FLORIDA’S CANNABIS LAW - A BRIEF HISTORY
By Colin M. Roopnarine
Any discussion on marijuana, medicinal or otherwise, begins with the federal government’s classification that marijuana is a Schedule I substance. This means that the Government through the Controlled Substances Act defines marijuana as follows: 1) a drug with no currently accepted medical use; 2) has the highest potential for abuse; 3) has the potential for severe psychological or physical dependence; and 4) is considered one of the most dangerous drugs of all the schedules. Other Schedule I drugs include heroin, LSD and ecstasy.
Under federal law it is a crime to open, rent, or maintain a place of business for purposes of manufacturing, distributing or dispensing marijuana. The caveat for the remainder of this piece is that “legalization” is in reference to only state law.
In 2014 Florida passed the “Charlotte’s Webb Act” that legalized low-THC marijuana to treat cancer, epilepsy, chronic seizures and chronic muscle spasms. The Legislature tasked the Department of Health (DOH) with promulgating rules to create a license application process growers (producers) and their dispensaries. Five were selected and, after legal challenges, additional ones were added. The following year, the state passed legislation that permitted the use of medical cannabis for patients with a terminal condition.
In 2016 Florida’s residents overwhelmingly voted to pass Amendment 2 to the Florida Constitution, “legalizing” medicinal marijuana for ten listed conditions or others related to the enumerated ten. Under this amendment which became effective on January 3, 2017, the DOH had six months to promulgate rules to implement the amendment, and three months after that to implement the program. The Legislature also passed legislation that clarified the amendment’s language. The DOH has since promulgated rules on a rapid basis to comply with the statutory requirements. The legislation authorized the DOH to license any prior applicant under “Charlotte’s Web” that met certain conditions including whether it had a challenge pending for not previously obtaining a license.
The DOH was also tasked with licensing additional applicants by October 3, 2017, that would result in a total of ten licenses, with three meeting the following criteria – one should be issued to an applicant who is a member of the Black Farmers and Agriculturalists Association – Florida Chapter and a class member in the Pigford case; and, for up to two, preference is given to applicants who can demonstrate participation in the citrus industry, whose facility can be converted to the processing of marijuana. All is not well as there have been lawsuits filed that challenge the constitutionality of the Black Farmers and citrus industry carve-outs (more on that in the coming article).
That said, the DOH issued new rules and a new application form at the end of September, but has not opened the application period for license applications. For now, despite the increasing number of patients, and the delay in processing of patient identification cards by DOH, we wait…
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
December 11 - 2017