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Judge declares parts of medical marijuana law unconstitutional

A Tallahassee judge eviscerated the state law on medical marijuana, declaring major provisions to be unconstitutional.

The ruling came in a challenge brought by Florigrown, which had been denied a chance to become a “medical marijuana treatment center” (MMTC), or provider. The company is partly owned by Tampa strip club mogul and free speech advocate Joe Redner.

In a written order, Circuit Judge Charles W. Dodson struck down several parts of the law that implements the constitutional amendment passed by voters in 2016 authorizing medicinal cannabis:

— The requirement that Florida have a vertically-integrated market, meaning the same provider grows, processes and sells its own marijuana.

Dodson said lawmakers improperly modified the amendment’s definition of an MMTC: “… an entity that acquires, cultivates, possesses, processes, transfers, transports, sells, distributes, dispenses, or administers marijuana …. (emphasis added)” The law instead uses “and” instead of “or,” Dodson wrote, which “contradicts” the amendment.

— Limits on the number of marijuana providers that can be licensed by the state.

“The amendment places no limits or caps on the number of MMTCs in Florida,” the judge wrote. “Such limits directly undermine the clear intent of the amendment.”

— Special categories of licenses, such as for owners of former citrus processing facilities.

For example, another provision in the law gives preference in granting medical marijuana provider licenses to companies with underused or shuttered citrus factories. Dodson said that violates another part of the state constitution barring a “grant of privilege to a private corporation.”

“This court understands the importance of both the Legislature and the Department (of Health) in developing a thorough, effective, and efficient framework within which to regulate medical marijuana, as directed by the amendment,” Dodson wrote.

“Florigrown has established that the Legislature and the department have such a framework … They have simply chosen to restrict access in a manner that violates the amendment.” The department regulates the drug through its Office of Medical Marijuana Use.

“Providing patient care to the citizens of Florida is exactly what Florigrown is trying to do with this suit,” company CEO Adam Elend said.

“We provided evidence that the current system threatens the availability and safe use of marijuana,” he said in a statement. “Under this broken system, there’s no way for the department to predict supply or calculate how many dispensaries are needed for the number of patients on the registry.” (Florigrown’s full statement is here.)

Dodson’s ruling, docketed last Thursday, was in the context of Florigrown’s request for a temporary injunction, which he denied. He instead set a case management hearing for Oct. 3.

“The court is concerned about findings of no irreparable harm and that granting a temporary injunction at this time is not in the public interest,” he wrote. “The passing of more time may alter those findings.” Dodson did find that Florigrown has a “substantial likelihood of success on the merits” of the case.

A request for comment is pending with Sen. Rob Bradley, a Fleming Island Republican and primary architect of the state law.

“The denial of the request for temporary injunction will allow the department to continue to work to implement the law so Floridians can have safe access to this medicine,” said Health spokesman Brad Dalton in an email.

The lawsuit began with an epic 238-page lawsuit — replete with references to Encyclopedia Britannica, ancient Roman medical texts and the Nixon White House tapes — that alleged the state was failing its responsibility to carry out the people’s will when it comes to medical marijuana.

Written By

Jim Rosica covers state government from Tallahassee for Florida Politics. He previously was the Tampa Tribune’s statehouse reporter. Before that, he covered three legislative sessions in Florida for The Associated Press. Jim graduated from law school in 2009 after spending nearly a decade covering courts for the Tallahassee Democrat, including reporting on the 2000 presidential recount. He can be reached at jim@floridapolitics.com.

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