Since legalizing medical marijuana at the ballot box in 2016, Florida voters have watched an ongoing saga of political and legal battles over the implementation of their vote. The state legislature approved a bill in 2017 that enacted the successful ballot measure, but a river of lawsuits quickly followed—including litigation over the ban on smoking medical marijuana flower products and a series of questions over the cap on business licenses.
The latter came to a head again, starting 2019 with a bang in the Second Circuit Court in Tallahassee. Judge Karen Gievers ruled that the limit on the number of dispensary retail locations allowed per medical marijuana business licenses is unconstitutional. Her order went further, in fact, striking down the entirety of the 48-page law.
“Voters made clear in 2016 that the legislature was to have no role in implementing access to and availability of medical marijuana,” Gievers wrote.
The ruling comes via Trulieve v. Florida Department of Health. Trulieve is one of the state’s largest medical marijuana companies, with 23 dispensaries currently open for business. In the initial civil complaint, filed in the summer of 2017, Trulieve attorneys called the cap on dispensary locations “arbitrary.”
Under Florida law, a licensed medical marijuana business, known as a Medical Marijuana Treatment Center (MMTC), is limited to 25 retail locations. As the state’s medical marijuana patient registry expands, that retail cap is increased by five for every 100,000 new patients.
As of January 2019, the real-time cap on dispensaries is 30 per licensed MMTC.
Each MMTC must divide its retail shops across five regions, defined in the state medical marijuana law.
The amendment approved by voters, however, said nothing about any of that. Matt Ginder, senior counsel at the Cannabis Law practice at Greenspoon Marder, says that this inherent tension is the source of not only the Trulieve lawsuit, but other ongoing legal battles.
“There’s nothing in the Florida constitution that creates such a limit. … The courts have interpreted the purpose of the amendment—which is to ensure the availability and safe access of medical marijuana—as the guidepost for not limiting the amount of licenses. The limit does not serve the purpose of ensuring availability and safe access.”
That’s the crux of Gievers’ ruling, in which she writes that state law actually subverts the will of the people. “The medical marijuana statutory system was broken, and, in the Constitution, the voters had spoken,” she writes. “The Legislature had no authority to act as it did.”
Whether her order remains in place—whether it’s appealed by the state—remains to be seen. Incoming Gov. Ron DeSantis has only hinted at his opinion on medical marijuana litigation, saying that he’s “not committed” to dragging these fights out any longer. His predecessor, Gov. Rick Scott, adamantly defended the state law and filed appeals across numerous civil cases in the past two years.
“If [DeSantis] doesn’t do anything, I think it becomes a little unclear as to, without further guidance from the Department of Health or the legislature, what this means,” Ginder says “It certainly would mean that Trulieve and current MMTCs would have the opportunity to open or establish an unlimited amount of dispensing facilities, but the order really speaks to the constitutionality of the whole statute. So, what does that mean for the overall program? Where does it go from here? There seems to be some uncertainty surrounding that.”
For now, Trulieve executives are taking the win.
“This win is a victory for patients across Florida,” said Kim Rivers, CEO of Trulieve, in a statement. “Our lawsuit was first and foremost about patient access; the caps required us to use an extremely expensive distribution model that was based on geographic distribution instead of relying on where patients live, which not only restricts access to patients in need, but drives up prices. … Having the ability to open stores in locations where patients live will allow us to fulfill our goal of reaching every patient as efficiently, safely and consistently as possible.”
The other major case to watch in Florida is Florigrown v. Florida Department of Health, which takes aim at the overarching cap on the number of MMTC licenses issued in the state (not just the number of dispensaries allowed per each MMTC), which is currently set at 14.
In August and October 2018, Leon County Circuit Judge Charles Dodson twice sided with Florigrown, citing the same tension that Gievers discussed in her order. Scott appealed that decision (the First District Court of Appeals is now reviewing), and now the state’s medical marijuana businesses and patients are waiting to see how the new administration addresses the matter.