This article is not intended to provide legal advice nor is it intended to be relied upon by you should you consider to involve yourself in a business related to cannabis and/or marijuana. If you are looking for actual legal counsel in the area, then you would first need to contact us for engagement terms.
On Novermber 8, 2016, the State of Florida’s constitution was amended to include Article 10 § 29 titled, “Medical Marijuana Production, Possession, and Use.” It exempts the medical use of marijuana by a qualifying patient or caregiver from any criminal or civil liability or sanctions under Florida law. Additionally, it exempts physicians from such penalties if they issue a physician certification with reasonable care to a person who has been diagnosed with a debilitating medical condition, as well as Medical Marijuana Treatment Centers if they are registered with the Department of Health and in compliance with applicable regulations.
The constitution defines what it means to have a debilitating medical condition as having:
- Crohn’s disease;
- Parkinson’s disease;
- Multiple Sclerosis; or
- “Other debilitating medical conditions of the same kind or class as or comparable to” those named above “and for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.”
The final bullet point is very broad and vague so as to provide a bit of grey area with regard to the provision of medical marijuana to patients. It truly opens the door to use beyond those specific diseases listed in the bullet points prior and provides quite a bit of subjective analysis and decision making on physicians.
Furthermore, physicians are able to provide certification to a minor as long as a parent or legal guardian consents in writing.
Switching gears a bit, the aforesaid Medical Marijuana Treatment Centers (also referred to by the acronym “MMTC”) are entities that either acquire, cultivate, possess, process (including food, aerosol, oil and ointment products), transfer, transport, sell, distribute, dispense or administer marijuana products that contain mariuana, related supplies or even educational materials to patients or their caregivers (who must be at least 21-years-old).
Florida Statute 381.986, the “Medical Marijuana Law” (originally enacted in 2014), also addresses the medical marijuana industry and indicates, in part, that any company seeking to be an MMTC must apply for licensure on a form prescribed by the Department of Health and adopted in rule. It essentially created a competition for licensure with a limit on number of licenses to be provided as well as a steep application fee.
Only seven businesses were licensed to cultivate and sell low-THC marijuana prior to the Medical Marijuana Production, Possession, and Use amendment to the Florida constitution. Ten more licenses were to be granted since the Medical Use of Marijuana Act (Senate Bill 8-A) was passed in June 2017. Thereafter, four more licenses are to be issued for every 100,000 active, registered qualified patients in Florida’s medical marijuana registry. Thus, it is still a competition to obtain a license, and it is expensive (as highlighted below).
Any applicant must demonstrate that it has at least been in business in Florida for five consecutive years prior to applying, possesses a valid certificate of registration from the Department of Agriculture and Consumer Services, has the technical and technological ability to cultivate and produce marijuana, including low-THC cannabis and has the financial ability to maintain operations for the duration of a two-year approval cycle as well as the ability to post a $5 million performance bond.
Importantly, Florida’s amendment to its constitution only provides limited exceptions for medical use. Failure to go through the process of receiving the necessary physician certification can absolutely put someone at risk of violating relevant state laws. Further, the MMTCs must be very cautious to follow all relevant regulations in order to steer clear of any potential civil and/or criminal penalties.
The Application for Medical Marijuana Treatment Center Registration must be hand delivered to the Department of health in Tallahassee, Florida during normal business hours. It also must be accompanied by a non-refundable $60,830.00 application fee.
Additionally, the Florida constitutional amendment is clear that it does not purport to give immunity under federal law. That presents an interesting legal issue, since marijuana remains illegal under federal law (specifically, the Controlled Substances Act). There could be a strong argument that Florida’s medical marijuana law is not preempted by federal law, especially after the U.S. Supreme Court came out with its decision in Murphy v. National Collegiate Athletic Association, which should mean that the federal government cannot restrict states from implementing their own marijuana reform laws.
Overall, the industry is poised to grow in Florida and beyond, which is causing many individuals and corporations to consider involvement in the space. Retail sales in the U.S. from twenty jurisdictions were $6.5 billion in 2016 and are expected to rise to $30 billion by 2021. If you want to be involved in the space, you absolutely need to have an appreciation for the new laws that govern the industry.