Almost a year has passed as Floridians overwhelmingly voted for the constitutional amendment to regulate medical marijuana industry in the Sunshine State. What is happening to Florida Medical Marijuana Industry Today?
On October 24, 2017, Christian Bax, the head of the office of Medical Marijuana Use, was seriously grilled in the Florida Senate. Senators Young, Book, Powell and others put a lot of pressure on Mr. Bax. The main concern was the Department of Health (DOH) failure to implement the law that passed in the special session in June of 2017.
DOH was legally obliged to grant additional licenses by October 3, 2017. Mr. Bax, however, with the help of DOH attorney explained that a legal challenge over black farmer license, filed in September of 2017, stalled the process. The Plaintiff in the lawsuit asked the Court to issue a preliminary injunction on the medical marijuana laws implementation until after the constitutional challenge is dealt with. This injunction has a potential to trump the application and license issuance process.
The Senators did not buy this argument. Senator Young, for example, pointed out that the government entities and others are being sued every day. It does not take too much to file a lawsuit. Thus, just a mere fact of filing a lawsuit shall not postpone the process of licenses’ issuance.
Other Senators were also outraged.
Florida Medical Marijuana advocates and participants are split into two categories supporting one or the other of the two groups. The law, however, is on the DOH side, and no one but the lawmakers afforded that protection to DOH.
The bill SB 8A became law after the Governor signed it on June 23, 2017. In addition to the regulations part, the law provides for the defenses to DOH’s inaction. Page 75 of the law states that a lawsuit challenging the constitutionality of the Medical Marijuana law grants DOH a defense should a lawsuit be filed due to DOH’s failure to act.
The said lawsuit does challenge the constitutionality of some parts of the law. That means that DOH’s failure to issue new MMTC licenses is legally justified whether we want it or not. DOH does not have to act until and unless all legal challenges to the law are over with.
This language is nowhere to be found in Senator Bradley’s leading bill (S 406) on medical marijuana amendment implementation in Florida. However, the exact language is found in Representative Rodriguez bill (HB 1397) first registered on March 7, 2017. The new SB 8A was a hybrid of those two bills with some modifications (for example, “citrus language” was added which is a subject to a separate article).
It looks like the situation with lawsuits challenging the constitutionality of the law was anticipated from the very beginning. The lawmakers gave an absolute protection to DOH as to when to act on the law implementation should a lawsuit be filed.
Now, who is to benefit from DOH not issuing additional licenses? Florida government attempting to polish the rulemaking? DOH trying to promulgate the regulations? Medical marijuana patients having less access to the diversity of companies, products, and prices? Or maybe the current license owners operating on the new market with less competition?
Seven current license owners are going full force and six more awaiting the DOH approval to join the others. The longer DOH stalls the process of issuing new licenses, the better off are the current license owners. This is pure economics.
You may ask: how can we change this situation to afford more free competition? The only legal way to do that is to strike the above-mentioned language from the law through the legislative or judicial action. The Florida lawmakers have all power in their hands to address this issue.
Stanislav A Shamayev, Esq.