In order to get into the mind of local officials who are banning medical marijuana dispensaries, it is important to understand the concept of home-rule. The below blog will explore how local officials are using the concept of home-rule to disguise their misguided stigma against marijuana; and will offer a solution to beat the bans by overcoming those stigmas.
Home-rule in Florida
Home-rule is the power of local government to establish its own form of government and to adopt local ordinances without having to obtain permission from the state. Much like the passage of the marijuana constitutional amendment, home-rule was passed as an amendment to the Florida Constitution that was overwhelmingly supported by the voters in 1968. After litigation concerning the breadth of the home-rule constitutional amendment, the Florida legislature, in 1972, enacted the Municipal Home Rules Power Act, which bolstered the importance for deference to local regulations. Since then, local governments have been left to be “labs of experimentation” for different approaches to different complicated issues. This home-rule approach is responsible for Florida being one of the most diverse states in the country – both geographically and culturally. Generally, under the concept of home-rule, municipalities and counties are used to having full authority to regulate zoning and land use within their municipality and county. The Florida legislature takes away this home-rule authority by preempting municipalities and counties relating to issues that require a more uniform approach across the state.
The Marijuana Home-Rule Preemption and the Local Governments’ Reactions
Apparently, the Florida legislature believed that the regulation of the medical marijuana dispensaries was worthy of preemption. Florida Statute Section 381.986 preempts the municipalities and counties with respect to marijuana dispensaries (as well as cultivation and processing) and permits the local governments in Florida to regulate the dispensing of medical marijuana by either: (1) completely banning medical marijuana dispensaries from being located within the municipality or county; or (2) regulating the locations of the medical marijuana dispensaries the same as pharmacies. While the Florida legislature’s intentions relating to this provision may have been pro-marijuana (arguable), a large number of local governments have opted to entirely ban the medical marijuana dispensaries. Other municipalities that did not entirely ban the dispensaries, reacted with moratoriums that created temporary bans and others are using the “wait-and-see” approach by doing nothing while still denying permits. Moreover, out of the municipalities and counties that are allowing medical marijuana dispensaries, some of them are regulating medical marijuana dispensaries differently than pharmacies, which is arguably in violation of the preemption provision in Florida Statute Section 381.986. Some of the provisions you will find in the ordinances of municipalities and counties permitting the medical marijuana dispensaries include: distance requirements, separation requirements, delineation of which districts permit medical marijuana dispensaries, parking space per square foot, security standards, no on-site consumption, proper ventilation, sign restrictions, hours of operation, inspections, a licensing process, a cap on the number permitted, minimum floor area size, drive-through restriction, and many more. So rather than the preemption creating uniformity among the cities (ban or treat like pharmacy), the preemption has created wildly different approaches among the local governments.
Misguided Stigma against Marijuana Disguised by Home-Rule
Home-rule authority is the usual justification local officials provide when voting to ban the dispensaries. While I happen to also be a supporter of home-rule in most contexts, it is entirely inapplicable in the marijuana context. The Florida voters voted by over 70% to treat marijuana like a medicine. A “pharmacy” is basically defined throughout the Florida statutes and ordinances as a location “where medicines are compounded, dispensed, stored, or sold.” The only difference between a pharmacy and a marijuana dispensary is that they must be licensed under different statute sections. So, if a pharmacy is where medicines are dispensed and the Florida voters overwhelmingly voted to have marijuana treated like a medicine, then it only makes sense to treat these locations dispensing such medicine the same way as pharmacies. Both a pharmacy and marijuana dispensary are simply dispensing medicine. This is NOT an instance in which the legislature is stripping the cities of any authority. To the contrary, the cities have an enormous amount of authority to significantly regulate the dispensaries as long as they treat the dispensaries like pharmacies. But this logic falls on deaf ears when you are talking to a local official that does not accept that marijuana is a medicine. If a person is committed to their personal stigma of marijuana not being a medicine, then it makes sense for them to also believe that the marijuana dispensaries should not be treated the same as a pharmacy. Afterall, in their eyes, a pharmacy is where medicine is dispensed; whereas, a marijuana dispensary is where a non-medicinal drug is dispensed. Thus, we must first overcome the stigma of marijuana not being medicinal. Only then will we be able to convince these local officials that the dispensaries should be treated the same as pharmacies.
Deerfield as an Example
The recent ban in Deerfield is a perfect example of the misguided stigma against marijuana being disguised by home-rule. Originally, the Deerfield ordinance permitted medical marijuana dispensaries. Under such ordinance, as of the date of this blog post, Deerfield has approved five dispensaries within their city and two other dispensaries are forthcoming. But, on May 2, 2019, Deerfield’s Planning and Zoning Board approved a motion to amend the ordinance to ban the medical marijuana dispensaries. Subsequently, there were two City Meetings: (1) on May 7, 2019 during which there was the first reading of the proposed ban and the Commission approved a motion to have a second reading on the ban; and (2) on May 21, 2019 during which there was a second reading of the proposed ban and the Commission voted for final approval of the ban, with an amendment to grandfather-in any dispensaries already existing in the City as well as any dispensaries that have filed anything with the City on or before May 21, 2019.
There was probably a total of about fifteen members of the public who spoke at the two meetings, including myself, patients, licensees, and many others. Importantly, not one member of the public was in support of the ban. The members of the Commission also spoke. There were three members of the Commission supporting the ban (Commissioner Hudak, Commissioner Preston, and Vice Mayor Drosky); and two members of the Commission vehemently opposing it (Mayor Ganz and Commissioner Parness). Between all the speakers (both from the public and on the Commission), there was absolutely no examples of any negative impact from any of the existing dispensaries. There was no discussion of noxious smells emanating from these dispensaries, long lines, crime, overdose, or anything like that. Instead, there was statements by Mayor Ganz and Commissioner Parness that confirmed that there has been no increase in crime; the stores are being run very professionally; and you can barely even tell the dispensaries are there when you drive by. Vice Mayor Drosky (a ban-supporter) was very clear that he was voting for the ban because he did not like that the Florida legislature was stripping the city of its home-rule authority. Drosky stated on multiple occasions that the option to treat the dispensaries like a pharmacy was a crappy option. When pressed by Mayor Ganz as to why treating dispensaries like pharmacies was a crappy option, Vice Mayor Drosky consistently avoided the question. Despite the infectious support for marijuana that permeated the entire room at both city meetings, we were not able to break the misguided marijuana stigma that was deeply engrained in the minds of these members of the Commission.
Unfortunately, this story is common throughout local governments in Florida. Rather than local officials objectively voting on the ban as a representative of their constituents, they are voting based on their own personal stigma.
The Formula to Overcome the Stigma against Marijuana
The Florida legislature did not make any changes to the preemption provision in the recent 2019 Legislative Session. So, whether or not you agree with the Florida Statute’s marijuana dispensary preemption is irrelevant (at least, until the next legislative session). Instead, it is incumbent upon the industry to come together to beat the bans by overcoming the stigma against marijuana. There have been several groups forming throughout Florida with the purpose of lifting the bans in the state. One group that has been particularly active in the South Florida area is BocaCann. Below are the steps I believe we must take to overcome the stigma and lift the bans. It is simple yet I believe it will be effective. These are the steps:
- Step 1 – Identify: We must identify which local governments are banning medical marijuana dispensaries.
- Step 2 – Engage: We must engage those local government by calling their local officials, appearing at city meetings, and opening up a dialogue with those local officials.
- Step 3 – Listen: This is probably the most important step. It is easy for the passionate marijuana advocates to jump right into their marijuana-pitch. But, it is important to first listen to the local officials concerns so that you can properly address those concerns in step 4.
- Step 4 – Educate: The MMTC’s in Florida have done a great job designing and securing their stores. The Florida legislature has also put an enormous amount of restrictions on the MMTC’s which ensure that they will not turn into the unregulated “opioid pill mill”. Do not assume that your local officials have any knowledge about any of this. You must educate.
- Step 5 – Keep following-up: These local officials have various issues in front of them every day. Out of sight, out of mind. Make sure you stay in front of them and continue to follow up until you see results.
This will not be an easy task. Like most stigmas, the marijuana stigma is deeply engrained in society. We must work together to overcome the stigma and educate local officials throughout Florida!