On January 2, 2019, Circuit Court Judge Karen Gievers started the new year off by invalidating the 2017 law regulating medical marijuana in Florida. Judge Gievers ruled the implementing law conflicts with the state constitution and the will of the people that voted to approve Amendment 2 in 2016. Judge Gievers is now the second circuit judge to strike down the statute, following the October 2017 ruling of fellow Circuit Judge Charles Dodson. This week, Florida’s newly elected Governor will be sworn in. Indications are that this administration will not continue the fight to protect the 2017 law with the same vigor as the Scott administration. Add to that, newly elected Commissioner of Agriculture Nikki Fried who comes from the cannabis industry and is a staunch proponent of patient access to medical marijuana.
Florida’s Constitution Controls – The Current Statute is Unconstitutional
Judge Gievers’ ruling includes a basic description of the tenants of constitutional law, all setting up her determination that Florida’s voters “overwhelmingly approved adding medical marijuana access to the Florida Constitution.” (https://cloudup.com/cHTm2Vfq8SB) And in the case of any conflict or inconsistency with state law, “the Constitution controls.”
Further, Judge Gievers points out that Amendment 2 is clear in stating that the legislature is to have no role in implementing access to and the availability of medical marijuana. The voter approved amendment to the Florida constitution includes language prohibiting the legislature from enacting any provision inconsistent with the unlimited access system, as described in the amendment.
Florida’s 2016 Constitutional Amendment 2 contains a section titled “Duties of the Department”, which stresses its obligation “to ensure the availability and safe use of medical marijuana by qualifying patients.” The Amendment language also contains procedures for issuance and renewal of patient ID cards, qualifications and standards for caregivers, procedures for registration of Medical Marijuana Treatment Centers, and terms defining the amount of marijuana reasonably presumed to be sufficient for a patients’ necessary medical use. Further, the Amendment directs the Department to begin issuance of patient and caregiver ID cards and to begin registering treatment centers no later than 9 months after the effective date.
Florida’s Medical Marijuana Statute
As Judge Gievers points out, instead of complying with the language of Amendment 2, the legislature revised a previous regulating statute from 2014 and 2016. The revisions attempted “to create a completely separate intact system” according to Judge Gievers. “In doing so, the legislature ignored the citizens’ instructions.” Among other things, the revised statute contains provisions instructing the regulatory actions of the State’s Department of Health. Many of these provisions are not part of the Amendment 2 language, and are inconsistent with its mandated direction.
Florida’s Unconstitutional Medical Marijuana Licensing Scheme
Rather than creating and implementing the appropriate registrations, as called for in the Amendment, Judge Gievers states in her ruling that the statute creates a “licensing scheme” that divides the state into regions and caps the number of treatment centers, not as a way to register them, but rather as a way to reach the “lower standard of ensuring ‘reasonable statewide accessibility and availability as necessary’”. This scheme encumbers possible treatment centers with possible Department rules and procedures regarding their financial stability and restricting the voter-mandated access to treatment centers to a “capped number”. Further, the 2017 statute, rules Judge Gievers, creates an artificially restricted number of treatment centers through 2020, which would be more than 3 years after Florida’s voters approved Amendment 2.
Trulieve Challenges Florida’s Medical Marijuana Statute
George Hackney, Inc., known better as Trulieve, operates 14 dispensing locations in Florida and challenged Florida’s medical marijuana statute’s cap of 25 treatment centers as violative of the 2016 Constitutional Amendment (Amendment 2). In part, Trulieve argued that its locations in existence under the pre-Amendment 2 legislation should be “grandfathered” in and that the 25 cap on treatment centers is unconstitutional. The Department countered that Trulieve has no vested rights as a dispensing organization and that the licensing scheme and cap are only temporary, as they only reach to 2020.
Judge Gievers: Florida’s Statute Unconstitutional
In her brief explanation, Judge Gievers states that while the 2017 legislative decision to replace the previously created “Dispensing Organizations” with treatment centers may have been acceptable, the enactment of Amendment 2 now prevents such a concept. While property rights may not be vested in perpetuity because legislative programs can change going forward, property rights may not be adversely impacted substantively on a retroactive basis.
Judge Gievers went on to say that Amendment 2 “was, and remains, a ‘game changer’” which the Department and legislature are obligated to comply. Judge Gievers goes on to say,
“Regrettably, they have not complied, ignoring the citizens’ clear mandate and the FACT that compliance with The Constitutional Medical Marijuana Amendment is mandatory, not merely a citizen suggestion or request.”
Closing her ruling with very clear language, Judge Gievers states that Trulieve is entitled to register and operate as many medical marijuana treatment centers as it wishes – and it should be similarly treated as if it were a “CVS, Rite-Aid and Walgreens”. Being about as direct as any judge could be, Judge Gievers rules that the Departments reliance on the unconstitutional 2017 statute is ineffective and that “The medical marijuana system was broken. In the Constitution, the voters have spoken.”
With now two separate circuit court judges ruling against the State of Florida Department of Health and finding that Florida’s medical marijuana statute is unconstitutional, the writing is on the wall for the new administrations being sworn in this week in Tallahassee. The courts have recognized the voice of Florida’s voters in amending its constitution and the efforts of the legislature to contradict those voices. It is expected that Governor DeSantis will not take the same hard-line approach to regulating medical marijuana as the previous administration. And with an outspoken proponent of medical marijuana (and hemp production) in Nikki Fried as the Commissioner of Agriculture and Consumer Services, Florida’s voters, businesses and local governments should pay close attention to this year’s legislative session. Those of us here at Jimerson Birr will also keep a close eye on this and keep you all apprised of any developments.