Medical Marijuana: More Moratoriums To Come

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By Vijay S. Choksi, Esquire – Kelley Kronenberg, P.A.

During June’s Florida Special Session, the Florida Legislature passed, and Governor Rick Scott signed Senate Bill 8A (“SB-8A”). The passage of SB-8A was necessitated by the legislature’s failure to reach a compromise over the number of marijuana licenses issued by the state. Under SB-8A each Medical Marijuana Treatment Center (“MMTC”) may open up to 25 dispensing facilities, with options to sell or acquire additional dispensing facilities, over the pre-set cap of 25, from other MMTC license holders.1  As of November 2017, The Florida Department of Health has issued 13 MMTC licenses,2 with room to issue 4 more, equating to a total of 17 MMTC license holders throughout the state.

Additionally, the state will have the authorization to increase the pre-set cap on dispensing facilities by 5, for every 100,000 active registered qualified patients on the Medical Marijuana Use Registry. 3  Theoretically, a total of 425 dispensing facilities could manifest in and around the sunshine state, and that number could rise 48.2% to 630 once the patient count reaches 100,000, which is likely to happen sometime in 2018 – if current trajectories continue.

SB-8A allows local governments to ban medical marijuana dispensing facilities altogether. Local governments opting not to ban dispensing facilities are prohibited from placing zoning restrictions on the number of dispensing facilities permitted and may not adopt any regulations for dispensing facilities that are more restrictive than its ordinances regulating pharmacies.4  This “all or nothing” approach poses problems for local governments seeking to restrict the location and operational hours of dispensing facilities within its boundaries. For cities and municipalities, the question on how to handle medical marijuana dispensing facilities becomes hazy. Officials supporting a ban often cite concerns over children, schools and the potential increase in crime due to the fact that the majority of dispensaries operate as cash-only businesses. Undoubtedly so, some local governments fear the risk of the unknown and as a result, have decided to sit ideally by while voter frustrations mount. Other local governments have decided to meet the will of the voters by allowing dispensing facilities to operate or at the very least made announcements that they will be drafting regulations.

Winter 2017 News Inside This Issue: Exclusive Article: WHAT HAPPENED?!? Five Reasons Why Your Sexual Harassment Training Isn’t Working ……. 3 Welcome New Preferred Members ………….. 5 Special Article: Game Changer? A Boost to Qualified Immunity ………………………. 6 Special Announcements … 8 Holiday Greeting ………….. 10 Breaktime Fun -n- Games ……………….. 11 Medical Marijuana: More Moratoriums To Come By Vijay S. Choksi, Esquire – Kelley Kronenberg, P.A. During June’s Florida Special Session, the Florida Legislature passed, and Governor Rick Scott signed Senate Bill 8A (“SB-8A”). The passage of SB-8A was necessitated by the legislature’s failure to reach a compromise over the number of marijuana licenses issued by the state. Under SB-8A each Medical Marijuana Treatment Center (“MMTC”) may open up to 25 dispensing facilities, with options to sell or acquire additional dispensing facilities, over the pre-set cap of 25, from other MMTC license holders.1  As of November 2017, The Florida Department of Health has issued 13 MMTC licenses,2 with room to issue 4 more, equating to a total of 17 MMTC license holders throughout the state. Additionally, the state will have the authorization to increase the pre-set cap on dispensing facilities by 5, for every 100,000 active registered qualified patients on the Medical Marijuana Use Registry. 3  Theoretically, a total of 425 dispensing facilities could manifest in and around the sunshine state, and that number could rise 48.2% to 630 once the patient count reaches 100,000, which is likely to happen sometime in 2018 – if current trajectories continue. SB-8A allows local governments to ban medical marijuana dispensing facilities altogether. Local governments opting not to ban dispensing facilities are prohibited from placing zoning restrictions on the number of dispensing facilities permitted and may not adopt any regulations for dispensing facilities that are more restrictive than its ordinances regulating pharmacies.4  This “all or nothing” approach poses problems for local governments seeking to restrict the location and operational hours of dispensing facilities within its boundaries. For cities and municipalities, the question on how to handle medical marijuana dispensing facilities becomes hazy. Officials supporting a ban often cite concerns over children, schools and the potential increase in crime due to the fact that the majority of dispensaries operate as cash-only businesses. Undoubtedly so, some local governments fear the risk of the unknown and as a result, have decided to sit ideally by while voter frustrations mount. Other local governments have decided to meet the will of the voters by allowing dispensing facilities to operate or at the very least made announcements that they will be drafting regulations. 

With a variety of options at a local government’s disposal, the question becomes what option allows for a smooth transition into the emergence of dispensing facilities while balancing the voice of Florida’s 71.3% populous who voted for Amendment 2. 5  Some cities like Coral Gables have decided early on to ban medical marijuana dispensing facilities until they are allowed under federal law, but after careful deliberation Coral Gables officials have distanced themselves from their previous stance of a total ban and instead are working on additional regulations on pharmacies, which would thereby regulate dispensing facilities and would aid in allowing Coral Gables’ officials in having some sort of control over where dispensing facilities are located and how many and how far apart they are. Most cities and counties do not have special regulations regarding pharmacies, but rather treat pharmacies like other retail, or light-commercial, businesses.

The economic impact on communities that allow for dispensing facilities is often overlooked by local governments and should be taken into account when deciding what regulations and ordinances to implement. An increase in economic opportunity for communities that allow for dispensing facilities should be expected, and equally an increase in consumer traffic to the areas’ surrounding businesses. Conversely, local governments opting to strictly regulate dispensing facilities out of existence may see a decline in the business opportunity to those surrounding areas. As such, it is essential for local governments to start deliberating and creating common-sense initiatives that allow for the healthy growth of dispensing facilities within its boundaries or at least plan on putting in place proper moratoriums until the crime data and financial statistics from operational dispensing facilities come on-line.

The concern over dispensing facilities increasing levels of crime may be attributed to the Nixon-era playbook of marijuana disinformation. The pot-dystopia that comes to mind when mentioning marijuana “head shops” is unfounded because Florida has enacted regulations that dictate the operation of dispensing facilities akin to medicinal clinics. The view inside a Florida dispensing facility is not shrouded in red eyes and “stoner” memorabilia but instead looks more like sanitary modern physician offices and rightfully so. As the only individuals legally allowed to obtain marijuana are those who are deemed as, “qualified patients” by state “certified physicians.”6   Some residents have even gone so far as to compare the look and feel inside a Florida dispensing facility to that of Apple® retail stores. Most would be hard-pressed to find dispensing facilities draped with bright neon green flashing lights as Florida has preemptively regulated the colors and signage of dispensing facilities and even went as far as regulating the advertisement and the packaging of the medical marijuana product as means to safeguard against MMTCs indirectly appealing to children. Nonetheless, cities have been cautious to move forward based out of fear of the unknown.

Many cities and municipalities have elected to put in place moratoriums, thereby conceptually “kicking the can down the road,” while other cities have decided to regulate dispensing facilities out of existence vis-à-vis strictly regulating new pharmacies out of existence through zoning and the business licensure process. Some cities and municipalities have even gone opposite of the Floridian populous intent by banning marijuana dispensaries altogether, which is permissible under SB-8A. However, given the vast array of support of marijuana in Florida, an all-out ban would likely be unpopular with a local community. In any case, it is also important to note that a total ban on medical marijuana dispensing facilities does not bar a patient’s access to the medical marijuana because Florida law mandates that all MMTC license holders who dispense marijuana must be able to provide delivery options to consumers – including consumers living in municipalities, cities, and regions that have banned marijuana sales completely. Therefore, consumers are afforded the option to have their medicine delivered to them by any and all of the MMTC license holders.

When deciding to issue a moratorium, a complete-ban or pharmacy zoning and business licensure regulations, one constant remains, medical marijuana is here to stay, and local governments would be wise to plan for the eventual emergence of dispensing facilities within its boundaries and must plan their agenda accordingly. For questions or more information about the possible legal implications of implementing MMTC regulations and ordinances, contact Vijay S. Choksi, Esq. at [email protected] or (561) 324-8348, Regulated Substances Practice Group Attorney at Kelley Kronenberg, P.A.

1. SB-8A Fla. Stat. 381.986

2. Aphria; Curaleaf; GrowHealthy; Keith St. Germain; Nursery Farms; Knox Medical; Loop’s Nursery & Greenhouses, Inc.; Plants of Ruskin, Inc.; Sunbulb Company, Inc.; Surterra Therapeutics; The Green Solution; Treadwell Nursery; Trulieve; and 3 Boys Farm.

3. 54,251 patients in the MMUR registry as of November 21, 2017.

4. Fla. Stat. 381.986 (11)(b)(2).

5. 71.3% of Floridians voted for Amendment 2 on November 8, 2016. https://results.elections.myflorida.com/Index.asp?ElectionDate=11/8/2016&DATAMODE

6. (10) § 381.986 (4) (a), Fla. Stat.: All physicians must successfully complete the 2-hour CME course and the subsequent certification examination before ordering low-THC cannabis and medical cannabis. The 2-hour course and examination must be taken once every two years (prior to renewal of the physician’s license to practice medicine).

 

Vijay Choksi is a leading expert on Florida marijuana issues and is an Associate at the law firm of Kelley Kronenberg, P.A. in the firm’s Fort Lauderdale office. He focuses his practice on Civil Litigation and Business Transactions and is a key member of the firm’s Regulated Substances Practice Group. Prior to joining the firm Vijay gained experience in The Florida Senate, by virtue of his selection as a UCF Legislative Scholar. Vijay was able to witness the transition of public policy as it relates to medicinal cannabis and continues to passionately follow the legislative rule-making process surrounding cannabis across the State of Florida and United States. Mr. Choksi has been featured in the South Florida Hospital News, Sun-Sentinel, the South Florida Business Journal, and other prominent publications. He is also a frequent speaker at marijuana -based seminars, and other professional conferences