearing up to finalize its proposed rules on the next round of licensing Medical Marijuana Treatment Centers, however, it has been slowed down by the whirlwind of lawsuits. If the past is telling of the future, the speedbumps are far from over when both sides are trying to tackle this new area of state law. As procedures are created, modified, and replaced, it is vital for those in the marijuana industry to stay informed and proceed through the licensing process with competent counsel.
About the author: Paula Savchenko is an associate attorney at the Law Offices of Moffa, Sutton, & Donnini, P.A, based in Fort Lauderdale, Florida. Ms. Savchenko joined the firm in 2013 and practices primarily in the areas of Taxation and Administrative Law matters, as she counsels and represents businesses and individuals in their dealings with government agencies. More specifically, most of her work involves tax and regulatory matters, with an emphasis on state and local taxation.
AUTHORITY
The Florida Constitution, Art. X, Section 29
9.125, Florida Rules of Appellate Procedure
ADDITIONAL RESOURCES
WILL MEDICAL MARIJUANA BE SUBJECT TO FLORIDA SALES TAX?, posted on November 9, 2016 by James Sutton, CPA, Esq.