This is an interview between Montel Williams and Founding Partner – Dustin Robinson – on Let’s Be Blunt! Montel and Dustin discuss cannabis real estate transactions, cannabis trademarks, cannabis corporate transactions, 2018 Farm Bill, USDA interim rules, FDA regulations, cannabis employment law issues, upcoming changes to the cannabis industry, probable cause, and much more!
As a Florida cannabis attorney who has worked on social equity applications in other states, I have seen the good and the bad of social equity programs and am hopeful that Florida can learn from the mistakes and the successes of other states. Florida currently has four provisions that arguably provide for social equity in the marijuana industry: (1) reserving one of the ten licenses that were supposed to be available in 2017 for a black farmer that was a class member of Pigford v. Glickman 185 F.R.D 82 (D.D.C. 1999); (2) requiring applicants to have strong diversity plans; (3) requiring applicants’ management, ownership, and employment to reflect an involvement of minorities and veterans (a similar provision is included in SB210, a bill recently proposed by Senator Thurston); and (4) allocating $10 of the identification card fee to the Division of Research at Florida Agricultural and Mechanical University for the purpose of educating minorities about marijuana for medical use and the impact of the unlawful use of marijuana on minority communities. While each of these provisions are steps in the right direction, all of these provisions (individually and collectively) fall far short of fulfilling any social equity purpose.
DEFINING THE PURPOSE OF A SOCIAL EQUITY PROGRAM
In order for any program to be successful, it is important to first define what exactly the program sets out to achieve: the purpose or the goal. Rather than me providing my personal opinion (which I couldn’t help but to do at the end of this section), let’s look at what some other states provide as their purpose or goal:
As seen above, the common theme for most Social Equity Programs is the goal of repairing the damage caused by prior cannabis criminalization that had long term, adverse effects on low income and minority communities. Unfortunately, Florida’s laws are devoid of any clearly stated purpose. As a result, we are left with spotty provisions that do not fulfil a broader, clearer purpose. For example, while the Pigford preference certainly rights-the-wrong of previous discrimination to one black farmer, it has nothing to do with helping those adversely impacted by cannabis criminalization and it is extremely underinclusive of the rest of the minority and veteran population.
My recommendation is that we add the following provision to our Florida Statutes: “Florida Statute Section 381.986 hereby establishes a Social Equity Program with a goal to achieve equity in ownership, management, employment, opportunity, and accessibility in the cannabis industry to minorities and others adversely impacted by the enforcement of drug-related laws in this State, as well as to veterans.” This type of clear and concise statement in the Florida Statutes would set a tone for equality and would breathe life into the substantive social equity provisions to follow.
ALLOCATING SPECIFIC POINTS FOR SPECIFIC CRITERIA
The Illinois Cannabis Regulation and Tax Act explicitly provides that an applicant receives 50 points out of the 250 available points for qualifying as a Social Equity Applicant, which is determined on a binary basis. In other words, a Social Equity Applicant automatically receives 20% of the available points simply for qualifying as a Social Equity Applicant. This means that it is practically impossible for an applicant to be awarded a license if such applicant is not a Social Equity Applicant. As a result, I predict that nearly every application submitted for an Illinois Conditional Adult Dispensary Organization License on January 2, 2020 will be a Social Equity Application, which will practically guarantee that some sort of social justice will be served.
In a way, the Pigford preference at least guarantees that there will be one minority applicant that wins a Florida license. But, as for the remaining Florida licenses and the remaining minorities, the requirements in Florida Statute Section 381.986 of a diversity plan and involvement of minorities and veterans are too general to ensure that minorities and veterans will have the opportunity to be owners, managers, and leaders of Florida marijuana businesses. Experienced cannabis-application-drafters will be able to draft applications satisfying such general criteria while knowing that the OMMU will likely have too few resources to actually enforce compliance to such criteria once a license is awarded.
Instead, Florida law should allocate specific points for achieving specific criteria. For example, Florida law could provide X% of the points for applicants that have 10 full-time employees that have been adversely impacted by cannabis criminalization or are veterans. To qualify, the employee would need to either (1) reside in a “disproportionately impacted area” (to be defined by certain criteria demonstrating a certain poverty level or unemployment rate); (2) have been arrested for, convicted, of, or adjudicated delinquent for a minor marijuana-related offense; or (3) be a veteran with a DD Form 214. This is extremely similar to the Social Equity criteria provided in the Illinois Cannabis Regulation and Tax Act with a few tweaks for my veteran buddies. By having specific points for achieving specific criteria, Florida would be providing a clear pathway for success for veterans, minorities, and others adversely impacted by the cannabis criminalization.
OWNERSHIP/CONTROL AND VARIANCES – THE MONEY CHALLENGE
The application process for marijuana licenses is extremely competitive. The applications can be thousands of pages; and you need to hire an attorney that has a strong understanding of navigating the laws and department rules. Consequently, applying for a license can range from $100,000 to $500,000; and, even after spending that money, there is no guarantee that you will be awarded a license. Do social equity applicants have that kind of money with which to gamble? Of course not! Unless the State of Florida decides to provide state-issued loans to Social Equity Applicants, the Social Equity Applicant will need to partner with someone with the capital; and will also need to build a team to bring in the cannabis expertise.
This is how it typically works:
While the Social Equity Applicant may have ownership and control, the partner financing the application will surely want covenants under Loan Documents; options under the Buy-Sell Agreement; and/or some sort of management fee through a Management Agreement.
Just to be clear: there is nothing illegal or even improper about the above scenario. In any industry, the person or entity putting up the money is going to want to have protections through options, covenants, warrants, profit-sharing, or other provisions. Indeed, such a person or entity would not put up the money if they were not able to get such protections. Afterall, would you finance a $500,000 application if you were not able to ask for equity or have a loan that allows you to foreclose on the license in the event of default? Absolutely not! As long as the applicant is honest in the application and discloses everything requested, there is nothing wrong with protecting an investor’s investment.
The money-challenge doesn’t end with the application. Once a Social Equity Applicant or Pigford Applicant is awarded a license, they now need to operate the license. In Florida, with the vertically integrated structure, the applicant will need about $20,000,000 to make it operational. Do Social Equity Applicants adversely impacted by cannabis criminalization have that kind of money? No! So now the Social Equity Applicant or Pigford Applicant is forced to either sell the license or raise debt or equity to finance the operation. This comes with additional legal documents that include options, covenants, warrants, preferential distributions, profits-interest, and other provisions that will significantly restrict the Social Equity Applicants ownership and control. On the one hand, the stated purpose of the Social Equity Program is not served if the Social Equity Applicant is allowed to simply sell his/her license. But, on the other hand, without allowing for transfer of interest or raising of debt, the Social Equity Applicant or Pigford Applicant is left with a license that cannot become operational due to lack of financing. This begs the question of what type of variances will be allowed by the Department after a license is awarded.
Thus, it is imperative that the legislature: (1) clearly establishes what type of loan/equity/control arrangements are permissible for Social Equity Applicants (perhaps even provides state financing for Social Equity Applicants); (2) requires documentation of such arrangements during the application process; and (3) establishes a variance standard that balances the goal of the Social Equity Program with the realistic financial needs of a Social Equity Applicant.
CONCLUSION – IF WE CAN DREAM IT, THEN WE CAN MAKE IT HAPPEN
This is not an exhaustive list of issues and solutions for a Social Equity Program. That would take way too long and I need to get back to drafting an Illinois Social Equity Application. But this article hopefully provokes thought and productive discussions during this legislative session; and perhaps, if we can dream it, then we can make it happen!
With the tremendous growth in CBD demand, my phone has been ringing non-stop with calls from different business-owners looking to cash in while also remaining compliant with the law. But there is one group of businesses in particular that do not have clear legal guidance on how to legally sell CBD products in Florida: non-packaged food suppliers.
Florida Statute Section 581.217, effective June 2019, delegates authority to the Florida Department of Agriculture and Consumer Services (“FDACS”) to create a framework for legally growing, processing, and selling hemp-derived products. Pursuant to that authority, FDACS has taken a position in the Proposed Hemp Rules that is contrary to federal law by allowing food establishments to sell CBD-infused foods. While FDACS has broad authority with respect to the hemp program, there are certain provisions in Florida Statute Section 581.217 that put certain limitations on FDACS’s authority. The provision that has received the most attention is the requirement in Florida Statute Section 581.217 that a grower “only use hemp seeds and cultivars certified by a certifying agency or a university conducting an industrial hemp pilot project.” FDACS has openly expressed its frustration with not being able to draft a hemp seed program that does not require certified seed from a certifying agency; with only 10 companies in the country selling certified seed, this legislative overreach will undoubtedly be a huge obstacle for the Florida hemp industry.
However, an issue that has received much less attention is the requirement in Florida Statute Section 581.217 that any hemp extract sold in Florida be “distributed or sold in packaging” (emphasis added). Florida Administrative Rule 5k-4 explicitly adopts the Federal Code relating to Food and Drugs. The Federal Code defines “packaged” as follows:
“(1) ‘Packaged’ means bottled, canned, cartoned, bagged, or wrapped, whether PACKAGED in a FOOD ESTABLISHMENT or a FOOD PROCESSING PLANT.
(2) ‘Packaged’ does not include wrapped or placed in a carry-out container to protect the FOOD during service or delivery to the CONSUMER, by a FOOD EMPLOYEE, upon CONSUMER request.”
So, under Florida Statute Section 581.217, it appears that food establishments are not allowed to sell non-packaged cbd-infused food products. When I called FDACS several weeks ago, I was surprised to hear that I am pretty much the only individual asking for guidance regarding this issue. This leads me to believe that restaurants, coffee shops, and other non-packaged food suppliers are simply unaware or ignoring the Florida Statute (not to mention being out of compliance with FDA law). Through my numerous calls with FDACS, FDACS has confirmed that coffee shops planning to sell non-packaged cbd-infused coffee and restaurants planning to sell non-packaged cbd-infused meals will need to take the appropriate steps to remain compliant. My correspondence with the Florida Department of Business and Professional Regulation (“DBPR”), the agency responsible for regulating restaurants and temporary events, also confirmed that restaurants planning to sell cbd-infused food and temporary events planning to sell cbd-infused food will need to take the appropriate steps to remain compliant.
To assist with a compliant footprint for non-packaged cbd-infused food suppliers, I have partnered with my client Regulated Solutions, which is a company that specializes in throwing events with legal on-site cannabis consumption in states that allow it. With Regulated Solutions’ long history of throwing huge events where legal cannabis consumption was taking place and with my knowledge of the cannabis law, we are creating some creative SOP’s and strategies that non-packaged food suppliers can implement to remain as compliant as possible with state law.
Unfortunately, these SOP’s and strategies are not bullet-proof; and the only way a non-packaged cbd-infused supplier can be 100% confident that they are compliant with state law is through an amendment to Florida Statute Section 581.217 in the next legislative session. For all of you non-packaged food suppliers, I implore you to let your voice be heard at the next legislative session so that we can have clear guidance to keep you compliant. While the packaging requirement may not be as important as the certified seed requirement, both issues are extremely ripe for a legislative revision!
One of the most profitable parts of the hemp supply-chain is processing hemp for CBD. Setting up a hemp processing facility requires significant capital, significant time, and significant expertise. It also requires running trial batches to ensure that your production is running properly. So, you can imagine that companies planning to process hemp for CBD in Florida are anxious for the Florida Department of Agriculture and Consumer Services (“FDACS”) to finalize Florida’s hemp rules so that such companies can obtain permits to legally run their trial batches as well as sell the hemp extract. But does a processor in Florida really need to wait for the Florida hemp rules to be finalized in order to start processing hemp in Florida? Possibly not!
Cultivation of Hemp in Florida is Not Legal Unless Done Pursuant to Florida’s Pilot Program.
The 2018 Farm Bill, as clarified by the USDA in a memo published on May 28, 2019, provides that hemp may be grown only (1) with a valid USDA-issued license, (2) under a USDA-approved State or Tribal Plan, or (3) under the 2014 Farm Bill industrial hemp pilot authority. Florida Statute Section 581.217(5)(a) provides that it is “unlawful for a person to cultivate hemp in this state without a license issued by the department.” As of the date of writing this blog, Florida has not submitted its plan to the USDA; and Florida has not issued any hemp cultivation licenses. Thus, cultivation of hemp in Florida is illegal both federally and from a state perspective assuming it is not done pursuant to Florida’s Pilot Program. Currently, UF and FAMU are the only authorized growers under Florida’s Pilot Program; and both UF and FAMU are not currently selling their biomass to private businesses to process. So, any hemp to be processed in Florida today would need to be cultivated in another state and transported into Florida.
Transporting Hemp Biomass into Florida is Most Likely Legal.
The 2018 Farm Bill, as clarified by the USDA in a memo published on May 28, 2019, preempts states from prohibiting interstate transportation of hemp lawfully produced under the 2014 Farm Bill or the 2018 Farm Bill. Consistent with such preemption, the Florida Statutes do not put any restrictions on transporting hemp biomass into Florida that was lawfully produced under the 2014 Farm Bill or the 2018 Farm Bill. Thus, transporting hemp into Florida is most likely legal from a federal and state perspective as long as such hemp was lawfully produced under the 2014 Farm Bill or the 2018 Farm Bill. Of course, you should certainly consult an attorney prior to transporting hemp into the state of Florida as there is certain documentation required as well as other compliance matters related to interstate transportation of hemp.
Cultivation of Hemp in Some Other States is Legal.
As of the date of writing this blog, the USDA has not approved any state hemp plans pursuant to the 2018 Farm Bill. Thus, technically there are no farmers lawfully cultivating hemp under the 2018 Farm Bill. There are, however, thousands of farmers in other states lawfully growing hemp under their respective state’s 2014 Farm Bill pilot program. Thus, it is legal for a Florida processor to transport hemp from another state as long as such hemp has been lawfully cultivated pursuant to such state’s 2014 Farm Bill pilot program. Of course, you should certainly consult an attorney to ensure that such supplier has all the necessary licenses and is in full compliance with its state’s pilot program.
Processing Hemp Today in Florida is Most Likely Legal as Long as (1) the Hemp Being Processed was Lawfully Produced in Another State; and (2) it Complies with All Other Federal, State, and Local Laws.
The 2018 Farm Bill and the Florida Statutes are silent as to whether a permit or license is required to process hemp. While FDACS has published Revised Draft Rules requiring certain permits for hemp processors (ie Hemp Food Establishment Permit), such rules have not been finalized and are therefore not binding. Thus, processing hemp in Florida today is most likely not illegal from a federal and state perspective as long as (1) the hemp being processed was lawfully produced under the 2014 Farm Bill or the 2018 Farm Bill; and (2) it complies with all other federal, state, and local laws.
You Must Still Make Sure You Comply with other Federal, State, and Local Laws.
The 2018 Farm Bill preserved the FDA’s authority to regulate products containing cannabis or cannabis-derived compounds (ie CBD) under the FD&C Act and Section 351 of the Public Health Service Act. Also, the 2018 Farm Bill did not preempt states and local governments from regulating issues generally reserved to states and municipalities, such as, food permitting, health concerns, zoning issues, safety issues, and many other issues. For example, if you plan to process hemp to be used in foods, you should still comply with food regulations. Similarly, you will need to make sure your processing facility is zoned in an area that allows such use. A hemp processor in Florida should also make sure they are compliant with Florida Statute Section 581.217, including the labeling requirements for any Hemp Extract Distributor or Retailer. Make sure you consult with an attorney to ensure you are complying with all federal, state, and local laws.
Conclusion
The consumer demand for CBD products is far beyond the current supply for CBD products, which is driving pricing super high. While the capacity of hemp grown in 2020 is going to increase tremendously, it is questionable whether there will be sufficient investment in processing capacity to keep up with the growers. A lack of processing capacity would cause farmers to be stuck with a glut of biomass; pricing for biomass to decrease; and potentially put farmers out of business. In order to avoid this in Florida, we need government intervention to ensure sufficient processing capacity. There are already cities and counties working with their economic development departments to incentivize hemp processing; but, ideally, Florida hemp processors can use some further economic incentives through the State of Florida. To learn more about some of these supply-chain issues, make sure you attend my presentation at the Florida Industrial Hemp Conference titled “Supply Chain Infrastructure: What Needs to Happen for Florida’s Hemp Industry to Flourish.” One thing is for sure: allowing (and even incentivizing) hemp processors to get started NOW will certainly help the Florida supply chain in the future.
The Americans with Disabilities Act (“ADA”) prohibits employers from discriminating against qualified individuals on the basis of disability, which is defined to include a broad array of impaired conditions. Under the ADA, the employer must provide reasonable accommodations to the disabled employee so that the employee can perform essential duties of the job. Similarly, the State of Florida prohibits disability discrimination pursuant to Section 760.10, Florida Statutes. Thus, employer disability discrimination in Florida is prohibited from a federal and state perspective.
For medical marijuana use, the Florida Constitution and Florida Statute carve out a limited exception to these employee protections. The Florida Constitution specifies that employers do not need to provide accommodations for “on-site” medical marijuana use. Art. X. § 29 Fla. Const. Similarly, the Florida statute specifies that employers are not required to provide accommodations for medical use of marijuana “in any workplace or any employee working while under the influence of marijuana.” Fla. Stat. § 381.986. Under this authority, employers throughout the state are discriminating against medical marijuana cardholders for testing positive for THC. But, in my legal opinion, testing positive for THC cannot be the sole basis for taking an adverse action against a medical marijuana cardholder in Florida.
While a Florida court has not had the opportunity to interpret the above medical marijuana exception in the Florida Constitution and Florida Statutes, several courts in other states have interpreted similar provisions in favor of the employee:
• In Barbuto v. Advantage Sales and Marketing, LLC, 477 Mass. 456 (2017), the Massachusetts court ruled in favor of the employee and held that because the state law specifically allowed employers to prohibit on-site marijuana use, it “implicitly recognizes” that allowing off-site medical marijuana use would be a permissible accommodation.
• In Callaghan v. Darlington Fabrics Corp., et al.,No. PC-2014-5680 (R.I. Super. Ct., May 23, 2017), the Rhode Island court ruled in favor of the employee and held that the employer was required to accommodate off-site use even though the state statute provided that an employer is not required to “accommodate the medical use of marijuana in any workplace.”
The basis for these decisions is simple: by explicitly permitting employers to prohibit on-site marijuana use, the legislature was impliedly prohibiting employers from prohibiting off-site marijuana use. Although these court cases are not binding on the Florida court, these cases should be persuasive authority to a Florida court. Indeed, the Florida courts have repeatedly adopted the rule of statutory construction that the expression of one thing is the exclusion of the other. See e.g., Headley v. City of Miami, 215 So.3d 1, 9 (Fla. 2017); Young v. Progressive Southeastern Ins. Co., 753 So. 2d 80, 85 (Fla. 2000).
If the Florida court accepts the interpretation that an employer cannot discriminate against off-site use of medical marijuana, then an employer would not be able take an adverse action against an employee for merely testing positive for THC. Instead, the employer would need additional evidence that the employee was actually impaired while on-site. Arizona, for example, explicitly accounts for this in its statute by providing that “a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.” See A.R.S. §36-2814(A)(3). While the Florida statute does not contain such language, it is likely that a Florida court can draw a similar conclusion based on the implied prohibition on employers prohibiting off-site use.
One additional wrinkle to this analysis results from the recent legalization of hemp federally and in Florida statutes. Hemp is defined as having no more than .3% THC. THC is no longer a Schedule I drug as long as it is derived from hemp. This begs the question: Will a Medical Review Officer be able to conclude whether a positive THC test is derived from the use of legal hemp or federally-illegal marijuana? If not, then even employee’s without medical marijuana cards may have some protections from positive THC tests. Time will tell how Florida courts will rule on this issue.
In my previous blog (Home-Rule Used To Disguise Marijuana Stigma), I discussed how local governments throughout Florida are banning medical marijuana dispensaries; and I outlined a step-by-step approach for overcoming the bans. The first step listed in the previous blog (Home-Rule Used To Disguise Marijuana Stigma) is to identify which local governments have bans. The link at the bottom of this blog post completes Step 1! The link contains a list of all local governments with bans. The local governments identified on the list are our targets. We will do our best to keep this list current; but we certainly welcome your feedback to keep it current. Step 2 is to engage the local governments. I am working with several organizations to start step 2, which will include attendance and representation at Boca Raton’s Town Hall on June 25, 2019. Please contact us if you would like to be a part of the movement!
Florida Medical Marijuana Dispensaries Ban List – Mr Cannabis Law.
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 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.
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.
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.
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:
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!
